SETTLEMENT AGREEMENT
Exhibit 10.1
THIS SETTLEMENT AGREEMENT
dated as of November 12, 2009 (this “Settlement Agreement”) by and
between YA GLOBAL INVESTMENTS, L.P., formerly known as Cornell Capital Partners,
LP (“Investor”), and
IVOICE, INC. (“Company”).
Background
Investor
and Company have entered into certain financing arrangements evidenced by, among
other things, the following documents, instruments, and agreements (hereinafter,
collectively, together with all other documents, instruments, and agreements
executed in connection therewith or related thereto, the “Financing
Documents”):
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(a)
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Securities
Purchase Agreement dated as of May 25, 2006 by and between Investor and
Company (as amended, restated, modified, supplemented and/or amended and
restated from time to time, the “SPA”);
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(b)
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Investor
Registration Rights Agreement dated as of May 25, 2006 by and between
Investor and Company (as amended, restated, modified, supplemented and/or
amended and restated from time to
time);
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(c)
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Secured
Convertible Debenture dated May 25, 2006, issued by Company to Investor
pursuant to the SPA in the original principal amount of $1,250,000 (as
amended, restated, modified, supplemented and/or amended and restated from
time to time, the “May 2006 CCP-1
Debenture”);
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(d)
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Secured
Convertible Debenture dated May 11, 2006, issued by Company to Investor
pursuant to the SPA in the original principal amount of $5,544,110 (as
amended, restated, modified, supplemented and/or amended and restated from
time to time, the “May 2006 CCP-2
Debenture”);
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(e)
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Secured
Convertible Debenture dated May 11, 2006, issued by Company to Investor
pursuant to the SPA in the original principal amount of $503,776 (as
amended, restated, modified, supplemented and/or amended and restated from
time to time, the “May 2006 CCP-3
Debenture”);
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(f)
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Amended
and Restated Security Agreement entered into and made effective as of May
25, 2006 by and between Investor and Company (as amended, restated,
modified, supplemented and/or amended and restated from time to time, the
“Security
Agreement”);
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(g)
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Warrant
to Purchase Common Stock dated May 25, 2006, Warrant No. CCP-001 issued by
the Company to Investor (“Warrant
CCP-1”);
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(h)
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Warrant
to Purchase Common Stock dated May 25, 2006, Warrant No. CCP-002 issued by
the Company to Investor (“Warrant CCP-2”);
and
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(i)
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Warrant
to Purchase Common Stock dated May 25, 2006, Warrant No. CCP-003 issued by
the Company to Investor (“Warrant CCP-3” and,
collectively, with Warrant CCP-1 and Warrant CCP-2, the “Warrants”).
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Capitalized
terms used herein and not otherwise defined herein shall have the meanings set
forth in the Debentures and the other Financing Documents.
The
Company has paid in full all amounts outstanding under the May 2006 CCP-3
Debenture. The Company acknowledges and agrees that, in accordance
with the terms and conditions of the May 2006 CCP-1 Debenture, May 2006 CCP-2
Debenture and the other Financing Documents, it is liable to Investor as
follows: (a) $1,166,900.00, the aggregate principal amount
outstanding under the May 2006 CCP-1 Debenture as of September 14, 2009, (b)
$439,308.33, the accrued and unpaid interest under the May 2006 CCP-1 Debenture
as of September 14, 2009, (c) $811,491.02, the accrued and unpaid interest under
the May 2006 CCP-2 Debenture as of September 14, 2009 and (d) all interest
accruing upon the aggregate unpaid balances under the May 2006 CCP-1 Debenture
and May 2006 CCP-2 Debenture from and after September 14, 2009, and all fees,
costs, expenses, and costs of collection (including attorneys’ fees and
expenses) heretofore or hereafter accrued or incurred by Investor in connection
with the Financing Documents, including, without limitation, all attorney’s fees
and expenses incurred in connection with the negotiation and preparation of this
Settlement Agreement and all documents, instruments, and agreements incidental
hereto (hereinafter, collectively, the “Settlement
Documents”).
The
Company has requested Investor agree, and Investor has agreed, subject to the
terms and conditions set forth in this Settlement Agreement, to, among other
things, (a) permit the Company to issue to Investor a convertible debenture that
amends and restates in its entirety the May 2006 CCP-1 Debenture, (b) forgive
all accrued and unpaid interest under the May 2006 CCP-2 Debenture, (c) release
its liens on certain Pledged Property and (d) terminate the
Warrants.
Accordingly,
for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, it is hereby agreed by and between Investor and Company as
follows:
Agreement
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1.
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Company
shall (a) pay to Investor an amount equal to Five Hundred Thousand Dollars
($500,000) in cash in accordance with the wire transfer instructions set
forth below (the “Cash
Payment”) and (b) issue to Investor an amended and restated
convertible debenture, substantially in the form of the Amended and
Restated Convertible Debenture attached hereto as Exhibit A (the “Amended and Restated No. IVOI-1
Debenture”), which Amended and Restated No. IVOI-1 Debenture shall
amend and restate in its entirety the May 2006 CCP-1
Debenture.
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Investor
shall (a) forgive all accrued and unpaid interest under the May 2006 CCP-2
Debenture, (b) release its security interest on certain Pledged Property and (c)
terminate the Warrants.
Company
shall make the Cash Payment by way of wire transfer of immediately available
funds directed as follows:
| Bank Name: | Wachovia Bank | |
| Downtown Financial Center | ||
| 000 Xxxxxx Xxxxxx, XX0000 | ||
| Xxxxxx Xxxx, XX 00000 | ||
| Tel. 000-000-0000 | ||
| Contact: Xxxxxxx Xxxxxxxx | ||
| ABA Routing No.: | 000000000 | |
| Account No.: | 2000031475547 | |
| Beneficiary: | YA Global Investments, L.P. |
Mutual
Release
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2.
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Company
hereby acknowledges and agrees that it has no offsets, defenses, claims,
or counterclaims against Investor, its general partner, and its investment
manager, and each of their respective agents, servants, attorneys,
advisors, officers, directors, employees, affiliates, representatives,
investors, partners, members, managers, predecessors, successors, and
assigns (collectively, the “Investor Parties”) with
respect to the Obligations, or otherwise, and that if Company now has, or
ever did have, any offsets, defenses, claims, or counterclaims against
Investor Parties, or any one of them, whether known or unknown, at law or
in equity, from the beginning of the world through and including the
Closing Date, all of them are hereby expressly WAIVED, and Company
hereby RELEASES
Investor Parties from any liability
therefor.
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Investor
hereby acknowledges and agrees that it has no offsets, defenses, claims, or
counterclaims against Company, and each of its respective agents, servants,
attorneys, advisors, officers, directors, employees, affiliates,
representatives, investors, partners, members, managers, predecessors,
successors, and assigns (collectively, the “Company Parties”) with respect
to the Obligations, or otherwise, and that if Investor now has, or ever did
have, any offsets, defenses, claims, or counterclaims against Company Parties,
or any one of them, whether known or unknown, at law or in equity, from the
beginning of the world through and including the Closing Date, all of them are
hereby expressly WAIVED,
and Investor hereby RELEASES Company Parties from
any liability therefor.
Ratification of Financing
Documents; Cross-Default; Further Assurances
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3.
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Company:
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a.
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Hereby
ratifies, confirms, and reaffirms all and singular the terms and
conditions of the Financing Documents. Company further
acknowledges and agrees that except as specifically amended in this
Settlement Agreement and the other Settlement Documents, all terms and
conditions of the Financing Documents and related instruments and
agreements shall remain in full force and
effect;
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b.
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Hereby
ratifies, confirms, and reaffirms that the occurrence of a default and/or
event of default under any Financing Document shall constitute a default
and/or event of default under all of the Financing Documents, it being the
express intent of Company that all Financing Documents be cross-defaulted;
and
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c.
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Shall,
from and after the execution of this Settlement Agreement, execute and
deliver to Investor whatever additional documents, instruments, and
agreements that Investor may reasonably require in order to correct any
document deficiencies, or to vest the Financing Documents therein or
herein more securely in Investor and/or to otherwise give effect to the
terms and conditions of this Settlement
Agreement.
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Lien Release; Further
Assurances
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4.
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Investor
hereby acknowledges and agrees that effective on the Closing Date, other
than the security interest and lien granted by the Company to the Investor
with respect to that certain 10% Secured Convertible Debenture dated
January 6, 2006 issued by Xxxxxx Pharmaceuticals, Ltd. to the Company in
the original principal amount of $360,000 and all documents, instruments
and agreements related thereto (collectively, the “Xxxxxx Debt
Instruments”), all security interests and liens on any and all
assets of Company granted to Investor under the Security Agreement and the
other Financing Documents are hereby terminated and
released. To effectuate the release of liens and security
interests granted under the Security Agreement and the other Financing
Documents, Investor agrees to execute and deliver to Company, at Company’s
sole cost and expense, such instruments or documents, including, without
limitation, releases, discharges, UCC-3 amendments, mortgage releases and
similar documents as Company may reasonably request, and to deliver any
pledged securities in Investor’s possession to
Company.
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Affirmative
Covenants
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5.
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Existence, Properties,
Etc. The Company shall do, or cause to be done, all
things, or proceed with due diligence with any actions or courses of
action, that may be reasonably necessary (i) to maintain the
Company’s due organization, valid existence and good standing under the
laws of its state of incorporation, and (ii) to preserve and keep in
full force and effect all qualifications, licenses and registrations in
those jurisdictions in which the failure to do so could have a Material
Adverse Effect (as defined below); and (b) the Company shall not do,
or cause to be done, any act impairing the Company’s corporate power or
authority (i) to carry on the Company’s business as now conducted,
and (ii) to execute or deliver this Agreement or any other document
delivered in connection herewith required by the Investor to which it is
or will be a party, or perform any of its obligations hereunder or
thereunder. For purpose of this Agreement, the term “Material Adverse Effect”
shall mean any material and adverse affect, whether individually or in the
aggregate, upon (a) the Company’s assets, business, operations,
properties or condition, financial or otherwise and (b) the Company’s
ability to make payment as and when due of all or any part of the
obligations under the terms and conditions of the Financing Documents
and/or Settlement Documents, as
applicable.
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6.
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Maintenance. The
Company shall maintain its books, accounts and records in accordance with
generally accepted accounting principles consistently applied, and permit
the Investor, its officers and employees and any professionals designated
by the Investor in writing, at any time to visit and inspect any of its
properties, corporate books and financial records, and to discuss its
accounts, affairs and finances with any employee, officer or director
thereof.
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7.
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Payment of Debts,
Taxes, Etc. The Company shall pay, or cause to be paid,
all of its indebtedness and other liabilities and perform, or cause to be
performed, all of its obligations in accordance with the respective terms
thereof, and pay and discharge, or cause to be paid or discharged, all
taxes, assessments and other governmental charges and levies imposed upon
it, upon any of its assets and properties on or before the last day on
which the same may be paid without penalty, as well as pay all other
lawful claims (whether for services, labor, materials, supplies or
otherwise) as and when due.
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8.
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Taxes and Assessments;
Tax Indemnity. The Company shall (a) file all tax
returns and appropriate schedules thereto that are required to be filed
under applicable law, prior to the date of delinquency, (b) pay and
discharge all taxes, assessments and governmental charges or levies
imposed upon the Company, upon its income and profits or upon any
properties belonging to it, prior to the date on which penalties attach
thereto, and (c) pay all taxes, assessments and governmental charges
or levies that, if unpaid, might become a lien or charge upon any of its
properties; provided,
however, that the Company in good faith may contest any such tax,
assessment, governmental charge or levy described in the foregoing clauses
(b) and (c) so long as appropriate reserves are maintained with respect
thereto.
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9.
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Compliance with Law
and Other Agreements. The Company shall maintain its
business operations and property owned or used in connection therewith in
compliance with (a) all applicable federal, state and local laws,
regulations and ordinances governing such business operations and the use
and ownership of such property, and (b) all agreements, licenses,
franchises, indentures and mortgages to which the Company is a party or by
which the Company or any of its properties is bound. Without
limiting the foregoing, the Company shall pay all of its indebtedness
promptly in accordance with the terms
thereof.
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10.
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Conduct of
Business. The Company will continue to engage, in an
efficient and economical manner, in a business of the same general type as
conducted by it on the date of this Settlement
Agreement.
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11.
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Notice of
Default. The Company shall give written notice to the
Investor of the occurrence of any default or Event of Default under the
Transaction Documents and/or Settlement Documents, as applicable, or any
other agreement of the Company for the payment of money, promptly upon the
occurrence thereof.
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12.
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Notice of
Litigation. The Company shall give notice, in writing,
to the Investor of (a) any actions, suits or proceedings wherein the
amount at issue is in excess of $50,000, instituted by any persons against
the Company, or affecting any of the assets of the Company, and
(b) any dispute, not resolved within fifteen (15) days of the
commencement thereof, between the Company on the one hand and any
governmental or regulatory body on the other hand, which might reasonably
be expected to have a Material Adverse Effect on the business operations
or financial condition of the
Company.
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13.
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Deliver of Xxxxxx Debt
Instruments. The Company shall, within 14 days of the
date hereof, deliver to the Investor, as collateral security, the Xxxxxx
Debt Instruments with original
signatures.
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14.
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Deliver of
Debentures/Warrants. The Investor shall, within 14 days
of the date hereof, deliver to the Company the following documents with
original signatures marked “terminated:” (a) May 2006 CCP-2
Debenture, (b) May 2006 CCP-3 Debenture, (c) Warrant CCP-1, (d) Warrant
CCP-2 and (e) Warrant CCP-3. In addition, the Investor shall,
within 14 days of the date hereof, deliver to the Company the May 2006
CCP-1 Debenture with an original signature marked “amended and
restated.”
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15.
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Delivery of Legal
Opinion. The Company shall, within 5 days of the date
hereof, deliver to the Investor a legal opinion providing, among other
things, (a) that for purposes of Rule 144 (promulgated under the
Securities Act of 1933, as amended), the holding period of the Amended and
Restated No. IVOI-1 Debenture includes the holding period of the May 2006
CCP-1 Debenture, and that the Investor is not giving any new consideration
as such term is defined in connection with Rule 144, (b) the Amended and
Restated No. IVOI-1 Debenture is issued in accordance with applicable
federal securities laws and the Company’s governing documents and (c) the
shares of Common Stock issued in connection with the conversion of the
Amended and Restated No. IVOI-1 Debenture may be issued in accordance with
applicable federal securities laws without restrictive legend and may be
freely sold by the Investor without restrictive legend, provided that the
Investor’s does not hold the status of an affiliate of the Company as
defined in Rule 144. and has provided the Company’s legal
counsel with the appropriate representation letter affirmatively stating
that the Investor is not an affiliate of the Company as defined in Rule
144.
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Negative
Covenant
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16.
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Without
the prior express written consent of the Investor, the Company shall
not: (a) Amend its Certificate of Incorporation or
By-Laws; (b) be a party to any merger, consolidation or corporate
reorganization, unless the transaction results in the shareholders of the
Company immediately prior to the contemplated transaction retaining at
least a majority of the shares of outstanding voting Common Stock of the
Company immediately subsequent to the consummation of the transaction; or
(c) acquire all or substantially all of the assets or stock of, or
any partnership or joint venture interest in, any other person, firm or
entity, unless the transaction results in the shareholders of the Company
immediately prior to the contemplated transaction retaining at least a
majority of the shares of outstanding voting Common Stock of the Company
immediately subsequent to the consummation of the
transaction. Notwithstanding anything to the contrary contained
herein, (i) the Company may issue Common Stock issuable pursuant to (x)
that certain iVoice, Inc. 2005 Stock Incentive Plan, (y) that certain
iVoice, Inc. 2008 Directors’ and Officers’ Stock Incentive Plan and (z)
the Class B Common Stock, $.01 par value per share, (ii) the Company may
issue an equity security pursuant to an agreement to acquire another
entity or merge with another entity into the Company or a subsidiary of
the Company whereby (x) the shareholders of the Company immediately prior
to the consummation of the contemplated transaction retain a majority of
the outstanding Common Stock shares of the Company immediately subsequent
to the consummation of the transaction or (y) the Company holds a majority
of the outstanding Common Stock shares of the subsidiary company
immediately subsequent to the consummation of the transaction and (iii)
the Company may consummate a transaction whereby the other party to the
transaction may accumulate a majority of the outstanding voting Common
Stock of the Company based upon revenue performance (i.e., an earn-out)
over time.
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Conditions
Precedent
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17.
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The
agreements contained herein shall not be effective unless and until each
of the following conditions precedent have been fulfilled, all as
determined by Investor in its reasonable discretion (the date on which all
conditions precedent have been fulfilled, as determined by Investor in its
reasonable discretion, the “Closing
Date”).
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a.
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Investor
shall have received the Cash Payment in accordance with Section 1
hereto;
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b.
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Company
shall execute and deliver to the Investor the Amended and Restated No.
IVOI-1 Debenture and the Amended and Restated No. IVOI-1 Debenture shall
be in full force and effect;
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c.
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Company
and Investor shall enter into a Second Amendment to Amended and Restated
Security Agreement pursuant to which, among other things, the definition
of Pledged Property shall be amended to reflect the release of liens and
security interests contemplated by this Settlement
Agreement;
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d.
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All
action on the part of Company necessary for the valid execution, delivery,
and performance by Company of this Settlement Agreement and the other
Settlement Documents shall have been duly and effectively taken, and
Investor shall have received from Company: (i) copies, certified by a duly
authorized officer of Company to be true and complete as of the date
hereof, of each of (a) the governing documents of Company as in effect on
the date hereof, (b) the resolutions of Company authorizing the execution
and delivery of this Settlement Agreement, the other documents executed in
connection herewith and the Company’s performance of all of the
transactions contemplated hereby, and (c) an incumbency certificate giving
the name and bearing a specimen signature of each individual who shall be
so authorized; and (ii) such other evidence satisfactory to Investor that
all such actions on the part of Company have been duly and effectively
taken;
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e.
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This
Settlement Agreement, and the other Settlement Documents, shall be
executed and delivered to Investor by the parties thereto, shall be in
full force and effect and shall be in a form and substance satisfactory to
Investor.
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Costs and
Expenses
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18.
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Company
shall reimburse Investor on demand for any and all unreimbursed costs,
expenses, and costs of collection (including attorneys’ fees and expenses)
heretofore or hereafter incurred by Investor in connection with the
protection, preservation, and enforcement by Investor of its rights and
remedies under the Financing Documents, this Settlement Agreement and/or
the other Settlement Documents, provided, however, notwithstanding
anything to the contrary contained herein or in any of the Financing
Documents, each party shall bear its own costs with respect to the
negotiation and preparation of this Settlement Agreement and the other
Settlement Documents.
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Representations, Warranties,
and Covenants
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19.
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Company
hereby represents, warrants, and covenants to Investor as
follows:
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a.
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The
execution and delivery of this Settlement Agreement and the other
Settlement Documents by Company and the performance by Company of its
obligations and agreements under this Settlement Agreement, the other
Settlement Documents and the Financing Documents are within the authority
of Company, have been duly authorized by all necessary corporate
proceedings, if applicable, on behalf of Company, and do not and will not
contravene any provision of law, statute, rule or regulation to which
Company is subject or, if applicable, any of Company’s charter, other
organization papers, by-laws or any stock provision or any amendment
thereof or of any agreement or other instrument binding upon
Company.
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b.
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This
Settlement Agreement, the other Settlement Documents and the Financing
Documents constitute legal, valid and binding obligations of Company,
enforceable in accordance with their respective
terms.
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c.
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No
approval or consent of, or filing with, any governmental agency or
authority is required to make valid and legally binding the execution,
delivery or performance by Company of this Settlement Agreement, the other
Settlement Documents or any of the Financing
Documents.
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d.
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Company
has performed and complied in all material respects with all terms and
conditions herein required to be performed or complied with by Company
prior to or at the time hereof, and as of the date hereof, to the best
knowledge of Company, no default and/or event of default has occurred and
is continuing under any of the Financing
Documents.
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e.
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The
representations and warranties contained in the Settlement Documents and
the Financing Documents were true and correct in all material respects at
and as of the date made and are true and correct as of the date hereof,
except to the extent of changes occurring in the ordinary course of
business that singly or in the aggregate are not materially adverse, and
to the extent that such representations and warranties relate expressly to
an earlier date.
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f.
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Company
has read and understands each of the terms and conditions of this
Settlement Agreement and the other Settlement Documents and confirms that
it is entering into this Settlement Agreement and the other Settlement
Documents freely and voluntarily, without duress, after having had an
opportunity for consultation with independent counsel of its own
selection, and not in reliance upon any representations, warranties, or
agreements made by Investor and not set forth in this Settlement Agreement
or the other Settlement Documents.
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g.
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The
Amended and Restated No. IVOI-1 Debenture is being issued solely in
exchange for the May 2006 CCP-1 Debenture and that for the purposes of
Rule 144, the Amended and Restated No. IVOI-1 Debenture shall be deemed to
have been acquired at the same time as the surrendered May 2006 CCP-1
Debenture, which is May 25, 2006, more than one year prior to the date
hereof.
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Notices
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20.
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Any
communication between Investor and Company shall be made in accordance
with the Financing Documents.
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Jury Trial
Waiver
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21.
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Company
and Investor hereby make the following waiver knowingly, voluntarily, and
intentionally, and understand that the other, in entering into this
Settlement Agreement, is relying on such a waiver: COMPANY AND
INVESTOR EACH HEREBY IRREVOCABLY WAIVE ANY PRESENT OR FUTURE RIGHT TO A
JURY IN ANY TRIAL OF ANY CASE OR CONTROVERSY IN WHICH THE OTHER BECOMES A
PARTY (WHETHER SUCH CASE OR CONTROVERSY IS INITIATED BY OR AGAINST SUCH
PARTY OR IN WHICH SUCH PARTY IS JOINED AS A PARTY LITIGANT), WHICH CASE OR
CONTROVERSY ARISES OUT OF, OR IS IN RESPECT OF, ANY RELATIONSHIP BETWEEN
COMPANY, OR ANY OTHER PERSON, AND
INVESTOR.
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Entire
Agreement
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22.
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This
Settlement Agreement shall be binding upon Company and Company’s
employees, representatives, successors, and assigns, and shall inure to
the benefit of Investor and Investor’s successors and
assigns. This Settlement Agreement and the other Settlement
Documents incorporate all of the discussions and negotiations between
Company and Investor, either expressed or implied, concerning the matters
included herein and in such other documents, instruments and agreements,
any statute, custom, or usage to the contrary
notwithstanding. No such discussions or negotiations shall
limit, modify, or otherwise affect the provisions hereof. No
modification, amendment, or waiver of any provision of this Settlement
Agreement, or any provision of any other document, instrument, or
agreement between Company and Investor shall be effective unless executed
in writing by the party to be charged with such modification, amendment,
or waiver, and if such party be Investor, then by a duly authorized
officer thereof.
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Construction of
Agreement
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23.
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In
connection with the interpretation of this Settlement Agreement and the
other Settlement Documents:
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a.
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All
rights and obligations hereunder and thereunder, including matters of
construction, validity, and performance, shall be governed by and
construed in accordance with the law of the State of New Jersey and are
intended to take effect as sealed
instruments.
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b.
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The
captions of this Settlement Agreement are for convenience purposes only,
and shall not be used in construing the intent of Investor and Company
under this Settlement Agreement.
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c.
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In
the event of any inconsistency between the provisions of this Settlement
Agreement and any other document, instrument, or agreement entered into by
and between Investor and Company, the provisions of this Settlement
Agreement shall govern and control.
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d.
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Investor
and Company have prepared this Settlement Agreement and the other
Settlement Documents with the aid and assistance of their respective
counsel. Accordingly, all of them shall be deemed to have been
drafted by Investor and Company and shall not be construed against either
Investor or Company.
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Illegality or
Unenforceability
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24.
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Any
determination that any provision or application of this Settlement
Agreement is invalid, illegal, or unenforceable in any respect, or in any
instance, shall not affect the validity, legality, or enforceability of
any such provision in any other instance, or the validity, legality, or
enforceability of any other provision of this Settlement
Agreement.
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Counterparts
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25.
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This
Settlement Agreement may be executed in multiple identical counterparts,
each of which when duly executed shall be deemed an original, and all of
which shall be construed together as one agreement. This
Settlement Agreement will not be binding on or constitute evidence of a
contract between the parties hereto until such time as a counterpart has
been executed by such party and a copy thereof is delivered to each other
party to this Settlement Agreement.
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[Remainder
of Page Left Intentionally Blank]
IN WITNESS WHEREOF, this
Settlement Agreement has been executed as of the date first set forth
above.
YA
GLOBAL INVESTMENTS,
L.P., IVOICE,
INC.
f/k/a
Cornell Capital Partners, LP
By: Yorkville
Advisors, LLC,
its By:______________________________
Investment
Manager
duly authorized
Name:
Title:
By:______________________________
duly
authorized
Name:
Title:
Exhibit
“A”
Amended
and Restated No. IVOI-1 Debenture
