EXHIBIT 10.2
THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "1933 ACT"), NOR REGISTERED UNDER ANY
STATE SECURITIES LAW, AND ARE "RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN
RULE 144 UNDER THE 1933 ACT. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE 1933 ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933
ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF THE
COMPANY.
AGREEMENT FOR THE EXCHANGE OF COMMON STOCK
AGREEMENT made this 7th day of April, 1999, by and between IP Voice
Communications, Inc., a Nevada corporation, (the "ISSUER"), and SATLINK 3000,
Inc. d/b/a Independent Network Services, a Nevada Corporation ("INS") and the
individuals listed in Exhibit A attached hereto, (the "SHAREHOLDERS"), which
SHAREHOLDERS own of all the issued and outstanding shares of INS.
In consideration of the mutual promises, covenants, and representations
contained herein, and other good and valuable consideration,
THE PARTIES HERETO AGREE AS FOLLOWS:
1. EXCHANGE OF SECURITIES. Subject to the terms and conditions of this
Agreement, the ISSUER agrees to issue to SHAREHOLDERS, 250,000 redeemable
convertible preferred shares convertible one (1) year after issuance for one
share of common (or at the option of ISSUER redeemable at $2.00 per share), (the
"Shares"), in exchange for 100% of the issued and outstanding shares of INS,
such that INS shall become a wholly owned subsidiary of the ISSUER.
2. REPRESENTATIONS AND WARRANTIES. ISSUER represents and warrants to
SHAREHOLDERS and INS the following:
i. Organization. ISSUER is a corporation duly organized,
validly existing, and in good standing under the laws of Nevada, and has all
necessary corporate powers to own properties and carry on a business, and is
duly qualified to do business and is in good standing in Nevada. All actions
taken by the Incorporators, directors and shareholders of ISSUER have been valid
and in accordance with the laws of the State of Nevada.
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ii. Capital. The authorized capital stock ISSUER consists of
20,000,000 shares of common stock, $ 0.001 par value, of which 13,006,091 are
issued and outstanding, and 1,000,000 shares of preferred stock, none of which
are issued. All outstanding shares are fully paid and non assessable, free of
liens, encumbrances, options, restrictions and legal or equitable rights of
others not a party to this Agreement as set forth herein. In addition, ISSUER
has outstanding in excess of 3,000,000 warrants exercisable at prices ranging
from $0.75 to $2.000 per share. At closing, there will be no outstanding
subscriptions, options, rights, warrants, convertible securities, or other
agreements or commitments obligating ISSUER to issue or to transfer from
treasury any additional shares of its capital stock except as set forth herein.
None of the outstanding shares of ISSUER are subject to any stock restriction
agreements. All of the shareholders of ISSUER have valid title to such shares
and acquired their shares in a lawful transaction and in accordance with the
laws of Nevada.
iii. Financial Statements. The current balance sheet of
ISSUER, and the related statements of income and retained earnings for the
periods have been disclosed to INS and its shareholders. The financial
statements have been prepared in accordance with generally accepted accounting
principles consistently followed by ISSUER throughout the periods indicated, and
fairly present the financial position of ISSUER as of the date of the balance
sheet and the financial statements, and the results of its operations for the
periods indicated.
iv. Absence of Changes. Since the date of the financial
statements, there has not been any change in the financial condition or
operations of ISSUER, except changes in the ordinary course of business, which
changes have not in the aggregate been materially adverse.
v. Liabilities. ISSUER does not have any debt, liability, or
obligation of any nature, whether accrued, absolute, contingent, or otherwise,
and whether due or to become due, that is not reflected in the ISSUERS'
financial statement. ISSUER is not aware of any pending, threatened or asserted
claims, lawsuits or contingencies involving ISSUER or its common stock. There is
no dispute of any kind between the ISSUER and any third party, and no such
dispute will exist at the closing of this Agreement.
vi. Ability to Carry Out Obligations. ISSUER has the right,
power, and authority to enter into and perform its obligations under this
Agreement. The execution and delivery of this Agreement by Issuer and the
performance by ISSUER of its obligations hereunder will not cause, constitute,
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or conflict with or result in (a) any breach or violation or any of the
provisions of or constitute a default under any license, indenture, mortgage,
charter, instrument, articles of incorporation, bylaw, or other agreement or
instrument to which ISSUER or its shareholders are a party, or by which they may
be bound, nor will any consents or authorizations of any party other than those
hereto be required, (b) an event that would cause ISSUER to be liable to any
party, or (c) an event that would result in the creation or imposition or any
lien, charge or encumbrance on any asset of ISSUER or upon the securities of
ISSUER to be acquired by SHAREHOLDERS.
vii. Full Disclosure. None of the representations and
warranties made by the ISSUER, or in any certificate or memorandum furnished or
to be furnished by the ISSUER, contains or will contain any untrue statement of
a material fact, or omit any material fact the omission of which would be
misleading.
viii. Compliance with Laws. ISSUER has complied with, and is
not in violation of any federal, state, or local statute, law, and/or regulation
pertaining to ISSUER. ISSUER has complied with all federal and state securities
laws in connection with the issuance, sale and distribution of its securities.
ix. Litigation. ISSUER is not (and has not been) a party to
any suit, action, arbitration, or legal, administrative, or other proceeding, or
pending governmental investigation. To the best knowledge of the ISSUER, there
is no basis for any such action or proceeding and no such action or proceeding
is threatened against ISSUER and ISSUER is not subject to or in default with
respect to any order, writ, injunction, or decree of any federal, state, local,
or foreign court, department, agency, or instrumentality.
x. Conduct of Business. Prior to the closing, ISSUER shall
conduct its business in the normal course, and shall not (1) sell, pledge, or
assign any assets (2) amend its Articles of Incorporation or Bylaws, (3) declare
dividends, redeem or sell stock or other securities, (4) incur any liabilities,
(5) acquire or dispose of any assets, enter into any contract, guarantee
obligations of any third party, or (6) enter into any other transaction.
xi. Documents. All minutes, consents or other documents
pertaining to ISSUER to be delivered at closing shall be valid and in accordance
with the laws of Nevada.
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xii. Title. The Shares to be issued to SHAREHOLDERS will be,
at closing, free and clear of all liens, security interests, pledges, charges,
claims, encumbrances and restrictions of any kind. None of such Shares are or
will be subject to any voting trust or agreement. No person holds or has the
right to receive any proxy or similar instrument with respect to such shares,
except as provided in this Agreement, the ISSUER is not a party to any agreement
which offers or grants to any person the right to purchase or acquire any of the
securities to be issued to SHAREHOLDERS. There is no applicable local, state or
federal law, rule, regulation, or decree which would, as a result of the
issuance of the Shares to SHAREHOLDERS, impair, restrict or delay SHAREHOLDERS'
voting rights with respect to the Shares.
3. SHAREHOLDERS and INS represent and warrant to ISSUER the following:
i. Organization. INS is a corporation duly organized, validly
existing, and in good standing under the laws of Nevada, has all necessary
corporate powers to own properties and carry on a business, and is duly
qualified to do business and is in good standing in Nevada. All actions taken by
the Incorporators, directors and shareholders of INS have been valid and in
accordance with the laws of Nevada.
ii. Shareholders and Issued Stock. Exhibit A annexed hereto
sets forth the names and share holdings of 100% of INS's shareholders.
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iii. Listing Stock for Xxxxxxx.Xx closing, ISSUER's common
stock shall be listed for quotation on NASD Automated Bulletin Board and listed
with Standard and Poors or Moodys in their Accelerated Corporate Report.
iv. Counsel. INS represents and warrants that they are
represented by independent counsel or have had the opportunity to retain
independent counsel to represent them in this transaction and that prior to
Closing, the law offices of Mintmire & Associates has acted as exclusive counsel
to the ISSUER and has not represented either the SHAREHOLDERS or INS in this
transaction in any manner whatsoever.
4. INVESTMENT INTENT. SHAREHOLDERS agree that the shares being issued
pursuant to this Agreement may be sold, pledged, assigned, hypothecate or
otherwise transferred, with or without consideration (a "Transfer"), only
pursuant to an effective registration statement under the Act, or pursuant to an
exemption from registration under the Act, the availability of which is to be
established to the satisfaction of ISSUER. SHAREHOLDERS agree, prior to any
Transfer, to give written notice to ISSUER expressing his desire to effect the
transfer and describing the proposed transfer.
5. CLOSING. The closing of this transaction shall take place at the law
office of Xxxxxx X. Xxxxxxxx, 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxxx, XX.
6. DOCUMENTS TO BE DELIVERED AT CLOSING.
i. By the ISSUER
(1) Board of Directors Minutes authorizing the issuance of a
certificate or certificates for 500,000 shares of redeemable convertible
preferred stock, registered in the names of the SHAREHOLDERS equal to their
pro-rata holdings in INS.
(2) A Board of Directors resolution appointing Xxxxx X.
Xxxxxxxx as Director and Executive Officer of ISSUER.
(3) Such other minutes of ISSUER's shareholders or directors
as may reasonably be required by SHAREHOLDERS.
ii. By SHAREHOLDERS AND INS:
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(1) Delivery to the ISSUER, or to its Transfer Agent, the
certificates representing 100% of the issued and outstanding stock of INS.
(2) Consents signed by all the shareholders of INS consenting
to the terms of this Agreement.
(3) Any and all documents required by ISSUER regarding the
current or past conditions or status of INS.
7. REMEDIES.
i. Arbitration. Any controversy or claim arising out of, or
relating to, this Agreement, or the making, performance, or interpretation
thereof, shall be settled by arbitration in Denver, Colorado in accordance with
the Rules of the American Arbitration Association then existing, and judgment on
the arbitration award may be entered in any court having jurisdiction over the
subject matter of the controversy.
8. MISCELLANEOUS.
i. Captions and Headings. The Article and paragraph headings
throughout this Agreement are for convenience and reference only, and shall in
no way be deemed to define, limit, or add to the meaning of any provision of
this Agreement.
ii. No oral change. This Agreement and any provision hereof,
may not be waived, changed, modified, or discharged orally, but only by an
agreement in writing signed by the party against whom enforcement of any waiver,
change, modification, or discharge is sought.
iii. Non Waiver. Except as otherwise provided herein, no
waiver of any covenant, condition, or provision of this Agreement shall be
deemed to have been made unless expressly in writing and signed by the party
against whom such waiver is charged; and (I) the failure of any party to insist
in any one or more cases upon the performance of any of the provisions,
covenants, or conditions of this Agreement or to exercise any option herein
contained shall not be construed as a waiver or relinquishment for the future of
any such provisions, covenants, or conditions, (ii) the acceptance of
performance of anything required by this Agreement to be performed with
knowledge of the breach or failure of a covenant, condition, or provision hereof
shall not be deemed a waiver of such breach or failure, and (iii) no waiver by
any party of one breach by another party shall be construed as a waiver with
respect to any other or subsequent breach.
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iv. Time of Essence. Time is of the essence of this Agreement
and of each and every provision hereof.
v. Entire Agreement. This Agreement contains the entire
Agreement and understanding between the parties hereto, and supersedes all
prior agreements and understandings.
vi. Counterparts. This Agreement may be executed
simultaneously in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
vii. Notices. All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given on the date of service if served personally on the party to whom notice is
to be given, or on the third day after mailing if mailed to the party to whom
notice is to be given, by first class mail, registered or certified, postage
prepaid, and properly addressed, and by fax, as follows:
ISSUER: IPVoice Communications, Inc.
0000 Xxxxx Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
INS: Xx. Xxxxx X. Xxxxxxxx
0000 Xxxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
viii and ix. See attached Addendum.
IN WITNESS WHEREOF, the undersigned has executed this Agreement this 7th day of
April 1999.
IP Voice Communications, Inc. Independent Network Services
By: /s/ Xxxxxxx X. Will By: /s/ Xxxxx X. Xxxxxxxx
------------------------ ----------------------------
Xxxxxxx X. Will Xxxxx X. Xxxxxxxx,
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Xxxxx X. Xxxxxxxx, Individually
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ADDENDUM
viii. All definitive documents and/or agreements relating to this
transaction, including this AGREEMENT FOR THE EXCHANGE OF COMMON STOCK, are
subject to the approval of the Board of Directors of the ISSUERS and
SHAREHOLDERS and Board of Directors of INS.
IX. All definitive documents and/or agreements relating to this
transaction, including this AGREEMENT FOR THE EXCHANGE OF COMMON STOCK, are
subject to the ISSUER entering into agreements with Xxxxx X. Xxxxxxxx, including
but not limited to employment agreement, consulting agreement, compensation
agreement, stock option agreement, and stock grant agreement, acceptable to
Xxxxxxxx and IPVoice.
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EXHIBIT A
SHAREHOLDERS OF SATLINK 3000, INC.
D/B/A Independent Network Services, A Nevada Corporation
NAME SHARES
Oakmont Industries, Inc. 250,000
Xxxxxxxx X. Xxxxxx 10,000
Xxxxxx X. Xxxx 10,000
Xxxxxxxxx Xxxxxx-Xxxx, Custodian FBO
Xxxxx X. Xxxx 10,000
Xxxxxxxxx Xxxxxx-Xxxx, Custodian FBO
Xxxxx X. Xxxx 10,000
Maryland Capital Management, Inc. 10,000
Xxxxx X. Xxxxxxxx 75,000