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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): February 29, 2000
CELLPOINT INC.
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(Exact Name of Registrant as Specified in Its Charter)
Nevada 0-25205 52-2032380
(State or Other Jurisdiction Commission I.R.S. Employer
of Incorporation) File Number Identification No.
Sofielundsvagen 4, S-191 47 Sollentuna, Sweden
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(Address of Principal Executive Offices) Zip Code
Registrant's telephone number, including area code: 011-46-8-544-90000
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Former name or former address, if changed since last report
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
ACQUISITION OF ALL OF THE CAPITAL STOCK OF UNWIRE AB.
(a) On February 29, 2000, the Registrant acquired, through its
wholly-owned indirect subsidiary, CellPoint Swedish Holdings Ltd., a corporation
organized under the laws of England and Wales ("Holdings"), all of the capital
stock (the "Unwire Stock") of Unwire AB (publ), org. no. 556522-7617, a
corporation organized under the laws of Sweden ("Unwire"). Unwire develops
systems and equipment for GSM positioning and telematics and holds unique
patents for positioning.
The purchase price for the Unwire Stock, as determined by
independent assessment of the assets of Unwire, was $66,675,000. The
Registrant paid the purchase price by (i) issuing to the stockholders of
Unwire an aggregate of 1,074,981 shares (the "Shares") of the Registrant's
common stock, par value $0.001 per share (the "Common Stock"), and (ii) paying
to such stockholders an aggregate of US$1,178 as compensation for fractional
shares not issued.
At the time of the acquisition of the Unwire Stock, there was
no relationship between Unwire and the stockholders of Unwire, on the one hand,
and the Registrant or any of the Registrant's affiliates or any director or
officer of the Registrant or any associate of any such director or officer, on
the other hand.
Pursuant to a Registration Rights Agreement among the
Registrant and the former stockholders of Unwire, the Registrant has agreed
to register all of the Shares with the Securities and Exchange Commission
prior to December 31, 2000.
(b) The Registrant indirectly acquired the assets of Unwire
through the acquisition by Holdings, its subsidiary, of all of the capital stock
of Unwire. The assets of Unwire include, but are not limited to, (i) cash on
hand, (ii) accounts and accounts receivable, (iii) prepaid expenses, (iv)
furniture and fixtures, machinery and equipment, and inventory in all forms, (v)
leases, (vi) intellectual property and proprietary rights and interests and
(vii) contracts and contract rights. These assets are used in connection with
Unwire's business which focuses on the development of systems and equipment for
GSM positioning and telematics. The Registrant intends to continue such use of
the assets of Unwire.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION
AND EXHIBITS.
(a) FINANCIAL STATEMENTS OF BUSINESS ACQUIRED.
The financial statements of the business acquired will be
filed by amendment to this Current Report on Form 8-K no later than the date
which is sixty days after the date of this Current Report.
(b) PRO FORMA FINANCIAL INFORMATION.
The PRO FORMA financial information will be filed by amendment
to this Current Report on Form 8-K no later than the date which is sixty days
after the date of the Current Report.
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(c) EXHIBITS.
Exhibit 10.1 Purchase and Sale Agreement, dated as of
February 16, 2000, by and among CellPoint
Inc., CellPoint Swedish Holdings Ltd., and
the Sellers named therein.
Exhibit 10.2 Registration Rights Agreement, dated as
of February 29, 2000, by and among CellPoint
Inc., CellPoint Swedish Holdings Ltd., and
the Sellers named therein.
Exhibit 10.3 Escrow Agreement, dated as of February
29, 2000, by and among CellPoint Inc.,
CellPoint Swedish Holdings Ltd., the Sellers
named therein, Salans Hertzfeld Heilbronn
Christy & Viener, as Escrow Agent, U.S.
Stock Transfer Corporation, as Depositary,
and Per Lundberg, as Sellers' Agent.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
CELLPOINT INC.
By /s/ Peter Henricsson
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Peter Henricsson
President
Date: March 13, 2000
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Exhibit 10.1
PURCHASE AND SALE AGREEMENT
PURCHASE AND SALE AGREEMENT, dated as of February 16, 2000, by
and among the stockholders of Unwire AB (publ), org. no. 556522-7617, a
corporation organized under the laws of Sweden (the "Company") listed on
Schedule I attached hereto (each a "Seller", and collectively, the "Sellers"),
CELLPOINT INC., a corporation organized under the laws of the State of Nevada
("CellPoint"), and CELLPOINT SWEDISH HOLDINGS LTD., a corporation organized
under the laws of England and Wales and a wholly-owned subsidiary of CellPoint
(the "Purchaser Sub"; CellPoint and the Purchaser Sub are hereinafter
collectively referred to as the "Purchaser").
W I T N E S S E T H:
WHEREAS, the Sellers own, of record and beneficially, all of
the outstanding equity securities and securities convertible into or exercisable
for the equity securities of the Company;
WHEREAS, the Purchaser desires to purchase from the Sellers,
and the Sellers desire to sell to the Purchaser, all of such securities, on the
terms and subject to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
promises contained herein, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.01 DEFINITIONS. Unless otherwise defined herein,
all capitalized terms used herein shall have the meanings assigned to them
below:
"Affiliate" of any particular Person means any other Person
controlling, controlled by or under common control with such particular Person,
where "control" means the possession, directly or indirectly, of the power to
direct the management and policies of a Person, whether through the ownership of
voting securities, contract or otherwise.
"Agreed Value" means U.S.$62.00 per CellPoint Share.
"Agreement" means this Agreement, as the same may be amended,
supplemented or modified in accordance with the terms hereof.
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"Authorizations" means any authorization, approval, order,
license, permit, waiver, variance, franchise, grant or consent of, declaration
to, or filing or registration with, any court or governmental authority, and any
consent of any other party.
"CellPoint Common Stock" has the meaning set forth in Section
2.02.
"CellPoint Material Agreements" has the meaning set forth in
Section 5.14.
"CellPoint Shares" has the meaning set forth in Section 2.02.
"Closing" has the meaning set forth in Section 2.03.
"Closing Date" has the meaning set forth in Section 2.03.
"Escrow Agent" means the escrow agent as set forth in the
Escrow Agreement.
"Escrow Agreement" means the Escrow Agreement with respect to
the Escrow Shares in connection with Article X hereof, as to which the Sellers
and the Purchaser shall have mutually agreed prior to the Closing Date, which
agreement reflects the agreements of the parties set forth herein as to the
deposit into escrow and the distribution of the Escrow Shares.
"Escrow Shares" has the meaning set forth in Section 2.03(b).
"Governmental Authority" means any Federal, state, local,
foreign, regional or other governmental, administrative, judicial or regulatory
authority or instrumentality.
"Indebtedness" means at a particular time, without
duplication, (i) any indebtedness for borrowed money or issued in substitution
for or exchange of indebtedness for borrowed money, (ii) any indebtedness
evidenced by any note, bond, debenture or other debt security, (iii) any
indebtedness for the deferred purchase price of property or services with
respect to which a Person is liable, contingently or otherwise, as obligor or
otherwise (other than trade payables and other current liabilities incurred in
the ordinary course of business which are not more than three months past due),
(iv) any commitment by which a Person assures a creditor against loss
(including, without limitation, contingent reimbursement obligations with
respect to letters of credit), (v) any indebtedness guaranteed in any manner by
a Person (including, without limitation, guarantees in the form of an agreement
to repurchase or reimburse), (vi) any obligations under capitalized leases with
respect to which a Person is liable, contingently or otherwise, as obligor,
guarantor or otherwise, or with respect to which obligations a Person assures a
creditor against loss, (vii) any indebtedness secured by a Lien on a Person's
assets and (viii) any unsatisfied obligation for "withdrawal liability" to any
benefit plan.
"Intellectual Property" means all patents, patent
applications, patent disclosures and inventions (whether or not patentable and
whether or not reduced to practice); all trademarks, service marks, trade dress,
trade names and corporate names and all goodwill associated therewith; all
copyrights; all registrations, applications and renewals for any of the
foregoing; all product formulations, trade secrets, confidential information,
ideas, know-how, production processes and techniques, research information,
drawings, specifications, designs, plans, improvements, technical and computer
data, documentation and software, financial,
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business and marketing plans, customer and supplier lists and related
information and all other proprietary rights; and all copies and tangible
embodiments of the foregoing.
"Lien" means any lien, pledge, mortgage, deed of trust,
security interest, claim, lease, assessment, charge, option, right of
pre-emption, floating charges, right of first refusal, easement, servitude,
transfer restriction under any shareholder or similar agreement, encumbrance or
any other restriction or limitation of any kind or nature whatsoever.
"Losses" has the meaning set forth in Section 10.01.
"Material Adverse Effect" means, with respect to any Person, a
material adverse effect on the financial condition or business of such Person,
or a material adverse effect on the ability of such Person to perform such
Person's obligations pursuant to this Agreement and the other Transaction
Documents or, with respect to any Seller or all of the Sellers, on the ability
of such Seller to sell and deliver to the Purchaser the Unwire Securities, free
and clear of all Liens.
"Person" means an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Purchaser Escrow Shares" has the meaning set forth in Section
2.03(b).
"Registration Rights Agreement" means the Registration Rights
Agreement, to be effective as of the Closing Date and substantially in the form
of Exhibit A attached hereto, by and among the Purchaser and the Sellers.
"SEC Documents" has the meaning set forth in Section 5.11(a).
"Securities Act" means the United States Securities Act of
1933, as amended, and including the rules and regulations thereunder as in
effect from time to time.
"Seller Escrow Shares" has the meaning set forth in Section
2.03(b).
"Subsidiary" means Unwire Positioning AB, org. no.
556534-7399.
"Swedish GAAP" means generally accepted accounting principles
in Sweden.
"Tax" or "Taxes" means any (A) federal, state, local or
foreign income, gross receipt, franchise, estimated, alternative minimum,
add-on-minimum, property, sales, use, transfer, registration, value added,
excise, natural resources, severance, stamp, occupation, premium, windfall
profit, environmental, disability, payroll, license, employment or other
withholding, or other taxes, levies, imports, duties, license and registration
fees, charges, assessments or withholdings of any kind whatsoever, including any
interest, penalties or additions to tax or additional amounts in respect of the
foregoing; and (B) liability for the payment of any amounts of the type
described in clause (A) as a result of any express or implied obligation to
indemnify or otherwise assume or succeed to the liability of any other Person.
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"Tax Returns" means returns, declarations, reports, claims for
refund, information returns or other documents (including any related or
supporting schedules, statements or information) filed or required to be filed
in connection with the determination, assessment or collection of Taxes of any
party or the administration of any laws, regulations or administrative
requirements relating to any Taxes.
"Transaction Documents" means, collectively, this Agreement,
the Registration Rights Agreement, the Escrow Agreement and the other
agreements, instruments and documents executed and delivered in connection with
the consummation of the transactions contemplated hereby.
"United States Dollar" and "$" means the lawful currency of
the United States of America.
"Unwire Convertible Securities" means, collectively,
(i) 5,000 convertible debt instruments in
the aggregate principal amount of SEK5,000,000, which debt
instruments (A) are outstanding, though evidence of such debt
instruments will be issued prior to the Closing Date, (B) are
convertible into 500,000 shares in the Company, and (C) have
been requested by the holders thereof to be converted into
500,000 shares in the Company, though the shares have not yet
been distributed or recorded in the share register of the
Company; and
(ii) two debt instruments in the aggregate
principal amount of SEK200,000, and six separated subscription
right certificates giving rights to subscribe for an aggregate
of 21,000 shares in the Company (collectively, the "Unwire
Subscription Rights");
and in each case, including all rights pertaining thereto.
"Unwire Financial Statements" has the meaning set forth in
Section 4.07(a).
"Unwire Material Agreements" has the meaning set forth in
Section 4.10(a).
"Unwire Securities" means, collectively, the Unwire Shares and
the Unwire Convertible Securities.
"Unwire Shares" means, collectively, (i) 1,000,000 registered
shares, par value SEK0.65 per share, in the Company, and (ii) 805,900 shares,
par value SEK 0.65 per share, in the Company, which have been subscribed and
paid for but which have not been distributed or recorded in the Company's share
register.
"U.S. GAAP" means United States generally accepted accounting
principles.
"Year 2000 Compliant" means the ability of the software and
other information processing capabilities of a Person correctly to interpret and
process all data in whatever form so
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as to avoid errors that may otherwise occur because of the inability of software
or other information processing to recognize accurately the year 2000 or
subsequent dates.
SECTION 1.02 TERMS GENERALLY. The definitions set forth herein
apply equally to both the singular and the plural forms thereof. All references
to Articles, Sections, Exhibits and Schedules will be deemed references to the
Articles, Sections, Exhibits and Schedules to this Agreement, in each case
unless the context shall otherwise require.
ARTICLE II.
PURCHASE AND SALE
SECTION 2.01 PURCHASE OF UNWIRE SECURITIES. Subject to the
terms and conditions of this Agreement and in reliance upon the representations,
warranties and agreements set forth herein, on the Closing Date: the Sellers
shall sell, convey, assign, transfer and deliver to the Purchaser Sub, and the
Purchaser Sub shall, purchase from the Sellers, the Unwire Securities. Each of
the Sellers shall sell, convey, assign, transfer and deliver to the Purchaser
Sub the Unwire Securities set forth after such Seller's name on Schedule I.
SECTION 2.02 PURCHASE PRICE. As consideration for the sale,
conveyance, assignment, transfer and delivery to the Purchaser Sub of the Unwire
Securities pursuant to this Agreement, CellPoint shall deliver to the Sellers
aggregate consideration consisting of an aggregate of 1,075,000 shares (the
"CellPoint Shares") of the common stock, par value US$0.001 per share (the
"CellPoint Common Stock"), of CellPoint. The CellPoint Shares shall be allocated
among the Sellers proportionately as set forth on Schedule I attached hereto.
SECTION 2.03 CLOSING; ESCROW.
(a) At the Closing, the Sellers shall deliver to the Purchaser
Sub the Unwire Securities and all share certificates, subscription
rights certificates, debt instruments and interim or other
certificates, if any, evidencing the Unwire Securities to be sold to
the Purchaser Sub pursuant to this Agreement, in each case duly
endorsed in blank or accompanied by duly executed instruments of
transfer in blank, if applicable, and the share register of the
Company, setting forth the Purchaser Sub as the owner of all Unwire
Securities representing shares in the Company, together, in each case,
with all necessary documentary or stock transfer stamps affixed and
accompanied by such other assignments, certificates of authority,
consents to transfer instruments and evidence of title to such shares
as may be reasonably requested by counsel to the Purchaser in order
that all right, title and interest in and to the Unwire Securities pass
to the Purchaser Sub from the Sellers.
(b) At the Closing, in consideration for the Sellers' delivery
of the Unwire Securities to the Purchaser Sub, CellPoint shall deliver
or cause to be delivered to (i) the Sellers, stock certificates
evidencing 1,021,250 CellPoint Shares (constituting 95% of the
aggregate CellPoint Shares to be issued hereunder), registered in the
names of the Sellers (or their respective designees as the Sellers
shall have notified the Purchaser prior to the
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Closing) as to the actual registered owners and the number of shares,
and (ii) the Escrow Agent, to be held by the Escrow Agent pursuant to,
and in accordance with, Article X hereof and the Escrow Agreement:
A) stock certificates evidencing 53,750 CellPoint
Shares (constituting 5% of the aggregate CellPoint Shares to
be issued hereunder), which are to be held in escrow pending
determination of any indemnification obligations of the
Sellers pursuant to Article X hereof (the "Seller Escrow
Shares"); and
B) 53,750 shares of CellPoint Common Stock, which are
to be held in escrow pending determination of any
indemnification obligations of the Purchaser pursuant to
Article X hereof (the "Purchaser Escrow Shares").
The Seller Escrow Shares and the Purchaser Escrow Shares are
collectively referred to as the "Escrow Shares". The share certificates
evidencing the Escrow Shares deposited in escrow with the Escrow Agent
shall be accompanied by duly endorsed stock powers which are also to be
held in escrow.
SECTION 2.04 CLOSING. The consummation of the purchase and
sale of the Unwire Securities pursuant to this Agreement (the "Closing") shall
take place at the offices of Gernandt & Danielsson Advokatbyra AB in Stockholm,
Sweden, or such other place as the Sellers and the Purchaser may agree, on or
before February 29, 2000, at such time or on such other date as the Sellers and
the Purchaser may agree (the "Closing Date").
SECTION 2.05 POOLING-OF-INTERESTS. Each of the Sellers and the
Purchaser agree to cooperate and use their best efforts to structure the
transactions contemplated hereby so as to qualify for a pooling-of-interests
treatment under U.S. GAAP; PROVIDED, HOWEVER, that such qualification shall not
be a condition precedent to any party's obligations hereunder to consummate the
transactions contemplated hereby.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
Each of the Sellers, severally and not jointly, hereby
represents and warrants as of the date hereof and as of the Closing Date, to the
Purchaser, as follows:
SECTION 3.01 THE SELLERS.
(a) If such Seller is an individual, such Seller is legally
competent and has full power and authority to execute and deliver this
Agreement and the other Transaction Documents and to perform its
respective obligations hereunder and thereunder and to consummate the
transactions contemplated hereby and thereby.
(b) If such Seller is a corporation or other legal entity,
such Seller has full power and authority to execute and deliver this
Agreement and the other Transaction
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Documents, and to perform its respective obligations hereunder and
thereunder, and to consummate the transactions contemplated hereby and
thereby. Each such Seller has taken all necessary corporate or other
action to duly and validly authorize the execution, delivery and
performance of this Agreement and the other Transaction Documents by
such Seller and the consummation by such Seller of the transactions
contemplated hereby and thereby.
SECTION 3.02 BINDING OBLIGATION. Each of this Agreement and
the other Transaction Documents has been duly executed and delivered by each
Seller and (and assuming the execution and delivery of this Agreement and the
other Transaction Documents by the Purchaser) constitutes, and each of the other
agreements, instruments, documents and certificates contemplated hereby and
thereby when executed and delivered for value, will constitute, the legal, valid
and binding obligation of each Seller, enforceable against such Seller in
accordance with their respective terms, except to the extent that (i)
enforcement may be limited by or subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or limiting
creditor's rights generally and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief are subject to certain equitable
defenses and to the discretion of the court or other similar entity before which
any proceeding therefor may be brought.
SECTION 3.03 APPROVALS. No authorizations, approvals, consents
of, and no filings or registrations with, any Governmental Authority are
necessary for the execution, delivery or performance of this Agreement or the
Transaction Documents by any of the Sellers or the Company.
SECTION 3.04 NO CONFLICTS. The execution and delivery of this
Agreement and the other Transaction Documents, the consummation of the
transactions contemplated hereby or thereby, and the compliance by each of the
Sellers with the terms and provisions hereof or thereof will not (a) conflict
with or result in a breach of, or require any consent or vote of any Person
under, the respective Articles of Association or other organizational documents
or by-laws, if any, of the Sellers or any note, mortgage, indenture, contract,
or any other agreement to which any Seller is a party or by which any Seller or
any of their respective properties is subject, (b) violate any applicable law,
regulation, order, writ, injunction or decree of any Governmental Authority, or
(c) constitute or result in a breach or violation of or a default under, or
result in the imposition of any Lien on any of the assets of the Company, the
Subsidiary or any Seller, including the Unwire Securities owned by each Seller.
SECTION 3.05 LITIGATION. Except as disclosed in Schedule 3.05
hereto, there is no action, proceeding or investigation to which any Seller is a
party or to which any Seller or any of their respective properties may be
subject by or before any Governmental Authority, pending or to the knowledge of
any Seller threatened, which, if adversely determined, could have, individually
or in the aggregate, a material adverse effect on the ability of the Sellers to
execute, deliver and perform this Agreement (including, without limitation, to
deliver title to the Unwire Securities free and clear of all Liens) or the
Transaction Documents.
SECTION 3.06 PRIVATE SALE OF CELLPOINT SHARES. Each Seller
acknowledges and agrees that:
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(a) the CellPoint Shares have not been registered under the
Securities Act, and accordingly, the CellPoint Shares are "restricted
securities";
(b) the certificates evidencing the CellPoint Shares shall
bear a legend to the effect that such shares are "restricted
securities";
(c) the CellPoint Shares may not be resold except pursuant to
a registration statement filed with the United States Securities and
Exchange Commission under the Securities Act or pursuant to an
exemption from such registration; and
(d) such Seller is acquiring the CellPoint Shares to be issued
to it for its own account and not with a view to the distribution
thereof.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF THE SELLERS REGARDING THE COMPANY
Each of the Sellers, severally and not jointly, hereby
represents and warrants as of the date hereof, except as otherwise stated, and
as of the Closing Date to the Purchaser, as follows (it being understood that
all references to the "Company" in this Article IV shall be deemed to refer to
the Company and the Subsidiary, as applicable, or except as otherwise
indicated):
SECTION 4.01 ORGANIZATION. The Company (a) is a corporation,
duly organized, validly existing and in good standing under the laws of Sweden,
(b) has all requisite power necessary to own its assets and carry on its
business as currently being conducted, and (c) is qualified to do business in
all foreign jurisdictions in which the nature of the business conducted by it
and the properties owned or operated by it make such qualification necessary and
where the failure to so qualify would, individually or in the aggregate, have a
Material Adverse Effect on the Company. Attached as Schedule 4.01 hereto are
true and correct copies of the Certificate of Registration of the Company and
the Articles of Association of each of the Company and the Subsidiary. The
Company and the Subsidiary are in compliance with their respective Articles of
Association.
SECTION 4.02 CAPITALIZATION OF THE COMPANY AND THE SUBSIDIARY.
(a) The Company has a registered share capital of SEK 650,000,
divided into 1,000,000 shares, each with a nominal value of SEK 0.65.
The Company has issued: (i) 1,000,000 registered shares in the Company
and (ii) the Unwire Convertible Securities. In addition, 805,900 shares
in the Company, each with a nominal value of SEK0.65, have been
subscribed for and paid for with SEK5,375,353, but have not been
distributed or recorded in the Company's share register or with the
Swedish Patent and Registration Office. The Sellers constitute all of
the holders of the Unwire Securities (i.e., holders of all registered
and unregistered shares, convertible debt instruments, debt instruments
with subscription rights for new shares and subscription rights for new
shares). Each Seller
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has good and marketable title to its Unwire Securities and all rights
pertaining thereto, and each Seller owns its Unwire Securities free and
clear of all Liens. The Sellers are the owners of, and have good and
marketable title to, all rights against the Company in case the
registration of the unregistered Unwire Shares and the Unwire
Securities or the execution and conversion thereof into shares should
not be registered by the Swedish Patent and Registration Office, free
and clear of all Liens. The Unwire Securities constitute all issued and
outstanding securities of the Company. Except as set forth in this
Section 4.02(a), neither the Company nor any Seller has resolved to
issue, granted or issued to any Person any option or right to acquire
any shares in the Company or any security convertible into or
exchangeable for and giving a right to purchase any Unwire Securities
or any other shares in the Company or securities of the Company. All
Unwire Securities have been paid in full. No Person has, nor will any
Person have on the Closing Date, any right or claim with respect to any
Unwire Securities or any shares in the Company, whether registered or
unregistered. No Seller and no other Person has, or will claim, any
right whatsoever to any payment from the Company, including payment of
principal and/or interest, on the Unwire Convertible Securities and no
such payments have been made since December 31, 1999, with the
exception of one or more payments in an aggregate amount not exceeding
the annual interest rate on the Unwire Subscription Rights of six
percent.
(b) The Subsidiary has a registered share capital of SEK
100,000, divided into 1,000 shares, each with a nominal value of
SEK100. The Company is the sole stockholder of the outstanding shares
of the Subsidiary, and the Company owns such shares free and clear of
all Liens. All shares in the Subsidiary have been fully paid. Neither
the Subsidiary nor the Company has resolved to issue, granted or issued
to any Person any option or right to acquire any shares in the
Subsidiary or any security convertible into or exchangeable for and
giving a right to purchase any shares in the Subsidiary or any other
security of the Subsidiary.
SECTION 4.03 APPROVALS. Neither the execution nor delivery of
this Agreement nor the consummation of the transactions contemplated hereby
requires the consent of any Person.
SECTION 4.04 NO CONFLICTS. Except as set forth in Schedule
4.04, neither the execution nor delivery of this Agreement or the other
Transaction Documents nor the consummation of the transactions contemplated
hereby or thereby will (a) conflict with or result in a breach of, or require
any consent or vote of any Person under or give the right to terminate, any
note, mortgage, indenture, contract, collective bargaining agreement or any
other agreement to which the Company or the Subsidiary is a party or by which
the Company, the Subsidiary or any of their respective properties is subject,
(b) violate any applicable law, regulation, order, writ, injunction or decree of
any Governmental Authority, or (c) constitute or result in a breach or violation
of or a default under, or result in the imposition of any Lien on any of the
assets of the Company or the Subsidiary or the Unwire Securities owned by any
Seller, except for those consents or approvals the failure of which to obtain
prior to the Closing would not have a Material Adverse Effect on the Company.
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SECTION 4.05 LITIGATION. Except as disclosed in Schedule 4.05
hereto, (a) there is no claim, dispute, action, suit, proceeding or
investigation pending or, to the best knowledge of the Sellers , threatened,
against or affecting the Company, the Subsidiary or the Company's business or
the Subsidiary's business or any of the Company's officers, at law or in equity
before any Governmental Authority which, if adversely determined, would, singly
or in the aggregate, have a Material Adverse Effect on the Company; (b) there is
no outstanding judgment, order, writ, ruling, injunction, stipulation or decree
of any Governmental Authority, against or materially affecting the Company or
the Company's business; (c) the Company has not violated and is not in default
with respect to, any judgment, order, writ, ruling, injunction, stipulation or
decree listed in Schedule 4.05; and (d) neither the Company nor the Subsidiary
nor any of their respective officers or directors has received any written or
verbal inquiry from any Governmental Authority concerning the possible violation
of any law, rule or regulation in respect of the Company or the Company's
business. Set forth in Schedule 4.05 is a list of all claims, actions, suits and
proceedings instituted by the Company.
SECTION 4.06 SUBSIDIARIES; JOINT VENTURES. Except for the
Subsidiary, the Company does not have any subsidiaries nor does it own, directly
or indirectly, any capital stock or equity interest in any corporation,
partnership, joint venture, limited liability company or other entity.
SECTION 4.07 FINANCIAL STATEMENTS.
(a) The Sellers have furnished to the Purchaser (i) the
Company's financial statements for the year ended December 31, 1999,
including the notes thereto, as audited by Fredrik Forsberg
(collectively, the "Financial Statements"), a copy of which is attached
hereto as part of Schedule 4.07, and (ii) the financial statements of
the Subsidiary for the year ended December 31, 1998 (collectively, the
"Subsidiary Financial Statements"), a copy of which is attached as part
of Schedule 4.07).
(b) The Financial Statements and the Subsidiary Financial
Statements have been prepared in accordance with Swedish law and
Swedish GAAP, applied on a basis consistent throughout all periods
presented; such statements are correct and complete in all material
respects, are reconcilable to the books and records of the Company and
the Subsidiary, as the case may be, and present fairly in all material
respects the financial position of the Company and the Subsidiary, as
the case may be, as of the dates, and the results of operations, cash
flows and changes in financial position of the Company and the
Subsidiary, as the case may be, for the periods, indicated. The books
of account and other financial records of the Company and the
Subsidiary have been maintained in accordance with good business
practices.
(c) As of December 31, 1999, the Company had no material
liabilities or obligations, whether secured or unsecured, accrued,
determined, absolute or contingent, asserted or unasserted or
otherwise, which are required to be reflected or reserved in a balance
sheet or the notes thereto in accordance with Swedish law and Swedish
GAAP, but which are not reflected in the Financial Statements. Since
December 31, 1998, the Subsidiary has not incurred any material
liabilities.
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(d) The Company has not granted any guarantees or provided any
other security not reflected in Schedule 4.07 and the Financial
Statements.
(e) All accounts receivable (other than those accounts
receivable noted as doubtful) reflected in the Financial Statements
have been, or will be, collected in accordance with their respective
terms by the Company itself, or through factoring, in the ordinary
course of business.
(f) As of the date hereof, in the commercially reasonable
judgment of the Sellers, the Company has sufficient cash to operate its
business in the ordinary course through March 31, 2000, including the
payment on a timely basis of accounts payable, trade obligations and
other liabilities as such obligations become due without extension or
waiver, excluding, however, (i) the Company's rent for the period from
April 1, 2000 through June 30, 2000 of SEK157,000, which rent payment
is due on March 31, 2000, and (ii) the amortization of SEK150,000 on
the loan extended by Almi Foretagspartner Stockholm AB, which payment
is due on March 31, 2000.
SECTION 4.08 EMPLOYEE MATTERS.
(a) Schedule 4.08 sets forth (i) the name of each director,
officer, employee and independent sales representative of the Company;
(ii) each oral or written employment agreement, consulting agreement,
deferred compensation agreement, covenant not to compete,
confidentiality agreement or agreement with each person named in
Schedule 4.08 pursuant to clause (i) hereof, a commission salesman or
other agent to which the Company is a party; and (iii) any collective
bargaining agreement or any other contract or arrangement with any
labor organization to which the Company is a party or which has been
requested or under discussion during the previous 24 months.
(b) Except as set forth in Schedule 4.08, (i) the Company is
not liable for any accrued bonus compensation, vacation pay, severance
pay or arrears of wages; (ii) the Company has satisfactory relations
with its employees in the aggregate; (iii) the Company is not involved
in any labor dispute, proceeding, work stoppage or disturbance, other
than routine grievances which are not material; and (iv) the Company
has not violated in any material respect any law or regulation
governing employers and the conditions of employees' employment,
including those regulating wages, hours, discrimination, civil rights
and employment of foreign nationals, in each of (i), (ii) and (iv), the
effect of which would, singly or in the aggregate, have a Material
Adverse Effect on the Company.
(c) To the knowledge of the Sellers, there is no threatened
(i) claim by any current or former director, officer or employee of the
Company or the Subsidiary against the Company or the Subsidiary, or
(ii) labor or union litigation in respect of the Company or the
Subsidiary.
(d) Schedule 4.08 lists every material employee benefit plan
in which the Company's employees are participating.
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(e) Only the persons marked "Employee" in Schedule 4.08, and
no one else (including, but not limited to, consultants hired by the
Company) are employees of the Company.
(f) There are no former employees of the Company that have a
right of re-employment by the Company.
(g) All of the Company's pension commitments are duly reserved
for or covered by insurance.
SECTION 4.09 TAXES. Except as indicated in Schedule 4.09, the
Company has filed all Tax Returns which were required to be filed prior to the
date hereof (after giving effect to all extensions of filing deadlines obtained)
in respect of all Taxes and has paid all Taxes which have become due pursuant to
such Tax Returns or pursuant to any assessment which has become payable, or, to
the extent its liability for any Taxes which have become due has not been fully
discharged, the same have been properly reflected as a liability on the
Company's books and records and adequate reserves therefor have been
established. All such Tax Returns have been properly prepared and are complete.
Except as indicated in Schedule 4.09, no extension for the filing of any such
Tax Return is currently in effect. Except as set forth on Schedule 4.09, no Tax
Return or Tax Return liability of the Company is presently under audit or, to
the best knowledge of the Sellers, proposed to be audited. Except as indicated
in Schedule 4.09, the Company has not given or been requested to give waivers of
any statute of limitations relating to the payment of any Taxes. Except as set
forth on Schedule 4.09, there are no claims pending or, to the best knowledge of
the Sellers, threatened, against the Company for past due Taxes. All payments
for withholding Taxes, social security expenses, special employer contributions,
unemployment insurance and other amounts required to be paid for periods prior
to the date hereof to any Governmental Authority in respect of the Company's
employment obligations, have been paid or shall be paid prior to Closing, except
for payments for which the failure to pay would, singly or in the aggregate, not
have a Material Adverse Effect on the Company. Such amounts have been duly
provided for on the books and records of the Company. No claim has been made by
a taxing authority in a jurisdiction where the Company does not file a Tax
Return that the Company is or may be subject to Taxes assessed by such
jurisdiction.
SECTION 4.10 MATERIAL AGREEMENTS; NO DEFAULTS.
(a) Schedule 4.10 sets forth a complete and correct list of
all material instruments, agreements, indentures, mortgages,
guarantees, notes, commitments, accommodations, letters of credit or
other arrangements or understandings, whether oral or written, to which
the Company or the Subsidiary is a party or pursuant to which the
Company or the Subsidiary is obligated (the "Unwire Material
Agreements"). The Unwire Material Agreements constitute all of the
contracts, agreements, understandings and arrangements required for the
operation of the Company's business as currently conducted or which
have a material effect thereon. Copies of all such Unwire Material
Agreements have previously been made available to the Purchaser, and
such copies are complete and correct as of the date hereof. The failure
to obtain a consent or waiver under any Unwire Material Agreement with
respect to the transactions contemplated in this Agreement, will not
(i) result in the payment of any damages or penalties by the Company or
in the
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acceleration of any obligations of the Company, or (ii) singly or in
the aggregate, have a Material Adverse Effect on the Company; provided,
HOWEVER, that the Purchaser and the Sellers agree that the Company's
failure to obtain a consent or waiver with respect to those agreements
considered to be "framework agreements" pursuant to which the Company's
counterparties have no obligation to pay or perform shall not, in and
of itself, be deemed to have a Material Adverse Effect on the Company.
(b) Each of the Unwire Material Agreements was entered into in
the ordinary course of the Company's business, is in full force and
effect on the date hereof and is valid, binding and enforceable in
accordance with its terms. Except as disclosed in Schedule 4.10,
neither the Company or the Subsidiary, nor, to the Sellers' knowledge,
any other person or entity is in breach of, or in default under, any
Unwire Material Agreement, and no event or action has occurred, is
pending or, to the Sellers' knowledge is threatened, which, after the
giving of notice, passage of time or otherwise, would constitute or
result in such a breach or default by the Company or the Subsidiary or,
to the best knowledge of the Sellers, any other person or entity party
to an Unwire Material Agreement, the effect of which, singly or in the
aggregate, would have a Material Adverse Effect on the Company. The
Company has not received any notice of default under any Unwire
Material Agreement, which default has not been cured to the
satisfaction of, or duly waived by, the party claiming such default on
or before the date hereof.
(c) Except as set forth in Schedule 4.10, none of the Sellers
or the Company has taken or omitted to take any action which has
resulted in, or will result in, the Company being or becoming a party
to or bound by, any agreement, arrangement or understanding to which
the Company will remain obligated or bound following the Closing,
relating to the acquisition by the Company of any entity or all or
substantially all of the assets of any Person.
(d) With respect to the contract between the Company and Point
Transaction System AB, as described in Schedule 4.10, Point Transaction
System AB is not in possession of any products of the Company, and
accordingly, there is no potential liability of the Company for return
of products pursuant to such contract.
SECTION 4.11 TANGIBLE PERSONAL PROPERTY. Except as set forth
in Schedule 4.11, the Company has good and marketable title to all of its
tangible personal property and assets which is used in and, individually or in
the aggregate with such other property, is material to the business of the
Company, free and clear of all Liens, except for any Lien for current Taxes not
yet due and payable ("Permitted Tax Liens"). Except as set forth in Schedule
4.11, all material items of the tangible personal property and assets owned or
leased by the Company are in adequate condition to conduct the Company's
business as now conducted or proposed to be conducted.
SECTION 4.12 REAL PROPERTY.
(a) The Company does not own, and has never owned, any real
property.
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(b) Schedule 4.12 sets forth a true and complete list of all
leases, subleases, licenses and other agreements (collectively, the
"Real Property Leases") under which the Company uses or occupies, has
the right to use or occupy, or leases the right to use or occupy, now
or in the future, any real property (the land, buildings, and other
improvements covered by the Real Property Leases being herein called
the "Leased Real Property"). The Company is not obligated as a tenant,
sub-tenant or guarantor of any such obligation under any lease,
sublease, license or other agreement except the Real Property Leases.
The Sellers have heretofore delivered to the Purchaser complete and
correct copies of all Real Property Leases (including all modifications
thereof and all amendments and supplements thereto). Each Real Property
Lease is valid, binding and in full force and effect with respect to
the Company and, to the best knowledge of the Sellers, all other
parties thereto; all rent and other sums and charges payable by tenants
thereunder are current; no notice of default or termination under any
Real Property Lease is outstanding; no termination event or condition
or uncured default on the part of the Company or, to the best knowledge
of the Sellers, any other party thereto, exists under any Real Property
Lease, and no event has occurred and no condition exists which, with
the giving of notice or the lapse of time or both, would constitute
such a default or termination event or condition with respect to the
Company or, to the best knowledge of the Sellers, any other party
thereto, the effect of which would result in a Material Adverse Effect
on the Company. The Company holds the leasehold estate under, and any
other interest in, each Real Property Lease, free and clear of all
Liens except as set forth in Schedule 4.12.
SECTION 4.13 PERMITS AND LICENSES. The Company has all
Authorizations which are reasonably necessary to conduct the Company's business
and to own, lease, use, operate and occupy the Company's assets at the places
and in the manner now conducted and operated, except those the absence of which
would not have a Material Adverse Effect on the Company. The Company has not
received any notice or claim pertaining to the failure to obtain any material
Authorization, the failure of which to obtain would have a Material Adverse
Effect on the Company. The Sellers have no knowledge of any basis for such
claim.
SECTION 4.14 COMPLIANCE WITH LAW. The Company is not
conducting its business or affairs in material violation of any applicable law,
ordinance, rule, regulation, court or administrative order, decree or process,
except for such violations which, individually or in the aggregate, would not
have a Material Adverse Effect on the Company. The Company has not received any
notice of violation or claimed violation of any law, ordinance, rule,
regulation, order, decree, process or requirement applicable to it.
SECTION 4.15 INTELLECTUAL PROPERTY. Schedule 4.15 sets forth a
list of all patents, patent applications, patent disclosures and inventions
(whether or not patentable and whether or not reduced to practice); all
trademarks, service marks, trade names and corporate names and all goodwill
associated therewith; all copyrights; all registrations, applications and
renewals for any of the foregoing owned or used by the Company or the
Subsidiary. Except as set forth in Schedule 4.15, the Company owns or has valid
and enforceable rights with respect to all the Intellectual Property that are
necessary to conduct the Company's business as presently conducted. Except as
set forth on Schedule 4.15, the conduct of the Company's business as currently
being conducted does not and will not infringe or misappropriate any rights held
or
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asserted by any Person, and there is no claim by any Person pending or, to the
knowledge of the Sellers threatened, contesting the validity, enforceability,
ownership or use of any of the Intellectual Property owned or used by the
Company. Except as set forth in Schedule 4.15, none of the Intellectual Property
is the subject of a pending or threatened action for opposition, cancellation,
declaration of invalidity, unenforceability or misappropriation or like claim,
action or proceeding. The Company holds the Intellectual Property free and clear
of all Liens, except any imposed by applicable law or regulations and any that
are not material and other than any rights held by licensors and by those
licensees of the Company listed in Schedule 4.15. Except as set forth in
Schedule 4.15, no payments presently are, or will in the future be, required for
the continued use by the Company of the Intellectual Property. All of the
Company's software, hardware and other Intellectual Property are Year 2000
Compliant.
SECTION 4.16 ORDINARY COURSE. Since December 31, 1999, the
Company has conducted its business, maintained its assets and kept its books of
account, records and files, substantially in the same manner as previously
conducted, maintained or kept and solely in the ordinary course. Since December
31, 1999, the Company has not incurred any material liabilities, sold or
otherwise transferred any material assets, waived or cancelled any material
rights or incurred any material commitments except in the ordinary course of
business.
SECTION 4.17 NO ADVERSE CHANGES. Except as otherwise
contemplated hereby, since December 31, 1999, there has not been (a) any
material adverse change in the Company's business, financial condition, or
assets or liabilities, as reflected in the Financial Statements, (b) any
material loss sustained by the Company on account of theft, fire, flood,
explosion, accident or other calamity, whether or not insured, which has
materially and adversely interfered, or may materially and adversely interfere,
with the operation of the Company's business, (c) to the best knowledge of the
Sellers, any actions by a competitor (other than the Purchaser) to the Company's
business which would adversely affect the financial position or market share of
the Company, or (d) to the best knowledge of the Sellers, any event, condition
or state of facts, including, without limitation, the enactment, adoption or
promulgation of any law, rule or regulation, the occurrence of which materially
and adversely does or would affect the results of operations or the business or
financial condition of the Company.
SECTION 4.18 INSURANCE. Set forth on Schedule 4.18 is a list
of the Company's material insurance polices. With respect to such insurance
policies:
(a) The Company's assets and properties (whether owned or
leased) are adequately insured against fire, damage and loss.
(b) The Company maintains normal liability insurance.
(c) The Company maintains normal insurance against operational
interruption.
(d) The insurance policies referred to in paragraphs (a), (b)
and (c) of this Section 4.18 have been validly in effect since 1997,
and such policies will be in full force and effect for no less than one
month following the Closing Date.
(e) All insurance premiums due have been paid by the Company.
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SECTION 4.19 MISCELLANEOUS. The representations and warranties
made by the Sellers in this Agreement and the statements made by or on behalf of
the Sellers in any certificate, document, exhibit or schedule furnished in
connection with the transactions contemplated hereby, do not contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make such representations or warranties or other such statements not
false or misleading.
SECTION 4.20 BROKERS. None of the Sellers nor the Company has
entered into, and none will enter into, any agreement, arrangement or
understanding with any Person that will result in the obligation of the Sellers
or the Company to pay any finder's fee, brokerage commission or similar payment
in connection with the transactions contemplated hereby.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to each of the Sellers
as of the date hereof and as of the Closing Date (it being understood that all
references to the "Purchaser" in this Article V shall be deemed to refer to the
Purchaser and its subsidiaries (including, without limitation, the Purchaser
Sub), as applicable, or except as otherwise indicated) as follows:
SECTION 5.01 DUE ORGANIZATION.
(a) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada.
The Purchaser has full corporate power and authority to own, lease and
operate its assets and to carry on its business in the places and in
the manner currently conducted or proposed to be conducted. The
Purchaser is qualified to do business in all foreign jurisdictions in
which the nature of the business conducted by it and the assets owned
or operated by it make such qualification necessary, and where the
failure to so qualify would not, individually or in the aggregate, have
a Material Adverse Effect on the Purchaser. Attached hereto as Schedule
5.01 are the Articles of Incorporation, as amended, of the Purchaser.
The Purchaser is in compliance with its Articles of Incorporation.
(b) The Purchaser Sub is a corporation duly organized, validly
existing and in good standing under the laws of England and Wales. The
Purchaser Sub has full corporate power and authority to own, lease and
operate its assets and to carry on its business in the places and in
the manner currently conducted or proposed to be conducted.
(c) Each other subsidiary of the Purchaser is a corporation
duly organized, validly existing and in good standing under the laws of
its respective jurisdiction of organization. Each subsidiary of the
Purchaser has full corporate power and authority to own, lease and
operate its assets and to carry on its business in the places and in
the manner currently conducted or proposed to be conducted.
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SECTION 5.02 DUE AUTHORIZATION; VALID OBLIGATION. The
Purchaser has all requisite corporate power and authority to execute and deliver
this Agreement and the other Transaction Documents and to consummate the
transactions contemplated hereby and thereby. The Purchaser has taken all
corporate action necessary to authorize it to execute and deliver this Agreement
and the other Transaction Documents, to perform its obligations hereunder and
thereunder and to consummate the transactions contemplated hereby and thereby,
and this Agreement constitutes, and the other Transaction Documents upon their
execution will constitute, the valid and binding obligations of the Purchaser
enforceable in accordance with their respective terms.
SECTION 5.03 BINDING OBLIGATION. Each of this Agreement and
the other Transaction Documents to which the Purchaser is a party has been duly
executed and delivered by the Purchaser and (and assuming the execution and
delivery of this Agreement and the other Transaction Documents by the Sellers)
constitutes, and each of the other agreements, instruments, documents and
certificates contemplated hereby and thereby when executed and delivered for
value, will constitute, the legal, valid and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with their respective
terms, except to the extent that (i) enforcement may be limited by or subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or limiting creditor's rights generally and (ii) the remedy of
specific performance and injunctive and other forms of equitable relief are
subject to certain equitable defenses and to the discretion of the court or
other similar entity before which any proceeding therefor may be brought.
SECTION 5.04 APPROVALS. No authorizations, approvals, consents
of, and no filings or registrations with, any Governmental Authority are
necessary for the execution, delivery or performance of this Agreement or the
Transaction Documents by the Purchaser, except for a filing pursuant to
Regulation D under the Securities Act which reports the issuance and the sale of
the CellPoint Shares.
SECTION 5.05 NO CONFLICTS. The execution and delivery of this
Agreement and the other Transaction Documents, the consummation of the
transactions contemplated hereby or thereby, and the compliance by the Purchaser
with the terms and provisions hereof or thereof will not (a) conflict with or
result in a breach of, or require any consent or vote of any Person under, the
Articles of Incorporation or By-Laws of the Purchaser or any note, mortgage,
indenture, contract, or any other agreement to which the Purchaser is a party or
by which the Purchaser or any of its properties is subject, (b) violate any
applicable law, regulation, order, writ, injunction or decree of any
Governmental Authority, or (c) constitute or result in a breach or violation of
or a default under, or result in the imposition of any Lien on any of the assets
of the Purchaser.
SECTION 5.06 AUTHORIZATIONS. Any authorization from any court
or Governmental Authority or any other person or entity which is not a party to
this Agreement which is required in connection with the execution, delivery and
performance of the Transaction Documents by the Purchaser has been obtained or
shall be obtained prior to or as of the Closing Date. There is no pending or, to
the knowledge of the Purchaser threatened, claim, action, suit, investigation or
proceeding against the Purchaser before any court, arbitrator or Governmental
Authority which, if determined adversely to the Purchaser, would have a material
adverse effect
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on the ability of the Purchaser to perform its obligations under the Transaction
Documents to which it is a party.
SECTION 5.07 CAPITALIZATION OF THE PURCHASER. The Purchaser
has authorized capital consisting of 22,000,000 shares of CellPoint Common
Stock, par value $0.001 per share, and 3,000,000 shares of preferred stock, par
value $0.001 per share. As of the date hereof, 9,390,000 shares of CellPoint
Common Stock are issued and outstanding and no shares of preferred stock of the
Purchaser are issued and outstanding. All of the issued and outstanding shares
of CellPoint Common Stock are, and all shares reserved for issuance will be,
upon issuance in accordance with the terms specified in the instruments or
agreements pursuant to which they are issuable, duly authorized, validly issued,
fully paid and nonassessable. Except for what is set forth in Schedule 5.07, the
Purchaser has not granted to any Person, or issued, any option or right to
acquire any shares of capital stock or any security convertible into or
exchangeable for and giving a right to purchase, or subscribe for, any shares of
the CellPoint Common Stock or the preferred stock of the Purchaser (including,
but not limited to, convertible debt instruments and debt instruments with
subscription rights for new shares).
SECTION 5.08 VALIDITY OF THE CELLPOINT SHARES. At the Closing
Date and upon receipt by the Purchaser of the consideration recited in this
Agreement, the CellPoint Shares to be issued to the Sellers pursuant to this
Agreement will be duly authorized, validly issued, fully paid and nonassessable,
and free and clear of all Liens, and upon issuance such CellPoint Shares will be
securities of a class that are traded on the OTC Bulletin Board service operated
by broker/dealers admitted to membership in the National Association of
Securities Dealers, Inc.
SECTION 5.09 LITIGATION. Except as disclosed in the SEC
Documents (as defined below) or in Schedule 5.09 hereto, (a) there is no claim,
dispute, action, suit, proceeding or investigation pending or, to the best
knowledge of the Purchaser threatened, against or affecting the Purchaser or the
Purchaser's business or any of the Purchaser's officers, before any Governmental
Authority which, if adversely determined, would, singly or in the aggregate,
have a Material Adverse Effect on the Purchaser or the ability of the Purchaser
to perform its obligations under this Agreement or the Transaction Documents or
which would challenge the validity or propriety of the transactions contemplated
hereby or thereby; (b) there is no outstanding judgment, order, writ, ruling,
injunction, stipulation or decree of any Governmental Authority against or
materially affecting the Purchaser or the Purchaser's business; (c) the
Purchaser has not violated and is not in default with respect to, any judgment,
order, writ, ruling, injunction, stipulation or decree listed in Schedule 5.09;
and (d) neither the Purchaser nor any of its officers has received any written
or verbal inquiry from any Governmental Authority concerning the possible
violation of any law, rule or regulation or any matter disclosed in Schedule
5.09 in respect of the Purchaser or the Purchaser's business. Set forth in
Schedule 5.09 is a list of all claims, actions, suits and proceedings instituted
by the Purchaser.
SECTION 5.10 SUBSIDIARIES; JOINT VENTURES. Except as disclosed
in the SEC Documents or in Schedule 5.10 hereto, the Purchaser does not have any
subsidiaries nor does it own, directly or indirectly, any capital stock or
equity interest in any corporation, partnership, joint venture, limited
liability company or other entity.
SECTION 5.11 SEC REPORTS AND FINANCIAL STATEMENTS.
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(a) The Purchaser has filed with the United States Securities
and Exchange Commission (the "SEC") all forms, reports, schedules,
statements and other documents required to be filed by it since March
1999 under the United States Securities Exchange Act of 1934, as
amended (the "Exchange Act") (such documents as filed and, where
applicable, as amended, are collectively, the "SEC Documents"). Copies
of all such documents have been made available to the Sellers.
(b) The SEC Documents, including without limitation any
financial statements or schedules included therein, at the time filed
(i) did not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances
under which they were made, not misleading and (ii) complied in all
material respects with the applicable requirements of the Exchange Act,
and the applicable rules and regulations of the SEC thereunder.
(c) Except as publicly disclosed by the Purchaser, the
financial statements of the Purchaser, and the related notes thereto,
included in the SEC Documents comply as to form in all material
respects with applicable accounting requirements and with the published
rules and regulation of the SEC with respect thereto, have been
prepared in accordance with U.S. GAAP, applied on a basis consistent
throughout all periods presented; such statements are reconcilable to
the books and records of the Purchaser, and present fairly in all
material respects the financial position of the Purchaser as of the
dates indicated, and the results of operations, cash flows and changes
in financial position of the Purchaser for the periods, indicated,
except in the case of interim financial statements, for the omission of
footnotes and for year-end review adjustments which are not expected to
be, singly or in the aggregate, material in amount and as are permitted
by the requirements of the rules and regulations under the Exchange
Act.
(d) The books of account and other financial records of the
Purchaser have been maintained in accordance with good business
practices.
(e) As of December 31, 1999, the Purchaser has no material
liabilities or obligations, whether secured or unsecured, accrued,
determined, absolute or contingent, asserted or unasserted or
otherwise, which are, in accordance with U.S. GAAP, required to be
reflected or reserved in a balance sheet or the notes thereto, but
which are not reflected in the SEC Documents.
(f) The Purchaser has not granted any guarantees or provided
any other security not reflected in the SEC Documents.
SECTION 5.12 EMPLOYEE MATTERS.
(a) Schedule 5.12 sets forth (i) the name of each director and
executive officer of CellPoint; (ii) each oral or written employment
agreement, consulting agreement, deferred compensation agreement,
covenant not to compete, confidentiality agreement or agreement with
each person named in Schedule 5.12 pursuant to clause (i) hereof which
agreements are not otherwise filed as an exhibit to the SEC Documents,
and (iii) any
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collective bargaining agreement or any other contract or arrangement
with any labor organization to which the Purchaser is a party or which
has been requested or under discussion during the previous 24 months.
(b) Except as set forth in the SEC Documents or in Schedule
5.12, (i) the Purchaser is not liable for any accrued bonus
compensation, vacation pay, severance pay or arrears of wages; (ii) the
Purchaser has satisfactory relations with its employees in the
aggregate; (iii) the Purchaser is not involved in any labor dispute,
proceeding, work stoppage or disturbance, other than routine grievances
which are not material; and (iv) the Purchaser has not violated in any
material respect any law or regulation governing employers and the
conditions of employees' employment, including those regulating wages,
hours, discrimination, civil rights and employment of foreign
nationals, in each of (i), (ii) and (iv), the effect of which would,
singly or in the aggregate, have a Material Adverse Effect on the
Purchaser.
(c) There is no threatened (i) claim by any current or former
director, officer or employee of the Purchaser against the Purchaser,
or (ii) labor or union litigation in respect of Purchaser.
(d) Schedule 5.12 lists every material employee benefit plan
in which the Purchaser's employees are participating.
(e) There are no former employees of the Purchaser that have a
right of re-employment by the Purchaser.
SECTION 5.13 TAXES. Except as set forth in the SEC Documents
or as indicated on Schedule 5.13, the Purchaser has filed all Tax
Returns which were required to be filed prior to the date hereof
(after giving effect to all extensions of filing deadlines obtained)
in respect of all Taxes and has paid all Taxes which have become due
pursuant to such Tax Returns or pursuant to any assessment which has
become payable, or, to the extent its liability for any Taxes which
have become due has not been fully discharged, the same have been
properly reflected as a liability on the Purchaser's books and records
and adequate reserves therefor have been established. All such Tax
Returns have been properly prepared and are complete. Except as
indicated in Schedule 5.13, no extension for the filing of any such
Tax Return is currently in effect. No Tax Return or Tax Return
liability of the Purchaser is presently under audit or, to the best
knowledge of the Purchaser, proposed to be audited. Except as
indicated in Schedule 5.13, the Purchaser has not given or been
requested to give waivers of any statute of limitations relating to
the payment of any Taxes. There are no claims pending or, to the best
knowledge of the Purchaser, threatened, against the Purchaser for past
due Taxes. All payments for withholding Taxes, unemployment insurance
and other amounts required to be paid for periods prior to the date
hereof to any Governmental Authority in respect of the Purchaser's
employment obligations, have been paid or shall be paid prior to
Closing, except for payments of which the failure to pay would not,
singly or in the aggregate, have a Material Adverse Effect on the
Purchaser. Such amounts have been duly provided for on the books and
records of the Purchaser. The Purchaser has not received any claim by
a taxing authority in a jurisdiction where the Purchaser does not file
a Tax Return that the Purchaser is or may be subject to Taxes assessed
by such jurisdiction.
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SECTION 5.14 MATERIAL AGREEMENTS; NO DEFAULTS.
(a) The material contracts attached to the SEC Documents as
exhibits constitute all of the instruments, agreements, indentures,
mortgages, guarantees, notes, commitments, accommodations, letters of
credit or other arrangements or understandings, whether oral or
written, to which the Purchaser is a party or pursuant to which the
Purchaser is obligated (the "CellPoint Material Agreements"). The
CellPoint Material Agreements constitute all of the contracts,
agreements, understandings and arrangements required for the operation
of the Purchaser's business as currently conducted or which have a
material effect thereon.
(b) Each of the CellPoint Material Agreements was entered
into in the ordinary course of the Purchaser's business, is in full
force and effect on the date hereof and is valid, binding and
enforceable in accordance with its terms. Neither the Purchaser nor,
to the Purchaser's best knowledge, any other person or entity is in
breach of, or in default under, any CellPoint Material Agreement, and
no event or action has occurred, is pending or is threatened, which,
after the giving of notice, passage of time or otherwise, would
constitute or result in such a breach or default by the Purchaser or,
to the best knowledge of the Purchaser, any other person or entity
party to a CellPoint Material Agreement. The Purchaser has not
received any notice of default under any CellPoint Material Agreement,
which default has not been cured to the satisfaction of, or duly
waived by, the party claiming such default on or before the date
hereof.
SECTION 5.15 PERMITS AND LICENSES. The Purchaser has all
Authorizations which are reasonably necessary to conduct the Purchaser's
business and to own, lease, use, operate and occupy the Purchaser's assets at
the places and in the manner now conducted and operated, except those the
absence of which would not materially adversely affect the Purchaser's business.
The Purchaser has not received any notice or claim pertaining to the failure to
obtain any material Authorization, the failure of which to obtain would result
in a Material Adverse Effect on the Purchaser, and the Purchaser does not know
of any basis for such claim.
SECTION 5.16 COMPLIANCE WITH LAW.The Purchaser is not
conducting its business or affairs in material violation of any applicable law,
ordinance, rule, regulation, court or administrative order, decree or process,
the effect of which would, singly or in the aggregate, have a Material Adverse
Effect on the Purchaser. The Purchaser has not received any notice of violation
or claimed violation of any law, ordinance, rule, regulation, order, decree,
process or requirement applicable to it.
SECTION 5.17 INTELLECTUAL PROPERTY. The Purchaser owns or
has valid and enforceable rights with respect to all the Intellectual Property
that are necessary to conduct the Purchaser's business as presently conducted.
The conduct of the Purchaser's business as presently conducted does not and will
not infringe or misappropriate any rights held or asserted by any Person. None
of the Intellectual Property is the subject of a pending or threatened action
for opposition, cancellation, declaration of invalidity, unenforceability or
misappropriation or like claim, action or proceeding. The Purchaser holds the
Intellectual Property free and clear of all Liens, except any imposed by
applicable law or regulations and any that are not material. No
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payments presently are, or will in the future be, required for the continued use
by the Purchaser of the Intellectual Property.
SECTION 5.18 TANGIBLE PERSONAL PROPERTY. The Purchaser has
good and marketable title to all of its tangible personal property and assets
which is used in and, individually or in the aggregate with such other property,
is material to the business of the Purchaser, free and clear of all Liens,
except for any Permitted Tax Lien. All material items of the tangible personal
property and assets owned or leased by the Purchaser are in adequate condition
to conduct the Purchaser's business as now conducted or proposed to be
conducted.
SECTION 5.19 ORDINARY COURSE. Since June 30, 1999, the
Purchaser has conducted its business, maintained its assets and kept its books
of account, records and files, substantially in the same manner as previously
conducted, maintained or kept and solely in the ordinary course. Since June 30,
1999, the Purchaser has not incurred any material liabilities, sold or otherwise
transferred any material assets, waived or cancelled any material rights or
incurred any material commitments except in the ordinary course of business.
SECTION 5.20 NO ADVERSE CHANGES. Except as disclosed in the
SEC Documents, since June 30, 1999, there has not been (a) any material adverse
change in the Purchaser's business, financial condition, or assets or
liabilities, as reflected in the SEC Documents, (b) any material loss sustained
by the Purchaser on account of theft, fire, flood, explosion, accident or other
calamity, whether or not insured, which has materially and adversely interfered,
or may materially and adversely interfere, with the operation of the Company's
business, (c) to the best knowledge of the Purchaser, any actions by a
competitor (other than the Company) to the Purchaser's business which would
adversely affect the financial position or market share of the Purchaser, or (d)
to the best knowledge of the Purchaser, any event, condition or state of facts,
including, without limitation, the enactment, adoption or promulgation of any
law, rule or regulation, the occurrence of which materially and adversely does
or would affect the results of operations or the business or financial condition
of the Purchaser.
SECTION 5.21 INSURANCE. Set forth on Schedule 5.21 is a list
of the Purchaser's material insurance polices. With respect to such insurance
policies
(a) The Purchaser's assets and properties (whether owned or
leased) are adequately insured against fire, damage and loss;
(b) The Purchaser maintains liability insurance of a type
and in amounts customary for companies in its industry;
(c) The Purchaser maintains normal insurance against
operational interruption.
(d) The insurance policies under (a) through (c) above are
validly in effect and such policies will be in full force and effect
for at least one month after the Closing Date.
All insurance premiums due have been paid by the Purchaser.
SECTION 5.22 INVESTMENT REPRESENTATION. The Purchaser is
acquiring the Unwire Securities for its own account for investment and not with
a view to the distribution thereof and
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the Purchaser will not effect any transfer or disposition of the Unwire
Securities in violation of any applicable securities or blue sky laws or
regulations, including but not limited to, the Securities Act.
SECTION 5.23 BROKERS. Except as set forth in Schedule 5.23,
the Purchaser has not entered into and will not enter into any agreement,
arrangement or understanding with any person or firm that will result in the
obligation of the Purchaser to pay any finder's fee, brokerage commission or
similar payment in connection with the transactions contemplated hereby.
SECTION 5.24 MISCELLANEOUS. The representations and
warranties made by the Purchaser in this Agreement and the statements made by or
on behalf of the Purchaser in any certificate, document, exhibit or schedule
furnished in connection with the transactions contemplated hereby, do not
contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make such representations or warranties or other such
statements not false or misleading.
ARTICLE VI.
CONDITIONS TO THE OBLIGATIONS OF THE PURCHASER
The obligations of the Purchaser under this Agreement are
subject to the satisfaction, on or prior to the Closing Date, of the following
conditions, any of which may be waived in whole or in part by the Purchaser, in
its sole discretion:
SECTION 6.01 DUE PERFORMANCE; ACCURACY OF REPRESENTATIONS
AND WARRANTIES.
(a) The Sellers shall have fully performed and complied in
all material respects with all agreements and conditions required by
this Agreement to be performed or complied with by them on or prior to
the Closing Date;
(b) All representations and warranties of the Sellers set
forth in this Agreement shall be true and correct in all material
respects, on and as of the Closing Date, as though made on and as of
the Closing Date; and
(c) Each Seller shall deliver a certificate certifying that
the statements in paragraphs (a) and (b) are true and correct on and
as of the Closing Date.
SECTION 6.02 REGISTRATION OF UNWIRE SHARES AND CONVERSION
AND REGISTRATION OF UNWIRE CONVERTIBLE SECURITIES.
(a) 805,900 shares in the Company, which have been
subscribed for, but which, on the date hereof, have not been
distributed or recorded in the Company's share register, shall have
been registered with the Swedish Patent and Registration Office, or if
such shares have not been so registered as of the Closing Date, the
Sellers shall deliver interim certificates evidencing such shares; and
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(b) all of the Unwire Convertible Securities shall have
been registered with the Swedish Patent and Registration Office and
(with the exception of the Unwire Subscription Rights) converted into
shares in the Company, and such shares shall have been registered with
the Swedish Patent and Registration Office, or if such Unwire
Convertible Securities have not been converted or such shares have not
been so registered as of the Closing Date, the Sellers shall deliver
to the Purchaser interim certificates evidencing such shares.
SECTION 6.03 TRANSFER OF UNWIRE SECURITIES. The Sellers
shall deliver to the Purchaser Sub (i) share certificates representing the
Unwire Shares (or to the extent such shares shall not have been registered with
the Swedish Patent and Registration Office, interim certificates evidencing such
Unwire Shares), and (ii) all subscription rights certificates, debt instruments
and certificates evidencing the Unwire Convertible Securities, and to the extent
the Unwire Convertible Securities have been converted into shares and such
shares have been registered with the Swedish Patent and Registration Office,
share certificates representing such shares, or, if such shares have not been
registered, interim certificates evidencing such shares, in each case duly
endorsed in blank or accompanied by duly executed instruments of transfer in
blank, if applicable, together with all necessary documentary or stock transfer
stamps affixed and accompanied by such other assignments, certificates of
authority, consents to transfer instruments and evidence of title to the Unwire
Securities as may be reasonably requested by counsel to the Purchaser in order
that all right, title and interest in and to such securities pass to the
Purchaser from the Sellers free and clear of all Liens. In addition, the Sellers
shall deliver to the Purchaser the share register of the Company setting forth
that the Purchaser is the registered owner of the Unwire Shares and the shares
in the Company to be issued and registered because of the conversion into shares
of the Unwire Convertible Securities (other than the Unwire Subscription
Rights). Further, the Sellers shall deliver to the Purchaser such statement from
an accountant as is referred to in Chapter 5, Section 14, second paragraph of
the Swedish Companies Act (1975:1385).
SECTION 6.04 TRANSACTION DOCUMENTS.
(a) The other Transaction Documents to which each Seller is
a party shall have been executed and delivered to the Purchaser.
(b) The Escrow Shares shall have been deposited with the
Escrow Agent and the Escrow Agent shall have acknowledged receipt
thereof.
SECTION 6.05 CORPORATE DOCUMENTS. The Sellers shall have
delivered or caused to be delivered to the Purchaser:
(a) a copy of the Articles of Association of the Company,
as amended through the Closing Date, certified by the president of the
Company;
(b) certificates of the Secretary or Assistant Secretary,
or such other authorized officer, of each Seller (other than a Seller
who is an individual) including (i) duly enacted resolutions of such
Seller's board of directors or other necessary corporate actions
approving this Agreement and the transactions contemplated hereby and
authorizing
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officers of such Seller to execute and deliver instruments required to
be delivered hereunder as a condition precedent to the Closing, (ii)
the Articles of Association and By-Laws of such Seller, and (iii)
specimen signatures of the officers of such Seller authorized to sign
such instruments if necessary to determine whether the Agreement has
been properly executed and authorized by such Seller;
SECTION 6.06 NO CLAIMS. No claim, action, suit,
investigation or proceeding shall be pending or threatened against any of the
parties hereto or any of their respective Affiliates which, if adversely
determined, would (a) prevent or hinder consummation of the transactions
contemplated by this Agreement, the Transaction Documents or any of the
agreements attached hereto as Exhibits, (b) result in the payment by the Company
or the Purchaser of substantial damages as a result of the transactions
contemplated hereby, (c) materially and adversely affect the Company's business,
or (d) materially affect the Purchaser's rights with respect to the Unwire
Securities subsequent to the Closing Date. No party to this Agreement shall have
received written notice from any court or other Governmental Authority of its
intention to institute any action or proceeding to restrain, enjoin, nullify or
render ineffective this Agreement or any of the agreements attached hereto as
Exhibits or the transactions contemplated hereby or thereby, if consummated.
SECTION 6.07 AUTHORIZATIONS. The Purchaser shall have
received all Authorizations of all relevant Governmental Authorities required in
connection with the consummation of the transactions contemplated hereby or to
preserve the Company's and the Subsidiary's business and the Company's and the
Subsidiary's rights under any material agreements, without the imposition of any
materially burdensome expense, conditions or restrictions, and all of which
shall be in full force and effect on the Closing Date.
SECTION 6.08 RESIGNATION OF DIRECTORS. Concurrently with the
Closing, the Sellers shall, to the extent required by the Purchaser, deliver to
the Purchaser, effective written resignation letters of the directors and deputy
directors, if any, and the President of the Company and the Subsidiary,
respectively, containing in each case a confirmation that such directors, deputy
directors and President have no claim of whatever nature against the Company or
the Subsidiary, as the case may be.
SECTION 6.09 SATISFACTION OF COUNSEL. All actions,
proceedings, instruments, documents and other relevant legal matters in
connection with the transactions contemplated by this Agreement or any of the
agreements attached hereto as Exhibits, shall be reasonably satisfactory in all
respects to counsel for the Purchaser, including, without limitation, that this
Agreement has been duly authorized and executed by each Seller.
ARTICLE VII.
CONDITIONS TO OBLIGATIONS OF THE SELLERS
The obligations of the Sellers under this Agreement are
subject to the satisfaction, on or prior to the Closing Date, of the following
conditions, any of which may be waived in whole or in part by all of the Sellers
in their sole discretion:
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SECTION 7.01 DUE PERFORMANCE; ACCURACY OF REPRESENTATIONS
AND WARRANTIES.
(a) The Purchaser shall have fully performed and complied
in all material respects with all of their respective agreements and
conditions required by this Agreement to be performed or complied with
by it on or prior to the Closing Date.
(b) All representations and warranties of the Purchaser set
forth in this Agreement shall be true and correct in all material
respects, on and as of the Closing Date as though made on and as of
the Closing Date.
(c) The Sellers shall have received a certificate
certifying that the statements in paragraphs (a) and (b) above are
correct, executed by the officers of the Purchaser.
SECTION 7.02 CONSIDERATION. The Purchaser shall deliver to
the Sellers the CellPoint Shares registered in such names and in such amounts as
are set forth on Schedule I attached hereto, except to the extent that a portion
of the CellPoint Shares shall be delivered to the Escrow Agent pursuant to
Section 2.03 hereof and the Escrow Agreement.
SECTION 7.03 TRANSACTION DOCUMENTS.
(a) The other Transaction Documents shall have been
executed and delivered to the Sellers.
(b) The Escrow Shares shall have been deposited with the
Escrow Agent and the Escrow Agent shall have acknowledged receipt
thereof.
SECTION 7.04 CORPORATE DOCUMENTS. The Purchaser shall have
delivered or caused to be delivered to the Sellers:
(a) a copy of the Purchaser's Articles of Incorporation, as
amended through the Closing Date, and certified by the Secretary of
the Purchaser;
(b) a copy of the Articles of Association of the Purchaser
Sub, as amended through the Closing Date, and certified by the
secretary of the Purchaser Sub;
(c) certificates of the Secretary or Assistant Secretary,
or such other authorized officer, of CellPoint including (i) duly
enacted resolutions of CellPoint's board of directors approving this
Agreement and the Transaction Documents and the transactions
contemplated hereby and thereby, and authorizing the officers of
CellPoint to execute and deliver instruments required to be delivered
hereunder and thereunder as a condition precedent to the Closing, and
(ii) specimen signatures of the officers of CellPoint authorized to
sign such instruments; and
(d) certificates of the Secretary or Assistant Secretary,
or such other authorized officer, of the Purchaser Sub including (i)
duly enacted resolutions of the Purchaser Sub's board of directors
approving this Agreement and the transactions contemplated hereby and
authorizing the officers of the Purchaser Sub to execute and deliver
instruments required to be delivered hereunder as a condition
precedent to the Closing, and (ii)
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specimen signatures of the officers of the Purchaser Sub authorized to
sign such instruments
SECTION 7.05 NO CLAIMS. No claim, action, suit,
investigation or proceeding shall be pending or threatened against any of the
parties hereto or any of their respective Affiliates which, if adversely
determined, would (a) prevent or hinder consummation of the transactions
contemplated by this Agreement, the other Transaction Documents or any of the
agreements attached hereto as Exhibits, (b) result in the payment by the Sellers
of substantial damages (other than Taxes) as a result of the transactions
contemplated hereby, or (c) would otherwise have a Material Adverse Effect on
the Purchaser. No party to this Agreement shall have received written notice
from any court or other Governmental Authority of its intention to institute any
action or proceeding to restrain, enjoin, nullify or render ineffective this
Agreement, the other Transaction Documents or any of the agreements attached
hereto as Exhibits or the transactions contemplated hereby or thereby, if
consummated.
SECTION 7.06 CONSENTS AND GOVERNMENTAL APPROVALS. The
Sellers shall have received all Authorizations of all relevant Governmental
Authorities, required in connection with the consummation of the transactions
contemplated hereby and by the other Transaction Documents, all of which shall
be in full force and effect on the Closing Date.
SECTION 7.07 OPINION OF COUNSEL. The Sellers shall have
received an opinion of Salans Hertzfeld Heilbronn Christy & Viener, counsel for
the Purchaser, with respect to the due authorization, issuance and validity of
the CellPoint Shares.
SECTION 7.08 SATISFACTION OF COUNSEL. All actions,
proceedings, instruments, documents and other relevant legal matters in
connection with the transactions contemplated by this Agreement or any of the
agreements attached hereto as Exhibits, shall be reasonably satisfactory in all
respects to counsel for the Sellers.
ARTICLE VIII.
CONDUCT OF BUSINESS OF THE COMPANY PRIOR TO THE CLOSING DATE
SECTION 8.01 CONDUCT OF BUSINESS.
(a) Between the date of this Agreement and the Closing
Date, the Sellers shall use their best efforts to cause the Company to
preserve substantially intact the Company's business organization,
keep available the services of the Company's present officers and
employees involved in the Company's business and preserve the
Company's present relationships with persons having significant
business relations therewith and shall conduct the Company's business
only in the ordinary course, except as otherwise contemplated hereby
or disclosed in the Schedules attached to this Agreement. Without
limiting the generality of the foregoing, the Sellers shall not
without the prior written consent of the Purchaser, except as
specifically required by this Agreement, permit the Company or the
Subsidiary to (i) issue or commit to issue any securities or interests
convertible into or exchangeable for securities of the Company or the
Subsidiary
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(including convertible debt instruments and debt instruments with
subscription rights for new shares), except as contemplated by Section
6.02 hereof, (ii) grant or commit to grant any options, warrants or
other rights to subscribe for or purchase or otherwise acquire any
securities of the Company or the Subsidiary, (iii) declare, set aside,
or pay any dividend or make any distribution with respect to shares in
the Company, (iv) directly or indirectly redeem, purchase or otherwise
acquire or commit to acquire any capital stock or other ownership
interest of any person, (v) effect a split or reclassification of its
membership interests, (vi) amend its Articles of Association or other
governing instrument, (vii) borrow or agree to borrow any funds,
except in the ordinary course of business or repay any Indebtedness
except scheduled installments which become due in the ordinary course
of business, (viii) waive or commit to waive any rights of substantial
value or grant any discount or allowance with respect to any of its
receivables or agree to make any allowances to, any customer, except
in accordance with the Company's standard allowance policies, (ix)
sell, exchange, or otherwise dispose of, or cause or suffer the sale,
exchange or other disposition of any significant part of its assets,
except in the ordinary course of business, (x) mortgage, pledge or
subject (or suffer to be subjected) any of its assets to any Lien,
other than immaterial Liens which are contested by the Company, (xi)
create any receivable (including, without limitation, accounts
receivable, notes, advances and receivables due from Affiliates)
except in BONA FIDE transactions in the ordinary course of business,
(xii) acquire (by purchase of assets or stock, merger, consolidation
or otherwise) or sell, transfer or otherwise dispose of, any assets in
excess of an aggregate amount of US$50,000, or cancel any debts or
claims in excess of such aggregate amount, except in the ordinary
course of business, (xiii) sell, assign, license or transfer any
right, title or interest in or to any Intellectual Property, (xiv)
grant any general increase in wage or salary rates or in benefits for
its employees, or grant any increase in salary or in benefits to any
employee employed by it and earning more than US$50,000 per year,
except pursuant to its established policies and practices, or adopt or
modify (except to the extent required by law) any bonus, pension,
profit-sharing or other compensation plan, or grant any bonus to any
person, (xv) make any material change in the accounting methods or
practices currently employed by the Company, (xvi) manage the
Company's working capital other than in the ordinary course or (xvii)
modify the Company's insurance coverage.
(b) Between the date of this Agreement and the Closing
Date, the Sellers shall cause the Company to pay on a timely basis its
accounts payable, trade obligations and other liabilities as such
obligations become due without extension or waiver.
SECTION 8.02 PRESERVE ACCURACY OF REPRESENTATIONS AND
WARRANTIES.
(a) Between the date of this Agreement and the Closing
Date, the Sellers shall refrain from taking, and shall cause the
Company or the Subsidiary to refrain from taking, without the prior
written consent of the Purchaser, any action which would render any of
the representations or warranties made by the Sellers in this
Agreement and the other Transaction Documents materially inaccurate as
of the Closing Date. The Sellers shall notify the Purchaser promptly
of the occurrence of any matter, event or change in circumstances
after the date hereof that would have been required to be disclosed in
the
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Schedules to this Agreement if it had occurred prior to the date
hereof, but such notification shall not affect any of the Purchaser's
rights under this Agreement.
(b) Between the date of this Agreement and the Closing
Date, the Purchaser shall refrain from taking, without the prior
written consent of the Sellers, any action which would render any of
the representations or warranties made by the Purchaser in this
Agreement and the other Transaction Documents materially inaccurate as
of the Closing Date. The Purchaser shall notify the Sellers promptly
of the occurrence of any matter, event or change in circumstances
after the date hereof that would have been required to be disclosed in
the Schedules to this Agreement if it had occurred prior to the date
hereof, but such notification shall not affect any of the Sellers'
rights under this Agreement.
SECTION 8.03 CONSENTS AND WAIVERS. The parties hereto shall
cooperate with each other and use best efforts to obtain all consents and
waivers to the transactions contemplated hereby and by the other Transaction
Documents required under all agreements, mortgages, indentures, contracts,
licenses, franchises, permits, leases or other instruments, the withholding of
which consents or waivers would have a Material Adverse Effect on the Company or
the Purchaser, as the case may be.
SECTION 8.04 NO OTHER NEGOTIATIONS. Between the date of this
Agreement and the Closing Date or the earlier termination of this Agreement, the
Sellers shall not, and shall not permit any of the officers, directors or
representatives of the Company to, directly or indirectly, encourage, solicit,
initiate, conduct or continue discussions with, or provide information to, any
entity or Person other than the Purchaser and its representatives concerning the
sale of the Unwire Securities, the Company's business or assets or any portion
thereof. This Section 8.04 shall not prevent the Company from taking the actions
set forth in (and subject to the provisions of) Section 8.01.
ARTICLE IX.
ADDITIONAL AGREEMENTS OF THE SELLERS
SECTION 9.01 NON-COMPETITION. Each of the Sellers agrees
that, for a period of one (1) year following the Closing, it shall not commence
any business or acquire an interest in any business which is competitive with
the business of the Company as conducted for the two (2) years preceding the
Closing; PROVIDED, HOWEVER, that, the foregoing restriction shall not prohibit a
Seller from (a) investing in securities of any entity, solely for investment
purposes and without participating in the business thereof, if (i) such
securities are traded on any national securities exchange or the National
Association of Securities Dealers, Inc. Automated Quotation System, (ii) such
Seller is not a controlling person of, or a member of a group which controls,
such entity and (iii) such Seller does not, directly or indirectly, own 5% or
more of any class of securities of such entity, and (b) investing in venture
capital funds that have interests in a business that is competitive with the
Company, solely for investment purposes so long as such Seller is not a
controlling person or manager of, or a member of a group which controls or
manages, such entity; provided further however that, the foregoing restriction
shall not prohibit any Seller from
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investing in the area of mobile telephony in circumstances where the principal
business of the company in which such investment is made is not in the global
positioning business.
SECTION 9.02 RESTRICTIONS ON TRANSFER. The Sellers shall not
sell, transfer, pledge, hypothecate or otherwise dispose of the CellPoint
Shares, except:
(a) in connection with the distribution of the CellPoint
Shares in accordance with the Escrow Agreement and Article X hereof;
or
(b) pursuant to an effective registration statement on the
appropriate form filed by the Purchaser under the Securities Act, and
any applicable state securities laws covering the proposed transfer,
or if the Purchaser has been furnished with an opinion of United
States counsel satisfactory to the Purchaser, to the effect that such
transfer is exempt from the registration provisions of the Securities
Act and any applicable state securities laws.
SECTION 9.03 REGISTRATION OF UNWIRE SECURITIES; WAIVER OF
CLAIMS REGARDING UNWIRE SECURITIES.
(a) The Sellers covenant and agree that they will file with
the Swedish Patent and Registration Office prior to the Closing all
possible and necessary applications for registration of the Unwire
Shares and the Unwire Convertible Securities which have not previously
been so registered.
(b) The Sellers have disclosed to the Purchaser that the
issue of 805,900 shares in the Company as well as the issue of the
Unwire Convertible Securities and the conversion thereof to shares in
the Company have not yet been registered with the Swedish Patent and
Registration Office. Each Seller hereby covenants and agrees that it
will not challenge or raise any objections to such registrations and
conversion to shares in the Company and that it will cause the Company
to pursue such registration as promptly as practicable.
(c) Each Seller hereby transfers to the Purchaser, and such
Seller hereby otherwise waives, any claim it now has or may in the
future have against the Company for a repayment of its capital
contributions to the Company and any other claims it may have with
respect to:
(i) the subscription and payment for unregistered
Unwire Shares to the extent that any such claim exists or
may hereafter arise as a result of the failure of such
Unwire Shares to be registered with the Swedish Patent and
Registration Office for any reason whatsoever; and
(ii) the subscription and payment for Unwire
Convertible Securities to the extent that such claim exists
or may hereafter arise as a result of the failure of such
Unwire Convertible Securities to be registered with the
Swedish Patent and Registration Office or converted into
shares in the Company, and if so converted or exchanged, the
failure of such shares in the Company to be registered with
the Swedish Patent and Registration Office for any reason
whatsoever.
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The agreements of the Sellers contained in this Section 9.03 shall survive the
Closing until such time as all of the Unwire Shares have been registered with
the Swedish Patent and Registration Office and all of the Unwire Convertible
Securities have been converted into shares in the Company and such shares have
been registered with the Swedish Patent and Registration Office.
ARTICLE X.
INDEMNIFICATION
SECTION 10.01 INDEMNIFICATION OBLIGATIONS OF THE PARTIES.
(a) Subject to Section 10.05, each of the Sellers, severally and
not jointly, agrees to defend, indemnify and hold harmless the
Purchaser (which for the purposes of this Section 10.01(a) shall
include the Purchaser's respective affiliates, directors, officers,
employees, agents, advisors and representatives) from and against, and
to reimburse the Purchaser with respect to, all liabilities, losses,
costs and expenses, including, without limitation, reasonable
attorneys' fees and disbursements ("Losses"), asserted against or
incurred by the Purchaser by reason of, arising out of, or in
connection with:
(i) any breach of any representation, warranty, covenant or
agreement contained in this Agreement made by the Sellers or in
any document or certificate delivered by the Sellers to the
Purchaser pursuant to the provisions of this Agreement;
(ii) any claim, demand, action, suit, proceeding or
investigation involving the Company arising at any time and not
disclosed in the Schedules to this Agreement relating to a state
of facts, action or omission to act arising on or prior to the
Closing Date or the allegation by any third party of the
existence of any state of facts which, if existing, would
constitute a breach of any representation or warranty referred to
in clause (i) of this Section 10.01(a);
(iii) the failure of any Unwire Shares, the Unwire
Convertible Securities or shares in the Company issuable upon
exercise or conversion of the Unwire Convertible Securities to be
registered with the Swedish Patent and Registration Office;
(iv) any Taxes incurred by the Company or the Sellers which
arise as a result of or in connection with the transactions
contemplated hereby (including, without limitation, any federal,
state, local or foreign documentary, transfer or other Taxes
which are required to be paid in connection with the sale,
transfer, exchange, conveyance, assignment and delivery of the
Unwire Securities to the Purchaser hereunder); and
(v) any damages or claims by or on behalf of MobilSafe
pursuant to the agreement between the Company and MobilSafe,
which damages or claims
31
<PAGE>
become payable as a result of a change in control of the Company
(as such term is used in such MobilSafe agreement).
(b) Subject to Section 10.05, the Purchaser agrees to defend,
indemnify and hold harmless the Sellers (which for the purposes of
this Section 10.01(b) shall include the Sellers' respective
affiliates, directors, officers, employees, agents, advisors and
representatives) from and against, and to reimburse the Sellers with
respect to, all Losses, asserted against or incurred by the Sellers by
reason of, arising out of, or in connection with:
(i) any breach of any representation, warranty, covenant or
agreement contained in this Agreement made by the Purchaser or in
any document or certificate delivered by the Purchaser to the
Sellers pursuant to the provisions of this Agreement; and
(ii) any claim, demand, action, suit, proceeding or
investigation involving the Purchaser arising at any time and not
disclosed in the Schedules to this Agreement relating to a state
of facts, action or omission to act arising on or prior to the
Closing Date or the allegation by any third party of the
existence of any state of facts which, if existing, would
constitute a breach of any representation or warranty referred to
in clause (i) of this Section 10.01(b)
(c) Notwithstanding anything to the contrary in this Article X,
no indemnified party shall be entitled to recover any payments or
contributions pursuant to this Section 10.01 unless and until the
aggregate amount of the Losses to the Purchaser, on the one hand, or
the Sellers collectively, on the other hand, from all claims finally
determined to arise under this Article X, exceeds U.S.$60,000 (the
"DEDUCTIBLE"), in which event the entire Loss will be payable by the
indemnifying party in accordance with the terms hereof.
Furthermore, except as hereinafter provided, the maximum payment or
contribution recoverable by an indemnified party pursuant to this
Article X will not, in the aggregate, exceed the aggregate Agreed
Value of 107,500 CellPoint Shares. Notwithstanding the foregoing, (i)
no Deductible shall apply to any Losses arising out of the
circumstances described in Sections 10.01(a)(iii) or 10.01(a)(v)
hereof; and (ii) any Losses arising out of the circumstances described
in Section 10.01(a)(v) shall be subject to a maximum indemnification
by the Sellers of SEK3 million.
(d) In addition, Unium AB, Kaj Gellberg, Bertil Soderberg, and
Lykke Olesen, severally and not jointly, agree to defend, indemnify
and hold harmless the Purchaser (which for the purposes of this
Section 10.01(d) shall include the Purchaser's respective affiliates,
directors, officers, employees, agents, advisors and representatives)
from and against, and to reimburse the Purchaser with respect to, any
Losses arising out of claims by the former shareholders of SGS Systems
AB, as more fully described in Schedules 3.05 and 4.05 hereto. The
indemnification obligations of Unium AB, Kaj Gellberg, Bertil
Soderberg, and Lykke Olesen pursuant to this paragraph (d) shall not
be subject to any Deductible or any limit on the maximum
indemnification set forth in Section 10.01(c).
SECTION 10.02 INDEMNIFICATION PROCEDURE.
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(a) In the case of a claim pursuant to Section 10.01, the
indemnified party shall give notice to the indemnifying party and the
Escrow Agent as promptly as practicable of (i) the allegation by it of
any breach or failure referred to in Section 10.01(a)(i) or (b)(i), as
applicable, setting forth to the extent known the amount of
indemnification claimed, (ii) the allegation by any third party of the
existence of any matter or state of facts referred to in Section
10.01(a)(ii) or (b)(ii), as applicable, or (iii) the incurrence of any
Losses referred to in Section 10.01(a)(iii) or any Taxes referred to
in Section 10.01(a)(iv); PROVIDED that the rights of the indemnified
party shall not be affected by any delay in providing such notice
except to the extent that the indemnifying party is actually
prejudiced thereby.
(b) Upon receipt of notice pursuant to Section 10.02(a), the
indemnifying party shall have 10 days in which to dispute the claim
asserted by sending written notice thereof to the indemnified party (a
"Dispute Notice") and to the Escrow Agent. The indemnifying party
shall not be entitled to dispute a claim based on a final judgment or
order of a court of competent jurisdiction. If no Dispute Notice is
received prior to the expiration of the 10-day period, the indemnified
party shall be entitled to receive full payment of the amount of the
claim. If a Dispute Notice is received prior to the expiration of the
10-day period, the parties shall negotiate in good faith to resolve
the dispute. If the parties are unable to resolve the dispute within
30 days of the receipt of the Dispute Notice, the dispute shall be
submitted to arbitration. Such arbitration shall be conducted in
accordance with Section 11.07.
(c) All payments and contributions to be made by an indemnifying
party to an indemnified party pursuant to this Article X shall be made
by delivery of shares of CellPoint Common Stock, equal to the
determined United Stated Dollar amount of the applicable Loss divided
by the Agreed Value.
(d) All notices to the Escrow Agent shall be sent as set forth
in the Escrow Agreement.
(e) The Swedish Sale of Goods Act (1990:931) shall not apply to
this Agreement and the other Transaction Documents.
SECTION 10.03 APPLICATION OF ESCROW SHARES. The Purchaser and the
Sellers agree that:
(a) the Escrow Shares shall be deposited with the Escrow Agent
as required by Section 2.03(b);
(b) subject to Section 10.01(c), for claims under this Article X
asserted by either party during the first twelve months following the
Closing Date, the Purchaser shall have recourse first to the Seller
Escrow Shares and the Sellers shall have recourse first to the
Purchaser Escrow Shares to satisfy any payments or contributions to be
paid by the indemnifying party pursuant to this Article X;
(c) subject to Section 10.01(c), after the respective Escrow
Shares have been used to satisfy any payment or contribution
obligations by the indemnifying party pursuant to
33
<PAGE>
this Article X, the indemnified party shall have recourse to all
available remedies under this Agreement, at law or in equity to
satisfy payments or contributions to be paid by the indemnifying party
under this Article X; and
(d) if no claims have been asserted by the Purchaser prior to
the end of twelve months from the Closing Date, then the Seller Escrow
Shares shall be released by the Escrow Agent to the Seller, and if no
claims have been asserted by the Seller prior to the end of twelve
months from the Closing date, then the Purchaser Escrow Shares shall
be returned to the Purchaser for cancellation.
SECTION 10.04 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties and statements made by the Sellers and the
Purchaser in this Agreement or in any document or certificate delivered pursuant
hereto shall survive the Closing Date and for a period of one year from the
Closing Date, and in each case shall be unaffected by any investigation made by
or on behalf of any party hereto, by knowledge obtained as a result thereof or
otherwise or by any notice of breach of, or failure to perform under, this
Agreement which is not effectively waived in accordance herewith; PROVIDED,
HOWEVER, that to the extent that Dispute Notice with respect to a breach of a
representation or warranty has been given prior to the end of the one-year
period, such representation or warranty shall survive to the extent of the
Dispute Notice only, until the matters set forth in the Dispute Notice are
resolved; and PROVIDED FURTHER, that the representations and warranties
contained in (a) Sections 3.01, 3.02, 3.03 and 3.04 by the Sellers in respect of
themselves, (b) Sections 4.01, 4.02, 4.03 and 4.04 by the Sellers in respect of
the Company, and (c) Sections 5.01, 5.02, 5.0.3, 5.04, 5.05, 5.06, 5.07 and 5.08
by the Purchaser in respect of the Purchaser, in each case will survive
indefinitely; and PROVIDED FURTHER, that the representations and warranties
contained in (x) Section 4.09 by the Sellers in respect of the Company, and (y)
Section 5.13 by the Purchaser in respect of the Purchaser will survive until
such time as the applicable statute of limitations for such matters expires.
Notwithstanding the foregoing, to the extent that any breach of a representation
or warranty contained in this Agreement would reasonably be expected to
discovered in an audit of the financial statements of CellPoint containing
combined operations of CellPoint and the Company for the fiscal year in which
the Closing occurs, such representations and warranties shall survive until the
date CellPoint's independent certified public accountants issue their final
report and opinion on such audit.
ARTICLE XI.
MISCELLANEOUS
SECTION 11.01 EXPENSES. Each of the parties hereto shall bear and
pay all costs, expenses and fees incurred by it on its behalf incident to the
preparation, execution and delivery of this Agreement, the other Transaction
Documents, any agreements contemplated hereby, including those attached as
Exhibits and Schedules hereto, and the performance of such party's obligations
hereunder or thereunder, whether or not the transactions contemplated by this
Agreement and the other Transaction Documents are consummated, including,
without limitation, any broker's or finder's fees, costs incident to the
transfer of any securities and the
34
<PAGE>
fees and disbursements of attorneys, accountants and consultants (including
investment banking advisors) employed by such party,
SECTION 11.02 FURTHER ASSURANCES. From time to time after the
date of this Agreement, each of the parties hereto, at the request of the other,
and without further consideration, shall execute and deliver such further
documents or instruments and shall take such other actions as the requesting
party may reasonably request in order to effect complete consummation of the
transactions contemplated by this Agreement.
SECTION 11.03 NOTICES. All communications, notices, requests,
consents or demands given or required under this Agreement shall be in writing
and shall be deemed to have been duly given when delivered to, sent by facsimile
with acknowledged receipt or recognized courier service with acknowledged
receipt, or five (5) days after being mailed by prepaid registered or certified
mail addressed to, the party for whom intended, as follows, or to such other
address as may be furnished by such party by notice in the manner provided
herein:
(a) If to the Sellers:
To their respective addresses set forth
on Schedule I attached hereto:
with a copy to:
Clifford Chance Limited Liability Partnership
200 Aldersgate Street
London EC1A 4JJ
United Kingdom
Attention: Olof Clausson, Esq.
Fax: 44 171 600-5555
(b) If to CellPoint or the Purchaser Sub:
CellPoint Inc.
Sofielundsvagen 4
Sollentuna S 191 47
Sweden
Fax: 468-544-90005
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with a copy to:
Salans Hertzfeld Heilbronn Christy & Viener
620 Fifth Avenue
New York, New York 10020
United States
Attention: Steven R. Berger, Esq.
Fax: (212) 307-3308 or (212) 632-5555
SECTION 11.04 ENTIRE AGREEMENT. This Agreement, together with the
Schedules and Exhibits hereto, the other Transaction Documents and the
instruments and agreements to be executed pursuant to this Agreement, sets forth
the entire understanding of the parties hereto with respect to its subject
matter, merges and supersedes all prior and contemporaneous understandings with
respect to its subject matter and may not be waived or modified, in whole or in
part, except by a writing signed by each of the parties hereto. No waiver of any
provision of this Agreement in any instance shall be deemed to be a waiver of
the same or any other provision in any other instance. Failure of any party to
enforce any provision of this Agreement shall not be construed as a waiver of
its rights under such provision.
SECTION 11.05 SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon, enforceable against and inure to the benefit of, the parties
hereto and their respective heirs, administrators, executors, personal
representatives, successors and assigns, and nothing herein is intended to
confer any right, remedy or benefit upon any other person. This Agreement may
not be assigned by any party hereto except with the prior written consent of all
the other parties, which consent shall not be unreasonably withheld.
SECTION 11.06 GOVERNING LAW. This Agreement shall in all respects
be governed by and construed in accordance with the laws of Sweden; PROVIDED,
HOWEVER, that (a) any issues under this Agreement related to the CellPoint
Shares which is required by the Nevada Revised Statutes to be governed by the
laws of the State of Nevada shall be so governed by and construed in accordance
with the laws of the State of Nevada, and (b) any issues under this Agreement
relating to the offer, registration, sale or resale of the CellPoint Shares
shall also be governed by and construed in accordance with the United States
Federal and state securities laws.
SECTION 11.07 ARBITRATION; SPECIFIC PERFOMANCE.
(a) Any dispute, controversy or claim arising out of or in
connection with this Agreement or the breach, termination or
invalidity hereof, shall be exclusively and finally settled by
arbitration in accordance with the Rules of the Arbitration Institute
of the Stockholm Chamber of Commerce. The arbitral tribunal shall be
composed of three arbitrators. The place of arbitration shall be
Stockholm, Sweden. The arbitration procedures shall be held in the
English language.
(b) Subject to the provisions of Section 11.07(a), each party to
this Agreement agrees the remedy at law, including monetary damages,
for breach of such party's covenants, agreements or obligations
hereunder, may be inadequate compensation for any
36
<PAGE>
loss, and that any defense in any action for specific performance that
a remedy at law would be adequate is hereby waived. The rights and
remedies herein expressly provided are cumulative and not exclusive of
any other rights or remedies which any party would otherwise have
pursuant to any Transaction Document, at law, in equity, by statute or
otherwise.
SECTION 11.08 COUNTERPARTS. This Agreement may be executed in
multiple counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
SECTION 11.09 CONSTRUCTION. Headings contained in this Agreement
are for convenience only and shall not be used in the interpretation of this
Agreement. References herein to Articles, Sections, Schedules and Exhibits are
to the articles, sections, schedules and exhibits, respectively, of this
Agreement. The Schedules and all Exhibits to this Agreement are hereby
incorporated herein by reference and made a part of this Agreement. As used
herein, the singular includes the plural, and the masculine, feminine and neuter
gender each includes the others where the context so indicates. Each of the
parties hereto has been represented by counsel and the language set forth herein
reflects the intentions of the parties hereto. Accordingly, none of the language
shall be construed adversely to a party because such party drafted the language.
SECTION 11.10 SEVERABILITY. If any provision of this Agreement is
held to be invalid or unenforceable by a court of competent jurisdiction, this
Agreement shall be interpreted and enforceable as if such provision were severed
or limited, but only to the extent necessary to render such provision and this
Agreement enforceable.
SECTION 11.11 PUBLIC ANNOUNCEMENT. The Sellers, the Company and
the Purchaser agree to cooperate in making any public announcement of the
transactions contemplated by this Agreement and that any such public
announcement shall require the prior approval of both the Purchaser and a
majority of the Sellers, subject to the Purchaser's obligations under the United
States federal securities laws to make such announcements and filings at the
times and in the manner deemed by the Purchaser to be appropriate for its
compliance with such securities laws.
SECTION 11.12 ASSIGNMENT. The Purchaser may, by written notice to
the Sellers prior to the Closing, assign its rights to purchase the Unwire
Securities to a wholly-owned subsidiary or subsidiaries of the Purchaser for
purposes of its strategic, financial and tax planning, but no such assignment
shall relieve the Purchaser of its obligations hereunder, including without
limitation, the obligations to issue the CellPoint Shares, the representations
and warranties of the Purchaser contained herein and the indemnification
obligations of the Purchaser pursuant to Article X hereof.
SECTION 11.13 NO THIRD PARTY BENEFICIARIES. Except as
specifically set forth or referred to herein, nothing herein is intended or
shall be construed to confer upon any person or entity other than the parties
hereto and their successors or assigns, any rights or remedies under or by
reason of this Agreement.
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<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the date first set forth above.
THE PURCHASER:
Address: CELLPOINT INC.
Sofielundsvagen 4
S 191 47 Sollentuna
Sweden By /s/ Peter Henricsson
--------------------
Peter Henricsson, President
Address: CELLPOINT SWEDISH HOLDINGS LTD.
Sofielundsvagen 4
S 191 47 Sollentuna
Sweden By /s/ Peter Henricsson
--------------------
Peter Henricsson, President
THE SELLERS:
Address: PROCURITAS INVESTMENT PARTNERS
(PIP) BV
Skeppsbron20
111 30 Stockholm
Sweden By /s/ Mats Hugoson
--------------------
Name: Mats Hugoson
Address: NORRA BROFASTET I SUNDSVALL AB
Karlavagen 50
1114 49 Stockholm
Sweden By /s/ Per Borjesson
-------------------
Name: Per Borjesson
Address: ERASMUS MANAGEMENT AB
Sabelgatan 6
254 67 Helsingborg
Sweden By /s/ Mikael Solberg
-------------------
Name: Mikael Solberg
Address: FORETAGSPARTNER IBP INVEST AB
Karlavagen 50
114 49 Stockholm
Sweden By /s/ Per Borjesson
-------------------
Name: Per Borjesson
38
<PAGE>
Address: KARL STOCKMAN AB
Norra Klaragatan 15
653 40 Karlstad
Sweden By /s/ Per Lundberg
-----------------
Name: Per Lundberg
Address: LEDSTIERNAN INVESTMENT LTD.
c/o CBS, Rue Du Criblet 9
C.P. 210, CH-1701 Fribourg
Switzerland
By /s/ Per Lundberg
-----------------
Name: Per Lundberg
Address: THOMAS ROSEN
Rosendalsterassen 9
115 21 Stockholm
Sweden By /s/ Per Lundberg
-----------------
Name: Per Lundberg
Address: LEDSTIERNAN KAPITALFORVALTNING AB
Birger Jarlsgatan 14
114 34 Stockholm
Sweden By /s/ Per Lundberg
-----------------
Name: Per Lundberg
Address: LEDSTIERNAN BUSINESS
Kevingestrand 35 DEVELOPMENT LTD
182 57 Danderyd
Sweden By /s/ Per Lundberg
-----------------
Name: Per Lundberg
39
<PAGE>
Address: LEDSTIERNAN BV
Box 75215
1070AE Amsterdam
Holland By /s/ Per Lundberg
-----------------
Name: Per Lundberg
Address: AB BASEN
Normasgard
139 50 Varmdo
Sweden By /s/ Per Lundberg
-----------------
Name: Per Lundberg
Address:
9 Skeppargatan 80 2 lr
114 59 Stockholm
Sweden /s/ Per Lundberg
-------------
PER LUNDBERG
Address: JAKOB LUNDBERG
Hornsgatan 80
118 21 Stockholm
Sweden By /s/ Per Lundberg
-----------------
Attorney-in-fact
Address: ANNA DAHLIN
Vasavagen 20
133 38 Stockholm
Sweden By /s/ Per Lundberg
-----------------
Attorney-in-fact
Address: SARA LUNDBERG
Tavastgatan 48
118 24 Stockholm
Sweden By /s/ Per Lundberg
-----------------
Attorney-in-fact
Address: KRISTER STROMBOM
Eknasvagen 37
132 44 Saltsjo Boo
Sweden By /s/ Per Lundberg
-----------------
Attorney-in-fact
40
<PAGE>
Address:
Fasanvagen 28
192 55 Sollentuna
Sweden /s/ Per Jundin
---------------
PER JUNDIN
Address: PETER JUNDIN
Fasanvagen 28
192 55 Sollentuna
Sweden By /s/ Per Jundin
---------------
Attorney-in-fact
Address: CHRISTOPHER JUNDIN
Fasanvagen 28
192 55 Sollentuna
Sweden By /s/ Per Jundin
---------------
Attorney-in-fact
Address: KENT JOHANSSON
Lotsjovagen 73
174 52 Sundbyberg
Sweden By /s/ Per Jundin
---------------
Attorney-in-fact
Address: UNIUM AB
Lotsgatan 4
374 35 Karlshamn
Sweden By /s/ Michael Wallon
-------------------
Name: Michael Wallon
41
<PAGE>
Address:
Soldatvagen 12c
192 73 Sollentuna /s/ Michael Wallon
Sweden ---------------
MICHAEL WALLON
Address: THOMAS HOGLUND
Lotsgatan 4
374 35 Karlshamn
Sweden By /s/ Michael Wallon
-------------------
Attorney-in-fact
Address: KAJ GELLBERG
Eriksfaltsgatan 31
214 55 Malmo
Sweden By /s/ Michael Wallon
-------------------
Attorney-in-fact
Address: ORJAN SODERBERG
Kungsladugardsgatan 14b
414 69 Goteborg
Sweden By /s/ Michael Wallon
-------------------
Attorney-in-fact
Address: BERTIL SODERBERG
Rogestavagen 3
139 36 Varmdo
Sweden By /s/ Michael Wallon
-------------------
Attorney-in-fact
Address: LYKKE OLESEN
Granvagen 4
130 40 Djurhamn
Sweden By /s/ Michael Wallon
-------------------
Attorney-in-fact
Address: KERSTIN OLESEN
Granvagen 4
130 40 Djurhamn
Sweden By /s/ Michael Wallon
-------------------
Attorney-in-fact
42
<PAGE>
Address: MATS LJUNG
Venusvagen 10
132 44 Saltsjo Boo
Sweden By /s/ Michael Wallon
-------------------
Attorney-in-fact
Address: ROGER CARLSSON
Rodkhakevagen 55
147 70 Grodinge
Sweden By /s/ Michael Wallon
-------------------
Attorney-in-fact
Address: OLOF STENHAMMAR
Normasgard
139 50 Varmdo
Sweden By /s/ Per Lundberg
-----------------
Attorney-in-fact
43
<PAGE>
Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of February 29, 2000, by and
among the stockholders of Unwire AB (publ), org. no. 556522-7617, a corporation
organized under the laws of Sweden (the "Company"), each of which is listed on
Schedule I attached hereto (each a "Seller", and collectively, the "Sellers"),
and CELLPOINT INC., a corporation organized under the laws of the State of
Nevada (the "Purchaser").
W I T N E S S E T H:
WHEREAS, the Sellers, the Purchaser and CellPoint Swedish Holdings
Ltd. have entered into a certain Purchase and Sale Agreement, dated as of
February 16, 2000 (as amended and in effect from time to time, the "Purchase
Agreement"), pursuant to which (i) the Purchaser purchased from the Sellers all
of the issued and outstanding equity securities and securities convertible into
or exercisable for the equity securities of the Company, and (ii) the Purchaser
is issuing to the Sellers, as consideration for such purchase, an aggregate of
1,075,000 shares (the "CellPoint Shares") of the Common Stock, par value $0.001
per share (the "Common Stock") of the Purchaser;
WHEREAS, the Purchaser and the Sellers desire to enter into this
Agreement in consideration for their respective obligations under the Purchase
Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties agree as follows:
1. DEFINITIONS; CERTAIN RULES OF CONSTRUCTION. Certain capitalized
terms are used in this Agreement with the specific meanings defined below in
this Section 1 or as otherwise provided in this Agreement. Capitalized terms
used but not defined in this Agreement shall have the meanings assigned to such
terms in the Purchase Agreement. Except as otherwise explicitly specified to the
contrary or unless the context clearly requires otherwise, (a) the capitalized
term "Section" refers to sections of this Agreement, (b) references to a
particular Section include all subsections thereof, (c) the word "including"
shall be construed as "including without limitation", (d) references to a
particular statute or regulation include all rules and regulations thereunder
and any successor statute, regulation or rules, in each case as from time to
time in effect, (e) words in the singular or plural form include the plural and
singular form, respectively, and (f) references to a particular Person include
such Person's successors and assigns to the extent not prohibited by this
Agreement.
"Board of Directors" means the Board of Directors of the Purchaser.
-1-
<PAGE>
"Common Stock" has the meaning set forth in the recitals hereto.
"Exchange Act" means the United States Securities Exchange Act of
1934, as amended.
"Holder" means any Seller that owns, of record, any of the CellPoint
Shares.
"Initial Registration Statement" means the registration statement to
be filed by the Purchaser with respect to the 1,125,000 shares of the Common
Stock which were issued and sold by the Purchaser in a private placement closed
in October and November 1999.
"Initiating Holders" has the meaning set forth in Section 2(c).
"Person" means any present or future natural person or any
corporation, association, partnership, joint venture, limited liability, joint
stock or other company, business trust, trust, organization, business or
government or any governmental agency or political subdivision thereof.
"register", "registered" and "registration" refer to a registration of
the Common Stock effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act or an analogous document
under the Securities Act and the declaration or ordering of effectiveness, of
such registration statement or document.
"Registrable Securities" means (a) any CellPoint Shares acquired by
the Sellers pursuant to the Purchase Agreement, (b) the Purchaser Escrow Shares,
if and when issued out of escrow to the Sellers in accordance with the Purchase
Agreement, and (c) any share of Common Stock issued as (or issuable upon the
conversion or exercise of any warrant, right, or other security which is issued
as) a dividend or other distribution with respect to, in exchange for, or in
replacement of, any share of Common Stock described in the foregoing clause (a)
and (b); PROVIDED, HOWEVER, that any share of Common Stock previously sold to
the public pursuant to a registered public offering or pursuant to an exemption
from the registration requirements of the Securities Act shall cease to be a
Registrable Security.
"Registration Expenses" has the meaning set forth in Section 2(f).
"SEC" means the United States Securities and Exchange Commission.
"Securities Act" means the United States Securities Act of 1933, as
amended.
"Violation" means, with respect to any registration statement which
includes any Registrable Securities:
(i) any untrue statement or alleged untrue statement of a material
fact
-2-
<PAGE>
contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto;
(ii) the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances in which they were made, not misleading; or
(iii) any violation or alleged violation by the Purchaser of the
Securities Act, the Exchange Act, any state securities law or any rule or
regulation with respect to the registration of securities of the Purchaser.
2. REGISTRATION RIGHTS.
(a) INITIAL REGISTRATION STATEMENT. The Purchaser hereby agrees to
include in the Initial Registration Statement to be filed by the Purchaser under
the Securities Act such number of the Shares as shall equal approximately 25% of
the aggregate number of Registrable Securities (excluding the Purchaser Escrow
Shares that have not been delivered out of escrow to the Sellers) issued to the
Sellers pursuant to the Purchase Agreement. The Purchaser shall include the
CellPoint Shares of the Sellers allocated among the Sellers as the Sellers shall
notify the Purchaser prior to the filing of the Initial Registration Statement.
The Purchaser shall use its commercially reasonable best efforts to file with
the SEC the Initial Registration Statement no later than March 31, 2000. The
Purchaser shall use its commercially reasonable best efforts to cause the
Initial Registration Statement to be declared effective as soon as practicable
by responding to any comments and requests by the SEC as soon as practicable
after receiving comments from the SEC with respect thereto.
(b) PIGGYBACK REGISTRATION RIGHTS. If, after the date hereof, the
Purchaser proposes to register (including for this purpose a registration
effected by the Purchaser for stockholders other than the Holders) any of its
capital stock or other securities under the Securities Act in connection with
the public offering of such securities solely for cash (other than a
registration on Form S-8 or an analogous form under the Securities Act relating
solely to the sale of securities to participants in a Purchaser stock plan or a
registration on Form S-4 or an analogous form under the Securities Act), the
Purchaser shall, at such time, promptly (but in any event not less than 45 days
before the anticipated filing date) give each Holder written notice of such
registration. Upon the receipt of a written request of any Holder given within
30 days after receipt of such notice from the Purchaser, the Purchaser shall,
subject to the provisions of Section 2(h), use its best efforts to cause a
registration statement covering all of the Registrable Securities that each such
Holder has requested to be registered to become effective under the Securities
Act. The Purchaser shall be under no obligation to complete any offering of its
securities it proposes to make and shall incur no liability to any Holder for
its failure to do so (except for its obligation to pay the Registration Expenses
in connection therewith); PROVIDED, HOWEVER, that in the event the Purchaser
determines to delay registering shares for its own account or for the account of
stockholders other than the Sellers, the Purchaser shall only be
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<PAGE>
permitted to delay registering the Registrable Securities for the same period
and to the extent that the Purchaser has delayed registering such other
securities.
(c) DEMAND REGISTRATION.
(i) If, by November 15, 2000, the Purchaser shall not have filed a
registration statement or registration statements which, in the aggregate,
include all of the Registrable Securities (other than the Purchaser Escrow
Shares which, at that date, are still being held in escrow under the
Agreement), whether pursuant to paragraph (a) or paragraph (b) of this
Section 2, then by December 31, 2000, the Purchaser shall file a
registration statement with the SEC with respect to those Registrable
Securities owned by the Sellers which have not theretofore been included in
a registration statement filed under the Securities Act.
(ii) At any time after December 31, 2000, if the Purchaser shall not
have filed a registration statement or registration statements which, in
the aggregate, include all of the the Registrable Securities (other than
the Purchaser Escrow Shares which, at that date, are still being held in
escrow under the Agreement), whether pursuant to paragraph (a), paragraph
(b) or paragraph (c)(i) of this Section 2, upon the written request of
Holders of a majority in interest of the Registrable Securities then
outstanding and entitled to registration rights under this Section 2 (the
"Initiating Holders") that the Purchaser effect the registration under the
Securities Act of all of the Registrable Securities then outstanding, the
Purchaser shall, within 45 days of the receipt of such request, file with
the SEC a registration statement covering all the Registrable Securities
and use its commercially reasonable best efforts to have such registration
statement be declared effective. The exercise by the Holders of the
registration rights set forth in this Section 2(c) is subject to the
Initiating Holders= compliance with the terms and restrictions set forth in
this Agreement.
(iii) If the Initiating Holders intend to distribute the Registrable
Securities covered by their request by means of an underwriting, they shall
so advise the Purchaser as part of their request made pursuant to Section
2(c)(ii). All Holders proposing to distribute their securities through such
underwriting shall (together with the Purchaser) enter into an underwriting
agreement in customary form with the underwriter or underwriters selected
for such underwriting by a majority in interest of the Initiating Holders.
In the case of any such underwritten offering, the underwriter or
underwriters shall be selected, after consultation with, and with the
consent of, the Purchaser (which shall not unreasonably be withheld), by a
majority in interest of the Initiating Holders.
(d) OBLIGATIONS OF THE PURCHASER. Whenever required under this
Section 2 to effect the registration of any Registrable Securities under the
Securities Act, the Purchaser shall, as expeditiously as reasonably possible:
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(i) diligently use its best efforts to prepare and file with the SEC
a registration statement on any form for which the Purchaser then qualifies
of which counsel for the Purchaser shall deem appropriate and which form
shall be available for the sale of such Registrable Securities in
accordance with the intended method of distribution thereof, and use its
best efforts to cause such registration statement to become effective, and,
upon the request of the Holders of a majority in interest of the
Registrable Securities to be registered thereunder, keep such registration
statement effective for up to twelve months or until the Holders have
informed the Purchaser in writing that the distribution of their
Registrable Securities has been completed, whichever is earlier; PROVIDED,
HOWEVER, that before filing a registration statement or prospectus or any
amendments or supplements thereto, (A) the Purchaser shall provide the
Sellers and one counsel selected by the Sellers with an adequate and
appropriate opportunity to participate in the preparation of such
registration statement and each prospectus included therein (and each
amendment or supplement thereto) to be filed with the SEC, (B) each Seller
shall have the opportunity to approve any information contained in such
registration statement and prospectus pertaining solely to such Seller, and
the Purchaser shall make such corrections thereto as requested by such
Seller subject to the requirements of the Securities Act, and (C) the
Purchaser shall notify the applicable Sellers (x) when such registration
statement or prospectus or any amendment or supplement thereto has been
filed, and with respect to any such registration statement or
post-effective amendment, when the same has become effective, and (y) of
any stop order issued or threatened by the SEC and take all reasonable
action required to prevent the entry of such stop order or to remove it if
entered;
(ii) diligently prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection with such registration statement (including all exhibits and
documents incorporated by reference), and use its best efforts to cause
each such amendment and supplement to become effective, as may be necessary
to comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement;
(iii) as soon as reasonably possible, furnish to the Holders such
reasonable number of copies of a prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and
such other documents as they may reasonably request in order to facilitate
the disposition of Registrable Securities owned by them (in each case
including all exhibits);
(iv) use its best efforts to register or qualify the securities
covered by such registration statement under such other securities or blue
sky laws of such states and jurisdictions as shall be reasonably requested
by the Holders and do any and all other acts and things which may be
reasonably necessary or advisable to enable the Holders to consummate the
disposition of Registrable Securities in such jurisdiction, except that the
Purchaser shall not be required in connection therewith or as a condition
thereto to
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<PAGE>
qualify to do business or file a general consent to service of process in
any such state or jurisdiction;
(v) in the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering; PROVIDED,
HOWEVER, that each Holder participating in such underwriting shall also
enter into and perform its obligations under such an underwriting
agreement, including furnishing any opinion of counsel or entering into a
lock-up agreement reasonably requested by the managing underwriter;
(vi) notify each Holder of Registrable Securities covered by such
registration statement, at any time when a prospectus relating thereto
covered by such registration statement is required to be delivered under
the Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing and promptly file such amendments and supplements which may be
required pursuant to Section 2.3(b) on account of such event and use its
best efforts to cause each such amendment and supplement to become
effective;
(vii) apply for listing and use its best efforts to qualify the
Registrable Securities being registered for inclusion on the automated
quotation system of the National Association of Securities Dealers, Inc.
(the "NASD");
(viii) use its best efforts to cause the Registrable Securities
covered by such registration statement to be registered with or approved by
such other governmental agencies or authorities as may be necessary by
virtue of the business and operations of the Purchaser to enable the seller
or sellers of Registrable Securities to consummate the disposition of such
Registrable Securities;
(ix) make available for inspection by any seller of Registrable
Securities, any managing underwriter participating in any disposition
pursuant to such registration statement, and one counsel selected by the
Holders all financial and other records, pertinent corporate documents and
properties of the Purchaser and its subsidiaries as shall be reasonably
necessary to enable them to exercise their due diligence responsibility,
and cause the Purchaser's and its subsidiaries', officers, directors and
employees, and the independent public accountants of the Purchaser, to
supply all information reasonably requested in connection with such
registration statement;
(x) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC;
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<PAGE>
(xi) cooperate with each seller of Registrable Securities and each
underwriter participating in the disposition of such Registrable Securities
and their respective counsel in connection with any filings required to be
made with any securities exchange or the NASD;
(xii) furnish to the Holders of Registrable Securities included in
such registration statement a copy (with the original thereof to be
delivered to the one counsel selected by the Holders), (A) an opinion of
counsel to the Purchaser, dated the effective date of the registration
statement (or if such registration includes an underwritten offering, dated
the date of the closing under the underwriting agreement), reasonably
satisfactory to counsel for the Holders, and (B) a "comfort letter" signed
by the independent public accountants of the Purchaser who have certified
the Purchaser's financial statements included in such registration
statement, such letter to be dated the effective date of the registration
statement (or if such registration includes an underwritten offering, dated
the date of the closing under the underwriting agreement),
(xii) use best efforts to take all other steps necessary to effect the
registration of the Registrable Securities contemplated hereby.
(e) FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Purchaser to take any action pursuant to this Section 2 in
respect of the Registrable Securities of any selling Holder that such selling
Holder shall furnish to the Purchaser such information regarding itself, the
Registrable Securities held by it, and the intended method of disposition of
such Registrable Securities as shall be required to effect the registration of
such Registrable Securities. The Purchaser shall have no responsibility, to the
extent such Holder fails to provide such information in a timely manner, and if
the Purchaser determines it appropriate, the Purchaser may delay the filing of
any such registration statement until the Holder provides such information.
(f) EXPENSES OF REGISTRATION. The Purchaser shall bear all expenses
("Registration Expenses") relating to Registrable Securities incurred in
connection with each registration, filing or qualification pursuant to this
Section 2, including, without limitation, all registration, filing, exchange or
NASD listing fees, qualification and other fees and expenses of complying with
securities or blue sky laws, printing and accounting fees, fees and
disbursements of counsel for the Purchaser and other fees and disbursements of
underwriters customarily paid by issuers or sellers of securities, except that
(i) the Purchaser shall not be required to bear the expenses of counsel for the
Sellers and (ii) if the Registrable Securities shall be registered pursuant to
an underwritten public offering, then the Holders shall bear the commissions
payable to the underwriter with respect to the sales of the Registrable
Securities sold by the underwriter on behalf of such Holders.
(g) PERIODIC REPORTING UNDER THE EXCHANGE ACT. The Purchaser
covenants that it shall (i) file any reports required to be filed by it under
the Exchange Act and the rules and
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<PAGE>
regulations adopted by the SEC thereunder; and (ii) take such further action as
each Holder of Registrable Securities may reasonably request (including
providing any information necessary to comply with Rules 144 under the
Securities Act), all to the extent required from time to time to enable such
Holder to sell Registrable Securities without registration under the Securities
Act within the limitation of Rule 144 under the Securities Act, as such rule may
be amended from time to time, or any similar rules or regulations hereafter
adopted by the SEC.
(h) UNDERWRITING REQUIREMENTS. In connection with any offering
involving an underwriting of securities being issued by the Purchaser, the
Purchaser shall not be required to include any of the Holders' securities in
such underwriting unless such Holders accept the terms of the underwriting as
agreed upon between the Purchaser and the underwriters selected by it, and then
only in such quantity, if any, as will not, in the opinion of the underwriters,
jeopardize the success of the offering by the Purchaser. If the managing
underwriter for the offering shall advise the Purchaser and the Holders in
writing that the total amount of securities, including Registrable Securities
requested to be included in such offering exceeds the amount of securities to be
sold other than by the Purchaser that can be successfully offered without a
material reduction in the selling price anticipated to be received for the
securities to be sold in such offering or without adversely affecting the
proceeds from the sale of securities by the Purchaser, then the Purchaser shall
only be required to include in the offering:
(i) first, all securities the Purchaser proposes to sell; and
(ii) second, the number of securities in excess of those the
Purchaser proposes to sell which in the opinion of such managing
underwriter can be sold, which number shall be allocated pro rata
among the Holders and the other stockholders of the Purchaser who have
requested shares of Common Stock to be included therein based on the
number of shares so requested to be included by such Holder in the
registration statement; PROVIDED, HOWEVER, that the number of
Registrable Securities of each Holder to be included therein shall be
allocated among the Holders in their sole discretion, as notified to
the Purchaser and the underwriter prior to the filing of the
registration statement; and PROVIDED FURTHER, in the event that
affiliates (as such term is interpreted under the Securities Act) of
the Company request that the Purchaser include their shares of the
Purchaser's Common Stock in such registration statement and in the
event that the circumstances described in this Section 2(h) apply, the
number of shares of the Holders other than such affiliates and the
number of shares of such affiliates to be included in such
registration statement shall be adjusted on a PRO RATA basis; and
PROVIDED FURTHER, that in no event shall the Company include in such
registration statement more than 300,000 shares of the Common Stock of
the Purchaser beneficially owned by such affiliates.
3. INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under Section 2:
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(a) The Purchaser will indemnify and hold harmless each Holder, the
officers, directors, partners, agents and employees of each Holder, any
underwriter (as defined in the Securities Act) for such Holder and each person,
if any, who controls such Holder or underwriter within the meaning of the
Securities Act or the Exchange Act (collectively, the "Holder Indemnitees"),
against any losses, claims, damages or liabilities (joint or several) to which
any Holder Indemnitee may become subject under the Securities Act, the Exchange
Act, insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereto) arise out of or are based upon any Violation.
The Purchaser will reimburse each Holder Indemnitee for any legal or other
expenses reasonably incurred by such Holder Indemnitee in connection with
investigating or defending any such loss, claim, damage, liability, action or
proceeding. The indemnity agreement contained in this Section 3(a) shall not
apply to amounts paid in settlement of any loss, claim, damage, liability or
action if such settlement is effected without the consent of the Purchaser
(which consent shall not be unreasonably withheld), nor shall the Purchaser be
liable to any Holder Indemnitee in any such case for any such loss, claim,
damage, liability, action or proceeding (i) to the extent that it arises out of
or is based upon a Violation which occurs in reliance upon and in conformity
with written information furnished expressly for use in connection with such
registration by or on behalf of such Holder Indemnitee; PROVIDED, HOWEVER, that
the Purchaser shall not be required to indemnify any Holder for information
supplied by another Holder, or (ii) in the case of a sale directly by a Holder
of Registrable Securities (including a sale of such Registrable Securities
through any underwriter retained by such Holder engaging in a distribution
solely on behalf of such Holder), such untrue statement or alleged untrue
statement or omission or alleged omission was contained in a preliminary
prospectus and corrected in a final or amended prospectus, and such Holder
failed to deliver a copy of the final or amended prospectus at or prior to the
confirmation of the sale of the Registrable Securities to the Person asserting
any such loss, claim, damage or liability in any case in which such delivery is
required by the Securities Act.
(b) Each Holder which includes any Registrable Securities in any
registration statement (i) will indemnify and hold harmless the Purchaser, each
of its directors, each of its officers who have signed the registration
statement, each person, if any, who controls the Purchaser within the meaning of
the Securities Act, each agent and any underwriter for the Purchaser, and any
other Holder or other stockholder selling securities in such registration
statement or any of its directors, officers, partners, agents or employees or
any Person who controls such Holder or such other stockholder or such
underwriter (collectively, the "Purchaser Indemnitees"), against any losses,
claims, damages or liabilities (joint or several) to which any Purchaser
Indemnitee may become subject under the Securities Act, the Exchange Act,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereto) arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by or on
behalf of such Holder expressly for use in connection with such registration and
(ii) will reimburse any legal or other expenses reasonably incurred by any
Purchaser Indemnitee in connection with investigating or defending any such
loss, claim, damage, liability, action or
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<PAGE>
proceeding; PROVIDED, HOWEVER, that the liability of any Holder hereunder shall
be limited to the amount of net proceeds (after deduction of all underwriters'
discounts and commissions paid by such Holder in connection with the
registration in question) received by such Holder in the offering giving rise to
the Violation; and PROVIDED, FURTHER, that the indemnity agreement contained in
this Section 3(b) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of such Holder (which consent shall not be unreasonably withheld)
nor, in the case of a sale directly by the Purchaser of its securities
(including a sale of such securities through any underwriter retained by the
Purchaser to engage in a distribution solely on behalf of the Purchaser), shall
such Holder be liable to the Purchaser in any case in which such untrue
statement or alleged untrue statement or omission or alleged omission was
contained in a preliminary prospectus and corrected in a final or amended
prospectus, and the Purchaser failed to deliver a copy of the final or amended
prospectus at or prior to the confirmation of the sale of the securities to the
Person asserting any such loss, claim, damage or liability in any case in which
such delivery is required by the Securities Act.
(c) Promptly after receipt by any Indemnitee under this Section 3 of
notice of the commencement of any action (including any governmental action),
such Indemnitee will, if a claim in respect thereof is to be made against any
indemnifying party under this Section 3, deliver to the indemnifying party a
written notice of the commencement thereof and the indemnifying party shall have
the right to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed, to assume
and control the defense thereof with counsel mutually satisfactory to the
parties; PROVIDED, HOWEVER, that such Indemnitee shall have the right to retain
its own counsel, with the fees and expenses to be paid by the indemnifying
party, if representation of such Indemnitee by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests, as reasonably determined by either party, between such Indemnitee and
any other party represented by such counsel in such proceeding. The failure to
deliver written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if prejudicial to its ability to defend such
action, shall relieve such indemnifying party of any liability to the Indemnitee
under this Section 3 only to the extent of such prejudice, but the omission so
to deliver written notice to the indemnifying party will not relieve it of any
liability that it may have to such Indemnitee otherwise than under this Section.
(d) The obligations of the Purchaser and the Holders under this
Section 3 shall survive the completion of any offering of Registrable Securities
in a registration statement whether under Section 2 or otherwise. The
obligations of the Purchaser and the Holders under this Section 3 shall be
outside of the limitations and requirements set forth in Article X of the
Purchase Agreement, and any amounts owing by the indemnifying party pursuant to
this Section 3 shall be not subject to the Deductible or the maximum liability
set forth in such Article X.
(e) If the indemnification provided for in this Section 3 is
unavailable to a party that would have been an Indemnitee under this Section 3
in respect of any losses, claims,
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damages or liabilities (or actions or proceedings in respect thereof) referred
to herein, then each party that would have been an indemnifying party hereunder
shall, in lieu of indemnifying such Indemnitee, contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in such proportion as
is appropriate to reflect the relative fault of such indemnifying party, on the
one hand, and such Indemnitee, on the other hand, in connection with the
Violation which resulted in such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof). The relative fault shall be
determined by reference to, among other things, whether the Violation relates to
information supplied by such indemnifying party or such Indemnitee and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such Violation. The parties agree that it would not be just
and equitable if contribution pursuant to this Section 3(e) were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the preceding sentence.
The amount paid or payable by a contributing party as a result of the losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
referred to above in this Section 3(e) shall include any legal or other expenses
reasonably incurred by such Indemnitee in connection with investigating or
defending any such action or claim. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. The liability of any Holder of Registrable
Securities in respect of any contribution obligation of such Holder (after
deduction of all underwriters' discounts and commissions paid by such Holder in
connection with the registration in question) arising under this Section 3(e)
shall not in any event exceed an amount equal to the net proceeds to such Holder
from the disposition of the Registrable Securities disposed of by such Holder
pursuant to such registration.
4. NOTICES. Any notices or other communications required or
permitted hereunder shall be sufficiently given if in writing and delivered in
Person, transmitted by facsimile transmission (fax) or sent by registered or
certified mail (return receipt requested) or recognized overnight delivery
service, postage pre-paid, addressed as follows, or to such other address has
such party may notify to the other parties in writing:
(i) if to the Purchaser:
CellPoint Inc.
Sofielundsvagen 4
Sollentuna S 191 47
Sweden
Facsimile: 468-544-90005
Attention: Peter Henricsson
with a copy to:
Salans Hertzfeld Heilbronn Christy & Viener
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620 Fifth Avenue
New York, New York 10020
Attn: Steven R. Berger, Esq.
Telephone: 212-632-5500
Facsimile: 212-307-3308 or 212-632-5555
(ii) if to the Sellers:
To their respective addresses set forth
on the signature page hereof
with a copy to:
Clifford Chance Limited Liability Partnership
200 Aldersgate Street
London EC1A 4JJ
United Kingdom
Attention: Olof Clausson, Esq.
Facsimile: 44-171-600-5555
A notice or communication will be effective (i) if delivered by hand or by
overnight courier, on the business day it is delivered, (ii) if transmitted by
facsimile, on the business day of actual confirmed receipt by the addressee
thereof, and (iii) if sent by registered or certified mail, upon receipt.
5. BINDING EFFECT; GOVERNING LAW.
(a) This Agreement shall be binding upon, and inure to the benefit
of, the parties and their respective personal representatives, successors and
permitted assigns.
(b) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York, without regard to principles of
conflict of laws.
6. COURSE OF DEALING; AMENDMENTS, WAIVERS AND CONSENTS. No course of
dealing between the parties shall operate as a waiver of any party's rights
under this Agreement. Each party acknowledges that if any party, without being
required to do so by this Agreement, gives any notice or information to, or
obtains any consent from, the other party, such party shall not by implication
have amended, waived or modified any provision of this Agreement, or created any
duty to give any such notice or information or to obtain any such consent on any
future occasion. No delay or omission on the part of any party in exercising any
right under this Agreement shall operate as a waiver of such right or any other
right hereunder or thereunder. A waiver on any one occasion shall not be
construed as a bar to or waiver of any right or remedy on any future occasion.
No amendment, waiver or consent with respect to this Agreement shall be
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binding unless it is in writing and signed by each of the Purchaser and the
holders of a majority of the Registrable Securities then outstanding.
7. MISCELLANEOUS.
(a) This Agreement may be amended only by a written agreement, signed
by all the parties hereto.
(b) If any provision of this Agreement shall be found by any court of
competent jurisdiction to be invalid or unenforceable, the parties hereby waive
such provision to the extent that it is found to be invalid or unenforceable.
Such provision shall, to the maximum extent allowable by law, be modified by
such court so that it becomes enforceable, and, as modified, shall be enforced
as any other provision hereof, all the other provisions hereof continuing in
full force and effect.
(c) This Agreement shall be governed and construed in accordance with
the laws of the State of New York.
(d) This Agreement shall be binding upon and shall inure for the
benefit of the parties hereto and there respective successors and assigns.
(e) 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 only one Agreement.
(f) The headings contained in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation
hereof.
(g) This Agreement constitutes the entire understanding of the
parties with respect to the subject matter hereof and supersedes any and all
prior understandings and agreements, whether written or oral, with respect to
such subject matter.
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IN WITNESS WHEREOF, the Purchaser and the Sellers have caused this
Agreement to be executed effective as of the date first above written.
THE PURCHASER:
CELLPOINT INC.
By: /s/ PETER HENRICSSON
------------------------------
Peter Henricsson
President
THE SELLERS:
Address: PROCURITAS INVESTMENT PARTNERS
Skeppsbron20 (PIP) BV
111 30 Stockholm
Sweden By /s/ MATS HUGOSON
------------------------------
Name: Mats Hugoson
Address: NORRA BROFASTET I SUNDSVALL AB
Karlavagen 50
1114 49 Stockholm
Sweden By /s/ PER BORJESSON
------------------------------
Name: Per Borjesson
Address: ERASMUS MANAGEMENT AB
Sabelgatan 6
254 67 Helsingborg
Sweden By /s/ MIKAEL SOLBERG
------------------------------
Name: Mikael Solberg
Address: FORETAGSPARTNER IBP INVEST AB
Karlavagen 50
114 49 Stockholm
Sweden By /s/ PER BORJESSON
------------------------------
Name: Per Borjesson
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Address: KARL STOCKMAN AB
Norra Klaragatan 15
653 40 Karlstad
Sweden By /s/ PER LUNDBERG
------------------------------
Name: Per Lundberg
Address: LEDSTIERNAN INVESTMENT LTD.
c/o CBS, Rue Du Criblet 9
C.P. 210, CH-1701 Fribourg
Switzerland By /s/ PER LUNDBERG
------------------------------
Name: Per Lundberg
Address: THOMAS ROSEN
Rosendalsterassen 9
115 21 Stockholm
Sweden By /s/ PER LUNDBERG
------------------------------
Name: Per Lundberg
Address: LEDSTIERNAN KAPITALFORVALTNING AB
Birger Jarlsgatan 14
114 34 Stockholm
Sweden By /s/ PER LUNDBERG
------------------------------
Name: Per Lundberg
Address: LEDSTIERNAN BUSINESS DEVELOPMENT LTD
Kevingestrand 35
182 57 Danderyd
Sweden By /s/ PER LUNDBERG
------------------------------
Name: Per Lundberg
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Address: LEDSTIERNAN B.V.
Box 75215
1070AE Amsterdam
Holland By /s/ PER LUNDBERG
------------------------------
Name: Per Lundberg
Address: AB BASEN
Normasgard
139 50 Varmdo
Sweden By /s/ PER LUNDBERG
------------------------------
Name: Per Lundberg
Address:
9 Skeppargatan 80 2 lr
114 59 Stockholm
Sweden By /s/ PER LUNDBERG
------------------------------
PER LUNDBERG
Address: JAKOB LUNDBERG
Hornsgatan 80
118 21 Stockholm
Sweden By /s/ PER LUNDBERG
------------------------------
Attorney-in-fact
Address: ANNA DAHLIN
Vasavagen 20
133 38 Stockholm
Sweden By /s/ PER LUNDBERG
------------------------------
Attorney-in-fact
Address: SARA LUNDBERG
Tavastgatan 48
118 24 Stockholm
Sweden By /s/ PER LUNDBERG
------------------------------
Attorney-in-fact
Address: KRISTER STROMBOM
Eknasvagen 37
132 44 Saltsjo Boo
Sweden By /s/ PER LUNDBERG
------------------------------
Attorney-in-fact
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Address:
Fasanvagen 28
192 55 Sollentuna
Sweden By /s/ PER JUNDIN
------------------------------
PER JUNDIN
Address: PETER JUNDIN
Fasanvagen 28
192 55 Sollentuna
Sweden By /s/ PER JUNDIN
------------------------------
Attorney-in-fact
Address: CHRISTOPHER JUNDIN
Fasanvagen 28
192 55 Sollentuna
Sweden By /s/ PER JUNDIN
------------------------------
Attorney-in-fact
Address: KENT JOHANSSON
Lotsjovagen 73
174 52 Sundbyberg
Sweden By /s/ PER JUNDIN
------------------------------
Attorney-in-fact
Address: UNIUM AB
Lotsgatan 4
374 35 Karlshamn
Sweden By /s/ MICHAEL WALLON
------------------------------
Name: Michael Wallon
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Address:
Soldatvagen 12c
192 73 Sollentuna
Sweden By /s/ MICHAEL WALLON
------------------------------
MICHAEL WALLON
Address: THOMAS HOGLUND
Lotsgatan 4
374 35 Karlshamn
Sweden
By /s/ MICHAEL WALLON
------------------------------
MICHAEL WALLON
KAJ GELLBERG
Address:
Eriksfaltsgatan 31
214 55 Malmo
Sweden By /s/ MICHAEL WALLON
------------------------------
Attorney-in-fact
Address: ORJAN SODERBERG
Kungsladugardsgatan 14b
414 69 Goteborg
Sweden By /s/ MICHAEL WALLON
------------------------------
Attorney-in-fact
Address: BERTIL SODERBERG
Rogestavagen 3
139 36 Varmdo
Sweden By /s/ MICHAEL WALLON
------------------------------
Attorney-in-fact
Address: LYKKE OLESEN
Granvagen 4
130 40 Djurhamn
Sweden By /s/ MICHAEL WALLON
------------------------------
Attorney-in-fact
Address: KERSTIN OLESEN
Granvagen 4
130 40 Djurhamn
Sweden By /s/ MICHAEL WALLON
------------------------------
Attorney-in-fact
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<PAGE>
Address: MATS LJUNG
Venusvagen 10
132 44 Saltsjo Boo
Sweden By /s/ MICHAEL WALLON
------------------------------
Attorney-in-fact
Address: ROGER CARLSSON
Rodkhakevagen 55
147 70 Grodinge
Sweden By /s/ MICHAEL WALLON
------------------------------
Attorney-in-fact
Address: OLOF STENHAMMAR
Normasgard
139 50 Varmdo
Sweden By /s/ PER LUNDBERG
------------------------------
Attorney-in-fact
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<PAGE>
Exhibit 10.3
ESCROW AGREEMENT
ESCROW AGREEMENT, dated as of February 29, 2000, by and among the
stockholders of Unwire AB (publ), org. no. 556522-7617, a corporation
organized under the laws of Sweden (the "Company") listed on Schedule I
attached hereto (each a "Seller", and collectively, the "Sellers"), CELLPOINT
INC., a corporation organized under the laws of the State of Nevada
("CellPoint"), CELLPOINT SWEDISH HOLDINGS LTD., a corporation organized under
the laws of England and Wales and a wholly-owned subsidiary of CellPoint (the
"Purchaser Sub"; CellPoint and the Purchaser Sub are hereinafter collectively
referred to as the "Purchaser"), SALANS HERTZFELD HEILBRONN CHRISTY & VIENER,
as Escrow Agent (the "Escrow Agent"), U.S. STOCK TRANSFER CORPORATION, as
depositary (the "Depositary"), and PER LUNDBERG, as Sellers' Agent.
WITNESSETH:
WHEREAS, the Sellers, CellPoint and Purchaser Sub have entered into a
certain Purchase and Sale Agreement, dated as of February 16, 2000 (as amended
and in effect from time to time, the "Purchase Agreement"), pursuant to which
(i) the Purchaser purchased from the Sellers all of the issued and outstanding
equity securities and securities convertible into or exercisable for the equity
securities of the Company, and (ii) the Purchaser is issuing to the Sellers, as
consideration for such purchase, an aggregate of 1,075,000 shares (the
"CellPoint Shares") of the Common Stock, par value $0.001 per share (the "Common
Stock") of the Purchaser;
WHEREAS, pursuant to the terms of the Purchase Agreement, the
Purchaser and the Sellers desire to enter into this Agreement in consideration
for their respective obligations thereunder;
WHEREAS, the Purchaser and the Sellers wish to deposit into escrow
shares of Common Stock of CellPoint in order to facilitate any payments that the
Sellers or the Purchaser may be required to make in the event that an
indemnification obligation is imposed under Article X of the Purchase Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties agree as follows:
1. DEFINED TERMS. All capitalized terms used herein and not
otherwise defined herein shall have the same respective meanings set forth in
the Purchase Agreement.
2. ACCEPTANCE OF DUTIES. The Sellers and the Purchaser hereby
appoint and designate the Escrow Agent to receive, hold and dispose of, the
Escrow Shares (as hereinafter
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defined) and all proceeds thereof in accordance with the terms, conditions and
provisions of this Agreement. The Escrow Agent hereby agrees to act as Escrow
Agent and to receive, hold and dispose of the Escrow Shares, in accordance with
the terms of this Agreement, PROVIDED, HOWEVER, that the Escrow Agent shall have
no duties hereunder unless and until the Escrow Agent receives the Escrow Shares
pursuant to Section 3 hereof; and PROVIDED FURTHER, that the Escrow Agent may
appoint the Depositary to hold the Escrow Shares on its behalf pursuant to this
Agreement.
3. DELIVERY OF ESCROW SHARES. On the Closing Date:
(a) CellPoint shall deliver or cause to be delivered to the
Escrow Agent, to be held by the Escrow Agent pursuant to, and in
accordance with, Article X of the Purchase Agreement and this
Escrow Agreement, stock certificates evidencing 53,738 CellPoint
Shares (constituting approximately 5% of the aggregate CellPoint
Shares to be issued to the Sellers under the Purchase Agreement;
the "Seller Escrow Shares"). The Seller Escrow Shares shall be held
in escrow pending determination of any indemnification obligations
of the Sellers pursuant to Article X of the Purchase Agreement. The
Sellers and the Purchaser hereby agree that such deposit of the
Seller Escrow Shares satisfies the requirements of Section
2.03(b)(ii)(A) of the Purchase Agreement.
(b) CellPoint shall deliver an instruction letter (the "Share
Reserve Letter") to the Depositary, in its capacity as the stock
transfer agent for CellPoint, directing the transfer agent to
reserve for issuance out of CellPoint's authorized but unissued
shares of CellPoint Common Stock, 53,750 shares of CellPoint Common
Stock, which are to be issued by the transfer agent upon receipt of
instructions of the Escrow Agent in accordance with this Agreement,
upon determination of any indemnification obligations of the
Purchaser pursuant to Article X of the Purchase Agreement (the
"Purchaser Escrow Shares"). The Sellers and the Purchaser hereby
agree that the delivery of the Share Reserve Letter, and the
transfer agent's acknowledged receipt thereof, satisfies the
requirements of Section 2.03(b)(ii)(B) of the Purchase Agreement.
The Seller Escrow Shares and the Purchaser Escrow Shares are collectively
referred to as the "Escrow Shares". The share certificates evidencing the Seller
Escrow Shares deposited in escrow with the Escrow Agent shall be accompanied by
duly endorsed stock powers which are also to be held in escrow. The Sellers, the
Purchaser and the Escrow Agent hereby agree that the Escrow Agent shall cause
the Depositary to hold the Escrow Shares in the name and on behalf of the Escrow
Agent, and the Depositary shall distribute or issue such Escrow Shares, as the
case may be, only upon the instructions of the Escrow Agent in accordance with
this Agreement. Upon receipt of the Seller Escrow Shares and the Share Reserve
Letter, the Escrow Agent and the Depositary shall acknowledge receipt thereof by
delivery of a written acknowledgment thereof to the Sellers and the Purchaser.
The Escrow Shares shall not be subject to lien or attachment by any creditor of
any party hereto and shall be used solely for the purpose set forth in this
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<PAGE>
Agreement. The Escrow Shares shall not be available to, and shall not be used
by, the Escrow Agent or the Depositary to set off any obligations of either the
Purchaser or the Sellers owing to the Escrow Agent or the Depositary in any
capacity.
4. TERMS AND CONDITIONS OF ESCROW.
(a) DISTRIBUTION OF SELLER ESCROW SHARES. The Escrow Agent shall
distribute the Seller Escrow Shares in accordance with the following
procedures:
(i) If on the date which is one day after the twelve-month
anniversary of the Closing Date (the "Escrow Release Date"), (A)
the Escrow Agent and the Sellers shall not have received any
notice from the Purchaser pursuant to Section 10.02 (a "Claim
Notice") (a) of the Purchase Agreement of a claim by the
Purchaser for indemnification under Section 10.01(a) of the
Purchase Agreement that is unresolved, then the Sellers' Agent
(hereinafter defined) may direct the Escrow Agent to distribute
to the Sellers as the Sellers' Agent directs, any Seller Escrow
Shares that are still held in escrow, or (B) a Claim Notice shall
have been received and is unresolved, then the Sellers' Agent may
direct the Escrow Agent to distribute such number of Seller
Escrow Shares that are not necessary to resolve the claim
described in the Claim Notice, assuming that all allegations set
forth in such Claim Notice were true and correct in all respects.
(ii) If, prior to the Escrow Release Date, the Escrow Agent
and the Sellers' Agent shall have received from the Purchaser a
Claim Notice requesting indemnification under Section 10.01(a) of
the Purchase Agreement:
(A) if the Sellers' Agent shall not have delivered to
the Purchaser and the Escrow Agent a timely Dispute Notice
in accordance with Section 10.02(b) of the Purchase
Agreement, the Escrow Agent shall deliver to the Purchaser
such number of Seller Escrow Shares as shall equal the
amount of the claim set forth in the Claim Notice divided by
the Agreed Value, rounded upwards to the nearest whole
number;
(B) if the Sellers' Agent shall have delivered to the
Purchaser and the Escrow Agent a timely Dispute Notice in
accordance with Section 10.02(b) of the Purchase Agreement,
the Escrow Agent shall continue to hold such number of
Seller Escrow Shares necessary to resolve such claim
described in the Claim
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<PAGE>
Notice, assuming all allegations set forth in such Claim
Notice were true and correct in all respects; and
(C) after a Claim Notice and a Dispute Notice have been
received by the Escrow Agent, the Escrow Agent shall
continue to hold such number of Seller Escrow Shares as set
forth above until such time as the dispute is resolved in
accordance with the terms of the Purchase Agreement and the
Escrow Agent receives a subsequent notice executed by the
Sellers' Agent and the Purchaser setting forth the
directions for the disposition of the Seller Escrow Shares.
(iii) Prior to any distribution of the Seller Escrow Shares
pursuant to clauses (i) or (ii) of this Section 4(a), the Escrow
Agent may, in its discretion, give notice to the Sellers' Agent
and the Purchaser of such intended distribution, setting forth
the number of Seller Escrow Shares to be distributed and the
intended recipient of such Seller Escrow Shares.
(iv) If the Sellers' Agent and the Purchaser shall not have
submitted any pending dispute to arbitration and have otherwise
made conflicting demands on the Escrow Agent, the Escrow Agent
may, upon 10 days' prior written notice to the Sellers' Agent and
the Purchaser, demand that the Sellers' Agent and the Purchaser
submit to arbitration with the Arbitration Institute of the
Stockholm Chamber of Commerce for determination of the
appropriate disposition of the Seller Escrow Shares. Such dispute
shall be exclusively and finally settled by arbitration in
accordance with the Swedish law and the Rules of the Arbitration
Institute of the Stockholm Chamber of Commerce. The arbitral
tribunal shall be composed of three arbitrators. The place of
arbitration shall be Stockholm, Sweden. The arbitration
procedures shall be held in the English language. Upon such
determination by the Stockholm Chamber of Commerce, the Escrow
Agent shall cause the Depositary to dispose of the Seller Escrow
Shares in accordance with the final decision of such arbitral
body.
(v) Notwithstanding the foregoing, the Sellers' Agent may,
subject to the requirements of applicable law (including, without
limitation, the Securities Act), direct the Escrow Agent to sell
the Seller Escrow Shares, if, and only if, the proceeds of such
sale are simultaneously deposited in escrow with an
internationally recognized commercial bank, subject to the terms
and conditions of this Agreement and Article X of the Purchase
Agreement.
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<PAGE>
(b) ISSUANCE OF PURCHASER ESCROW SHARES. The Escrow Agent shall
instruct the Depositary, in its capacity as transfer agent for CellPoint,
to issue the Purchaser Escrow Shares in the following circumstances:
(i) If, on the Escrow Release Date, (A) the Escrow Agent and the
Purchaser shall not have received a Claim Notice from the Sellers'
Agent pursuant to Section 10.02(b) of the Purchase Agreement of a
claim by the Sellers for indemnification under Section 10.01(b) of the
Purchase Agreement that is unresolved, then the Share Reserve Letter
shall terminate, or (B) a Claim Notice shall have been received and is
unresolved, then the number of Purchaser Escrow Shares reserved for
issuance pursuant to the Share Reserve Letter shall be reduced to the
extent that Purchaser Escrow Shares are not necessary for the
resolution of such dispute, assuming that the allegations set forth in
such Claim Notice were true and correct in all respects. In either
event, the Depositary is hereby authorized and directed to cancel, to
such extent, the reserve of the Purchaser Escrow Shares out of the
authorized but unissued shares of CellPoint Common Stock.
(ii) If, prior to the Escrow Release Date, the Escrow Agent and
the Purchaser shall have received a Claim Notice from the Sellers'
Agent for indemnification under Section 10.01(b) of the Purchase
Agreement:
(A) if the Purchaser shall not have delivered to the
Sellers' Agent and the Escrow Agent a timely Dispute Notice in
accordance with Section 10.02(b) of the Purchase Agreement, the
Escrow Agent shall so notify the Depositary (with a copy to the
Purchaser), and the Depositary shall issue and deliver such
number of Purchaser Escrow Shares to the Sellers as shall equal
the amount of the claim in the Claim Notice divided by the Agreed
Value, rounded upwards to the nearest whole number; CellPoint's
execution and delivery of this Agreement shall constitute its
authorization and instruction for the issuance of such Purchaser
Escrow Shares in the circumstances described herein;
(B) if the Purchaser shall have delivered to the Sellers'
Agent and the Escrow Agent a timely Dispute Notice in accordance
with Section 10.02(b) of the Purchase Agreement, the Depositary
shall continue to maintain the reserve for the issuance of the
Purchaser Escrow Shares in accordance with the Share Reserve
Letter to the extent necessary to resolve such claim as if all
allegations set forth in such Claim Notice were true and correct
in all respects; and
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<PAGE>
(C) after a Claim Notice and a Dispute Notice have been
received by the Escrow Agent, the Depositary shall not issue any
Purchaser Escrow Shares nor shall the number of Purchaser Escrow
Shares reserved for issuance pursuant to the Share Reserve Letter
be reduced except pursuant to Section 4(b)(i)(B) until such time
as the Escrow Agent and the Depositary receive a subsequent
notice executed by the Sellers' Agent and the Purchaser setting
forth the directions for the issuance, if any, of the Purchaser
Escrow Shares, or cancellation of the Share Reserve Letter, as
the case may be.
(iii) The Sellers, the Purchaser, the Escrow Agent and the
Depositary hereby acknowledge and agree that no Purchaser Escrow
Shares shall be deemed to be issued and outstanding because the
Purchaser shall have delivered to the Depositary the Share Reserve
Letter, and that such Purchaser Escrow Shares shall only be issued and
outstanding upon the issuance of the Purchaser Escrow Shares in
accordance with this Agreement.
5. TERMINATION This Escrow Agreement shall terminate upon:
(a) the distribution of all of the Seller Escrow Shares; and
(b) the issuance of all of the Purchaser Escrow Shares or the number
of Purchaser Escrow Shares reserved for issuance pursuant to the Share
Reserve Letter has been reduced to zero, whether by issuance or otherwise,
or a combination thereof for the total number of Purchaser Escrow Shares.
The Sellers' Agent and the Purchaser may, by written consent, however, otherwise
terminate this Escrow Agreement, upon delivery of such written instruction to
the Escrow Agent and the Depositary, accompanied by a complete release of the
Escrow Agent and the Depositary.
6. CONCERNING THE ESCROW AGENT AND THE DEPOSITARY.
Each of the Sellers and the Purchaser agrees that the Escrow Agent and
the Depositary are acting hereunder solely on behalf of the Sellers and the
Purchaser. The acceptance by the Escrow Agent and the Depositary of their
respective duties under this Agreement are subject to the following terms
and conditions which govern and control with respect to their respect
rights, duties, liabilities and immunities:
(a) The duties and obligations of the Escrow Agent and the Depositary
shall be determined solely by the applicable provisions of this Agreement.
Neither the Escrow Agent nor the Depositary shall be liable to any person
or entity except for the performance of such duties and obligations
applicable to it as
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<PAGE>
are specifically set forth in this Agreement. This Agreement expressly sets
forth all duties of the Escrow Agent and the Depositary with respect to any
and all matters pertinent thereto. No implied duties or obligations shall
be read into this Agreement against either the Escrow Agent or the
Depositary, and neither the Escrow Agent nor the Depositary shall be bound
to the provisions of any agreement among the other parties hereto except
this Agreement.
(b) Neither the Escrow Agent nor the Depositary shall be responsible
in any manner for any failure or inability of any other party hereto to
honor any of the provisions of this Agreement, the Purchase Agreement or
any of the agreements, instruments or documents contemplated hereby or
thereby.
(c) The Sellers and the Purchaser agree, jointly and severally to
make no claim, and to bring no action, suit or proceeding, against the
Escrow Agent or the Depositary for any alleged liability or claim arising
out of or in connection with the Escrow Agent's or the Depositary's
acceptance or performance (including errors and omissions) of their
respective duties and obligations under this Agreement or otherwise with
respect to the Escrow Shares, in the absence of gross negligence or willful
misconduct by the Escrow Agent or the Depositary, as applicable.
(d) The Escrow Agent and the Depositary shall be fully protected in
acting and relying upon the written legal opinion of its counsel or advice
or certificate, notice, direction, instruction, request, order, judgment,
decree or other document given to it which the Escrow Agent or the
Depositary believes to be genuine and to have been signed or presented by
the proper party or parties, and may assume that any person purporting to
give such legal opinion, advice, certificate, notice, direction,
instruction, request or other document has been duly authorized to do so.
The Escrow Agent assumes no responsibility for the accuracy of the contents
of any such documents.
(e) The Escrow Agent (and any successor escrow agent) may resign and
be discharged from all other further duties and obligations hereunder at
any time upon giving 30 days' notice to the other parties hereto whereupon
the Sellers' Agent and the Purchaser shall jointly designate a successor
escrow agent within such 30-day period. The Escrow Agent shall deposit the
Seller Escrow Shares in the account designated by such successor escrow
agent pursuant to the joint instructions of the parties hereto. If the
parties hereto were to terminate this Agreement by joint written consent,
the Sellers' Agent and the Purchaser shall jointly either (i) designate a
successor agent hereunder, in which case the Escrow Agent shall deliver the
Seller Escrow Shares and the Share Reserve Letter to such successor or (ii)
direct the Escrow Agent to otherwise dispose of the Escrow Shares in a
manner which shall not be unduly burdensome to the Escrow Agent. Upon such
resignation by the Escrow Agent or termination of this Agreement by
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<PAGE>
the other parties hereto, in the absence of a joint designation of a
successor or joint direction as contemplated above, the Escrow Agent shall
without further liability or responsibility under this Agreement retain the
Escrow Shares in the Escrow Agent's possession as custodian thereof (for
the benefits of the other parties hereto) until otherwise jointly directed
in writing. The Escrow Agent may at any time on notice to other parties
hereto take such affirmative steps as it may, at its option, select in
order to terminate its duties as escrow agent including the commencement of
an action under Section 5(g) with respect to the appropriate disposition of
the Escrow Shares.
(f) The Escrow Agent may seek the advice of legal counsel in the
event of any dispute or question as to the construction of any provision of
this Agreement, or its duties hereunder, and may rely on an opinion of such
counsel. In rendering such advice, such counsel may rely on written
statements of fact furnished to it by persons reasonably believed to be
credible and copies of which are furnished to the parties hereto. In the
event that the Escrow Agent shall receive instructions which in its opinion
are in conflict with any of the provisions of this Agreement, it shall be
entitled to hold the Escrow Shares pending the final non-appealable order
of an arbitral body, in accordance with the Purchase Agreement, or if
applicable, the order of a final certified copy of such order or judgment,
delivered to the Escrow Agent).
(g) The parties acknowledge that Salans Hertzfeld Heilbronn Christy &
Viener ("SHHC&V"), the initial Escrow Agent, has acted as counsel to the
Purchaser and agree that the SHHC&V may continue to act as counsel to the
Purchaser, including without limitation, in connection with any dispute or
proceeding arising under the Transaction Documents or this Agreement at the
Purchaser's sole expense; PROVIDED, HOWEVER, that SHHC&V, in its capacity
as Escrow Agent, shall continue to be bound by all of the provisions of
this Agreement and at no time shall SHHC&V, in its capacity as Escrow
Agent, deliver or distribute or cause to deliver or distribute the Escrow
Shares except in conformity with the provisions hereof.
(h) Upon the distribution or issuance, as the case may be, of all of
the Escrow Shares in accordance with this Agreement, the Escrow Agent and
the Depositary shall cease to have any obligation to any party under this
Agreement, except in case of any claim arising out of its own gross
negligence or willful misconduct.
(i) The Sellers and the Purchaser shall, jointly and severally,
indemnify and hold harmless the Escrow Agent and the Depositary from and
against all other costs, charges, damages and expenses, including without
limitation, reasonable attorneys' fees which the Escrow Agent or the
Depositary, as applicable, in good faith may incur or suffer as a result of
any legal proceedings affecting this
-8-
<PAGE>
Agreement or the performance of their respective duties hereunder, except
for any proceedings relating to any allegedly gross negligence or willful
misconduct to the Escrow Agent or the Depositary that results in a final
non-appealable judgment against the Escrow Agent or the Depositary, as
applicable, with respect to such allegedly gross negligence or willful
misconduct.
7. SELLERS' AGENT; NOTICES.
(a) (i) Each of the Sellers hereby consent to the appointment of Per
Lundberg as his, her or its agent (the "Sellers' Agent") or any
successor Sellers' Agent appointed from time to time by all of the
Sellers in writing and authorizes the Sellers' Agent to exercise all
authority granted to the Sellers' Agent hereunder. Any action or
decision by the Sellers' Agent shall be sufficient to bind the
Sellers' Agent and the Sellers, and the Escrow Agent, the Depositary
and the Purchaser shall be entitled to rely upon any such action or
decision.
(ii) The Sellers' Agent shall not be liable for any act or
omission except for the Sellers' Agent own gross negligence or willful
misconduct and may conclusively rely, and shall be protected in acting
or refraining from acting, upon any written notice, instrument or
signature believed the by Sellers' Agent to be genuine and to have
been signed or presented by the proper party or parties duly
authorized to do so.
(iii) Upon the distribution or issuance, as the case may be, of
all the Escrow Shares in accordance with this Agreement, the Sellers'
Agent shall cease to have any obligation under this Agreement except
in the case of any claim arising out of the Sellers' Agent's own gross
negligence or willful misconduct. The Sellers shall, in the same
proportion in which they will share in any Purchaser Escrow Shares
distributed to them from the escrow, pay and/or reimburse the Sellers'
Agent for any ordinary course fees, costs and disbursements incurred
by the Sellers' Agent in connection with the performance by the
Sellers' Agent of his or her or its duties under this Agreement.
(iv) The Sellers shall jointly and severally indemnify and hold
harmless the Sellers' Agent from and against all other costs, charges,
damages and expenses, including, without limitation, reasonable
attorneys' fees, which the Sellers' Agent in good faith may incur or
suffer as a result of any legal proceedings affecting this Agreement
to the performance of the Sellers' Agent's duties hereunder, except
for any proceedings relating to any alleged gross negligence or
willful misconduct of the Sellers' Agent that results in an adverse
determination against the Sellers' Agent.
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<PAGE>
(b) Notwithstanding any other provision of this Agreement to the
contrary, any action to be taken by the Sellers' Agent under this
Agreement, may instead be taken by all of the Sellers acting together. The
Sellers hereby agree that any notice executed and delivered by the Sellers'
Agent shall be binding upon each Seller, and that any notice received by
the Sellers' Agent shall be binding upon each Seller.
(c) All communications, notices, requests, consents or demands given
or required under this Agreement shall be in writing and shall be deemed to
have been duly given when delivered to, sent by facsimile with acknowledged
receipt or recognized courier service with acknowledged receipt, or five
(5) days after being mailed by prepaid registered or certified mail
addressed to, the party for whom intended, as follows, or to such other
address as may be furnished by such party by notice in the manner provided
herein:
(i) If to the Sellers:
To the Sellers' Agent at his address set forth opposite his on
the signature pages hereof:
with a copy to:
Clifford Chance Limited Liability Partnership 200
Aldersgate Street
London EC1A 4JJ
United Kingdom
Attention: Olof Clausson, Esq.
Fax: 44-171-600-5555
(ii) If to the Purchaser:
CellPoint Inc.
Sofielundsvagen 4
Sollentuna S 191 47
Sweden
Fax: 468-544-90005
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<PAGE>
with a copy to:
Salans Hertzfeld Heilbronn Christy & Viener
620 Fifth Avenue
New York, New York 10020
United States
Attention: Steven R. Berger, Esq.
Fax: (212) 307-3308 or (212) 632-5555
(iii) If to the Escrow Agent:
Salans Hertzfeld Heilbronn Christy & Viener
620 Fifth Avenue
New York, New York 10020
Attention: Steven R. Berger, Esq.
Fax: 212-307-338 or 212-632-5555
(iv) If to the Depositary:
United States Stock Transfer Company
1745 Gardena Avenue, Suite 200
Glendale, California 91204-2991
Attention: Mr. Richard Brown
Fax: (818) 502-0674
8. MISCELLANEOUS.
(a) This Agreement may be amended only by a written agreement, signed
by all the parties hereto.
(b) If any provision of this Agreement shall be found by any court of
competent jurisdiction to be invalid or unenforceable, the parties hereby
waive such provision to the extent that it is found to be invalid or
unenforceable. Such provision shall, to the maximum extent allowable by
law, be modified by such court so that it becomes enforceable, and, as
modified, shall be enforced as any other provision hereof, all the other
provisions hereof continuing in full force and effect.
(c) This Agreement shall be governed and construed in accordance with
the laws of the State of New York.
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(d) This Agreement shall be binding upon and shall inure for the
benefit of the parties hereto and there respective successors and assigns.
(e) 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 only one Agreement.
(f) The headings contained in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation
hereof.
(g) This Agreement constitutes the entire understanding of the
parties with respect to the subject matter hereof and supersedes any and
all prior understandings and agreements, whether written or oral, with
respect to such subject matter.
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<PAGE>
SELLERS:
Address: PROCURITAS INVESTMENT PARTNERS
Skeppsbron 20 (PIP) BV
111 30 Stockholm
Sweden By /s/ MATS HUGOSON
---------------------------------
Name: Mats Hugoson
Address: NORRA BROFASTET I SUNDSVALL AB
Karlavagen 50
1114 49 Stockholm
Sweden By /s/ PER BORJESSON
---------------------------------
Name: Per Borjesson
Address: ERASMUS MANAGEMENT AB
Sabelgatan 6
254 67 Helsingborg
Sweden By /s/ MIKAEL SOLBERG
---------------------------------
Name: Mikael Solberg
Address: FORETAGSPARTNER IBP INVEST AB
Karlavagen 50
114 49 Stockholm
Sweden By /s/ PER BORJESSON
---------------------------------
Name: Per Borjesson
Address: KARL STOCKMAN AB
Norra Klaragatan 15
653 40 Karlstad
Sweden By /s/ PER LUNDBERG
---------------------------------
Name: Per Lundberg
Address: LEDSTIERNAN INVESTMENT LTD.
c/o CBS, Rue Du Criblet 9
C.P. 210, CH-1701 Friburg
Switzerland By /s/ PER LUNDBERG
---------------------------------
Name: Per Lundberg
Address: THOMAS ROSEN
Rosendalsterassen 9
115 21 Stockholm
Sweden By /s/ PER LUNDBERG
---------------------------------
Attorney-in-fact
-13-
<PAGE>
LEDSTIERNAN KAPITALFORVALTNING
AB
Address:
Birger Jarlsgatan 14
114 34 Stockholm
Sweden By /s/ PER LUNDBERG
---------------------------------
Name: Per Lundberg:
LEDSTIERNAN BUSINESS
Address: DEVELOPMENT LTD
Kevingestrand 35
182 57 Danderyd
Sweden By /s/ PER LUNDBERG
---------------------------------
Name: Per Lundberg
-14-
<PAGE>
Address:
Box 75215
1070AE Amsterdam
Holland By /s/ PER LUNDBERG
---------------------------------
Name: Per Lundberg
Address: AB BASEN
Normasgard
139 50 Varmdo
Sweden
By /s/ PER LUNDBERG
---------------------------------
Name: Per Lundberg
Address:
9 Skeppargatan 80 2 lr
114 59 Stockholm
Sweden By /s/ PER LUNDBERG
---------------------------------
PER LUNDBERG
Address: JAKOB LUNDBERG
Hornsgatan 80
118 21 Stockholm
Sweden By /s/ PER LUNDBERG
---------------------------------
Attorney-in-fact
Address: ANNA DAHLIN
Vasavagen 20
133 38 Stockholm
Sweden By /s/ PER LUNDBERG
---------------------------------
Attorney-in-fact
Address: SARA LUNDBERG
Tavastgatan 48
118 24 Stockholm
Sweden By /s/ PER LUNDBERG
---------------------------------
Attorney-in-fact
Address: KRISTER STROMBOM
Eknasvagen 37
132 44 Saltsjo Boo
Sweden By /s/ PER LUNDBERG
---------------------------------
Attorney-in-fact
-15-
<PAGE>
Address: LEDSTIERNAN KB
Birger jarlsgatan 14
114 34 Stockholm
Sweden By /s/ PER LUNDBERG
---------------------------------
Name: Per Lundberg
Address:
Fasanvagen 28
192 55 Sollentuna
Sweden By /s/ PER JUNDIN
---------------------------------
PER JUNDIN
Address: PETER JUNDIN
Fasanvagen 28
192 55 Sollentuna
Sweden By /s/ PER JUNDIN
---------------------------------
Attorney-in-fact
Address: CHRISTOPHER JUNDIN
Fasanvagen 28
192 55 Sollentuna
Sweden By /s/ PER JUNDIN
---------------------------------
Attorney-in-fact
Address: KENT JOHANSSON
Lotsjovagen 73
174 52 Sundbyberg
Sweden By /s/ PER JUNDIN
---------------------------------
Attorney-in-fact
Address: UNIUM AB
Lotsgatan 4
374 35 Karlshamn
Sweden By /s/ MICHAEL WALLON
---------------------------------
Name: Michael Wallon
-16-
<PAGE>
Address:
Soldatvagen 12c
192 73 Sollentuna
Sweden By /s/ MICHAEL WALLON
---------------------------------
MICHAEL WALLON
Address: THOMAS HOGLUND
Lotsgatan 4
374 35 Karlshamn
Sweden By /s/ MICHAEL WALLON
---------------------------------
Attorney-in-fact
Address: KAJ GELLBERG
Eriksfaltsgatan 31
214 55 Malmo
Sweden By /s/ MICHAEL WALLON
---------------------------------
Attorney-in-fact
Address: ORJAN SODERBERG
Kungsladugardsgatan 14b
414 69 Goteborg
Sweden By /s/ MICHAEL WALLON
---------------------------------
Attorney-in-fact
Address: BERTIL SODERBERG
Rogestavagen 3
139 36 Varmdo
Sweden By /s/ MICHAEL WALLON
---------------------------------
Attorney-in-fact
Address: LYKKE OLESEN
Granvagen 4
130 40 Djurhamn
Sweden By /s/ MICHAEL WALLON
---------------------------------
Attorney-in-fact
Address: KERSTIN OLESEN
Granvagen 4
130 40 Djurhamn
Sweden By /s/ MICHAEL WALLON
---------------------------------
Attorney-in-fact
-17-
<PAGE>
Address: MATS LJUNG
Venusvagen 10
132 44 Saltsjo Boo
Sweden By /s/ MICHAEL WALLON
---------------------------------
Attorney-in-fact
Address: ROGER CARLSSON
Rodkhakevagen 55
147 70 Grodinge
Sweden By /s/ MICHAEL WALLON
---------------------------------
Attorney-in-fact
Address: OLOF STENHAMMAR
Normasgard
139 50 Varmdo
Sweden By /s/ MICHAEL WALLON
---------------------------------
Attorney-in-fact
PURCHASER: CELLPOINT INC.
Address:
Sofielundsvagen 4
S 191 47 Sollentuna By /s/ PETER HENRICSSON
Sweden ---------------------------------
Peter Henricsson, President
Address: CELLPOINT SWEDISH HOLDINGS LTD.
Sofielundsvagen 4
S 191 47 Sollentuna
Sweden
By /s/ PETER HENRICSSON
---------------------------------
Peter Henricsson, President
ESCROW AGENT: SALANS HERTZFELD HEILBRONN
CHRISTY & VIENER
Address:
620 Fifth Avenue By /s/ STEVEN R. BERGER
New York, New York 10020 ---------------------------------
United States Steven R. Berger, Esq.
Attention: Steven R. Berger, Esq. Partner
-18-
<PAGE>
DEPOSITARY: U.S. STOCK TRANSFER CORPORATION,
as Depositary
Address:
1745 Gardena Avenue
Glendale, California By /s/ RICHARD BROWN
United States ---------------------------------
Attention: Mr. Richard Brown Richard Brown
Vice President
SELLERS' AGENT:
Address:
9 Skeppargatan 80 2 lr
114 59 Stockholm By /s/ PER LUNDBERG
Sweden ---------------------------------
Per Lundberg, as Sellers' Agent
-19-
