EXHIBIT 10.13
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STOCK PURCHASE AGREEMENT
BY AND AMONG
XXXXXX PHARMACEUTICALS ACQUISITION CORP.
"PURCHASER"
AND
XXXXXX PHARMACEUTICAL LTD.
"COMPANY"
AND
IVOICE, INC.
"SELLER"
DATED AUGUST 7, 2006
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT, dated as of August 7, 2006, is made and
entered into by and among Xxxxxx Pharmaceuticals Ltd. (the "Company"),Xxxxxx
Pharmaceuticals Acquisition Corp. (the "Purchaser"), and iVoice, Inc. (the
"Seller"). The Purchaser, the Company, and the Seller are sometimes individually
referred to herein as a "Party" and collectively as the "Parties."
RECITALS:
WHEREAS, the Company is engaged in the pharmaceutical business;
WHEREAS, the Seller owns the following securities of Xxxxxx
Pharmaceuticals, Ltd., a New Jersey corporation (hereinafter the "Securities"):
100 shares of Class A Common Stock, 550 shares of Series B Convertible Preferred
Stock, $360,000 of 10% Securied Convertible Debentures issued January 6, 2006,
$100,000 of Administrative Service Convertible Debentures due January 1, 2013
issued January 6, 2006, and $225,000 of Secured Convertible Debentures due
January 1, 2013 issued April 27, 2006;
WHEREAS, upon the terms and conditions set forth herein, the Seller
proposes to sell to the Purchaser and the Purchaser proposes to purchase from
the Seller, all of the Securities;
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.
"Business" means the present business as operated by the Company on the
date hereof.
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"Closing" means the consummation of the purchase and sale of the
Securities, 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.
"Confidential Information" means any data or information concerning the
Company (including trade secrets), without regard to form, regarding (for
example and including, but not limited to) (a) business process models; (b)
proprietary software; (c) research, development, products, services, marketing,
selling, business plans, budgets, unpublished financial statements, licenses,
prices, costs, Contracts, suppliers, customers, and customer lists; (d) the
identity, skills and compensation of employees, contractors, and consultants;
(e) specialized training; and (f) discoveries, developments, trade secrets,
processes, formulas, data, lists, and all other works of authorship, mask works,
ideas, concepts, know-how, designs, and techniques, whether or not any of the
foregoing is or are patentable, copyrightable, or registrable under any
intellectual property Laws or industrial property Laws in the United States or
elsewhere. Notwithstanding the foregoing, no data or information constitutes
"Confidential Information" if such data or information is publicly known and in
the public domain through means that do not involve a breach of any covenant or
obligation set forth in this Agreement.
"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 six (6)-month period ended June 30, 2006.
"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.
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"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.
"Noncompete Period" means the period beginning on the Closing Date and
continuing for a period of five (5) years from the Closing Date.
"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
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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.
"Seller Ancillary Documents" means any certificate, agreement, document
or other instrument, other than this Agreement, to be executed and delivered by
the Company, Seller or any Affiliate of the Seller in connection with the
transactions contemplated hereby.
"Supplier" means any supplier of goods or services to the Company to
which the Company paid in the aggregate more than $100,000 during the six
(6)-month period ended June 30, 2006.
"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 X.
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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 Seller shall sell, assign, transfer and deliver to
the Purchaser, and the Purchaser shall purchase and acquire from the Seller, all
right, title and interest of in and to the Securities, free and clear of all
Liens.
ARTICLE III
PURCHASE PRICE; ADJUSTMENTS
Section 3.1 Purchase Price. The aggregate amount to be paid for the
Securities shall be $1,235,100 plus twenty-five (25%) percent thereof, plus
interest and dividends accrued under the terms of such Securities through the
Closing Date (the "Purchase Price").
Section 3.2 Payment of Purchase Price and Delivery of the Securities.
(a) On the Closing Date, the Purchaser shall pay the Purchase
Price to the Seller.
(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 Seller shall deliver certificates
representing the Securities to the Purchaser together with such
instruments as are customary for the lawful and proper negotiation of
the same.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE SELLER
Section 4.1 Organization; Share Ownership.
(a) The Seller 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.
(b) The Seller has good title to, and is the record holder and
beneficial owner of, the Securities, free and clear of any Liens, and such
Securities are validly issued, fully paid and nonassessable and in the case of
debentures valid and enforceable obligations of the Company. The Seller is not
bound by any agreement affecting or relating to its right to transfer or vote
the Securities.
Section 4.2 Authorization. The Seller has full corporate power and
authority to execute and deliver this Agreement and the Seller Ancillary
Documents to which it is a party and
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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 Seller Ancillary Documents by the Seller and the performance
by the Seller 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 Seller. This
Agreement has been, and the Seller Ancillary Documents shall be as of the
Closing Date, duly executed and delivered by the Seller and do or shall, as the
case may be, constitute the valid and binding agreements of the Seller,
enforceable against the Seller in accordance with their respective terms.
Section 4.3 Absence of Restrictions and Conflicts. The execution,
delivery and performance by the Seller of this Agreement and the Seller
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 articles of incorporation or bylaws of the Seller, (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 Seller is a party, (c) contravene or conflict with any judgment,
decree or order of any Governmental Entity to which the Seller is a party or by
which the Seller or any of its properties are bound, or (d) contravene or
conflict with any Law or arbitration award applicable to the Seller.
Section 4.4 Required Consents. Schedule 4.4 sets forth each action,
consent, approval, notification, waiver, authorization, order or filing (each, a
"Required Consent" and collectively, the "Required Consents") under any Law,
License or other Contract to which the Seller is a party that is necessary with
respect to the execution, delivery and performance of this Agreement or the
Seller Ancillary Documents in order to avoid a breach or violation of, or giving
rise to any right of termination, cancellation or acceleration of any right or
obligation or to a loss of any benefit under any such Law, License or Contract
to which the Seller is a party. Except as set forth on Schedule 4.4, no consent,
approval, order or authorization of, or registration, declaration or filing
with, any Governmental Entity is required with respect to the Seller in
connection with the execution, delivery or performance of this Agreement or the
Seller Ancillary Documents.
Section 4.5 Legal Proceeding. There are no suits, actions, claims,
proceedings or investigations pending or, to the Knowledge of the Seller,
threatened against, relating to or involving the Seller which would reasonably
be expected to adversely affect the Seller's ability to consummate the
transactions contemplated by this Agreement or any Seller Ancillary Document.
Section 4.6 Knowledge of Seller. Seller has no Knowledge that any
representation or warranty set forth by the Company in Section 5.3 Article V of
the Agreement contains any untrue statement of any material fact or any omission
to state any material fact necessary in order to make the statements made in
light of the circumstances under which they were made, not misleading.
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ARTICLE V
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 5.1 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.
Section 5.2 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 5.3 Balance Sheet. Schedule 5.3 contains the unaudited balance
sheet as of June 30, 2006. The balance sheet is in conformity with GAAP and has
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, 2005, 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 VI
REPRESENTATIONS AND WARRANTIES OF PURCHASER
The Purchaser hereby represents and warrants to the Company and the
Seller as follows:
Section 6.1 Organization. The Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite
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corporate power and authority to own, lease and operate its properties and to
carry on its business as now being conducted.
Section 6.2 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 6.3 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 VII
CERTAIN COVENANTS AND AGREEMENTS
Section 7.1 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;
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(b) maintain its existence and good standing in its
jurisdiction of organization and in each jurisdiction listed on
Schedule 5.1(a);
(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) not dispose of or permit to lapse any ownership and/or
right to the use of any patent, trademark, trade name, service xxxx,
license or copyright of the Company (including any of the Company
Intellectual Property), or dispose of or disclose to any Person, any
Confidential Information;
(j) 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;
(k) 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
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obligations or restrictions on any of its Affiliates, or (viii) settle
or compromise any legal proceedings related to or in connection with
the Business;
(l) 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 7.1(l) 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;
(m) 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;
(n) not enter into a collective bargaining agreement;
(o) not enter into any Employment Agreement;
(p) 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);
(q) not increase any reserves for contingent liabilities
(excluding any adjustment to bad debt reserves in the ordinary course
of business consistent with past practice);
(r) 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;
(s) 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;
(t) continue its current cash and inventory management
practices; and
(u) 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.
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Section 7.2 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 7.3 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 or the Seller 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 or the Seller 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.
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Section 7.4 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 7.5 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
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connection with the transactions contemplated hereby that are required or
permitted to be filed at or prior to the Closing.
Section 7.6 Non-Competition.
(a) Confidential Information. The Company and the Seller shall
hold in confidence at all times following the date hereof all
Confidential Information and shall not disclose, publish or make use of
Confidential Information at any time following the date hereof without
the prior written consent of the Purchaser.
(b) Noncompetition.
(i) The Company and the Seller hereby acknowledge that (A) the
Company conducts the Business and/or has current plans to expand the
Business throughout the Territory and (B) to protect adequately the
interest of the Purchaser in the business and goodwill of the Company,
it is essential that any noncompetition covenant with respect thereto
cover all of the Business and the entire Territory.
(ii) The Seller shall not, during the Noncompete Period, in
any manner, either directly, indirectly, individually, in partnership,
jointly or in conjunction with any Person, (A) engage in the business
of providing, distributing or selling within the Territory products or
services similar to the Company Services, or (B) have an equity or
profit interest in, advise or render services (of an executive,
marketing, manufacturing, research and development, administrative,
financial, consulting or other nature) or lend money to any Person that
provides, distributes or sells within the Territory products or
services similar to the Company Products or the Services.
(iii) Notwithstanding anything to the contrary, the Seller may
acquire, through the purchase of capital stock or assets, from an
unrelated third party, a business that may compete with the Business of
the Company.
(c) Nonsolicitation. The Seller shall not, during the
Noncompete Period, in any manner, directly, indirectly, individually,
in partnership, jointly or in conjunction with any Person, except as
permitted in Section 7.6(b)(iii) above, (i) (x) recruit or solicit or
attempt to recruit or solicit, on any of their behalves or on behalf of
any other Person, any employee of the Company or an Affiliate thereof,
(y) encourage any Person (other than the Purchaser or one of its
Affiliates) to recruit or solicit any employee of the Company or an
Affiliate thereof, or (z) otherwise encourage any employee of the
Company or an Affiliate thereof to discontinue his or her employment by
the Company or one of its Affiliates; (ii) solicit any customer of the
Company or an Affiliate thereof who is or has been a customer on or
prior to the Closing Date for the purpose of providing, distributing or
selling products or services similar to the Company Products or the
Services; or (iii) persuade or attempt to persuade any customer or
supplier of the Company or any of its Affiliates to terminate or modify
such customer's or supplier's relationship with the Company or any of
its Affiliates.
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(d) Severability. In the event a judicial or arbitral
determination is made that any provision of this Section 7.6
constitutes an unreasonable or otherwise unenforceable restriction
against the Company or the Seller, the provisions of this Section 7.6
shall be rendered void only to the extent that such judicial or
arbitral determination finds such provisions to be unreasonable or
otherwise unenforceable with respect to the Company or the Seller. In
this regard, any judicial authority construing this Agreement shall be
empowered to sever any portion of the Territory, any prohibited
business activity or any time period from the coverage of this Section
7.6 and to apply the provisions of this Section 7.6 to the remaining
portion of the Territory, the remaining business activities and the
remaining time period not so severed by such judicial or arbitral
authority. Moreover, notwithstanding the fact that any provision of
this Section 7.6is determined not to be specifically enforceable, the
Purchaser shall nevertheless be entitled to recover monetary damages as
a result of the breach of such provision by the Company or the Seller.
The time period during which the prohibitions set forth in this Section
7.6shall apply shall be tolled and suspended for a period equal to the
aggregate time during which the Company or the Seller violates such
prohibitions in any respect.
(e) Injunctive Relief. Any remedy at law for any breach of the
provisions contained in this Section 7.6 shall be inadequate and the
Purchaser shall be entitled to injunctive relief in addition to any
other remedy the Purchaser might have hereunder.
Section 7.7 Release. In consideration for entering into this Agreement,
the Company, the Purchaser, the Seller and the individual signatories appended
to this Agreement who agree to be bound by this Section 7.7 of Article VIII (the
"Releasor(s)"), on the date hereof, knowingly, voluntarily and unconditionally
release, forever discharge, and covenant not to xxx the individuals and entities
listed on Schedule 7.7 (the "Releasees") from or for any and all claims, causes
of action, demands, suits, debts, obligations, liabilities, damages, losses,
costs and expenses (including attorneys' fees) of every kind or nature
whatsoever, known or unknown, actual or potential, suspected or unsuspected,
fixed or contingent, that such Releasor has or may have, now or in the future to
the end of the world, arising out of, relating to, or resulting from any act or
omission, error, negligence, breach of contract, tort, violation of law,
discrimination, matter or cause whatsoever from the beginning of time or in the
future to the end of the world; provided, however, that the foregoing release
shall not apply to any claims arising out of this Agreement. Each party hereto
agrees that notwithstanding anything else in this Agreement, the provisions of
this Section 7.7 shall survive Termination of this Agreement.
Section 7.8 Certain Agreements. Effective on the Closing Date, the
Company and the Seller agree to terminate: (i) the Administrative Services
Agreement dated Xxxxxxx 0, 0000, (xx) the Investor Registration Rights Agreement
dated January 6, 2006 and (iii) the Security Agreement dated January 6, 2006.
ARTICLE VIII
CONDITIONS TO CLOSING
Section 8.1 Conditions to Obligations of the Purchaser. The obligations
of the Purchaser to consummate the transactions contemplated hereby shall be
subject to the fulfillment
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(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 and the Seller set forth
in Article IV and 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 of the Company and the Seller.
The Company and the Seller 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 8.2 Conditions to Obligations of the Seller. The obligations of
the Seller to consummate the transactions contemplated hereby shall be subject
to the fulfillment (or waiver by the Seller) 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
16
(or would be reasonably likely to) result in a material fine or penalty
payable by the Seller 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 Seller.
(c) Representations and Warranties. Each of the
representations and warranties of the Purchaser set forth in Article VI
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 Seller and the Company the documents
listed in Section 9.3.
ARTICLE IX
CLOSING
Section 9.1 Closing. Subject to the satisfaction or waiver of the
conditions set forth in Article VIII, the Closing shall occur on five (5) days
notice by the Purchaser to the Seller, or such other date as the Parties may
agree. The Closing shall take place at the offices of Snow Xxxxxx Xxxxxx P.C.,
000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, or at such other place as the Parties may
agree.
Section 9.2 Company and Seller Closing Deliveries. At the Closing, the
Company and the Seller, as applicable, shall deliver to the Purchaser the
following:
(a) a certificate executed by the Seller as to compliance with
the conditions set forth in Section 8.1(b), (c), and (d) hereof;
(b) certificates representing the Securities, 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 and the Seller
authorizing the execution, delivery and performance hereof by the
Company passed in connection herewith and the transactions contemplated
hereby; and
17
(d) all other documents required to be entered into by the
Company and the Seller pursuant hereto or reasonably requested by the
Purchaser to convey the Securities to the Purchaser or to otherwise
consummate the transactions contemplated hereby.
Section 9.3 Purchaser Closing Deliveries. On the Closing, the Purchaser
shall have delivered, or caused to be delivered, to the Seller 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 8.2(c) and (d);
(c) 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 Securities to the
Purchaser or to otherwise consummate the transactions contemplated
hereby.
ARTICLE X
TERMINATION
Section 10.1 Termination. This Agreement may be terminated:
(a) in writing by mutual consent of the Purchaser and the
Seller;
(b) by written notice from the Seller 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 Seller having
notified the Purchaser of its intent to terminate this Agreement
pursuant to this Section 10.1(b);
(c) by written notice from the Purchaser to the Seller, in the
event the Company or the Seller (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 Seller of its intent to terminate this
Agreement pursuant to this Section 10.1(c);
(d) by written notice by the Seller to the Purchaser or the
Purchaser to the Seller, as the case may be, in the event the Closing
has not occurred on or prior to October 31, 2006, unless extended by
the Parties in writing (the "Expiration Date") for any reason other
than delay or nonperformance of the Party seeking such termination.
Section 10.2 Limited Effect of Termination. In the event of termination
of this Agreement pursuant to Section 10.1 of Article X, the "Series A Preferred
Shareholders", as listed on Schedule 10.2 herein and described in the
Shareholders Agreement dated as of January 6,
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2006 by and among the Company, the Seller and the holders of the Series A
Preferred Shareholders, shall be deemed to have consented to the consummation of
a "Spin-Off Transaction" at the behest of the Seller and waive the other
conditions precedent required for a Spin-Off Transaction to be consumated.
Additionally, should the Closing not have occurred by October 31, 2006, then the
persons specified in Schedule 10.2 herewith hereby deliver to the Seller a
Spin-Off Instruction, pursuant to Article III.C.5.(a) as set forth in the
Company's Certificate of Incorporation, that the Company, at its sole
discretion, shall use its commercially reasonable efforts to file and cause to
become effective a Registration Statement under the Securities Act of 1933, as
amended (the "Securities Act"), so as to permit the Seller to consummate a
Spin-Off Transaction as contemplated by and defined in a Shareholders'
Agreement. Each party hereto agrees that notwithstanding anything else in this
Agreement, the provisions of this Section 10.2 shall survive Termination of this
Agreement.
Section 10.3 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 XI
MISCELLANEOUS PROVISIONS
Section 11.1 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: Xxxxxx Pharmaceuticals Acquisition Corp.
c/o Snow Xxxxxx Xxxxxx P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxx and Xxxxxxx Xxxx
Facsimile No.: 000-000-0000
To the Company Xxxxxx Pharmaceuticals, Inc.
c/o Snow Xxxxxx Xxxxxx P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxx and Xxxxxxx Xxxx
Facsimile No.: 000-000-0000
19
To the Seller iVoice, 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 11.2 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 11.3 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 11.4 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 11.5 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 11.6 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.
20
Section 11.7 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 11.8 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 11.9 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 11.10 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 11.11 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 11.12 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 11.13 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.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly
executed, as of the date first above written.
XXXXXX PHARMACEUTICAL ACQUISITION CORP.
By: /s/ Xxxxxx X. Xxxxxx, Xx.
-------------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
------------------------------
Title: President
-----------------------------
XXXXXX PHARMACEUTICAL, LTD.
By: /s/ Xxxxxx X. Xxxxxx, Xx.
-------------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
------------------------------
Title: President
-----------------------------
IVOICE, INC.
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxx
------------------------------
Title: President
-----------------------------
22
The signatuory persons below, constituting all of the Series A Preferred Stock
of Xxxxxx Pharmaceuticals, Ltd. Agree to the terms set forth in Article VII
Section 7.7 and Article X Section 10.2 thereof:
/s/ Xxxxxx X. Xxxxxx, Xx.
---------------------------
Xxxxx X. Xxxxxx, Xx.
/s/ Xxxx X. Xxxxx
---------------------------
Xxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxxx
---------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxx Xxxxxxxx
---------------------------
Xxxx Xxxxxxxx
/s/ Xxxx X. Xxxxxxxx
---------------------------
Xxxx X. Xxxxxxxx
/s/ Xxxxxxx Xxxxxxxxx
---------------------------
Xxxxxxx Xxxxxxxxx
23
