AMENDED AND RESTATED STOCK ISSUANCE AGREEMENT
This Amended and Restated Stock Issuance Agreement is amended and
restated as of the 14th day of February, 2001, by and between Xxxxx Interactive
Corporation, a Delaware corporation ("LIC") and Sunshine PCS Corporation, a
Delaware corporation ("Sunshine").
WHEREAS LIC and Sunshine are parties to that certain Stock Purchase
Agreement, dated as of February 1, 2001, pursuant to which Sunshine agreed to
issue stock (as described therein) upon the conversion of an outstanding
promissory note (the "Note") previously issued by LIC to Cascade Investment LLC
("Cascade"); and
WHEREAS LIC and Sunshine desire to amend such agreement and to
restate the agreement as so amended (as so amended and restated, this
"Agreement").
NOW, THEREFORE, in consideration of the mutual promises contained
herein, the parties agree as follows:
On or about February 23, 2001 Sunshine shall issue:
(a) to LIC, as escrowee, 235,294 shares of Sunshine Class A common
stock, $.0001 par value ("Class A Common Stock"), issuable to
Cascade upon conversion of the Note, the number of such shares
to be delivered to Cascade to be equal to the number of shares
of common stock of LIC ("LIC Common Stock") issuable to Cascade
upon such conversion; and
(b) to Fortunet Wireless Communications Corporation, the holder of
all of Sunshine's outstanding Class B common stock, $.0001 par
value ("Class B Common Stock"), 236,237 additional shares of
Class B Common Stock.
Should Cascade fail to convert any or all of the Note into LIC
Common Stock prior to December 10, 2004, in consideration for a capital
contribution by LIC to Sunshine of approximately $63.0 million of indebtedness
of Sunshine's predecessor owed to LIC by Sunshine, ownership of any shares of
Class A Common Stock then held by LIC, as escrowee, shall vest in LIC.
This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter contained herein and supersede all
prior oral or written agreements, if any, between the parties hereto with
respect to such subject matter and, except as otherwise expressly provided
herein, are not intended to confer upon any other person any rights or remedies
hereunder. Any amendments hereto or modifications hereof must be made in writing
and executed by each of the parties hereto. Any failure by LIC or Sunshine to
enforce any rights hereunder shall not be deemed a waiver of such rights.
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Unless otherwise provided, any notice required or permitted under
this Agreement shall be given in writing and shall be deemed effectively given
(i) upon personal delivery to the party to be notified, (ii) four (4) days after
deposit with the United States Post Office, by registered or certified mail,
postage prepaid, or (iii) one day after deposit with a reputable overnight
courier service and addressed to the party to be notified at the address
indicated for such party on the signature pages hereof, or at such other address
as such party may designate by ten (10) days' advance written notice to the
other parties.
This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York without giving effect to conflict of
laws principles.
This Agreement and the various rights and obligations arising
hereunder shall inure to the benefit of and be binding upon LIC and Sunshine and
each of their respective successors and assigns. Neither this Agreement nor any
of the rights, interests or obligations hereunder shall be transferred or
assigned (by operation of law or otherwise) by any of the parties hereto without
the prior written consent of the other parties hereto. Any transfer or
assignment of any of the rights, interests or obligations hereunder in violation
of the terms hereof shall be void and of no force or effect.
All costs and expenses incurred in connection with this Agreement
and the transactions contemplated hereby shall be paid by LIC.
The headings or captions contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Whenever the pronouns "it" or "its" are used herein, they shall also
be deemed to mean "he" or "his" or "she" or "hers" whenever applicable. Words in
the singular shall be read and construed as though in the plural and words in
the plural shall be read and construed as though in the singular in all cases
where they would so apply.
If any term or other provision of this Agreement is invalid, illegal
or incapable of being enforced by virtue of any rule of law, or public policy,
all other conditions and provisions of this Agreement shall nevertheless remain
in full force and effect so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner adverse to any
party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the maximum extent possible.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed on their behalf on the date first above written.
XXXXX INTERACTIVE CORPORATION
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
SUNSHINE PCS CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Chief Executive Officer
