STOCK PURCHASE AGREEMENT by and between IVOICE, INC. And IVOICE TECHNOLOGY, INC. Dated: March 11, 2008
Exhibit
10.22
by and
between
IVOICE,
INC.
“PURCHASER”
And
IVOICE
TECHNOLOGY, INC.
“COMPANY”
Dated: March
11, 2008
THIS
STOCK PURCHASE AGREEMENT, dated as of March 11, 2008, is made and entered into
by and among iVoice Technology, Inc. (the “Company”) and iVoice, Inc. (the
“Purchaser”). The Purchaser and the Company are sometimes
individually referred to herein as a “Party” and
collectively as the “Parties.”
RECITALS:
WHEREAS,
upon the terms and conditions set forth herein, the Company proposes to sell to
the Purchaser and the Purchaser proposes to purchase from the Company 1,444.44
shares of the Company’s Series A 10% Secured Convertible Preferred Stock (the
“Preferred Stock”);
NOW,
THEREFORE, in consideration of the foregoing and the respective representations,
warranties, covenants, agreements and conditions hereinafter set forth, and
intending to be legally bound hereby, each Party hereby agrees as
follows:
ARTICLE
I
DEFINITIONS
Section
1.1 Certain
Definitions. The following terms, as used herein, have the
following meanings:
“Affiliate” of any
specified Person means any other Person directly or indirectly Controlling or
Controlled by or under direct or indirect common Control with such specified
Person.
“Agreement” means this
Stock Purchase Agreement, as amended from time to time.
“Assets” means all of
the assets, properties and rights of the Company, whether real, personal or
mixed, whether tangible or intangible, and wherever situated, in existence on
the date hereof and any additions thereto on or before the Closing
Date.
“Business Day” means
any day except Saturday, Sunday or any day on which banks are generally not open
for business in the City of New York, New York.
“Closing” means the
consummation of the purchase and sale of the Preferred Stock, as set forth in
this Agreement.
“Closing Date” means
the date on which the Closing occurs.
“Code” means the
United States Internal Revenue Code of 1986, as amended, including effective
date and transition rules (whether codified or not). Any reference
herein to a specified provision of the Code shall be deemed to include a
reference to any successor provision thereof.
“Company Ancillary
Documents” means any certificate, agreement, document or other
instrument, other than this Agreement, to be executed and delivered by the
Company in connection with the transactions contemplated hereby.
“Contract” means any
contract, sub-contract, agreement, lease, license, commitment, sale and purchase
order, note, loan agreement or any other instrument, arrangement, or
understanding of any kind, whether written or oral, and whether express or
implied.
“Control” means, when
used with respect to any specified Person, the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by Contract or otherwise.
“Customer” means a
customer of the Company that paid the Company in the aggregate more than $25,000
during the twelve (12)-month period ended December 31, 2007.
“GAAP” means generally
accepted accounting principles as applied in the United States.
“Governmental Entity”
means any (i) nation, state, commonwealth, county, city, town, village,
district, or other jurisdiction of any nature, (ii) federal, state, local,
municipal, foreign, or other government, (iii) federal, state, local or
foreign governmental or quasi-governmental authority of any nature (including
any agency, branch, department, board, commission, court or tribunal),
(iv) multi-national or supra-national organization or body, (v) body
exercising, or entitled or purporting to exercise, any administrative,
executive, judicial, legislative, police, regulatory, or taxing authority or
power, including any court or arbitrator, (vi) self-regulatory organization
or (vii) official of any of the foregoing.
“Intellectual
Property” means any or all of the following and all rights, arising out
of or associated therewith: (a) all United States, international and
foreign patents and applications therefor and all reissues, divisions, renewals,
extensions, provisionals, continuations and continuations-in-part thereof;
(b) all inventions (whether patentable or not), invention disclosures,
improvements, proprietary information, know-how, technology, technical data and
customer lists, and all documentation relating to any of the foregoing
throughout the world; (c) all copyrights, copyright registrations and
applications therefor, and all other rights corresponding thereto throughout the
world; (d) all industrial designs and any registrations and applications
therefor throughout the world; (e) all internet uniform resource locators,
domain names, trade names, logos, slogans, designs, common law trademarks and
service marks, trademark and service xxxx registrations and applications
therefor throughout the world; (f) all databases and data collections and
all rights therein throughout the world; (g) all moral and economic rights
of authors and inventors, however denominated throughout the world; and
(h) any similar or equivalent rights to any of the foregoing anywhere in
the world.
“Knowledge” means all
facts known by a Person on the date hereof or on the Closing Date following
reasonable inquiry and diligence with respect to the matters at
hand.
“Laws” means all laws,
statutes, common law, rules, codes, regulations, restrictions, ordinances,
orders, decrees, approvals, directives, judgments, rulings, injunctions, writs,
awards and decrees of, or issued or entered by, all Governmental
Entities.
“Licenses” means all
notifications, licenses, permits (including environmental, construction and
operation permits), franchises, certificates, approvals, exemptions,
classifications, registrations and other similar documents and authorizations
issued by any Governmental Entity, and applications therefor.
“Liens” mean all
mortgages, liens, pledges, security interests, charges, claims, restrictions and
encumbrances of any nature whatsoever.
“Material Adverse
Effect” means any state of facts, change, event, effect or occurrence
(when taken together with all other states of fact, changes, events, effects or
occurrences) that has had or is reasonably likely to have a materially adverse
effect on the financial condition, results of operations, prospects, properties,
assets or liabilities (including contingent liabilities) of the
Company. A Material Adverse Effect shall also include any state of
facts, change, event or occurrence that shall have occurred or been threatened
that (when taken together with all other states of facts, changes, events,
effects or occurrences that have occurred or been threatened) has prevented or
materially delayed, or would be reasonably likely to prevent or materially
delay, the performance by any Party of their obligations hereunder or the
consummation of the transactions contemplated hereby.
“Permitted Liens”
means (a) Liens for Taxes not yet due and payable, (b) Liens of
carriers, warehousemen, mechanics, materialmen and repairmen incurred in the
ordinary course of business consistent with past practice and not yet delinquent
and (c) in the case of the Real Property, zoning, building, or other
restrictions, variances, covenants, rights of way, encumbrances, easements and
other minor irregularities in title, none of which, individually or in the
aggregate, (i) interfere in any material respect with the present use of or
occupancy of the affected parcel by the Company, (ii) have more than an
immaterial effect on the value thereof or its use, or (iii) would impair
the ability of such parcel to be sold for its present use.
“Person” means any
individual, corporation, partnership, joint venture, limited liability company,
trust, unincorporated organization or Governmental Entity.
“Purchaser Ancillary
Documents” means any certificate, agreement, document or other
instrument, other than this Agreement, to be executed and delivered by the
Purchaser in connection with the transactions contemplated hereby.
“Registered Intellectual
Property” means all United States, international and foreign:
(a) patents and patent applications (including provisional applications);
(b) registered trademarks and service marks, applications to register
trademarks and service marks, intent-to-use applications, or other registrations
or applications related to trademarks and service marks; (c) registered
copyrights and applications for copyright registration; (d) domain name
registrations; and (e) any other Intellectual Property that is the subject
of an application, certificate, filing, registration or other document issued,
filed with, or recorded with any Governmental Entity.
“SEC” means the
Securities and Exchange Commission.
“Securities Act” means
the Securities Act of 1933, as amended.
“Supplier” means any
supplier of goods or services to the Company to which the Company paid in the
aggregate more than $25,000 during the twelve (12)-month period ended December
31, 2007.
“Taxes” means all
taxes, assessments, charges, duties, fees, levies and other charges of a
Governmental Entity, including income, franchise, capital stock, real property,
personal property, tangible, withholding, employment, payroll, social security,
social contribution, unemployment compensation, disability, transfer, sales,
use, excise, gross receipts, value-added and all other taxes of any kind for
which the Company or the Purchaser may have any liability imposed by any
Governmental Entity, whether disputed or not, and any related charges, interest
or penalties imposed by any Governmental Entity.
“Tax Return” means any
report, return, declaration or other information, in whatever form or medium,
required to be supplied to a Governmental Entity in connection with Taxes,
including estimated returns and reports of every kind with respect to
Taxes.
“Termination Date”
means the date prior to the Closing when this Agreement is terminated in
accordance with Article IX.
Section
1.2 Accounting
Terms. All accounting terms not specifically defined herein
shall be construed in accordance with GAAP.
ARTICLE
II
PURCHASE
AND SALE
Section
2.1 Agreement to Purchase and
Sell. Subject to the terms and conditions hereof, at the
Closing, the Company shall sell, assign, transfer and deliver to the Purchaser,
and the Purchaser shall purchase and acquire from the Company, all right, title
and interest of in and to the Preferred Stock, free and clear of all
Liens.
ARTICLE
III
PURCHASE
PRICE; ADJUSTMENTS
Section
3.1 Purchase
Price. The aggregate amount to be paid for the Preferred
Stock shall be One Million and Four Hundred Forty-four Thousand and
Four Hundred and Forty-four Dollars ($1,444,444) (the “Purchase
Price”).
Section
3.2 Payment of Purchase Price
and Delivery of the Preferred Stock.
(a) On the
Closing Date, the Purchaser shall pay the Purchase Price to the
Company.
(b) All
payments required under this Section 3.2 or any other provision hereof shall be
made in cash by wire transfer of next day available funds to such bank account
as shall be designated in writing by Seller, or as otherwise agreed by the
Parties.
(c) On the
Closing Date the Company shall deliver certificates representing the Preferred
Stock to the Purchaser together with such instruments as are customary for the
lawful and proper negotiation of the same.
Section
3.3 Funding Fee and
Warrants.
(a) The
Company agrees to pay the Purchaser a Funding Fee equal to ten percent (10%) of
the Purchase Price, or One Hundred Forty-four Thousand and Four Hundred and
Forty-four Dollars ($144,444). The Funding Fee shall be deducted from
the Purchase Price and the Company hereby authorizes payment of the Funding Fee
to the Purchaser from the proceeds of the sale of the Preferred
Stock.
(b) The
Company agrees to issue to the Purchaser a warrant granting the Purchaser the
right to purchase at the Warrant Exercise Price that number of Class A Common
Stock shares of the Company calculated by dividing the Funding Fee amount, One
Hundred Forty-four Thousand and Four Hundred and Forty-four Dollars ($144,444)
by the lowest price that the Company had ever issued its Class A Common Stock
(the “Warrant Exercise Price”). A separate Warrant Agreement shall be
executed by the Company.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF
THE COMPANY
The
Company represents and warrants to the Purchaser as follows as of the date
hereof and the Closing Date:
Section
4.1 Organization. The
Company is a corporation duly formed and validly existing under the Laws of the
State of New Jersey and has all requisite power and authority to own, lease and
operate its properties and to carry on its business as now being
conducted. The Company is duly qualified or registered as a foreign
corporation to transact business under the Laws of each jurisdiction where the
character of its activities or the location of the properties owned or leased by
it requires such qualification or registration as set forth on Schedule
4.1..
Section
4.2 Authorization. At
the Closing Date the Company will have full corporate power and authority to
execute and deliver this Agreement and the Company Ancillary Documents and to
perform its obligations hereunder and thereunder and to consummate the
transactions contemplated hereby and thereby. The execution and
delivery of this Agreement and the Company Ancillary Documents by the Company
and the performance by the Company of its obligations hereunder and thereunder
and the consummation of the transactions provided for herein and therein at the
Closing Date, will have been duly and validly authorized by all necessary
corporate action on the part of the Company. This Agreement and the
Company Ancillary Documents shall be as of the Closing Date, duly executed and
delivered by the Company and do or shall, as the case may be, constitute the
valid and binding agreements of the Company, enforceable against the Company in
accordance with their respective terms.
Section
4.3 Financial
Statements. Schedule 4.3 contains
the audited financial statements for the fiscal year ended December 31, 2006 and
the unaudited balance sheet as of September 30, 2007. The financial
statements and balance sheet are in conformity with GAAP and have been prepared
from, and are in accordance with, the books and records of the Company, which
books and records have been maintained on a basis consistent with the past
practice of the Company. The balance sheet fairly presents the
financial position of the Company as of the date of such balance
sheet. Since December 31, 2006, there has been no change in any
accounting (or tax accounting) policy, practice or procedure of the
Company. The Company maintains accurate books and records reflecting
its assets and liabilities and maintains proper and adequate internal accounting
controls which provide assurance that (i) transactions are executed in
accordance with management’s authorization, (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity with GAAP,
and (iii) accounts, notes and other receivables and inventory are recorded
accurately, and proper and adequate procedures are implemented to effect the
collection thereof on a current and timely basis.
ARTICLE
V
REPRESENTATIONS
AND WARRANTIES OF PURCHASER
The
Purchaser hereby represents and warrants to the Company as follows:
Section
5.1 Organization. The
Purchaser is a corporation duly organized, validly existing and in good standing
under the laws of the State of New Jersey and has all requisite corporate power
and authority to own, lease and operate its properties and to carry on its
business as now being conducted.
Section
5.2 Authorization. The
Purchaser has full corporate power and authority to execute and deliver this
Agreement and the Purchaser Ancillary Documents, to perform its obligations
hereunder and thereunder and to consummate the transactions contemplated hereby
and thereby. The execution and delivery of this Agreement and the
Purchaser Ancillary Documents by the Purchaser, the performance by the Purchaser
of its obligations hereunder and thereunder, and the consummation of the
transactions provided for herein and therein have been duly and validly
authorized by all necessary corporate action on the part of the
Purchaser. This Agreement has been and, as of the Closing Date, the
Purchaser Ancillary Documents shall be, duly executed and delivered by the
Purchaser and do or shall, as the case may be, constitute the valid and binding
agreements of the Purchaser, enforceable against the Purchaser in accordance
with their respective terms.
Section
5.3 Absence of Restrictions and
Conflicts. The execution, delivery and performance of this
Agreement and the Purchaser Ancillary Documents, the consummation of the
transactions contemplated hereby and thereby and the fulfillment of, and
compliance with, the terms and conditions hereof and thereof do not or shall not
(as the case may be), with the passing of time or the giving of notice or both,
(a) contravene or conflict with any term or provision of the charter
documents of the Purchaser, (b) violate or conflict with, constitute a
breach of or default under, result in the loss of any benefit under, permit the
acceleration of any obligation under or create in any party the right to
terminate, modify or cancel any Contract to which the Purchaser is a party,
(c) contravene or conflict with any judgment, decree or order of any
Governmental Entity to which the Purchaser is a party or by which the Purchaser
is bound or (d) contravene or conflict with any statute, Law, rule or
regulation applicable to the Purchaser. No consent, approval, order
or authorization of, or registration, declaration or filing with, any
Governmental Entity is required with respect to the Purchaser in connection with
the execution, delivery or performance of this Agreement or the Purchaser
Ancillary Documents or the consummation of the transactions contemplated hereby
or thereby.
ARTICLE
VI
CERTAIN
COVENANTS AND AGREEMENTS
Section
6.1 Conduct of Business by the
Company. For the period commencing on the date hereof and
ending on the Closing Date, the Company shall, except as expressly
required hereby and except as otherwise consented to in advance in writing by
the Purchaser, conduct the Business in the ordinary course consistent with past
practice and shall, except as expressly required hereby and except as otherwise
consented to in advance in writing by the Purchaser:
(a) use its
commercially reasonable efforts to preserve intact the goodwill and business
organization of the Company, keep the officers and employees of the Company
available to the Purchaser and preserve the relationships and goodwill of the
Company with customers, distributors, suppliers, employees and other Persons
having business relations with the Company;
(b) maintain
its existence and good standing in its jurisdiction of organization and in each
jurisdiction listed on Schedule
4.1;
(c) comply
with all applicable Laws;
(d) maintain
in existing condition and repair (ordinary wear and tear excepted), consistent
with past practices, all buildings, offices, shops and other structures located
on the Real Property, and all equipment, fixtures and other tangible personal
property located on the Real Property;
(e) not
authorize for issuance or issue and deliver any additional shares of its capital
stock or securities convertible into or exchangeable for shares of its capital
stock, or issue or grant any right, option or other commitment for the issuance
of shares of its capital stock or of such securities, or split, combine or
reclassify any shares of its capital stock;
(f) not amend
or modify its articles of incorporation or bylaws;
(g) not
declare any dividend, pay or set aside for payment any dividend or other
distribution or make any payment to any shareholder, officer or director or any
Person with whom any such shareholder, officer or director has any direct or
indirect relation, other than the payment of salaries in the ordinary course of
business and consistent with past practice;
(h) not
create any subsidiary, acquire any capital stock or other equity securities of
any corporation or acquire any equity or ownership interest in any business or
entity;
(i) protect,
defend and maintain the ownership, validity and registration of the Company
Intellectual Property, and not allow any of the Registered Intellectual Property
to be abandoned, forfeited, cancelled, expunged and/or dedicated to the
public;
(j) not (i)
create, incur or assume any indebtedness, (ii) grant, create, incur or suffer to
exist any Lien on the Assets that did not exist on the date hereof, (iii)
write-down the value of any asset or investment on the books or records of the
Company, except for depreciation and amortization in the ordinary course of
business and consistent with past practice, (iv) cancel any debt or waive any
claim or right, (v) make any commitment for any capital expenditure to be made
on or following the date hereof in excess of $10,000 in the case of any single
expenditure or $20,000 in the case of all capital expenditures, (vi) enter into
any Contract which cannot be cancelled by the Company on notice of not longer
than thirty (30) days and without liability or penalty of any kind, (vii)enter
into any Contract which imposes, or purports to impose, any obligations or
restrictions on any of its Affiliates, or (viii) settle or compromise any legal
proceedings related to or in connection with the Business;
(k) not (i)
increase in any manner the compensation of, or enter into any new bonus or
incentive agreement or arrangement with, any of its employees, officers,
directors or consultants, (ii) pay or agree to pay any additional pension,
retirement allowance or other employee benefit under any Company Benefit Plan to
any of its employees or consultants, whether past or present, except, in each
case, in the ordinary course of business to the extent consistent
with past practice of the Company; provided, however, that the Company shall not
take any action described in this Section 6.1(k) with respect to (i) any
manager, officer or director of the Company or (ii) any Person whose annualized
compensation is $60,000 or more or whose annual compensation for the twelve
(12)-month period following the Expiration Date is expected to be $60,000 or
more;
(l) except as
required by Applicable Benefit Laws, not adopt, amend or terminate any Company
Benefit Plan or increase the benefits provided under any Company Benefit Plan,
or promise or commit to undertake any of the foregoing in the
future;
(m) not enter
into a collective bargaining agreement;
(n) not enter
into any Employment Agreement;
(o) perform
in all material respects all of its obligations under all Company Contracts and
Licenses, and not default or suffer to exist any event or condition that with
notice or lapse of time or both could constitute a default under any Company
Contract or License (except those being contested in good faith);
(p) not
increase any reserves for contingent liabilities (excluding any adjustment to
bad debt reserves in the ordinary course of business consistent with past
practice);
(q) maintain
in full force and effect and in the same amounts policies of insurance
comparable in amount and scope of coverage to that maintained as of the date
hereof by or on behalf of the Company;
(r) continue
to maintain its books and records in accordance with GAAP consistently applied
and on a basis consistent with past practice and not make any change in any
accounting (or tax accounting) policy, practice or procedure of the
Company;
(s) continue
its current cash and inventory management practices; and
(t) not
authorize, or commit or agree to take, any of the foregoing actions, which the
Company is required not to take without the Purchaser’s prior written
consent.
Section
6.2 Inspection and Access to
Information. During the period commencing on the date hereof
and ending on the Closing Date, the Company shall (and shall cause its officers,
directors, employees, auditors and agents to) provide the Purchaser and its
accountants, investment bankers, counsel, environmental consultants and other
authorized representatives full access, during reasonable hours and under
reasonable circumstances, to any and all of its premises, employees (including
executive officers), properties, contracts, commitments, books, records and
other information (including Tax Returns filed and those in preparation) and
shall cause its officers to furnish to the Purchaser and its authorized
representatives, promptly upon request therefor, any and all financial,
technical and operating data and other information pertaining to the Company and
the Business and otherwise fully cooperate with the conduct of due diligence by
the Purchaser and its representatives.
Section
6.3 Notices of Certain
Events. The Company shall promptly notify the Purchaser
of:
(a) any fact,
condition, change or event that, individually or in the aggregate, has had or
could reasonably be expected to have a Material Adverse Effect or otherwise
results in any representation or warranty of the Company hereunder being
inaccurate in any respect as of the date of such fact, condition, change or
event had such representation or warranty been made as of such
date;
(b) any fact,
condition, change or event that causes or constitutes a breach of any of the
representations or warranties of the Company hereunder made as of the date
hereof;
(c) any
notice or other communication from any Person alleging that the consent of such
Person is or may be required in connection with the transactions contemplated
hereby;
(d) any
notice or other communication from or to any Governmental Entity in connection
with the transactions contemplated hereby;
(e) any
action, suit, claim, investigation or proceeding commenced or, to its Knowledge,
threatened against, relating to or involving or otherwise affecting the Company
or the Business or that relate to the consummation of the transactions
contemplated hereby; and
(f) (i) the
damage or destruction by fire or other casualty of any material Asset or part
thereof or (ii) any material Asset or part thereof becoming the subject of any
proceeding (or, to the Knowledge of the Company, threatened proceeding) for the
taking thereof or of any right relating thereto by condemnation, eminent domain
or other similar governmental action.
The
Company hereby acknowledges that the Purchaser does not and shall not waive any
right it may have hereunder solely as a result of such notifications and any
notification given pursuant to this Section.
Section
6.4 Reasonable Efforts; Further
Assurances; Cooperation. Subject to the other provisions
hereof, each Party shall each use its reasonable, good faith efforts to perform
its obligations hereunder and to take, or cause to be taken, and do, or cause to
be done, all things necessary, proper or advisable under applicable Law to cause
the transactions contemplated herein to be effected as soon as practicable, but
in any event on or prior to the Expiration Date, in accordance with the terms
hereof and shall cooperate fully with each other Party and its officers,
directors, employees, agents, counsel, accountants and other designees in
connection with any step required to be taken as a part of its obligations
hereunder, including the following:
(a) Each
Party shall promptly make its filings and submissions and shall take all actions
necessary, proper or advisable under applicable Laws to obtain any required
approval of any Governmental Entity with jurisdiction over the transactions
contemplated hereby (except that the Purchaser shall have no obligation to take
or consent to the taking of any action required by any such Governmental Entity
that could adversely affect the Business, the Assets or the transactions
contemplated by this Agreement or the Purchaser Ancillary
Documents). The Company shall furnish to the Purchaser all
information required for any application or other filing to be made by the
Company pursuant to any applicable Law in connection with the transactions
contemplated hereby;
(b) Each
Party shall promptly notify the other Parties of (and provide written copies of)
any communications from or with any Governmental Entity in connection with the
transactions contemplated hereby;
(c) In the
event any claim, action, suit, investigation or other proceeding by any
Governmental Entity or other Person is commenced that questions the validity or
legality of the transactions contemplated hereby or seeks damages in connection
therewith, the Parties shall (i) cooperate and use all reasonable efforts to
defend against such claim, action, suit, investigation or other proceeding, (ii)
in the event an injunction or other order is issued in any such action, suit or
other proceeding, use all reasonable efforts to have such injunction or other
order lifted, and (iii) cooperate reasonably regarding any other impediment to
the consummation of the transactions contemplated hereby; and
(d) The
Company shall give all notices to third parties and use its best efforts (in
consultation with the Purchaser) to obtain all third-party consents
(i) necessary, proper or advisable to consummate the transactions
contemplated hereby, (ii) required to be given or obtained, including the
Required Consents or (iii) required to prevent a Material Adverse Effect,
whether prior to, on or following the Closing Date.
Section
6.5 Transfer Taxes;
Expenses. Any Taxes or recording fees payable as a result of
the purchase and sale of the Shares or any other action contemplated hereby
(other than any federal, state, local or foreign Taxes measured by or based upon
income or gains imposed upon the Purchaser) shall be paid by the
Purchaser. The Parties shall cooperate in the preparation, execution
and filing of all returns, questionnaires, applications and other documents
regarding Taxes and all transfer, recording, registration and other fees that
become payable in connection with the transactions contemplated hereby that are
required or permitted to be filed at or prior to the
Closing.
ARTICLE
VII
CONDITIONS
TO CLOSING
Section
7.1 Conditions to Obligations of
the Purchaser. The obligations of the Purchaser to consummate
the transactions contemplated hereby shall be subject to the
fulfillment (or waiver by the Purchaser) at or prior to the Closing
of each of the following additional conditions:
(a) Injunction. There
shall be no effective injunction, writ or preliminary restraining order or any
order of any nature issued or Law passed by a Governmental Entity of competent
jurisdiction to the effect that the transactions contemplated hereby may not be
consummated as provided herein, no proceeding or lawsuit shall have been
commenced by any Governmental Entity for the purpose of obtaining any such
injunction, writ or preliminary restraining order and no written notice shall
have been received from any Governmental Entity indicating an intent to
restrain, prevent, materially delay or restructure the transactions contemplated
hereby, in each case where the Closing would (or would be reasonably likely to)
result in a material fine or penalty payable by the Purchaser or the Company or
a material restriction on the operation of the Business as a result of such
matter.
(b) Consents. All
Required Consents shall have been obtained or made on terms and conditions
reasonably satisfactory to the Purchaser.
(c) Representations and
Warranties. Each of the representations and warranties of the
Company set forth in Article IV shall have been true and correct in all material
respects as of the date hereof and shall be true and correct in all material
respects as of the Closing Date as though made on and as of the Closing Date,
except that those representations and warranties that by their terms are
qualified by materiality shall be true and correct in all respects.
(d) Performance of Obligations
of the Company. The Company shall have performed in all
material respects all covenants and agreements required to be performed by each
of them hereunder at or prior to the Closing.
(e) No Material Adverse
Effect. Between the date hereof and the Closing Date, there
shall not have occurred (nor shall the Purchaser have become aware of) any
Material Adverse Effect or any development reasonably likely to result in a
Material Adverse Effect.
Section
7.2 Conditions to Obligations of
the Company. The obligations of the Company to consummate the
transactions contemplated hereby shall be subject to the fulfillment (or waiver
by the Company) at or prior to the Closing of each of the following additional
conditions:
(a) Injunction. There
shall be no effective injunction, writ or preliminary restraining order or any
order of any nature issued by a Governmental Entity of competent jurisdiction to
the effect that the Acquisition may not be consummated as provided herein, no
proceeding or lawsuit shall have been commenced by any Governmental Entity for
the purpose of obtaining any such injunction, writ or preliminary restraining
order and no written notice shall have been received from any Governmental
Entity indicating an intent to restrain, prevent, materially delay or
restructure the transactions contemplated hereby, in each case where the Closing
would (or would be reasonably likely to) result in a material fine or penalty
payable by the Company or a material restriction on the Company’s operations as
a result of such matter.
(b) Consents. All
consents, approvals, orders or authorizations of, or registrations, declarations
or filings with, any Governmental Entity required in connection with the
execution, delivery or performance hereof shall have been obtained or made on
terms and conditions reasonably satisfactory to the Company.
(c) Representations and
Warranties. Each of the representations and warranties of the
Purchaser set forth in Article V shall have been true and correct in all
material respects as of the date hereof and shall be true and correct in all
material respects as of the Closing Date as though made on and as of the Closing
Date, except that those representations and warranties that by their terms are
qualified by materiality shall be true and correct in all respects.
(d) Performance of Obligations
by the Purchaser. The Purchaser shall have performed all
covenants and agreements required to be performed by it hereunder on or
prior to the Closing Date.
(e) Ancillary
Documents. The Purchaser shall have delivered, or caused to be
delivered, to the Company the documents listed in Section 8.2.
ARTICLE
VIII
CLOSING
Section
8.1
Closing. Subject
to the satisfaction or waiver of the conditions set forth in Article VII, the
Closing shall occur on March 12, 2008 or such other date as the Parties may
agree. The Closing shall take place at the offices of Company’s
offices located at 000 Xxxxx 00, Xxxxxxx, XX 00000, or at such other
place as the Parties may agree.
Section
8.2
Company Closing
Deliveries. At the Closing, the Company, as applicable, shall
deliver to the Purchaser the following:
(a) a
certificate executed by the Company as to compliance with the conditions set
forth in Section 7.1(b), (c), and (d) hereof;
(b) certificates
representing the Preferred Stock, duly endorsed in blank or accompanied by duly
executed stock powers or other assignment documents;
(c) a
certificate by the Secretary or any Assistant Secretary of the Company, dated
the Closing Date, as to (1) the good standing of the Company in its jurisdiction
of incorporation and in each other jurisdiction where it is qualified to do
business, (2) no amendments to the Company’s charter documents and (3) the
effectiveness of the resolutions of the board of directors of the Company
authorizing the execution, delivery and performance hereof by the Company passed
in connection herewith and the transactions contemplated hereby;
and
(d) all other
documents required to be entered into by the Company pursuant hereto or
reasonably requested by the Purchaser to convey the Preferred Stock to the
Purchaser or to otherwise consummate the transactions contemplated
hereby.
(e) a Warrant
Agreement executed by the Company in favor of the Purchaser.
(f) a
Security Agreement executed by the Company in favor of the
Purchaser.
Section
8.3
Purchaser Closing
Deliveries. On the Closing, the Purchaser shall have
delivered, or caused to be delivered, to the Company the following:
(a) the
Purchase Price to be paid at Closing in accordance with such Section
3.1;
(b) a
certificate of an authorized officer as to compliance with the conditions set
forth in Section 7.2(c) and (d);
(c) a
Security Agreement executed by the Purchaser.
(d) all other
documents required to be entered into or delivered by the Purchaser at or prior
to the Closing pursuant hereto or reasonably requested by the Company to convey
the Preferred Stock to the Purchaser or to otherwise consummate the transactions
contemplated hereby.
ARTICLE
IX
TERMINATION
Section
9.1 Termination. This
Agreement may be terminated:
(a) in
writing by mutual consent of the Purchaser and the Company;
(b) by
written notice from the Company to the Purchaser, in the event the Purchaser (i)
fails to perform in any material respect any of its agreements contained herein
required to be performed by it at or prior to the Closing or (ii) materially
breaches any of its representations and warranties contained herein, which
failure or breach is not cured within ten (10) days following the Company having
notified the Purchaser of its intent to terminate this Agreement pursuant to
this Section 9.1(b);
(c) by
written notice from the Purchaser to the Company, in the event the Company (i)
fails to perform in any material respect any of their agreements contained
herein required to be performed by it at or prior to the Closing or (ii)
materially breaches any of their representations and warranties contained
herein, which failure or breach is not cured within ten (10) days following the
Purchaser having notified the Company of its intent to terminate this Agreement
pursuant to this Section 9.1(c);
Section
9.2 Specific Performance and
Other Remedies. Each Party hereby acknowledges that the rights
of each Party to consummate the transactions contemplated hereby are special,
unique and of extraordinary character and that, in the event that any Party
violates or fails or refuses to perform any covenant or agreement made by it
herein, the non-breaching Party may be without an adequate remedy at
law. In the event that any Party violates or fails or refuses to
perform any covenant or agreement made by such Party herein, the non-breaching
Party or Parties may, subject to the terms hereof and in addition to any remedy
at law for damages or other relief, institute and prosecute an action in any
court of competent jurisdiction to enforce specific performance of such covenant
or agreement or seek any other equitable relief.
ARTICLE
X
MISCELLANEOUS
PROVISIONS
Section
10.1 Notices. All
notices, communications and deliveries required or made hereunder must be made
in writing signed by or on behalf of the Party making the same, shall specify
the Section hereunder pursuant to which it is given or being made, and shall be
delivered personally or by telecopy transmission or by a national overnight
courier service or by registered or certified mail (return receipt requested)
(with postage and other fees prepaid) as follows:
To the
Purchaser: iVoice,
Inc.
000 Xxxxx 00
Xxxxxxx,
XX 00000
Attn: Xxxxxx
Xxxxxxx
Facsimile
No.: 000-000-0000
To the
Company iVoice
Technology, Inc.
000
Xxxxx 00
Xxxxxxx,
XX 00000
Attn: Xxxxxx
Xxxxxxx
Facsimile
No.: 000-000-0000
with a
copy
to: Meritz
& Xxxxx LLP
0000 X
Xxxxxx, XX
Xxxxxxxxxx,
X.X. 00000
Attn: Xxxxxxxx
X. Xxxxx, Esq.
Facsimile
No.: 000-000-0000
or to
such other representative or at such other address of a party as such party may
furnish to the other parties in writing. Any such notice,
communication or delivery shall be deemed given or made (a) on the date of
delivery, if delivered in person, (b) upon transmission by facsimile if receipt
is confirmed by telephone, (c) upon receipt by the addressee by delivery via a
national overnight courier service or (d) on the fifth (5th) Business Day
following it being mailed by registered or certified mail.
Section
10.2 Schedules and
Exhibits. The Schedules and Exhibits are hereby
incorporated into this Agreement and are hereby made a part hereof as if set out
in full herein.
Section
10.3 Assignment; Successors in
Interest. No assignment or transfer by any Party of such
Party’s rights and obligations hereunder shall be made except with the prior
written consent of the other Parties; provided that the Purchaser shall, without
the obligation to obtain the prior written consent of any other Party, be
entitled to assign this Agreement or all or any part of its rights or
obligations hereunder to one or more Affiliates of the
Purchaser. This Agreement shall be binding upon and shall inure to
the benefit of the Parties and their respective successors and permitted
assigns, and any reference to a Party shall also be a reference to the
successors and permitted assigns thereof.
Section
10.4 Captions. The
titles, captions and table of contents contained herein are inserted herein only
as a matter of convenience and for reference and in no way define, limit, extend
or describe the scope of this Agreement or the intent of any provision
hereof.
Section
10.5 Controlling
Law. This Agreement shall be governed by and construed and
enforced in accordance with the internal Laws of the State of New York without
reference to its choice of law rules.
Section
10.6 Severability. Any
provision hereof that is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by Law, each Party hereby
waives any provision of law that renders any such provision prohibited or
unenforceable in any respect.
Section
10.7 Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, and it shall not be necessary in making proof of this
Agreement or the terms hereof to produce or account for more than one of such
counterparts.
Section
10.8 Enforcement of Certain
Rights. Nothing expressed or implied herein is intended, or
shall be construed, to confer upon or give any Person other than the Parties,
and their successors or permitted assigns, any right, remedy, obligation or
liability under or by reason of this Agreement, or result in such Person being
deemed a third-party beneficiary hereof.
Section
10.9 Waiver;
Amendment. Any agreement on the part of a Party to any
extension or waiver of any provision hereof shall be valid only if set forth in
an instrument in writing signed on behalf of such Party. A waiver by
a Party of the performance of any covenant, agreement, obligation, condition,
representation or warranty shall not be construed as a waiver of any other
covenant, agreement, obligation, condition, representation or
warranty. A waiver by any Party of the performance of any act shall
not constitute a waiver of the performance of any other act or an identical act
required to be performed at a later time. This Agreement may not be
amended, modified or supplemented except by written agreement of the
Parties.
Section
10.10 Integration. This
Agreement and the documents executed pursuant hereto supersede all negotiations,
agreements and understandings among the Parties with respect to the subject
matter hereof and constitute the entire agreement among the Parties with respect
thereto.
Section
10.11 Interpretation. Where
the context requires, the use of a pronoun of one gender or the neuter is to be
deemed to include a pronoun of the appropriate gender. References
herein to any Law shall be deemed to refer to such Law, as amended from time to
time, and all rules and regulations promulgated thereunder.
Section
10.12 Cooperation Following the
Closing. Following the Closing, each Party shall deliver to
the other Parties such further information and documents and shall execute and
deliver to the other Parties such further instruments and agreements as any
other Party shall reasonably request to consummate or confirm the transactions
provided for herein, to accomplish the purpose hereof or to assure to any other
Party the benefits hereof.
Section
10.13 Transaction
Costs. Except as provided above or as otherwise expressly
provided herein, the Parties shall pay their own fees, costs and expenses
incurred in connection herewith and the transactions contemplated hereby,
including the fees, cost and expenses of its financial advisors, accountants and
counsel.
IN
WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed, as
of the date first above written.
iVoice
Technology, Inc.
By:_____________________________
Name:
Title:
iVoice,
Inc.
By:______________________________
Name:
Title:
Schedule
4.1
State of
New Jersey
