EX-10 4 f8k_10agreement-iwin.txt ACQUISITION AGREEMENT PMI EXHIBIT 10 - Acquisition Agreement ACQUISITION AGREEMENT Acquisition Agreement, made this 15th day of November, 2003 among, International Wireless, Inc., of 110 Washington Avenue, 4th Floor, North Haven, CT 06473, a Maryland Corporation ("IWIN") and PMI Wireless, Inc. of 1138 N. German Town Parkway 101-265, Cordova, TN 38016, a Delaware corporation ("PMI") and the shareholders of PMI as herein listed as Exhibit A attached, and as represented by Trent Sommerville, President of PMI (the "Sellers"). WHEREAS; A. IWIN is a public company trading under the symbol "IWIN". B. IWIN as November 12, 2003 has spun-off all assets, including but not limited to all its subsidiaries and intellectual properties, and contracts and therefore as of this date consists a public shell with no current assets or operations. C. PMI Wireless desires to become a public company. B. The parties hereto deem it to be in the best interest of each of them that PMI Wireless, be acquired and become a subsidiary of IWIN in a reverse merger whereby the Sellers become majority shareholders of IWIN, all pursuant to such terms, provisions and conditions as the parties hereto shall agree. NOW, THEREFORE, WITNESSETH, that for and in consideration of the premises and of the mutual promises and covenants hereinafter set forth, the parties hereto agree as follows: A. PURCHASE AND PAYMENT 1. Purchase and Sale of Stock. 1.1 PMI agrees to sell to IWIN and Sellers agrees to sell, assign, transfer and deliver to IWIN 100 percent of the issued and outstanding stock of PMI owned by Sellers as described in Schedule A annexed hereto and made a part hereof (collectively, the "Stock"). 1.2 The Acquisition and payment for the Stock by IWIN shall take place at the time and in the manner hereinafter provided, and the sale, assignment, transfer and delivery of the Stock by Sellers, shall take place on the Closing Date at the Closing as those terms are hereinafter defined, subject to the fulfillment of the conditions hereinafter provided. 2. Purchase Price. The aggregate purchase price of the Stock (the "Purchase Price"), shall be a Nine Million Eight Hundred and Ninety Eight Thousand four hundred and sixty six (9,898,466) common shares of IWIN payable to Sellers plus fifty Thousand ($50,000) U.S. Dollars payable to IWIN by the Sellers all of which is to be paid to the U.S. Internal Revenue Service on behalf of IWIN for a current debt owed by IWIN for payroll taxes, all to be delivered at closing. 1 B. REPRESENTATIONS AND WARRANTIES OF IWIN 1. Corporate Status and Authority. IWIN hereby represents and warrants that (i) IWIN is a duly organized and validly existing corporation under the laws of the State of Maryland, (ii) the execution, delivery and performance of this Agreement by the IWIN has been duly authorized by all necessary corporate action, (iii) this Agreement is a valid and legally binding obligation of IWIN enforceable in accordance with the terms hereof, (iv) no governmental authorization, approval, order, license, permit, franchise or consent and no registration or filing with any governmental authority is required in connection with the execution, delivery or performance of this Agreement by IWIN. 2. Capital Structure. IWIN (a) is authorized by its charter and applicable law to issue 100,000,000 common stock, par value $0.009 of which 1,857,137 shares are outstanding after a 30 to 1 reverse split that took place on November 12, 2003 and 5,000,000 preferred stock, par value $0.001 non of which are issued and outstanding; (b) has no issued and outstanding shares of its capital stock whatever, except as specifically indicated hereto, all of which such shares are fully paid and non-assessable; (c) does not have authorized, issued or outstanding any subscription, option, warrant, conversion or other rights to the issuance or receipt of shares of its capital stock except as noted hereto; (d) has all voting rights vested exclusively in the presently issued and outstanding capital stock; and (e) has outstanding no bonds, debentures or other similar evidences of indebtedness except as specifically disclosed hereto (f) has no assets or subsidiaries of any kind by virtue. C. REPRESENTATIONS AND WARRANTIES OF SELLERS AND PMI Sellers and PMI hereby warrant and represent to IWIN that, as of the date hereof, the following statements are true and correct. 1. Corporate Status. PMI is (a) duly organized, validly existing and in good standing under the laws of the State of Delaware; (b) has full corporate power to own all of its properties and carry on its business as it is now being conducted; and (c) is qualified to do business as a foreign corporation in each of the jurisdictions in which it operates and the character of the properties owned by PMI or the nature of the business transacted by PMI does not make qualification necessary in any other jurisdiction or jurisdictions. 2. Authority to Sell. Sellers have full right, power and authority to sell, transfer and deliver the Stock owned by him to IWIN in accordance with the terms of this Agreement, and otherwise to consummate and close the transaction provided for in this Agreement in the manner and upon the terms herein specified. 2 3. Capital Structure. PMI (a) is authorized by its charter and applicable law to issue capital stock of the type and having par values as set forth in Schedule A hereto; (b) has no issued and outstanding shares of its capital stock whatever, except as specifically indicated in Schedule A hereto, all of which such shares are fully paid and non-assessable; (c) does not have authorized, issued or outstanding any subscription, option, warrant, conversion or other rights to the issuance or receipt of shares of its capital stock except as set forth hereto; (d) has all voting rights vested exclusively in the presently issued and outstanding capital stock; and (e) has outstanding no bonds, debentures or other similar evidences of indebtedness except as specifically disclosed hereto. 4. Ownership of Stock. All of the issued and outstanding shares of capital stock of PMI are owned by Sellers. Sellers own beneficially and of record the number of shares set forth in Schedule A hereto opposite their names. Sellers holds such stock free and clear of all liens, claims, debts, encumbrances and assessments, and any and all restrictions as to sale, assignment or transferability thereof. Sellers have full right, power and authority to sell, transfer and deliver all of the shares of Stock owned by them and the certificates therefor, sold hereunder, to IWIN in accordance with the terms of this Agreement, and otherwise to consummate and close the transaction provided for in this Agreement in the manner and upon the terms herein specified. 5. Peaceable Possession of Assets. The ownership and possession of all of the assets of PMI has been peaceable and undisturbed and the title thereto has never been disputed or questioned to the knowledge of PMI; nor does PMI knows of any facts by reason of which the possession or title thereof by PMI might be disturbed or questioned or by reason of which any claim to its assets might arise or be set up adverse to PMI. 6. Regulatory Good Standing. PMI has all material rights, certificates, authorities, permits, licenses, franchises and other authorizations necessary to and has complied in material respects with all laws applicable to, the conduct of its business in the manner and in the areas in which such business is presently being conducted and all such certificates, authorities, rights, permits, licenses, franchises and authorizations are valid, in good standing, in full force and effect, under no orders of suspension or restraints, and subject to no disciplinary, probationary or other orders. To the best of its knowledge, PMI has engaged in no activity whatever which would cause or lead to proceedings involving revocation, suspension, restraint, disciplinary action or any other action whereby any of such certificates, authorities, rights, permits, licenses, franchises or authorizations, or any part thereof, might be canceled, terminated, suspended, impaired, lost or otherwise adversely affected, and no action or proceeding looking to or contemplating any of the foregoing is pending or to PMI's knowledge threatened. The foregoing shall not be deemed to constitute a warranty or representation that PMI has not heretofore or shall not hereafter suffer to be committed minor and unintentional violations of any governmental regulations of such nature as not to cause either suspension or revocation of PMI's operating authority. 3 7. Litigation. PMI is not a party to any pending or to its knowledge threatened suit, action, proceeding, prosecution or litigation which might materially adversely affect the financial condition, business, assets, properties, certificates, rights, authorities, franchises or authorizations of PMI, or materially interfere therewith, nor to the knowledge of PMI is there any threatened or pending governmental investigation involving PMI or any of its operations, including inquiries, citations or complaints by any federal, state or local administration or agency, which would materially adversely affect the financial condition, business, assets or properties of PMI; and there are no outstanding, existing or pending judgments, orders, decrees, rulings, directives, stipulations or other mandates of any court or any public or quasi-public agency, body or official which have been in any way violated as they relate to or affect PMI or any of PMI's properties, businesses, operations, affairs or activities. 8. Defaults. There are no material defaults on the part of PMI under any contract, lease, mortgage, pledge, credit agreement, title retention agreement, security agreement, lien, encumbrance or any other commitment, contract, agreement or undertaking to which PMI is a party. 9. Tax Returns. All returns for federal, state and other governmental income taxes, surtaxes, excess profits taxes, franchise taxes, sales and use taxes, real and personal property taxes and any and all other taxes to which PMI, or its assets, operations or income may be subject, due as of the date hereof, have been duly prepared and filed in good faith and all taxes shown thereon have been paid or are accrued on the books of PMI. 10. Infringements. PMI has never been charged with infringement or violation of any adversely held patent, trademark, trade name, or copyright, with claims reading on operations of PMI or on apparatus or methods employed by PMI in effecting the same, which would materially adversely affect any operation of PMI, nor is PMI using or in any way making use of any confidential information or trade secrets, of any former employer or any present or past employee of PMI except as a result of the acquisition of the business of such former employer. 11. Truth of Representation. No representation by PMI made in this Agreement and no statement made in any certificate or schedule furnished in connection with the transaction herein contemplated contains or will contain any knowingly untrue statement of a material fact or knowingly omits or will omit to state any material fact reasonably necessary to make any such representation or any such statement not misleading to a prospective purchaser of the Stock. D. CONDITIONS PRECEDENT TO CLOSING All obligations of PMI under this Agreement are subject to the fulfillment of each of the following conditions, in addition to the fulfillment of any and all other conditions set forth in this Agreement: 1. Corporate Action. Prior to the Closing Date, the Board of Directors of PMI shall have duly adopted resolutions to the same effect with respect to the aforesaid matters. 4 2. Termination. In the event any of the foregoing conditions shall not be fulfilled prior to the Closing, unless caused by any action or failure to act on the part of IWIN, IWIN shall have the right to terminate the Agreement by notice thereof in writing to PMI, and the parties hereto shall be restored as far as possible to status quo, whereupon the parties hereto shall have no further obligations or liabilities hereunder, one against the other. E. CLOSING The closing under this Agreement (the "Closing") and all deliveries hereunder shall take place at the office of IWIN on November 17th , 2003 or such other place or date as shall be agreed upon by all the parties ("the Closing date"). F. CONFIDENTIALITY All information and documentation provided or to be provided by PMI or Sellers to IWIN in connection with this Agreement and the transactions contemplated hereby has been and shall be provided in the strictest confidence. Pending the Closing, IWIN covenants and agrees not to use any of such information or documentation in or for the benefit of any business engaged in directly or indirectly by IWIN and not to furnish or disclose any of such information or documentation to any person. If the transactions contemplated by this Agreement are not consummated, IWIN covenants and agrees to return all such information and documentation to PMI and not retain any copies thereof, and IWIN further covenants and agrees to maintain the confidentiality of such information and documentation and to neither use any of it in or for the benefit of any business engaged in directly or indirectly by IWIN nor furnish or disclose any of it to any person. G. GENERAL PROVISIONS 1. Survival of Representations, Warranties and Covenants. Unless otherwise expressly provided herein, the representations, warranties, covenants, indemnities and other agreements herein contained shall be deemed to be continuing and shall survive the consummation of the transactions contemplated by this Agreement. 2. Diligence. The parties hereto agree that each shall with reasonable diligence proceed to take all action which may be reasonably required to consummate the transaction herein contemplated. 3. Waivers. Each party hereto may: 3.1 Extend the time for performance of any of the obligations of the other party; 5 3.2 Waive in writing any inaccuracies in representations and warranties made to it contained in this Agreement or any schedule hereto or any certificate or certificates delivered by any of the other parties pursuant to this Agreement; and 3.3 Waive in writing the failure of performance of any of the agreements, covenants, obligations or conditions of the other parties herein set forth, or alternatively terminate this Agreement for such failure. 4. Non-Waiver. The waiver by any party hereto of any breach, default, inaccuracy or failure by another party with respect to any provision in this Agreement or any schedule hereto shall not operate or be construed as a waiver of any other provision thereof or of any subsequent breach thereof. 5. Further Assurances. Each party hereto agrees to execute such further documents or instruments, requested by the other party, as may be reasonably necessary or desirable to effect the purposes of this Agreement and to carry out its provisions, at the expense of the party requesting the same. 6. Entire Agreement. This Agreement constitutes a complete statement of all the arrangements, understandings and agreements between the parties, and all prior memoranda and oral understandings with respect thereto are merged in this Agreement. There are no representations, warranties, covenants, conditions or other agreements among the parties except as herein specifically set forth, and none of the parties hereto shall rely on any statement by or on behalf of the other parties which is not contained in this Agreement. 7. Governing Law. Irrespective of the place of execution or performance of this Agreement, it shall be governed by and construed in accordance with the laws of the State of Connecticut applicable to contracts made and to be performed in the State of Connecticut, and cannot be changed, modified, amended or terminated except in writing, signed by the parties hereto. 8. Benefit and Assignability. This Agreement shall bind and inure to the benefit of the parties hereto and their respective legal representatives, successors and assigns, provided, however, that this Agreement cannot be assigned by any party except by or with the written consent of the others. Nothing herein expressed or implied is intended or shall be construed to confer upon or to give any person, firm or corporation other than the parties hereto and their respective legal representatives, successors and assigns any rights or benefits under or by reason of this Agreement. 9. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. 6 10. Notices. Any notices and other communications under this Agreement shall be in writing and shall be considered given if delivered personally or mailed by certified mail to the party, for whom such notice is intended, at the address indicated at the outset hereof (or at such other address as such party may specify by notice to the other parties hereto). 11. Headings. The headings in this Agreement are intended solely for convenience of reference and shall be given no effect in the construction or interpretation of this Agreement. 12. Further Action. Any further action required or permitted to be taken under this Agreement, including giving notices, executing documents, waiving conditions, and agreeing to amendments or modifications, may be taken on behalf of a party by its Board of Directors, its President or any other person designated by its Board of Directors, and when so taken shall be deemed the action of such party. IN WITNESS WHEREOF, the parties hereto have respectively executed this Agreement the day and year first above written. INTERNATIONAL WIRELESS, INC. By: /s/ Jerry Gruenbaum --------------------------------- Jerry Gruenbaum, Acting President Witness: /s/ Pat Scorzelli ----------------------------- Pat Scorzelli PMI WIRELESS, INC. By: /s/ Trent Sommerville ------------------------------------ Trent Sommerville, CEO and President SELLERS /s/ Trent Sommerville ------------------------------------------ Trent Sommerville, under power of attorney Witness: /s/ Donna Sommerville ---------------------------------- Donna Sommerville 7
Schedule A ---------- NAME NO. OF SHARES ---------------------------------- ------------- Trent Sommerville 3,000,000 John Zavoral 1,000,000 Albert Loeb 7,000 Lavonne Adams 1,000,000 The Good One Inc 1,500,000 Alexander S. Taylor Trustee 100,000 Arnold Rettig 20,000 Asa Shiverick 10,000 Bernard Schumacher 30,000 Billy Psifidis 3,000 Brandon Manumaleuna 53,333 Carmen Pecord 7,500 Cecil Richardson 15,000 Chris Hansen 6,000 Chris Hebert 10,000 Cliff E. Flournoy 5,000 Coberly Family Living 60,000 Trust (Everett J. Coberly) Dan Lucas 49,000 Darrel Thomford 54,000 Dave Sherbrooke 110,000 David Cable 5,000 David S. Roberton 15,000 Donald R. Padget 12,500 Donna Sommerville 50,000 Doug Neubauer 28,000 Dr Allan Latourette 40,000 Dr. Abdel Ahmed 25,000 Dr. Baldwin Sawyer 12,000 Joseph Cordi 100,000 Keith Field 100,000 Dr. David Webb 10,000 Dr. Joseph Cannon 5,000 Dr. Kenneth B. Farris 50,000
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Schedule A [continued] ---------------------- NAME NO. OF SHARES ---------------------------------- ------------- Dr. Olen C. Wilson 26,500 Dr. Richard H. Foss 5,000 Dr. Ronald Whitmire 15,000 Dwight A. Quave 400,000 Eric Wehde 3,500 Eugene S. Paulicki 12,500 F. Neil Smiley 15,000 Frank B. Perner 7,000 Gaynard Farnum 1,200 Gerald R. Green Jr. 90,000 Harry Bushaw 15,000 Heidi Fisher 10,000 James A. Coxwell 20,000 James Becker 15,000 James M. Walton 20,000 Jana A. Bru 5,000 Janalee A. Haugen 20,000 Jaren Brandon Duffield 1,000 Jason Benjamin Duffield 1,000 Jeanette Stengl 10,000 Jeanne Brown 2,500 Jeff Brandeis 180,000 Jeff Hussey 10,000 Jeff Walker 12,500 Jim Dunavan 5,000 Jimmy C. Brochard 12,000 Jody Olson 4,000 John B. Duffeild Jr. 34,000 John C. Chou 15,000 John Christensen 16,000 John D. Miller Jr and 40,000 Dawn M. Miller John Riley 1,500 John Stanhagen Jr. 2,500 John Ydren 3,000 Keith Branner 3,000 Kelli Dickens 10,000 Logan Happel 25,000 Lois Zavoral 20,000 Louise L. Jacob 25,000 Marc Franklin 13,333 Donald Pratt 60,000 Margi Zavoral 50,000 Matt Morgan 7,000
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Schedule A [continued] ---------------------- NAME NO. OF SHARES ---------------------------------- ------------- Maurice A. Horn 65,000 Merrilee L. Brown 40,000 Michael D. Wilkins 15,000 -LivingTrust Michael J. Carraway 50,000 Michael J. Chaney 15,000 Michael Karnowski 15,000 Mike Lawrence 5,000 Monty Miller 10,000 Mrs. Charlene Ellingwood 20,000 West Inc.(Barrett Warren) Neil Briedenbach 7,500 Nick Skansi 15,000 Paul Staley 5,000 Pete Zavoral 120,000 Ralph Keller 20,000 Rance Reehl 7,000 Richard Feldman 20,000 Robert B. King Trust 40,000 Robert Becker 7,000 Robert Brooks 20,000 Robert Kandt 5,000 Robert Neuman 20,000 Robert Rosen-President 40,000 Consultants Inc-8880 Roland Wiek 40,000 Rolling Hills Group LTD 5,000 Jean L. Fisher Mngr Rolling Hills Group LTD 85,000 Steven S. Fisher Mngr Ron Cobb 20,000 Ross & Diane Grimm 5,000 Ross Hauger 20,000 Russel Withrow 40,000 Ruth Holweger 4,000 Ryan Westgard 80,000 Sally Munoz 10,000 Sandra C. Duffield 5,000 Sharon E. Macha 10,000 Shelby Adams 25,000 Steve Adams 75,000 Steven D. Kingsley 10,000 T. Neal Pringle Jr. 12,000 Thomas B. Gasper Jr. 5,000 Thomas Treadwell 5,000
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Schedule A [continued] ---------------------- NAME NO. OF SHARES ---------------------------------- ------------- Tim Horpedahl 2,500 Trent Sommerville 100 W.G. Plueckhahn 50,000 Wanda Kirsch 6,000 William Gryboski 15,000 William l. Watkins 11,000 James Massey 100,000 --------- Total 9,938,466 =========
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