SUBSCRIPTION AGREEMENT
Exhibit
10.8
THIS
SUBSCRIPTION AGREEMENT
(this
“Agreement”),
dated
as of July 31, 2007 (the “Closing
Date”),
by and
among VoIP, Inc., a Texas corporation (the “Company”),
and
the subscribers identified on the signature pages hereto (each a “Subscriber”
and
collectively “Subscribers”).
WHEREAS,
the
Company and the Subscribers are executing and delivering this Agreement in
reliance upon an exemption from securities registration afforded by the
provisions of Section 4(2), Section 4(6) and/or Regulation D (“Regulation
D”)
as
promulgated by the United States Securities and Exchange Commission (the
“Commission”)
under
the Securities Act of 1933, as amended (the “1933
Act”).
WHEREAS,
the
parties desire that, upon the terms and subject to the conditions contained
herein, the Company shall issue and sell to the Subscribers, as provided herein,
and the Subscribers, in the aggregate, shall purchase up to $200,000 (the
“Aggregate
Principal Amount”)
of
principal amount of promissory notes of the Company (“Note”
or
“Notes”),
a
form of which is annexed hereto as Exhibit
A,
convertible into shares of the Company’s Class A common stock, $0.001 par value
(the “Common
Stock”),
at a
per share conversion price set forth in the Note (“Conversion
Price”);
share
purchase warrants (the “Warrants”),
in
the form annexed hereto as Exhibit
B,
to
purchase shares of Common Stock (the “Warrant
Shares”);
Coupon Demand Notes (the “Coupon
Notes”)
in the
form annexed hereto as Exhibit
C;
and
shares of common stock (the “Closing
Shares”).
The
Notes, the shares of Common Stock issuable upon conversion of the Notes (the
“Shares”),
the
Warrants, the Warrant Shares, the Coupon Notes, and the Closing Shares are
collectively referred to herein as the “Securities”;
and
NOW,
THEREFORE,
in
consideration of the mutual covenants and other agreements contained in this
Agreement the Company and the Subscribers hereby agree as follows:
1. Aggregate
Purchase Price.
The
aggregate purchase price for the Notes (the “Aggregate
Purchase Price”)
shall
equal the result of (x) divided by (y), where (x) equals the Aggregate Principal
Amount and (y) equals 1.00.
2. Closing.
Subject
to the satisfaction or waiver of the terms and conditions of this Agreement,
on
the Closing Date, each Subscriber shall purchase and the Company shall sell
to
each Subscriber a Note in the principal amount designated on the signature
page
hereto and Warrants as described in Section 3 of this Agreement. The Aggregate
Purchase Amount of the Notes to be purchased by the Subscribers on the Initial
Closing Date shall be $200,000 in exchange for $200,000 cash, representing
the
Aggregate Purchase Price. The Company acknowledges receipt of the Aggregate
Purchase Price ($200,000 cash) on or about June 4, 2007.
3. Warrants.
On the
Closing Date, the Company will issue and deliver Warrants to the Subscribers.
A
Warrant for the purchase of 1.75 Warrant Shares will be issued for each Share
which would be issued on each Closing Date assuming the conversion of all of
the
Notes issued on the Closing Date at the Conversion Price in effect on the
Closing Date. The per Warrant Share exercise price to acquire a Warrant Share
upon exercise of a Warrant shall be equal to $0.08. The Warrants shall be
exercisable until three years after the Closing Date.
4. Coupon
Demand Notes.
On the
Closing Date, the Company will issue and deliver to the Subscribers a coupon
demand note, with principal equal to 10% of the Aggregate Purchase
Price.
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5. Common
Stock.
Within
five days of the Closing Date, the Company will issue and deliver to the
Subscribers one share of the Company’s common stock, par value $0.001 per share,
for every dollar of the Aggregate Purchase Price.
6. Subscriber's
Representations and Warranties.
Each
Subscriber hereby represents and warrants to and agrees with the Company only
as
to such Subscriber that:
(a) Organization
and Standing of the Subscribers.
If the
Subscriber is an entity, such Subscriber is a corporation, partnership or other
entity duly incorporated or organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or organization and
has
the requisite corporate power to own its assets and to carry on its
business.
(b) Authorization
and Power.
Each
Subscriber has the requisite power and authority to enter into and perform
this
Agreement and to purchase the Notes and Warrants being sold to it hereunder.
The
execution, delivery and performance of this Agreement by such Subscriber and
the
consummation by it of the transactions contemplated hereby and thereby have
been
duly authorized by all necessary corporate or partnership action, and no further
consent or authorization of such Subscriber or its Board of Directors,
stockholders, partners, members, as the case may be, is required. This Agreement
has been duly authorized, executed and delivered by such Subscriber and
constitutes, or shall constitute when executed and delivered, a valid and
binding obligation of the Subscriber enforceable against the Subscriber in
accordance with the terms thereof.
(c) No
Conflicts.
The
execution, delivery and performance of this Agreement and the consummation
by
such Subscriber of the transactions contemplated hereby or relating hereto
do
not and will not (i) result in a violation of such Subscriber’s charter
documents or bylaws or other organizational documents or (ii) conflict with,
or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of any agreement, indenture or
instrument or obligation to which such Subscriber is a party or by which its
properties or assets are bound, or result in a violation of any law, rule,
or
regulation, or any order, judgment or decree of any court or governmental agency
applicable to such Subscriber or its properties (except for such conflicts,
defaults and violations as would not, individually or in the aggregate, have
a
material adverse effect on such Subscriber). Such Subscriber is not required
to
obtain any consent, authorization or order of, or make any filing or
registration with, any court or governmental agency in order for it to execute,
deliver or perform any of its obligations under this Agreement or to purchase
the Notes or acquire the Warrants in accordance with the terms hereof, provided
that for purposes of the representation made in this sentence, such Subscriber
is assuming and relying upon the accuracy of the relevant representations and
agreements of the Company herein.
(d) Information
on Company.
The
Subscriber has been furnished with or has had access at the XXXXX Website of
the
Commission to the Company's Form 10-K for the year ended December 31, 2006
and
all periodic reports filed with the Commission thereafter, but not later than
five business days before the Closing Date (hereinafter referred to as the
"Reports").
In
addition, the Subscriber has received in writing from the Company such other
information concerning its operations, financial condition and other matters
as
the Subscriber has requested in writing (such other information is collectively,
the "Other
Written Information"),
and
considered all factors the Subscriber deems material in deciding on the
advisability of investing in the Securities.
(e) Information
on Subscriber.
The
Subscriber is, and will be at the time of the conversion of the Notes and
exercise of the Warrants, an "accredited investor," as such term is defined
in
Regulation D promulgated by the Commission under the 1933 Act, is experienced
in
investments and business matters, has made investments of a speculative nature
and has purchased securities of United States publicly-owned companies in
private placements in the past and, with its representatives, has such knowledge
and experience in financial, tax and other business matters as to enable the
Subscriber to utilize the information made available by the Company to evaluate
the merits and risks of and to make an informed investment decision with respect
to the proposed purchase, which represents a speculative investment. The
Subscriber is able to bear the risk of such investment for an indefinite period
and to afford a complete loss thereof. The information set forth on the
signature page hereto regarding the Subscriber is accurate.
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(f) Purchase
of Securities.
On the
Closing Date, the Subscriber will purchase the Securities as principal for
its
own account for investment only and not with a view toward, or for resale in
connection with, the public sale or any distribution thereof, but Subscriber
does not agree to hold the Securities for any minimum amount of
time.
(g) Compliance
with Securities Act.
The
Subscriber understands and agrees that the Securities have not been registered
under the 1933 Act or any applicable state securities laws, by reason of their
issuance in a transaction that does not require registration under the 1933
Act
(based in part on the accuracy of the representations and warranties of
Subscriber contained herein), and that such Securities must be held indefinitely
unless a subsequent disposition is registered under the 1933 Act or any
applicable state securities laws or is exempt from such registration. For so
long as Subscriber holds Notes, the Subscriber will not maintain a net short
position in the Common Stock contrary to applicable rules and regulations.
Notwithstanding anything to the contrary contained in this Agreement, such
Subscriber may transfer (without restriction and without the need for an opinion
of counsel) the Securities to its Affiliates (as defined below) provided that
each such Affiliate is an “accredited investor” under Regulation D and such
Affiliate agrees to be bound by the terms and conditions of this Agreement.
For
the purposes of this Agreement, an “Affiliate”
of
any
person or entity means any other person or entity directly or indirectly
controlling, controlled by or under direct or indirect common control with
such
person or entity. For purposes of this definition, “control”
means
the power to direct the management and policies of such person or firm, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise.
(h) Shares
Legend.
The
Shares and the Warrant Shares shall bear the following or similar
legend:
"THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. THESE SHARES MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAW
OR
AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO VOIP, INC. THAT SUCH
REGISTRATION IS NOT REQUIRED."
(i) Warrants
Legend.
The
Warrants shall bear the following or
similar legend:
"THIS
WARRANT AND THE COMMON SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THIS WARRANT
AND
THE COMMON SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT AS TO THIS WARRANT UNDER SAID ACT AND ANY APPLICABLE
STATE SECURITIES LAW OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO VOIP,
INC. THAT SUCH REGISTRATION IS NOT REQUIRED."
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(j) Note
Legend.
The
Note shall bear the following legend:
"THIS
NOTE AND THE COMMON SHARES ISSUABLE UPON CONVERSION OF THIS NOTE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THIS NOTE AND THE
COMMON SHARES ISSUABLE UPON CONVERSION OF THIS NOTE MAY NOT BE SOLD, OFFERED
FOR
SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT AS TO THIS NOTE UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES
LAW
OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO VOIP, INC. THAT SUCH
REGISTRATION IS NOT REQUIRED."
(k) Communication
of Offer.
The
offer to sell the Securities was directly communicated to the Subscriber by
the
Company. At no time was the Subscriber presented with or solicited by any
leaflet, newspaper or magazine article, radio or television advertisement,
or
any other form of general advertising or solicited or invited to attend a
promotional meeting otherwise than in connection and concurrently with such
communicated offer.
(l) Authority;
Enforceability.
This
Agreement and other agreements delivered together with this Agreement or in
connection herewith have been duly authorized, executed and delivered by the
Subscriber and are valid and binding agreements enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating
to
or affecting creditors’ rights generally and to general principles of equity;
and Subscriber has full corporate power and authority necessary to enter into
this Agreement and such other agreements and to perform its obligations
hereunder and under all other agreements entered into by the Subscriber relating
hereto.
(m) No
Governmental Review.
Each
Subscriber understands that no United States federal or state agency or any
other governmental or state agency has passed on or made recommendations or
endorsement of the Securities or the suitability of the investment in the
Securities nor have such authorities passed upon or endorsed the merits of
the
offering of the Securities.
(n) Correctness
of Representations.
Each
Subscriber represents as to such Subscriber that the foregoing representations
and warranties are true and correct as of the date hereof and, unless a
Subscriber otherwise notifies the Company prior to the Closing Date, shall
be
true and correct as of the Closing Date.
(o) Survival.
The
foregoing representations and warranties shall survive the Closing Date until
three years after the Closing Date.
7. Company
Representations and Warranties.
The
Company represents and warrants to and agrees with each Subscriber that except
as set forth in the Reports and as otherwise qualified in the Transaction
Documents:
(a) Due
Incorporation.
The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation and has the requisite
corporate power to own its properties and to carry on its business is disclosed
in the Reports.
(b) Outstanding
Stock.
All
issued and outstanding shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid and nonassessable.
(c) Authority;
Enforceability.
This
Agreement, the Notes, the Coupon Notes, the Warrants, and any other agreements
delivered together with this Agreement or in connection herewith (collectively
“Transaction
Documents”)
have
been duly authorized, executed and delivered by the Company and Subsidiaries
(as
the case may be) and are valid and binding agreements enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating
to
or affecting creditors’ rights generally and to general principles of equity.
The Company and Subsidiaries have
full
corporate power and authority necessary to enter into and deliver the
Transaction Documents and to perform their obligations
thereunder.
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8.1. Conversion
of Note.
(a) Upon
the
conversion of a Note, interest, any sum due to the Subscriber under the
Transaction Documents including Liquidated Damages, or part thereof, the Company
shall take all necessary action to assure that the Company's transfer agent
shall issue stock certificates in the name of Subscriber (or its permitted
nominee) or such other persons as designated by Subscriber and in such
denominations to be specified at conversion representing the number of shares
of
Common Stock issuable upon such conversion.
(b) Subscriber
will give notice of its decision to exercise its right to convert the Note,
interest, any sum due to the Subscriber under the Transaction Documents
including Liquidated Damages, or part thereof by telecopying an executed and
completed Notice of Conversion (a form of which is annexed as Exhibit A to
the
Note) to the Company via confirmed telecopier transmission or otherwise pursuant
to Section 15(a) of this Agreement. Each date on which a Notice of Conversion
is
telecopied to the Company in accordance with the provisions hereof shall be
deemed a Conversion Date.
c) Nothing
contained herein or in any document referred to herein or delivered in
connection herewith shall be deemed to establish or require the payment of
a
rate of interest or other charges in excess of the maximum permitted by
applicable law. In the event that the rate of interest or dividends required
to
be paid or other charges hereunder exceed the maximum permitted by such law,
any
payments in excess of such maximum shall be credited against amounts owed by
the
Company to the Subscriber and thus refunded to the Company.
8.2. Change
of Control.
In the
event of a change of control transaction, defined as a third party acquiring
greater than 50% in voting rights in one or a series of related transactions),
the Subscriber may elect to have a Note redeemed by the Company at its face
value plus all accrued interest. The Company shall satisfy the redemption
request in cash or registered common shares at the Company’s
option.
8.3. Maximum
Conversion.
The
Subscriber shall not be entitled to convert on a Conversion Date that amount
of
the Note in connection with that number of shares of Common Stock which would
be
in excess of the sum of (i) the number of shares of common stock beneficially
owned by the Subscriber and its Affiliates on a Conversion Date, and (ii) the
number of shares of Common Stock issuable upon the conversion of the Note with
respect to which the determination of this provision is being made on a
Conversion Date, which would result in beneficial ownership by the Subscriber
and its Affiliates of more than 4.99% of the outstanding shares of common stock
of the Company on such Conversion Date. Beneficial ownership shall be determined
in accordance with Section 13(d) of the Securities Exchange Act of 1934, as
amended, and Regulation 13d-3 thereunder. Subject to the foregoing, the
Subscriber shall not be limited to aggregate conversions of only 4.99% and
aggregate conversions by the Subscriber may exceed 4.99%. The Subscriber may
waive the conversion limitation described in this Section 8.3, in whole or
in
part, upon and effective after 61 days prior written notice to the Company
to
increase such percentage to up to 9.99%. The Subscriber may decide whether
to
convert a Note or exercise Warrants to achieve an actual 4.99% or up to 9.99%
ownership position as described above.
8.4. Adjustments.
The
Conversion Price, Warrant exercise price and amount of Shares issuable upon
conversion of the Notes and exercise of the Warrants shall be adjusted as
described in this Agreement, the Notes and Warrants.
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9. Finder’s
Fee / Loan Fees.
(a) Finder’s
Fee.
The
Company on the one hand, and each Subscriber (for himself only) on the other
hand, agree to indemnify the other against and hold the other harmless from
any
and all liabilities to any persons claiming brokerage commissions or finder’s
fees on account of services purported to have been rendered on behalf of the
indemnifying party in connection with this Agreement or the transactions
contemplated hereby and arising out of such party’s actions. The Company
represents that there are no parties entitled to receive fees, commissions,
or
similar payments in connection with the Offering except as described in Section
9(b) below.
(b) Placement
Agent Fees.
The
Company shall pay placement agent fees consisting of a cash fee of 10% of the
Aggregate Purchase Price, plus warrants to purchase up to 10% of the Warrant
Shares that may be purchased under this Subscription Agreement (see the
Placement Agent Agreement attached hereto as Exhibit
D).
10. Covenants
of the Company.
The
Company covenants and agrees with the Subscribers as follows:
(a) Use
of
Proceeds.
The
proceeds of the Offering will be employed by the Company for general corporate
purposes, including growth and capital initiatives and research and
development.
(b) Confidentiality/Public
Announcement.
The
terms of the Offering are confidential, and none of the terms shall be disclosed
to anyone who is not a prospective purchaser of the securities contemplated
herein, an officer or director of the Company or their agent, adviser or legal
counsel, unless required by law. (It is acknowledged that a Form 8-K disclosure
will likely be required.)
11. Covenants
of the Company and Subscriber Regarding Indemnification.
(a) The
Company agrees to indemnify, hold harmless, reimburse and defend the
Subscribers, the Subscribers’ officers, directors, agents, Affiliates, control
persons, and principal shareholders, against any claim, cost, expense,
liability, obligation, loss or damage (including reasonable legal fees) of
any
nature, incurred by or imposed upon the Subscriber or any such person which
results, arises out of or is based upon (i) any material misrepresentation
by
Company or material breach of any warranty by Company in this Agreement or
in
any Exhibits or Schedules attached hereto, or other agreement delivered pursuant
hereto; or (ii) after any applicable notice and/or cure periods, any material
breach or default in performance by the Company of any covenant or undertaking
to be performed by the Company hereunder, or any other agreement entered into
by
the Company and Subscriber relating hereto.
(b) Each
Subscriber agrees to indemnify, hold harmless, reimburse and defend the Company
and each of the Company’s officers, directors, agents, Affiliates, control
persons and principal shareholders against any claim, cost, expense, liability,
obligation, loss or damage (including reasonable legal fees) of any nature,
incurred by or imposed upon the Company or any such person which results, arises
out of or is based upon (i) any material misrepresentation by such Subscriber
in
this Agreement or in any Exhibits or Schedules attached hereto, or other
agreement delivered pursuant hereto; or (ii) after any applicable notice and/or
cure periods, any material breach or default in performance by such Subscriber
of any covenant or undertaking to be performed by such Subscriber hereunder,
or
any other agreement entered into by the Company and Subscribers, relating
hereto.
(c) In
no
event shall the liability of any Subscriber or permitted successor hereunder
or
under any Transaction Document or other agreement delivered in connection
herewith be greater in amount than the dollar amount of the net proceeds
actually received by such Subscriber upon the sale of the Shares.
12.1. Registration
Rights.
The
Company shall use its best efforts to file a Registration Statement
(“Registration
Statement”)
on
Form S-3 (or an alternative available form if the Company is not eligible to
file a Form S-3) covering the Shares, the Warrant Shares, the Closing Shares,
and the Placement Agent Warrant Shares (“Registrable
Securities”)
no
later than ninety (90) days after the closing of financing in the amount of
$20.0 million or more (“Closing”),
and
use its best efforts to have the Registration Statement declared effective
within one hundred and eighty (180) days after the Closing (or within two
hundred (200) days after the Closing if the Registration Statement receives
a
“full review” from the Securities and Exchange
Commission).
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12.2 Piggyback
Registration.
Whenever the Company proposes to register any of its securities under the
Securities Act (other than pursuant to any of the registration rights listed
above, or a registration on Form S-4 or S-8 or any successor or similar forms),
and the registration form to be used may be used for the registration of
Registrable Securities, whether or not for sale for its own account, the Company
will include in such registration all Registrable Securities, subject only
to
earlier existing registration commitments unless waivers are
obtained.
12.3. Non-Registration
Liquidated Damages.
In the
event the Registration Statement has not been filed within one hundred and
twenty (120) days of the Closing or declared effective within one hundred and
eighty (180) days of the Closing (or within two hundred (200) days of the
Closing if the Registration Statement receives a “full review” from the
Securities and Exchange Commission), the Company shall pay to the Subscribers
liquidated damages equal to 1.5% of the Aggregate Purchase Price for each
subsequent 30-day period, up to a maximum of 18.0% of the Aggregate Purchase
Price.
13. Additional
Agreements.
(a) Right
of First Offer.
For any
equity or equity linked private financing consummated within twelve (12) months
after the Closing Date, the Subscribers shall have a pro-rata right to purchase
all or part of the private financing. The Subscribers shall have five (5)
trading days to respond to a signed and accepted term sheet by the Company.
This
Right of First Offer will not apply in connection with (i) as a result of
the exercise of options or warrants or conversion of convertible notes or
amounts which are granted, issued or accrue pursuant to this Agreement; (ii)
as
has been described in the reports or other written information filed with the
Securities and Exchange Commission or delivered to the Subscribers prior to
the
Closing Date; (iii) full or partial consideration in connection with a strategic
merger, consolidation, or purchase of substantially all of the securities or
assets of a corporation or other entity; (iv) the Company’s issuance of
securities in connection with strategic license agreements and other partnering
arrangements so long as such issuances are not for the purpose of raising
capital; (v) the Company’s issuance of Common Stock or the issuance or grants of
options to purchase Common Stock pursuant to the Company’s stock option plans
and employee stock purchase plans as they now exist, provided such options
are
granted with exercise prices at least equal to the closing price of the Common
Stock on the grant dates; and (vi) the Company’s public offering of securities
(collectively the foregoing are “Excepted
Issuances”).
(b) Favored
Nations Provision.
Other
than in connection with the Excepted Issuances, if at any time Notes are
outstanding and, in the case of the Warrants, for as long as both Notes and
Warrants are outstanding, the Company shall issue or agree to issue any common
stock or securities convertible into or exercisable for shares of common stock
(or modify any of the foregoing which may be outstanding) to any person or
entity at a price per share or conversion or exercise price per share which
shall be less than the Conversion Price in respect of the Shares, or if less
than the Warrant exercise price in respect of the Warrant Shares, without the
consent of each Subscriber holding Notes, Shares, Warrants, or Warrant Shares,
then the Conversion Price on outstanding principal and the Warrant exercise
price on outstanding warrants shall be reduced to such other lower issue price.
The Subscriber is granted the registration rights described in Section 12 hereof
in relation to the additional shares of Common Stock which may be issuable
as
the result of the adjusted Conversion Price except that the Filing Date and
Effective Date vis-à-vis such additional common shares shall be, respectively,
the 90th
and
180th
day
after the closing date giving rise to the requirement to adjust the Conversion
Price.
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(c) Maximum
Exercise of Rights.
In the
event the exercise of the rights described in Section 13(a) or
13(b)
would or could result in the issuance of an amount of common stock of the
Company that would
exceed the maximum amount that may be issued to a Subscriber calculated in
the
manner described in Section 8.3 of this Agreement, then the issuance of such
additional shares of common stock of the Company to such Subscriber will
be
deferred in whole or in part until such time as such Subscriber is able to
beneficially own such common stock without exceeding the applicable maximum
amount set forth calculated in the manner described in Section 8.3 of this
Agreement. The determination of when such common stock may be issued shall
be
made by each Subscriber as to only such Subscriber.
14. Security
Interest.
The
Subscribers will be granted a security interest in all the assets of the Company
pursuant to a “Security Agreement,” a form of which is annexed here to as
Exhibit
E.
15. Miscellaneous.
(a) Notices.
All
notices, demands, requests, consents, approvals, and other communications
required or permitted hereunder shall be in writing and, unless otherwise
specified herein, shall be (i) personally served, (ii) deposited in the mail,
registered or certified, return receipt requested, postage prepaid, (iii)
delivered by reputable air courier service with charges prepaid, or (iv)
transmitted by hand delivery, telegram, or facsimile, addressed as set forth
below or to such other address as such party shall have specified most recently
by written notice. Any notice or other communication required or permitted
to be
given hereunder shall be deemed effective (a) upon hand delivery or delivery
by
facsimile, with accurate confirmation generated by the transmitting facsimile
machine, at the address or number designated below (if delivered on a business
day during normal business hours where such notice is to be received), or the
first business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to be received)
or (b) on the second business day following the date of mailing by express
courier service, fully prepaid, addressed to such address, or upon actual
receipt of such mailing, whichever shall first occur. The addresses for such
communications shall be: (i) if to the Company, to: VoIP,
Inc., 000 Xx. Xxxxxx Xxxx, Xxxxx 0000, Xxxxxxxxx Xxxxxxx, XX 00000, Attn:
Xxxxxxx Xxxxxxx, CEO, telecopier: (000) 000-0000, with a copy by telecopier
only
to: Xxxxxxx, Xxxxxxx & Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000,
Attn: Xxxxxx X. Xxxxxxx, Esq., telecopier: (000) 000-0000, and (ii) if to the
Subscriber, to: the one or more addresses and telecopier numbers indicated
on
the signature pages hereto.
(b) Entire
Agreement; Assignment.
This
Agreement and other documents delivered in connection herewith represent the
entire agreement between the parties hereto with respect to the subject matter
hereof and may be amended only by a writing executed by both parties. Neither
the Company nor the Subscribers have relied on any representations not contained
or referred to in this Agreement and the documents delivered herewith. No right
or obligation of the Company shall be assigned without prior notice to and
the
written consent of the Subscribers.
(c) Counterparts/Execution.
This
Agreement may be executed in any number of counterparts and by the different
signatories hereto on separate counterparts, each of which, when so executed,
shall be deemed an original, but all such counterparts shall constitute but
one
and the same instrument. This Agreement may be executed by facsimile signature
and delivered by facsimile transmission.
(d) Law
Governing this Agreement.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Florida without regard to conflicts
of laws
principles that would result in the application of the substantive laws of
another jurisdiction. Any action brought by either party against the other
concerning the transactions contemplated by this Agreement shall be brought
only
in the civil or state courts of Florida or in the federal courts located in
Seminole County. The
parties and the individuals executing this Agreement and other agreements
referred to herein or delivered in connection herewith on behalf of the Company
agree to submit to the jurisdiction of such courts and waive trial by
jury.
The
prevailing party shall be entitled to recover from the other party its
reasonable attorney’s fees and costs. In the event that any provision of this
Agreement or any other agreement delivered in connection herewith is invalid
or
unenforceable under any applicable statute or rule of law, then such provision
shall be deemed inoperative to the extent that it may conflict therewith and
shall be deemed modified to conform to such statute or rule of law. Any such
provision which may prove invalid or unenforceable under any law shall not
affect the validity or enforceability of any other provision of any agreement.
[THIS
SPACE INTENTIONALLY LEFT BLANK]
8
SIGNATURE
PAGE TO SUBSCRIPTION AGREEMENT (A)
Please
acknowledge your acceptance of the foregoing Subscription Agreement by signing
and returning a copy to the undersigned whereupon it shall become a binding
agreement between us.
|
VOIP,
INC.
|
|
|
a
Texas corporation
|
|
|
By:
|
/s/ Xxxxxx Xxxxxx
|
|
Name: Xxxxxx Xxxxxx
|
|
|
Title: Chief Accounting Officer
|
|
|
Dated: July 31, 2007
|
|
|
SUBSCRIBER
|
AGGREGATE
PURCHASE PRICE
|
AGGREGATE
PRINCIPAL
AMOUNT
|
|||||
|
XXXXXX
XXXX
000
Xxxxx Xxx Xxxxxxxx Xxxxxx, #000
Xxxxxxxxxx
XX 00000
|
$
|
100,000.00
|
$
|
100,000.00
|
|||
|
/s/ Xxxxxx Xxxx
|
|
(Signature)
By:
Xxxxxx Xxxx
|
9
SIGNATURE
PAGE TO SUBSCRIPTION AGREEMENT (B)
Please
acknowledge your acceptance of the foregoing Subscription Agreement by signing
and returning a copy to the undersigned whereupon it shall become a binding
agreement between us.
|
a
Texas corporation
|
|
|
By:
|
/s/
Xxxxxx Xxxxxx
|
|
Name: Xxxxxx Xxxxxx
|
|
|
Title: Chief Accounting Officer
|
|
|
Dated: July 31, 2007
|
|
|
SUBSCRIBER
|
AGGREGATE
PURCHASE PRICE
|
AGGREGATE
PRINCIPAL
AMOUNT
|
|||||
|
GHT
ASSOCIATES LLC
000
Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx
XX 00000
|
$
|
100,000.00
|
$
|
100,000.00
|
|||
| /s/ Xxxx Xxxxxx |
|
(Signature) By:
Xxxx Xxxxxx, Manager |
10
LIST
OF EXHIBITS AND SCHEDULES
|
Exhibit
A
|
Form
of Note
|
|
|
Exhibit
B
|
Form
of Warrant
|
|
|
Exhibit
C
|
Form
of Coupon Note
|
|
|
Exhibit
D
|
Form
of Placement Agent Agreement
|
|
|
Exhibit
E
|
Form
of Security Agreement
|
11
