Exhibit 10.1 Acquisition Agreement
Exchange of Shares and Acquisition Agreement
INTERNATIONAL WIRELESS INC. (hereinafter designated as "Buyer" or "IWLJ"), a
publicly-held corporation, and the current shareholders (hereinafter designated
as "Sellers" or "Principle Owners") of MOUND TECHNOLOGIES, INC. (hereinafter
designated as "MTI"), a privately-held corporation situated in the City of
Springboro, State of Ohio, as of December 8, 2003 and for the purpose of placing
the privately-held corporation MTI under the control of the publicly-held
company IWLJ, have agreed on the following terms and conditions:
1. Exchange of Shares.
1,256,000 restricted IWLJ shares total on the following terms: each
outstanding share of common stock of MTI, shall be converted into the right
to receive 1,000 shares (the "Exchange Ratio") of Restricted Common Stock
of IWLJ, ("IWLJ Restricted Common Stock").
Upon the signing of this agreement, all currently issued shares of MTI,
confirmed to be 1,256 shares, will be transferred to IWLJ. This Agreement
will be completed (the "Closing Date") upon transfer to IWLJ of all MTI
shares issued and issuance of 1,256,000 IWLJ restricted common shares to
MTI shareholders.
2. Signed agreement for finding funding of $2,000,000.
The parties have also agreed that IWLJ will find refinancing for MTI
mortgages at 00 Xxxxx Xxxx Xxxxx xx Xxxxxxxxxx, Xxxx, and 0000 Xxxxxxxxx
Xxxxxx in Middletown, Ohio, at a total of approximately $2,000,000. This
funding is to be used to pay off National City Bank which presently holds
the mortgages. This refinancing activity is in addition to the finding of
additional working capital requirements which is being handled as a
seperate agreement.
3. Control of Company. All MTI Business Assets, money, and profits will remain
under the same distribution format currently in place. After successful
completion of all provisions in Section 1, Buyer has rights to change the
format of such assets, money, or profit distribution.
4. CONDITIONS PRECEDENT TO CLOSING. All obligations of MTI under this
Agreement are subject to the fulfillment of the following conditions, in
addition to the fulfillment of any and all other conditions set forth in
this Agreement:
a. Corporate Action. Consistent with its fiduciary duties, the Board of
Directors of MTI shall take such corporate action as may be necessary
to cause MTI's Board of Directors immediately following the signing of
this Agreement to be that of the Board of IWLJ. Prior to the Closing
Date, the Board of Directors of MTI shall have duly adopted
resolutions to the same effect with respect to the aforesaid matters.
By initiating and dating, Buyer (TS)( ) and Seller (TM)(12/9) have read this
page.
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5. Risk of Loss. Until the closing date, Sellers will bear all risk of loss,
damage, or destruction to the Business Assets. If any loss, injury, damages
or destruction substantially impairs the value of the Business Assets prior
to closing, Buyer may terminate this Agreement by written notice delivered
to Seller.
6. MAINTENANCE. Until possession is delivered to Buyer, Sellers agree to
continue to operate the Businesses in the manner in which it is being
operated at the date of this offer. To maintain the goodwill of the
Business, and to maintain all personal property in normal working order.
7. Audited Financials. If necessary for any filings for the Securities and
Exchange Commission ("SEC") or the Private Placement arrangement, the
audited financials will be paid for and provided by the Seller. These
statements will be SEC qualified financials.
8. SEC Filings, Bond Agreement & Private Placement Arrangement Costs. Any
legal fees or procedures with regards to this acquisition agreement will be
paid for by Buyer.
9. WARRANTY BY SELLER. Seller warrants and represents to Buyer that:
a. Peaceable Possession of Assets. Sellers are the sole owner of the
Business and no other person has any claim, right, title, or interest
in the Business Assets. The ownership and possession of all of the
assets of MTI has been peaceable and undisturbed and the title thereto
has never been disputed or questioned to the knowledge of MTI; nor
does MTI knows of any facts by reason of which the possession or title
thereof by MTI might be disturbed or questioned or by reason of which
any claim to its assets might arise or be set up adverse to MTI.
x. Xxxxxxx warrant that only 1,256 shares are issued and outstanding of
MTI. All Sellers and all the MTI shares they own are listed in
Schedule A. Sellers have full right, power and authority to sell,
transfer and deliver the Stock owned by them to IWIN in accordance
with the terms of this Agreement, and otherwise to consummate and
close the transaction provided for in this Agreement in the manner and
upon the terms herein specified.
c. Corporate Status. MTI is (a) duly organized, validly existing and in
good standing under the laws of the State of Nevada; (b) has full
corporate power to own all of its properties and carry on its business
as it is now being conducted; and (c) is qualified to do business as a
foreign corporation in each of the jurisdictions in which it operates
and the character of the properties owned by MTI or the nature of the
business transacted by MTI does not make qualification necessary in
any other jurisdiction or jurisdictions.
d. No representation by MTI made in this Agreement and no statement made
in any certificate or schedule furnished in connection with the
transaction herein contemplated contains or will contain any knowingly
untrue statement of a material fact or knowingly omits or will omit to
state any material fact reasonably necessary to make any such
representation or any such statement not misleading to a prospective
purchaser of the Stock.
By initiating and dating, Buyer (TS)( ) and Seller (TM)(12/9) have read this
page.
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x. Xxxxxxx have paid, or will pay, all taxes owned by the seller on
account of the Business.
f. To the best of Sellers' knowledge, there is no pending or threatened
litigation or administrative proceeding involving the Business, except
as indicated in Schedule X.
x. XXXXXXX MUST HAVE DELIVERED "SCHEDULE A" AND A CURRENT FINANCIAL
STATEMENT TO BUYER UPON SIGNING THIS AGREEMENT.
10. WARRANTY OF BUYER. Buyer warrants and represents to Sellers that:
a. Xxx Xxxxxx will remain on as CEO of Mound Technologies, Inc. and also
become CEO of IWLJ.
11. RESTRICTED IWLJ CERTIFICATE TO BEAR LEGENDS. The IWLJ Certificates
distributed pursuant to this Agreement shall be subject to a stop-transfer
order for one year starting the date these IWLJ Certificates are
distributed. These IWLJ Certificates shall bear the following legend or a
similar restricted legend by which each certificate owner from this
Agreement shall be bound:
"THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT AND
MAY NOT BE SOLD OR OFFERED FOR SALE OR OTHERWISE TRANSFERRED. THE SHARE,
TRANSFER, OR HYPOTHECATION OF THE SHARES REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED BY THE PROVISIONS OF AN AGREEMENT AMONG THE ISSUER OF THESE
SHARES AND ITS SHAREHOLDERS, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL
OFFICE OF THE ISSUER."
Only a transfer agent or IWLJ can remove a restrictive legend. The transfer
agent will not remove the legend unless the holder has obtained the consent
of IWLJ that the restricted legend can be removed. This stop transfer
restriction and the associated restrictive legend automatically expires at
the end of one year.
12. CLOSING. The closing under this Agreement and all deliveries hereunder
shall take place at the office of MTI on December 10, 2003 or such other
place or date as shall be agreed upon by all the parties ("the Closing
date").
13. CONFIDENTIALITY. All information and documentation provided or to be
provided by MTI or Sellers to IWLJ in connection with this Agreement and
the transactions contemplated hereby has been and shall be provided in the
strictest confidence. Pending the Closing, IWLJ covenants and agrees not to
use any of such information or documentation in or for the benefit of any
business engaged in directly or indirectly by IWLJ and not to furnish or
disclose any of such information or documentation to any person. If the
transactions contemplated by this Agreement are not consummated, IWLJ
covenants and agrees to return all such information and documentation to
MTI and not retain any copies thereof, and IWIN further covenants and
agrees to maintain the confidentiality of such information and
documentation and to neither use any of it in or for the benefit of any
business engaged in directly or indirectly by IWLJ nor furnish or disclose
any of it to any person.
By initiating and dating, Buyer (TS)( ) and Seller (TM)(12/9) have read this
page.
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14. EXPIRATION OF OFFER. This offer will expire unless accepted by the Buyer
and Seller on or before FRIDAY 9:00 PM, December 12, 2003.
15. TERMINATION. In the event any of the foregoing conditions shall not be
fulfilled prior to the Closing, unless caused by any action or failure to
act on the part of IWLJ, IWLJ shall have the right to terminate the
Agreement by notice thereof in writing to MTI, and the parties hereto shall
be restored as far as possible to status quo, whereupon the parties hereto
shall have no further obligations or liabilities hereunder, one against the
other.
16. GENERAL PROVISIONS
a. Survival of Representations, Warranties and Covenants. Unless
otherwise expressly provided herein, the representations, warranties,
covenants, indemnities and other agreements herein contained shall be
deemed to be continuing and shall survive the consummation of the
transactions contemplated by this Agreement.
b. Diligence. The parties hereto agree that each shall with reasonable
diligence proceed to take all action which may be reasonably required
to consummate the transaction herein contemplated.
c. Waivers. Each party hereto may:
i. Extend the time for performance of any of the obligations of the
other party;
ii. Waive in writing any inaccuracies in representations and
warranties made to it contained in this Agreement or any schedule
hereto or any certificate or certificates delivered by any of the
other parties pursuant to this Agreement; and
iii. Waive in writing the failure of performance of any of the
agreements, covenants, obligations or conditions of the other
parties herein set forth, or alternatively terminate this
Agreement for such failure.
d. Non-Waiver. The waiver by any party hereto of any breach, default,
inaccuracy or failure by another party with respect to any provision
in this Agreement or any schedule hereto shall not operate or be
construed as a waiver of any other provision thereof or of any
subsequent breach thereof.
e. Further Assurances. Each party hereto agrees to execute such further
documents or instruments, requested by the other party, as may be
reasonably necessary or desirable to effect the purposes of this
Agreement and to carry out its provisions, at the expense of the party
requesting the same.
By initiating and dating, Buyer (TS)( ) and Seller (TM)(12/9) have read this
page.
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f. Benefit and Assignability. This Agreement shall bind and inure to the
benefit of the parties hereto and their respective legal
representatives, successors and assigns, provided, however, that this
Agreement cannot be assigned by any party except by or with the
written consent of the others. Nothing herein expressed or implied is
intended or shall be construed to confer upon or to give any person,
firm or corporation other than the parties hereto and their respective
legal representatives, successors and assigns any rights or benefits
under or by reason of this Agreement.
g. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same Agreement.
h. Headings. The headings in this Agreement are intended solely for
convenience of reference and shall be given no effect in the
construction or interpretation of this Agreement.
i. Further Action. Any further action required or permitted to be taken
under this Agreement, including giving notices, executing documents,
waiving conditions, and agreeing to amendments or modifications, may
be taken on behalf of a party by its Board of Directors, its President
or any other person designated by its Board of Directors, and when so
taken shall be deemed the action of such party.
j. Notices. All notices and demands will be in writing, either by
personal delivery, overnight courier, or facsimile transmission or by
registered or certified mail, postage prepaid and return receipt
requested. Notices sent by registered or certified mail will be
considered received by the addressee three days after deposit in the
United States Mail. Other notices will be effective upon delivery,
provided that, in the case of facsimile transmission, a document is
generated and retained by the sender that reflects the accurate
transmission of the notices. Unless either party receives notice of
the change of address in the manner provided in this paragraph,
notices will be addressed as set forth in the signature blocks below.
17. Governing Law. Irrespective of the place of execution or performance of
this Agreement, it shall be governed by and construed in accordance with
the laws of the State of Ohio applicable to contracts made and to be
performed in the State of Ohio, and cannot be changed, modified, amended or
terminated except in writing, signed by the parties hereto.
18. Entire Agreement. This Agreement constitutes a complete statement of all
the arrangements, understandings and agreements between the parties, and
all prior memoranda and oral understandings with respect thereto are merged
in this Agreement. There are no representations, warranties, covenants,
conditions or other agreements among the parties except as herein
specifically set forth, and none of the parties hereto shall rely on any
statement by or on behalf of the other parties which is not contained in
this Agreement.
By initiating and dating, Buyer (TS)( ) and Seller (TM)(12/9) have read this
page.
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BUYER ACKNOWLEDGEMENT
The undersigned Buyer acknowledges that he or she has thoroughly read and
approved each of the provisions of this Offer and agrees to purchase the
Business stock for the price and on the terms and conditions specified.
Buyer Xxxxx Xxxxxxxxxxx Date 12-9-03 Time 1:50 P.M. Central
----------------------------- ------------ -------------------
IWLJ Chairman of the Board/President Xxxxx Xxxxxxxxxxx
000 Xxxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxx Xxxxx, XX 00000
(000) 000-0000
SELLERS ACCEPTANCE
Sellers accepted the foregoing Offer and agree to sell the Business Assets for
the price and on the terms and conditions specified. The following Seller
represents the interests of all Sellers.
Seller Xxxxxx X. Xxxxxx Date 12-9-03 Time 2:15 P.M. EST.
----------------------------- ------------ -----------------
Xxxxxx X. Xxxxxx, CEO and President
Mound Technologies, Inc.
00 Xxxxx Xxxx Xxxxx
Xxxxxxxxxx, XX 00000
(000) 000-0000
By initiating and dating, Buyer (TS)( ) and Seller (TM)(12/9) have read this
page.
