EXHIBIT 2.1
SHARE EXCHANGE & ACQUISITION AGREEMENT
THIS AGREEMENT, made and entered into this 4th day of October, 2002, by and
between XXXXX-XX INDUSTRIES, INC. (hereinafter referred to as "KVI"), a Delaware
corporation, (hereinafter referred to as the "Purchaser") and CALYPSO WIRELESS,
INC., a privately held Florida corporation and its wholly-owned subsidiary,
INDUSTRIA DE TELECOMUNICACIONES AMERICANAS ATEL, S.A. (AMERICAN TELECOM
INDUSTRIES ATEL, S.A.) A REPUBLIC OF COSTA RICA corporation (hereinafter
referred to as "Company") and the individuals listed on Exhibit "A", attached
hereto and specifically incorporated herein by this reference (the "Company
Shareholders").
WITNESSETH
WHEREAS, KVI, desires to acquire all of the issued and outstanding capital
stock of the Company, and
WHEREAS, the Company Shareholders are the holders of all of the Company's
capital stock outstanding and they desire to transfer the same to KVI in
exchange for such consideration as it set forth herein, and
WHEREAS, it is the intention of the parties to this Agreement that the
transactions evidenced hereby qualify as a reorganization pursuant to such
sections of the Internal Revenue Code of 1954, as amended (the "Code"), as are
applicable, including, without limitation, Section 368(a)(1)(b) thereof, and
that there not be a taxable gain or loss recognized by KVI, Company or the
Company Shareholders upon consummation of the transactions evidenced hereby, and
WHEREAS, the transactions evidenced hereby are to be submitted for approval
at a special meeting of the Board of Directors of KVI and Company and by the
Company Shareholders by unanimous consent, dated on even date herewith;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants, terms and conditions set forth herein, and such other and further
consideration, the receipt and sufficiency of which is hereby acknowledged, this
Agreement is adopted as a reorganization pursuant to the Code and THE PARTIES
AGREE AS FOLLOWS:
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF KVI
KVI represents and warrants to Company and the Company Shareholders as follows:
1.1 KVI Profile. KVI is currently conducting, and has not engaged in
business operations which generated revenues and have not conducted
business operations other than those described herein. Other than the
costs associated with the transaction proposed herein, KVI has no
liabilities of any nature, whether accrued, absolute, contingent,
known or otherwise, except as described in its financial statements.
KVI has no assets except as disclosed on its audited financial
statements.
1.2 Financial Statements. KVI has delivered a copy of its audited
financial statements dated, and for the period ended December 31,
2001, together with all notes thereto. The financial statement was
prepared in reasonable detail in accordance with generally accepted
accounting principles applied on a consistent basis, which financial
statements contain a Balance Sheet, a Statement of Operations, a
Statement of Stockholder's Equity, and a Statement of Cash Flows for
the year ended December 31, 2001.
1.3 Employment Agreements; Benefit Plans. There is not currently any
employment or severance agreement to which KVI was or is subject, or
by which it was or is bound. Further, no such agreement will arise in
the future as a result of acts which have occurred previous to or
concurrent with, the date hereof. Further, KVI is not subject to, nor
has it established, a benefit plan, whether pursuant to the Code or
otherwise, other than disclosed in KVI's Prospectus. No shares of
common stock, options to acquire common stock or other benefits have
been issued under, or pursuant to, any such plan or arrangement.
1.4 Permits and Licenses. The business of KVI has complied and currently
complies in all material respects with all applicable laws and
regulations. Further, the business of KVI does not currently require,
and has not in the past required, application to procure any license,
permit, franchise, order or approval.
1.5 Litigation. There is no litigation or proceeding pending or threatened
against or relating to KVI or its business.
1.6 Contracts, Agreements and Leases. Other than its agreement with its
legal counsel, auditor, and transfer agent, KVI is not a party to any
contracts, agreements, permits, licenses, plans, leases or similar
arrangements. The obligations of KVI owed to its legal counsel and
transfer agent will be paid in full through closing by KVI, without
exception.
1.7 Principal Shareholders. KVI's majority shareholder, Xxxxxxx Xxxxxx,
owns 58.53% of its currently issued and outstanding shares. 10,000,000
shares of common stock will be issued to various investors and
professionals for services provided as a part of this agreement. The
shareholder list delivered to Company is accurate and complete as of
the Closing Date herein.
1.8 Authorization. KVI has duly taken all corporate action necessary to
authorize the execution and delivery of this Agreement, the
consummation of the transactions evidenced hereby and the performance
of its obligations hereunder.
1.9 Enforceable Obligations. This Agreement is a legal and binding
obligation of KVI, enforceable in accordance with the terms hereof,
except as limited by bankruptcy, insolvency or other laws of general
application relating to the enforcement of creditors' rights and
general equitable principles.
1.10 No Conflicts or Consents. The execution and delivery by KVI of this
Agreement and the performance of its obligations have not conflicted
and will not conflict with any provision of law, statute, rule or
regulation or any judgment applicable to or binding upon KVI, nor will
it result in the creation of any lien, charge or encumbrance. No
consent, approval, authorization or order of any court or governmental
authority or third party has been or is required in connection with
execution and delivery by KVI of this Agreement or the consummation of
the transactions evidenced hereby. Neither the execution nor the
consummation of this Agreement in accordance with the terms and
conditions set forth herein has conflicted or will conflict with or
constitute a default under or a breach or violation or grounds for
termination of or an event which with the lapse of time or notice and
the lapse of time could or would constitute a default under the
Articles of Incorporation or bylaws of KVI.
1.11 Organization and Good Standing. KVI is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware and has all corporate powers required to carry on its
business and enter into and carry out the transactions evidenced
herein. KVI is qualified to do business and is in good standing as a
foreign corporation in all jurisdictions wherein the character of the
properties owned or held by it or the nature of the business
transacted makes such qualification necessary. As of the closing date
hereof, KVI will not have any subsidiaries or interests in any
corporation, partnership, limited partnership or other business
entity.
1.12 Capitalization. As of the date hereof, Prior to execution of this
Agreement, the authorized capital stock of KVI consists of 200,000,000
shares of common stock, $.10 par value, of which 136,251 of such
shares are issued and outstanding, and 1,000,000 shares of preferred
stock, $10 par value, for which 45,000 shares are issued or otherwise
outstanding. Further, KVI has no other outstanding rights, options,
warrants, contracts, commitments or demands of any character which
would require the issuance (or transfer out of treasury), by KVI of
any shares of its capital stock. All outstanding securities were
issued in accordance with applicable federal and state securities laws
or exemptions there from.
1.13 Tax Filings. All tax reports of KVI has been filed as due and no
filings are delinquent. Further, no state of facts exists or has
existed which would constitute grounds for the assessment of any tax
liability.
1.14 Compliance With Law. KVI is in compliance will all laws, regulations
and orders applicable to its business, including but not limited to,
all applicable laws, rules and regulations of the U.S. Securities and
Exchange Commission and all applicable state departments.
1.15 Disclosure. No representations or warranties by KVI in this Agreement
and no statement contained in any document (including, without
limitation, financial statements), certificate or other writing
furnished or to be furnished by KVI to Company or the Company
Shareholder pursuant to the provisions hereof or in connection with
the transactions contemplated hereby, contained or will contain any
untrue statement of material facts or omits or will omit to state any
material fact necessary in order to make the statements herein or
therein, in light of the circumstances under which they were made, not
misleading. There are no facts known to KVI which, either individually
or in the aggregate, could or would materially and adversely affect or
involve any substantial possibility of having a material and adverse
effect on the condition (financial or otherwise), result of
operations, assets, liabilities or business or KVI.
1.16 Execution. The execution and delivery by KVI of this Agreement and the
performance of its obligations have not conflicted and will not
conflict with any provisions of law, statute, rule or regulation or
any judgment applicable to or binding upon KVI, nor will it result in
the creation of any lien, charge or encumbrance. No consent, approval,
authorization or order of any court or governmental authority or third
party has been or is required in connection with transactions
evidenced hereby. Neither the execution nor the consummation of this
Agreement in accordance with the terms and conditions set forth
herein, has conflicted or will conflict with or constitute a default
under or a breach or violation or grounds for termination of or an
event which with the lapse of time or notice and the lapse of time
could or would constitute a default under the Articles of
Incorporation, as amended, or bylaws of KVI.
ARTICLE II
REPRESENTATION AND WARRANTIES
OF COMPANY AND THE COMPANY SHAREHOLDERS
Company and the Company Shareholders represent and warrant to KVI as follows:
2.1 Organization and Good Standing. Company and its wholly owned
subsidiaries (herein referred to collectively as "Company") are
corporations duly organized, validly existing and in good standing
under the laws of the State of Florida and have all corporate powers
required to carry on its business. Company is qualified to do business
and is in good standing as a foreign corporation in all jurisdictions
wherein the character of its properties or the nature of its business
makes such qualifications necessary.
2.2 Authorization. The Company Shareholders have duly taken all action
necessary to authorize the execution and delivery of this Agreement
and to authorize the consummation of the transactions evidenced hereby
and the performance of their obligations and the obligations of
Company hereunder.
2.3 No Conflicts or Consents. The execution and delivery by the Company
Shareholders of this Agreement and their performance of those
obligations set forth herein have not conflicted and will not conflict
with any provision of law, stature, rule or regulation or of any
agreement or judgment applicable to or binding upon them or Company,
or result in the creation of any lien, charge or encumbrance upon any
of their assets or properties, or upon those of Company. No consent,
approval, authorization or order of any court or governmental
authority or third party is required in connection with the execution
and delivery by Company, or by the Company Shareholders, of this
Agreement or the consummation of the transaction evidenced hereby.
Neither the execution of this Agreement nor its consummation in
accordance with its terms has conflicted or will conflict with or
constitute a default under or breach or violation or grounds for
termination of or an event which with the lapse of time or notice and
the lapse of time would or could constitute a default under any note,
indenture, mortgage, deed of trust or other agreement or instrument to
which Company or the Company Shareholders are a party or by which
either or all of them are bound.
2.4 Enforceable Obligations. This Agreement is a legal and binding
obligation of Company and the Company Shareholders, enforceable in
accordance with its terms, except as limited by bankruptcy, insolvency
or other laws of general application relating to the enforcement of
creditor's rights and general equitable principles.
2.5 Capitalization. The authorized capital stock of Company consists of
(870,000,000) shares of common stock at $0.0001 par value per share,
of which (308,347,681) are issued in outstanding and fully paid for
and nonassessable and (5,800,000) preferred shares of which no shares
are issued and outstanding. Company has no outstanding rights,
options, warrants, contracts, commitments or demands of any character
which would require the issuance (or transfer out of treasury), by
Company of any shares of its capital stock. All outstanding securities
were issued in accordance with applicable federal and state securities
laws or exemptions there from.
2.6 Financial Statements. Company has provided KVI with audited
consolidated financial statements for the period ended December 31,
2001 and for the period ended July 31, 2002, together with all notes
thereto, prepared in reasonable detail in accordance with generally
accepted accounting principles applied on a consistent basis, to KVI
within 60 days of Closing Date.
2.7 Other Information and Inspections. Company has made available for
inspection and copying all books and records of Company and has fully
and completely furnished to KVI such information as has been
requested.
2.8 Disclosure. No representations or warranties by Company or the Company
Shareholders in this Agreement and not statement contained in any
document, certified or other writing furnished or to be furnished by
Company or the Company Shareholders to KVI pursuant to the provisions
hereof, or in connection with the transaction contemplated hereby,
contained or will contain any untrue statements of material facts or
omits or will omit to state any material fact necessary in order to
make the statements herein or therein, in light of the circumstances
under which they were made, not misleading.
ARTICLE III
CLOSING AND EXCHANGE OR SHARES
3.1 Terms of the Exchange. On the Closing Date, or such date as
stated below:
(a) On or before ten (10) days after the Closing Date, KVI shall
cause to be issued to the Company Shareholders, in an
acceptable form, share certificates equal to 90,000,000
shares of Xxxxx-Xx Industries, Inc. (KVI), of its $.10 par
value (the "Exchange Shares"), free and clear of all
mortgages, pledges, claims, liens and other rights and
encumbrances whatsoever, except as disclosed in 3.1(b),
below.
(b) The Exchange Shares shall not be subject to any preemptive
rights, options or similar rights on the part of any
shareholder or creditor of KVI, or any other person
whatever.
(c) The Company Shareholders shall in consideration for their
receipt of the Exchange Shares, transfer and deliver to KVI
certificates representing all of the issued and outstanding
Company Shares owned by them. KVI shall receive good and
merchantable title to the Company Shares, which shall be
transferred to KVI free and clear of all liens, mortgages,
pledges, claims or other rights or encumbrances whatever.
3.2 Restricting of Transfer. The Exchange Shares, when issued and
delivered hereunder, will not be registered under the Securities Act
of 1933, as amended, nor will the Company Shareholders be granted and
registration rights under such Act as to such shares. The Company
Shareholders shall execute and deliver to KVI an investment letter
satisfactory in form and substance to KVI's counsel which states,
among other things, that the Exchange Shares have been acquired for
investment and with no present intent to make any resale, assignment,
transfer or hypothecation of all or any part thereof and that the
certificates representing the Exchange Shares will bear a restrictive
legend which states in effect that such shares have not been
registered under the Securities Act of 1933, as amended, and
consequently may not be resold, assigned, transferred or hypothecated
unless registered under such Act or, in the opinion of KVI's counsel,
an exemption from the registration requirements of such Act is
available for any such transaction.
3.3 Change in Capitalization of KVI. If, between the date of the most
recent financial statements of KVI delivered to Company and the
Company Shareholders and the Closing Date, the outstanding shares of
the capital stock of KVI are found to have been increased, decreased,
changed into or exchange for a different number or kind of said shares
or securities of KVI through reorganization, reclassification, stock
dividend stock split, reverse stock split or similar change in the
capitalization of KVI and such has not been disclosed to the Company
Shareholders hereunder, KVI as the election of the Company
Shareholders, shall issue and deliver to the Company Shareholders such
number of KVI shares as will reflect an equitable adjustment of KVI
shares specified in Paragraph 1 of this Article III on account of any
such increase, decrease, change or exchange. In the event of any such
change in the capitalization of KVI, all references to the shares
herein shall refer to the number of KVI shares as thus adjusted.
3.4 Closing Date/Effective Date. The Closing Date of the transactions
contemplated hereby shall be October 4, 2002, or such later date as
the parties may so choose thereafter. All representations of the
parties shall survive the closing and the representations and
warranties shall be made as in effect on the Closing Date.
The Effective date shall be the date in which all of the certificates
necessary to effectuate this transaction have been duly issued by the
respective party and all other matters relevant to the closing of the
transaction contemplated herein have been accomplished.
3.5 Closing Documents.
A. To Be Delivered by KVI:
(1) Certificates representing 90,000,000 shares of
"restricted" common stock will be issued to the Company
Shareholders, subject to 3.1 (b);
(2) Certified copy of minutes of shareholders and
directors, authorizing this transaction;
(3) Certificate of Good Standing from the state of
Delaware.
B. To Be Delivered by Company or Company Shareholders:
(1) Certificates representing all shares of Company,
together with an assignment of said shares, separate
from said Certificates;
(2) Certified copy of minutes of shareholders and directors
of Company, authorizing this transaction;
(3) Certificate of Good Standing from the state of Florida;
(4) Articles of Incorporation of Company;
(5) By-laws of Company.
ARTICLE IV
COVENANTS OF COMPANY AND THE COMPANY SHAREHOLDERS
Company and insofar as they have the power to direct Company by ownership
of voting securities or otherwise, the Company Shareholders (Company and the
Company Shareholders being collectively referred to below as the "Company
Parties"), covenant and agree that, prior to the Effective date
4.1 Effectuation of this Agreement. The Company Parties will use their
best efforts to cause this Agreement to become effective, and all
transaction herein contemplated to be consummated, in accordance with
their terms, to obtain all required consents and authorization of the
Company Parties, to make all filings and give all notices to those
regulatory authorities or other third parties which may be necessary
or reasonably required in order to effect the transactions
contemplated in this Agreement, and to comply with all federal and
state securities laws and other laws as may be applicable to the
contemplated transactions.
4.2 Transactions. The Company Parties will carry on Company's business
diligently and substantially in the same manner as heretofore
conducted and will not enter into any transactions which are not in
the ordinary course of Company's business, or which would singly or in
the aggregate be materially adverse to Company's business, prospects
or financial condition, taken as a whole, or which had not been
previously disclosed to KVI.
4.3 Conduct of Business.
(a) The Company Parties will not (i) permit or do or cause to be done
anything which Company has represented in Article II not to have
been done, except as otherwise permitted in this Agreement or
consented to by KVI in advance and in writing; (ii) make or
permit any amendment to Company's Articles of Incorporation or
bylaws; (iii) cause or permit to be declared or paid any
dividend, stock split, combination (reverse split) or other
recapitalization or distribution in respect of Company's common
stock, nor cause or permit the issuance of any additional shares
of Company's common stock; (iv) permit the increase of
compensation of any type to any director or officer or other
employee of Company; (v) to the best ability of the Company
Parties, permit or do any act or omission to act the effect of
which would be to breach or violate any contract or commitment to
which Company is a party; (vi) to the best ability of the Company
Parties, permit or cause the waiver of the provisions of any
statute of limitations applicable to the levy or assessment of
any federal, state, municipal or foreign taxes payable by
Company; or (vii) organize any subsidiary of Company, or acquire
or permit the acquisition of any equity interest in any other
business or entity, with the exception of those proposed
transactions presently in negotiations and disclosed herein in
Exhibit "C" (Company Business Plan).
(b) To the best of their ability, the Company Parties will: (I)
maintain Company's books, accounts, and records that are now
being maintained, on a consistent basis; (ii) maintain Company's
properties in good repair; (iii) comply with and not violate any
law, rule, regulation, or ordinance whatever applicable to
Company or its business or any license or permit issued by the
State of Florida, including timely filing of corporate reports
and current payment of all taxes now and hereafter due and owing.
4.4 Issuance of Additional Securities. Company shall not issue or permit
the issuance of any common stock of Company or of any warrant, option
or other right to subscribe for or acquire common stock or any other
securities whatever of Company, nor shall any stock option or stock
purchase plan, incentive stock option plan or similar plan be adopted
whereby persons could acquire securities of Company, or any option or
similar right to acquire such securities.
4.5 Access. The Company Parties agree that they will allow KVI directors,
officers, accountants, attorneys and other representatives full
access, during normal business hours throughout the term or
applicability of this Agreement, to all information whatever
concerning Company's respective affairs, operations and properties as
KVI may reasonably request. All information provided shall be
furnished strictly subject to the confidentiality provisions of this
Agreement. The Company Parties may refuse to allow copies or abstracts
to be made of any formula design plans for machinery or equipment, or
any plans or details as to manufacturing or chemical processes, and
the like; provided that representatives of KVI shall be allowed access
to such things for inspections, in order to satisfy themselves that
such things exist and are substantially as represented to KVI.
4.6 Stand-Still Agreement. Other than those potential acquisitions which
have previously been disclosed to KVI, the Company Parties agree not
to solicit from any third party an offer or expression of interest in
or with respect to any acquisition, combination or similar transaction
involving Company, or substantially all of its assets or securities
(whether outstanding or authorized but unissued) and further agree
that they will promptly inform KVI of the existence of any such
unsolicited offer or expression of interest.
4.7 Release and Indemnification of Officers, Directors and Shareholders of
KVI. The Company and the Company Parties hereby release and waive all
claims against the current officers, directors and shareholders of KVI
and hereby agree to indemnify such officers, directors and
shareholders (including attorney's fees and costs) from any and all
claims, litigation, adversary proceedings or any other matter
whatsoever.
ARTICLE V
COVENANTS OF KVI
KVI covenants and agrees that, prior to the Effective Date:
5.1 Effectuation of this Agreement. KVI will use its best efforts to cause
this Agreement to become effective, and all transactions herein
contemplated to be consummated, in accordance with their terms, to
obtain all required consents and authorization of third parties, to
make all filings and give all notices to those regulatory authorities
or other third parties which may be necessary or reasonably required
in order to effect the transactions contemplated in this Agreement and
to comply with all federal and state securities laws and other laws as
may be applicable to the contemplated transactions.
5.2 Conduct.
(a) KVI will not (i) permit or do or cause to be done anything which
KVI has represented in Article I not to have been done, except as
otherwise permitted in this Agreement, or consented to by Company
in advance and in writing; (ii) make or permit any amendment to
KVI Articles of Incorporation or bylaws, other than those matters
included in Exhibit "B" hereto; (iii) cause or permit to be
declared or paid any dividend, stock split, combination (reverse
split) or other recapitalization or distribution in respect of
KVI's capital stock, other than as disclosed in the aforesaid
Proxy documents; (iv) to KVI's best ability, permit or cause the
waiver of the provisions of any statute of limitations applicable
to the levy or assessment of any federal, state, municipal or
foreign taxes payable by KVI.
(b) To the best of its ability KVI will: (I) maintain its books,
accounts and records as now being maintained, on a consistent
basis; (ii) comply with and not violate any law, rule, necessary
to preserve the charter issued by the State of Delaware,
including timely filing of corporate reports and current payment
of all taxes now and hereafter due and owing.
5.3 Access. KVI agrees that it will allow Company's directors, officers,
accountants, attorneys and other representative full access, during
normal business hours throughout the term or applicability of this
Agreement, to all information whatever concerning its affairs as the
Company Parties may reasonably request. All information provided shall
be furnished strictly subject to the confidentiality provisions of
Agreement.
ARTICLE VI
GENERAL PROVISIONS
6.1 Further Assurances. At any time, and from time to time after the date
of this Agreement, each and every party hereto shall execute such
additional instruments and take such other and further action as may
be reasonably requested by any other party to carry out the intent and
purpose of this Agreement.
6.2 Waiver. Any failure on the part of any party hereunder to comply with
any of their obligations, agreements or conditions may be waived in
writing by the party to whom such compliance is owed; however, waiver
on one occasion does not operate to effectuate a waiver on any other
occasion.
6.3 Headings; Counterparts. The descriptive headings in this Agreement are
inserted for convenience only and do not constitute a part of this
Agreement. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original.
6.4 Survival of Representations, Warranties and Covenants. All of the
representations, warranties, covenants and agreements of the parties
contained herein shall survive the date and execution of this
Agreement.
6.5 Legal Counsel. The parties hereby acknowledge that they have had an
opportunity to obtain legal counsel in respect of all matters leading
to, and including the transaction evidenced hereby.
6.6 Simultaneous Closing. KVI, the Company and the Shareholders
specifically acknowledge and represent that the closing was, in effect
simultaneously completed with KVI, the Company and all Shareholders at
the Time of Closing of this Agreement.
6.7 Amendment and Modification; Binding Effect. The parties hereto may
amend, modify and supplement this Agreement only in writing, dated and
signed by all parties. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors,
assigns, heirs and legal representatives.
6.8 Entire Agreement. This instrument and the exhibits attached hereto
contain the entire agreement of the parties hereto with respect to the
exchange of the Company's Stock for KVI Stock, and supersedes all
prior understandings and agreements of the parties with respect to the
subject matter hereof. Any reference herein to this Agreement shall be
deemed to include the exhibits attached hereto.
6.9 Notices. Any notice, request, information or other document to be
given hereunder to any of the parties by any other party shall be in
writing and shall be given by hand delivery, certified or registered
U.S. mail or a private courier service which provides evidence of
receipt as part of its service, as follows:
(a) If to a Shareholder, individually to such Shareholder, addressed
respectively as follows:
Calypso Wireless, Inc.
0000 XX 000 Xxxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
(b) If to KVI, addressed to:
Xxxxx-Xx Industries, Inc.
000 Xxxxxx Xxxx
Xxxxx, Xxxxx 00000
Any party may change the address to which notices hereunder are to be sent
by giving written notice to all other parties of such change as herein provided.
Any notice given hereunder shall be deemed given on the date of hand delivery,
deposit with the U. S. Postal Service or delivery to a courier service, as
appropriate.
6.10 Severability. If any provision of this Agreement is determined to be
illegal or unenforceable, such provision will be deemed amended to the
extent necessary to conform to applicable law or, if it cannot be so
amended without materially altering the intention of the parties, it
will be deemed stricken and the remainder of the Agreement will remain
in full force and effect.
6.11 Use of Certain Terms. The term "Shareholder" shall also include all
predecessors of a Shareholder and businesses acquired by or merged
with those of any Shareholder.
6.12 Governing Law. This Agreement shall be governed by and construed in
accordance with laws of the State of Texas applicable to contracts
made and to be performed therein. Jurisdiction and venue over any
disputes arising under this Agreement shall be in Orange County or the
Eastern District of Texas.
6.13 Agreement for Alternative Dispute Resolution Options. The parties
understand, stipulate and agree that should any misunderstanding,
dispute, discrepancy, disagreement or controversy arise between the
parties involving the construction, application, facilitation or
consummation of any of the terms, covenants, conditions or
arrangements of this Agreement, they shall first undertake, endeavor
and participate, in good faith, to resolve such disputes by
non-judicial settlement through alternative dispute resolution
methods, including mediation, and if not successful then arbitration,
by and through mutually agreed selection of a mediation or arbitration
entity. Such alternative dispute resolution methods, either through
mediation or arbitration, shall first be attempted in good faith and
if unsuccessful then only after a formal mutual determination in
writing that such alternative dispute resolution methods have been
unsuccessful, may either of the parties then resort to judicial
litigation in a court of competent jurisdiction. Nothing in this
provision shall be construed to be a waiver by either party of its
respective right to seek immediate relief, including injunctive
relief, from a court of law.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed to be effective October 4, 2002.
"PURCHASERS" "COMPANY"
XXXXX-XX INDUSTRIES, INC. CALYPSO WIRELESS, INC.
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Authorized Signature Authorized Signature
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Typed/Printed Name Typed/Printed Name
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Position/Title Position/Title
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxxx Xxxxxx, Xxxxxx X. Xxxxxxx,
President and Chief Executive Officer President
