Exhibit 2.2
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of September 01, 2004 (this "Agreement"), by
and among Xxxxxx Xxxxx ("Xxxxx"); Xxxxxx Xxxxxxxxx ("Xxxxxxxxx" and together
with Xxxxx, collectively "Sellers"); VoIP, Inc., a Texas corporation
("Purchaser"); and Vox Consulting Group, Inc., a Florida corporation ("Company")
W I T N E S S E T H
WHEREAS, Sellers desire to sell to Purchaser 1,000 shares of the
Company's common stock, par value of $.01 (the "Common Stock") (the "Shares"),
representing 100% of the Company's issued and outstanding shares of the Common
Stock, on the terms and conditions set forth in this Agreement;
WHEREAS, Purchaser desires to buy the Shares on the terms and
conditions set forth herein; and
WHEREAS, the Company joins in the execution of this Agreement for the
purpose of evidencing its consent to the consummation of the foregoing
transactions and for the purpose of making certain representations and
warranties to, and covenants and agreements with Purchaser.
NOW THEREFORE, in consideration of the promises and respective mutual
agreements herein contained, it is agreed by and between the parties hereto as
follows.
ARTICLE 1
SALE AND PURCHASE OF THE SHARES
1.1 Sale of the Shares. Subject to the terms and conditions herein set
forth, on the basis of the representations, warranties and agreements herein
contained, Sellers hereby sell, assign, transfer and deliver the Shares to
Purchaser, and Purchaser purchases the Shares from the Sellers.
1.2 The Closing. The purchase of the Shares (the "Closing") shall take
place at the office of Purchaser in Ft. Lauderdale, Florida or such other place
as Purchaser and Sellers may mutually agree. The date on which the Closing
occurs is herein referred to as the "Closing Date".
1.3 Instruments of Conveyance and Transfer. On the Closing Date,
Sellers shall deliver certificates representing the Shares to Purchaser, duly
endorsed by the Sellers to Purchaser, in form and substance satisfactory to
Purchaser ("Certificates"), as shall be effective to vest in Purchaser all
right, title and interest in and to all of the Shares.
1.4 Consideration and Payment for the Shares. In consideration for the
Shares, Purchaser shall pay to the Sellers a total purchase price consisting of:
(i) 1,000,000 shares of Purchaser's common stock (the "Purchase Price Shares")
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE SELLER
Each of the Sellers represents and warrants to Purchaser that, except
as set forth in the Disclosure Schedule, the following are true and correct as
of the date hereof and will be true and correct through the Closing Date as if
made on that date, except for such representations and warranties that by their
terms refer to another date.
2.1 Transfer of Title. Sellers shall transfer all right, title and
interest in and to the Shares to Purchaser free and clear of all liens, security
interests, pledges, encumbrances, charges, restrictions, demands and claims, of
any kind or nature whatsoever, whether direct or indirect or contingent.
(a) Due Execution. This Agreement has been duly executed and
delivered by the Sellers.
(b) Valid Agreement. This Agreement constitutes, and upon
execution and delivery thereof by the Sellers, will
constitute, a valid and binding agreement of the Sellers
enforceable against the Sellers in accordance with its terms,
except as may be limited by applicable bankruptcy, insolvency
or similar laws affecting creditor's rights generally or the
availability of equitable remedies.
(c) Sellers' Title to Shares; No Liens or Preemptive Rights; Valid
Issuance. Sellers have and at the Closing will have good and
valid title and control of the Shares; there will be no
existing impediment or encumbrance to the sale and transfer of
such Shares to Purchaser; and on delivery to Purchaser of the
Shares, good and valid title to all the Shares will pass to
Purchaser and all of the Shares will be free and clear of all
taxes, liens, security interests, pledges, rights of first
refusal or other preference rights, encumbrances, charges,
restrictions, demands, claims or assessments of any kind or
any nature whatsoever whether direct, indirect or contingent
and shall not be subject to preemptive rights, tag-along
rights, or similar rights of any of the stockholders of the
Company.
2.2 No Governmental Action Required. The execution and delivery by the
Sellers of this Agreement does not and will not, and the consummation of the
transactions contemplated hereby will not, require any action by or in respect
of, or filing with, any governmental body, agency or governmental official or
self-regulating organization.
2.3 Compliance with Applicable Law and Corporate Documents. The
execution and delivery by the Sellers of this Agreement does not and will not,
and the sale by the Sellers of the Shares and the consummation of the other
transactions contemplated by this Agreement does not and will not contravene or
constitute a default under or violation of (i) any provision of applicable law
or regulation, (ii) the articles of incorporation or by-laws of the Company or
(iii) any agreement, judgment, injunction, order, decree or other instrument
binding upon the Sellers or the Company's assets, or result in the creation or
imposition of any lien on any asset of the Company.
2.4 Not a Voting Trust: No Proxies. None of the Shares are or will be
subject to any voting trust or agreement. No person holds or has the right to
receive any proxy or similar instrument with respect to the Shares. Except as
provided in this Agreement, none of the Sellers is a party to any agreement
which offers or grants to any person the right to purchase or acquire any of the
Shares. There is no applicable local, state or federal law, rule, regulation, or
decree which would, as a result of the sale contemplated by this Agreement,
impair, restrict or delay any voting rights with respect to the Shares.
2.5 Adoption of Company's Representations. Each of the Sellers adopts
and remakes as his own each and every representation, warranty and undertaking
made by the Company in Article 3 below as if he had made such representations,
warranties and undertakings to Purchaser directly.]
2.6 Brokers. No broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission payable by Purchaser or the
Company in connection with the transactions contemplated by this Agreement.
2.7 Investment Intent. Each of Sellers represents that he is acquiring
and will acquire, as the case may be, the Purchase Price Shares and the Warrants
(including the shares issuable upon exercise of such Warrants the "Warrant
Shares"), issuable to such Seller pursuant hereto solely for his own account for
investment purposes only and not with a view toward resale or distribution
thereof other than pursuant to an effective registration statement or applicable
exemption from the registration requirements of the Securities Act of 1933, as
amended (the "Securities Act"). Each of Sellers understands that such Purchase
Price Shares, Warrants and Warrant Shares will be issued in reliance upon an
exemption from the registration requirements of the Securities Act and that
subsequent sale or transfer of such securities is prohibited absent registration
or exemption from the provisions of the Securities Act. Each of Sellers further
acknowledges that under SEC Rule 144, the Purchase Price Shares and the Warrant
Shares may be sold pursuant to all of the provisions of such Rule only after a
holding period of one year and that the Purchase Price Shares will become fully
tradable after a holding period of two years. Each of Sellers hereby agrees that
he will not sell, assign, transfer, pledge or otherwise convey any of the
Purchase Price Shares or the Warrants Shares issuable pursuant hereto, except in
compliance with the provisions of the Securities Act and in accordance with any
transfer restrictions or similar terms set forth on the certificates
representing such securities or otherwise set forth herein.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE COMPANY
The Company represents and warrants to Purchaser that, except as set
forth in the Disclosure Schedule, the following are true and correct as of the
date hereof and will be true and correct through the Closing Date as if made on
that date, except for such representations and warranties that by their terms
refer to another date.
3.1 Due Organization. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Florida
with full power and authority to own, lease, use, and operate its properties and
to carry on its business as and where now owned, leased, used, operated and
conducted. The Company has no subsidiaries. The Company is not qualified to
conduct business in any jurisdiction other than the State of Florida.
3.2 Company Authority. The Company has all requisite corporate power
and authority to enter into and perform this Agreement and to consummate the
transactions contemplated herein.
(a) Due Authorization. The execution, delivery and performance by
the Company of this Agreement has been duly and validly
authorized by all necessary corporate action and no further
consent or authorization of the Company, its Board of
Directors or its stockholders is required.
(b) Valid Execution. This Agreement has been duly executed and
delivered by the Company.
(c) Binding Agreement. This Agreement constitutes, and upon
execution and delivery thereof by the Company, will
constitute, a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms,
except as may be limited by applicable bankruptcy, insolvency
or similar laws affecting creditor's rights generally or the
availability of equitable remedies.
(d) No Violation of Corporate Documents or Agreements. The
execution and delivery of this Agreement by the Company and
the performance by the parties hereto of their obligations
hereunder will not cause, constitute, or conflict with or
result in (i) any material breach or violation, or give rise
to a right of termination, cancellation or acceleration of any
material obligation or to loss of a material benefit under, or
to increased, additional, accelerated or guaranteed rights or
entitlements of any person under any of the provisions of, or
constitute a default under, any license, indenture, mortgage,
charter, instrument, articles of incorporation, bylaw,
judgment, order, decision, writ, injunction, or decree or
other agreement or instrument or proceeding to which the
Company is a party, or by which it may be bound, nor will any
consents or authorizations of any party will be required other
than the Consents (as hereinafter defined), or (ii) an event
that would result in the creation or imposition or any lien,
charge or encumbrance on any asset of the Company or on the
Shares.
3.3 Authorized Capital, No Preemptive Rights, No Liens; Anti-Dilution.
As of the date hereof, the authorized capital of the Company is 1,000 shares of
Common Stock. There is no authorized preferred stock of any kind. The issued and
outstanding capital stock of the Company is 1,000 shares of Common Stock, and
the names and number of shares of all owners of Common Stock are listed in the
Disclosure Schedule. All of the Shares are duly authorized, validly issued,
fully paid and non-assessable. No Shares are subject to preemptive rights or
similar rights of the stockholders of the Company or any liens or encumbrances
imposed through the actions or failure to act of the Company, or otherwise. As
of the date hereof (i) there are no outstanding options, warrants, convertible
securities, scrip, rights to subscribe for, puts, calls, rights of first
refusal, tag-along agreements, nor any other agreements, understandings, claims
or other commitments or rights of any character whatsoever relating to, or
securities or rights convertible into or exchangeable for any shares of capital
stock of the Company, or arrangements by which the Company is or may become
bound to issue additional shares of capital stock of the Company, and (ii) there
are no agreements or arrangements under which the Company is obligated to
register the sale of any of its securities under the Securities Act, and (iii)
there are no anti-dilution or price adjustment provisions contained in any
security issued by the Company (or in the Company's articles of incorporation or
by-laws or in any agreement providing rights to security holders) that will be
triggered by the transactions contemplated by this Agreement. The Company has
furnished to Purchaser true and correct copies of the Company's articles of
incorporation, by-laws and corporate minute book.
3.4 No Governmental Action Required. The execution and delivery by the
Company of this Agreement does not and will not, and the consummation of the
transactions contemplated hereby will not, require any action by or in respect
of, or filing with, any governmental body, agency, governmental official or
self-regulating organization.
3.5 Compliance with Applicable Law and Corporate Documents. The
execution and delivery by the Company of this Agreement and the performance by
the parties hereto of the transactions contemplated hereby does not and will not
contravene or constitute a default under or violation of (i) any provision of
applicable law or regulation, including any environmental law, (ii) the
Company's articles of incorporation or bylaws, or (iii) any agreement, judgment,
injunction, order, decree or other instrument binding upon the Company or any
its assets, or result in the creation or imposition of any lien on any asset of
the Company. To the best of its knowledge, the Company is in compliance with and
conforms in all material respects with all statutes, laws, ordinances, rules,
regulations, orders, restrictions and all other legal requirements of any
domestic or foreign government or any instrumentality thereof having
jurisdiction over the conduct of its businesses or the ownership of its
properties.
3.6 Financial Statements. (a) The Purchaser has received a copy of the
unaudited financial statements of the Company for the fiscal year ended December
31, 2003 and the [eight] months ended [August 31, 2004] ("Financial
Statements"). The Financial Statements fairly present, in all material respects,
the financial condition of the Company at the dates indicated therein and its
results of its operations and cash flows for the periods then ended and, except
as indicated therein, reflect all claims against, debts and liabilities of the
Company, fixed or contingent, and of whatever nature. (b) Since December 31,
2003 (the "Balance Sheet Date"), there has been no Material Adverse Effect in
the assets or liabilities, or in the business or condition, financial or
otherwise, or in the results of operations or prospects, of the Company, whether
as a result of any legislative or regulatory change, revocation of any license
or rights to do business, fire, explosion, accident, casualty, labor trouble,
flood, drought, riot, storm, condemnation, act of God, public force or otherwise
and no Material Adverse Effect in the assets or liabilities, or in the business
or condition, financial or otherwise, or in the results of operation or
prospects, of the Company except in the ordinary course of business. For the
purposes of this Agreement, the term "Material Adverse Effect" shall mean
liabilities or any other adverse condition of $10,000 in the aggregate. (c)
Since the Balance Sheet Date, the Company has not suffered any damage,
destruction or loss of physical property (whether or not covered by insurance)
having a Material Adverse Effect, nor has the Company issued, sold or otherwise
disposed of, or agreed to issue, sell or otherwise dispose of, any capital stock
or any other security of the Company and has not granted or agreed to grant any
option, warrant or other right to subscribe for or to purchase any capital stock
or any other security of the Company or has incurred or agreed to incur any
indebtedness for borrowed money.
3.7 No Litigation. Except as set forth in the Disclosure Schedule, the
Company is not a party to any suit, action, arbitration, or legal,
administrative, or other proceeding, or pending or threatened governmental
investigation. The Company is not subject to or in default with respect to any
order, writ, injunction, or decree of any federal, state, local, or foreign
court, department, agency, or instrumentality.
3.8 Taxes.
Except as noted in the Financial Statements or the Disclosure Schedule,
the Company is not with respect to any periods ending on or prior to the Closing
Date, liable for any income, sales, withholding, franchise, excise, license,
real or personal property taxes (a "Tax") to any foreign, United States federal,
state or local governmental agencies. All United States federal, state, county,
municipality local or foreign income Tax returns and all other material Tax
returns (including information returns) that are required, or have been
required, to be filed by or on behalf of the Company have been or will be filed
as of the Closing Date and all Taxes due pursuant to such returns or pursuant to
any assessment received by the Company have been or will be paid as of the
Closing Date. The charges, accruals and reserves on the books of the Company in
respect of taxes or other governmental charges have been established in
accordance with the tax method of accounting. All returns that have been filed
relating to Tax are true and accurate in all material respects. To the best of
the Company's knowledge, no audit, action, suit, proceeding or other examination
regarding taxes for which the Company may have any liability is currently
pending against or with respect to the Company and neither Sellers nor the
Company has received any notice (formally or informally) of any audit, suit,
proceeding or other examination. No material adjustment relating to any Tax
returns, no closing or similar agreement have been entered into or issued or, to
the best of the Company's knowledge, have been proposed (formally or informally)
by any tax authority (insofar as such action relates to activities or income of
or could result in liability of the Company for any Tax) and no basis exists for
any such actions. The Company has not changed any election, adopted or changed
any accounting method or period, filed any amended return for any Tax, settled
any claim or assessment of any Tax, or surrendered any right to claim any refund
of any Tax, or consented to any extension or waiver of the statute of
limitations for any Tax. The Company has not had an "ownership change" as that
term is defined in Section 382 of the Internal Revenue Code of 1986, as amended
and in effect.
3.9 Licenses, Permits, Etc. The Company possesses all material
licenses, clearances, ratings, permits and franchises to conduct its business
substantially as now and heretofore conducted, and without any material conflict
with the rights of others in any such license, clearance, rating, permit or
franchise. Except for instances previously remedied, the Company does not have
knowledge of, nor has it received notice of, any termination, revocation or
limitation of, or of the pendency or threatened commencement of any proceeding
to terminate, revoke or limit any such licenses, clearances, ratings, permits or
other approvals by the governmental body issuing same. No such right will be
terminated as a result of the sale of the Shares hereby. A list of all such
permits and licenses is set forth in the Disclosure Statement.
3.10 Conduct of the Business. Except as set forth in the Disclosure
Schedule, from and after January 1, 2004 until the Closing Date:
(a) The Company has continued to be operated in the usual and
ordinary manner in which its business has been conducted in the past;
(b) The Company has kept in a normal state of repair and
operating efficiency all tangible personal property used in the
operation of its business, regular wear and tear excepted;
(c) The Company has used its best efforts to maintain the good
will associated with its business, and the existing business
relationships with its agents, customers, lessors, key employees,
suppliers and other persons having relations with it;
(d) The Company has not made, or agreed to make, any
acquisition of stock or assets of, or made loans to, any person not in
the ordinary course of business;
(e) The Company has not sold or disposed of any assets or
created or permitted to exist any encumbrance on its assets except (x)
in the ordinary course of business and consistent with past practice or
(y) as otherwise permitted by this Agreement;
(f) The Company has kept true, complete and correct books of
records and accounts with respect to its business, in which entries
will be made of all transactions on a basis consistent with past
practices and in accordance with the tax method of accounting
consistently applied by the Company;
(g) The Company has paid current liabilities as and when they
became due and has paid or incurred no fees and expenses not in the
ordinary course of its business;
(h) There has been no declaration, setting aside or payment of
any dividend or other distribution in respect of any Shares or any
other securities of the Company (whether in cash or in kind);
(i) The Company has not redeemed, repurchased, or otherwise
acquired any of its securities or entered into any agreement to do so;
(j) The Company has not made any sale or pledge of accounts
receivable;
(k) Except for normal annual increases resulting from the
application of existing formulae under existing plans, agreements or
policies relating to non-officer/director, employee compensation, and
except as set forth in this Agreement and in the Disclosure Schedule,
there has not been any material increase in the rate of compensation
payable or to become payable to employees in the aggregate, or any
increase in the amounts paid or payable to the Company's officers or
directors, or payable to such officers, directors or employees in the
aggregate under any bonus, insurance, pension or other benefit plan, or
any arrangements therefore made for or with any of said officers or
employees;
(l) The Company has not made any loan to, or entered into any
other transaction with, any of its directors, officers, and employees;
(m) The Company has not made or pledged to make any charitable
or other capital contribution outside the ordinary course of business
and consistent with past practice; and
(n) To the best of the Company's knowledge, there has not been
any other occurrence, event, and incident, and action, failure to act
or transaction outside the ordinary course of business that would cause
a Material Adverse Effect.
3.11 Liabilities.
(a) Except as set forth in the Disclosure Schedule, the
Company has no liabilities or obligations, other than (A) liabilities
and obligations which are stated or provided for in the Financial
Statements and which continue to exist, (B) liabilities and obligations
incurred by the Company in the ordinary course of business consistent
with past practices subsequent to the date of the Financial Statements
which do not and will not have a Material Adverse Effect.
(b) Except as set forth in the Disclosure Schedule, since
January 1, 2004, the Company has not:
(i) subjected to encumbrance, or agreed to do so to
any of its assets, tangible or intangible other than purchase
money liens in the ordinary course of business on equipment
used in the conduct of business and incurred to finance the
purchase price of the equipment involved and which do not
cover any other asset of the Company; or
(ii) except as otherwise contemplated hereby, engaged
in any transactions affecting its business or properties not
in the ordinary course of business consistent with past
practice or suffered any extraordinary losses or waived any
rights of substantial value except in the ordinary course of
business.
3.12 ERISA Compliance.
(a) The Disclosure Schedule contains a list of each pension,
profit sharing, thrift or other retirement plan, employee stock
ownership plan, deferred compensation, stock option, stock purchase,
performance share, bonus or other incentive plan, severance plan,
health, group insurance or other welfare plan, or other similar plan,
agreement, policy or understanding, including without limitation, any
"employee benefit plan" within the meaning of Section 3(3) of the
Employee Retirement Income Security Act of 1974 ("ERISA"), under which
the Company or any ERISA Affiliate has any current or future obligation
or liability or under which any employee of the Company or any ERISA
Affiliate has any current or future right to benefits (each such plan,
agreement, policy or understanding being hereinafter referred to
individually as a "Plan"). The Company has delivered to Purchaser true
and complete copies of (A) each Plan, (B) the summary plan description,
if any, for each Plan, (C) the most recent Internal Revenue Service
determination letter with respect to each Plan, if applicable, (D) the
latest annual report (Form 5500 or 5500-C) for the past three (3)
years, if any, which has been filed with the Internal Revenue Service
for each Plan, and (E) copies of any related materials that have been
furnished to participants or beneficiaries of each Plan or to any
Governmental Body.
(b) Each Plan is in compliance in all material respects with
the provisions of ERISA, the Internal Revenue Code and all other
applicable federal and state laws and the rules and regulations
promulgated thereunder interpreting or applying these laws and each
Plan (and related trust or funding vehicle, if any) has at all times
been administered and maintained in accordance with its terms and
applicable Laws, including, without limitation, the filing of all
applicable reports.
(c) Each Plan shall be terminated at or prior to the Closing.
3.13 Insurance. The Disclosure Schedule includes a true and correct
list of all policies or binders of insurance of the Company in force, specifying
the insurer, policy number (or covering note number with respect to binders) and
amount thereof and describing each pending claim thereunder. Such policies are
in full force and effect. The Company is not in default, in any material
respects, with any provisions contained in any such policy or binder, nor has it
failed to give any notice or present any claim under any such policy or binder
in a timely fashion. There are no outstanding unpaid claims under any such
policy or binder, or claims for worker's compensation. The Company has not
received notice of cancellation or non-renewal of any such policy or binder. The
Company has never been, and is not now, the subject of any claim relating to
damage or injury in excess of the Company's then-current product liability
policy limits or which has been disclaimed by the Company's insurer. Such
insurance will lapse on the Closing Date.
3.14 Consents. The Disclosure Schedule lists all consents ("Consents")
of third parties required to be obtained as a result of the change of control of
the Company hereby.
3.15 Agreements. Except as set forth in the Disclosure Schedule, the
Company is not a party to any material agreement, loan, credit, lease, sublease,
franchise, license, contract, commitment or instrument, the value of which
imposes any obligation on the company in excess of $5,000 individually or
$25,000 in the aggregate (each an "Agreement"). The Disclosure Schedule
identifies of all such Agreements. True, correct and complete copies of all such
Agreements have been delivered to Purchaser. Neither the Company nor, to the
Company's best knowledge, any other party is in default under any such
Agreement. Except as set forth in the Disclosure Schedule, no such Agreement
requires the consent of any other party thereto in order to consummate the sales
of the Shares hereby.
3.15 Compliance with Law. To the best of its knowledge, the Company has
complied with, and is not in violation of any provision of laws or regulations
of federal, state or local government authorities and agencies. There are no
pending or threatened proceedings against the Company by any federal, state or
local government, or any department, board, agency or other body thereof.
3.16 Intellectual Property. The Disclosure Schedule sets forth a true,
correct and complete list and description of all registered Intellectual
Property and applications therefore owned by the Company (the "Intellectual
Property"). The Intellectual Property constitutes all Intellectual Property used
in or necessary for the conduct of the Company's business as heretofore
conducted. The Company is the sole owner of, and has the exclusive right to use,
free and clear of any payment, restriction or encumbrance, the Intellectual
Property. No claims have been asserted by any person or entity that challenge
the Company's exclusive rights in the Intellectual Property. To the best of the
Company's knowledge, the Intellectual Property does not infringe on,
misappropriate, or otherwise violate any intellectual property right of any
other person or entity.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Sellers and the Company that,
except as set forth in Purchaser Disclosure Schedule, the following are true and
correct as of the date hereof and will be true and correct through the Closing
Date as if made on that date, except for such representations and warranties
that by their terms refer to another date:
4.1 Due Organization. Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the State of Texas with
full power and authority to own, lease, use, and operate its properties and to
carry on its business as and where now owned, leased, used, operated and
conducted. The subsidiaries of Purchaser are listed on Purchaser Disclosure
Schedule. Purchaser is licensed or qualified to do business in each jurisdiction
in which the properties owned or leased by it or the operation of its business
makes such licensing or qualification necessary.
4.2 Purchaser Authority. Purchaser has all requisite corporate power
and authority to enter into and perform this Agreement and to consummate the
transactions contemplated herein.
(a) Due Authorization. The execution, delivery and performance by
Purchaser of this Agreement has been duly and validly
authorized by all necessary corporate action and no further
consent or authorization of Purchaser, its Board of Directors
or its stockholders is required.
(b) Valid Execution. This Agreement has been duly executed and
delivered by Purchaser.
(c) Binding Agreement. This Agreement constitutes, and upon
execution and delivery thereof by Purchaser, will constitute,
a valid and binding agreement of Purchaser, enforceable
against Purchaser in accordance with its terms, except as may
be limited by applicable bankruptcy, insolvency or similar
laws affecting creditor's rights generally or the availability
of equitable remedies.
(d) No Violation of Corporate Documents or Agreements. The
execution and delivery of this Agreement by Purchaser and the
performance by the parties hereto of their obligations
hereunder will not cause, constitute, or conflict with or
result in (i) any material breach or violation, or give rise
to a right of termination, cancellation or acceleration of any
material obligation or to loss of a material benefit under, or
to increased, additional, accelerated or guaranteed rights or
entitlements of any person under any of the provisions of, or
constitute a default under, any license, indenture, mortgage,
charter, instrument, articles of incorporation, bylaw,
judgment, order, decision, writ, injunction, or decree or
other agreement or instrument or proceeding to which Purchaser
is a party, or by which it may be bound, nor will any consents
or authorizations of any party will be required other than
those included in the Purchaser Disclosure Schedule, or (ii)
an event that would result in the creation or imposition or
any lien, charge or encumbrance on any asset of Purchaser.
4.3 Authorized Capital. At the time of Closing Purchaser's outstanding
and issued capital stock shall be the number of shares described in the
Purchaser Disclosure Schedule. Purchaser has a sufficient number of shares of
its capital stock authorized in order to issue the Purchase Price Shares and the
Warrant Shares. Other than that which is disclosed in the Purchaser Disclosure
Schedule, Purchaser is not subject to any options, warrants, stock-based or
stock-related awards, conversion privileges or other rights to acquire any
shares of capital stock of or other ownership interest in Purchaser or any of
its subsidiaries. Purchaser is not subject to any obligation, contingent or
otherwise, to repurchase or otherwise acquire or retire any shares of its
capital stock other than that which is disclosed in the Purchaser Disclosure
Schedule.
4.4 Validity of Purchase Price Shares and Issuance.
(a) The issuance of the Purchase Price Shares to the Sellers has been
duly authorized by all requisite corporate action of Purchaser and, upon
delivery to the Sellers of a certificate or certificates for the Purchase Price
Shares, the Purchase Price Shares will (i) be validly issued, fully paid and non
assessable, (ii) have the rights, preferences and privileges described in
Purchaser's certificate of incorporation, (iii) be free and clear of preemptive
rights, other than preemptive rights that might have been created by the
Sellers, (iv) subject to the Sellers' representations and warranties contained
herein, the issuance is exempt from the registration requirements of the
Securities Act, as amended, and any applicable state securities laws and the
rules and regulations promulgated thereunder, and (v) be free and clear of
encumbrances, other than encumbrances that might have been created by the
Sellers.
(b) The issuance of the Warrants to the Sellers has been duly
authorized by all requisite corporate action of Purchaser and, upon delivery to
the Sellers of such Warrants in accordance with the terms of this Agreement and
such Warrants; such Warrants will be validly issued.
(c) The issuance of the Warrant Shares has been duly authorized by all
requisite corporate action and the Warrant Shares have been reserved for
issuance upon the exercise of the Warrants and, when issued upon exercise of the
Warrants in accordance with the terms of the Warrants, will be (i) validly
issued, fully paid and nonassessable, (ii) be free and clear of preemptive
rights, other than preemptive rights that might have been created by the
Sellers, (iii) subject to the Seller' representations and warranties contained
herein, the issuance is exempt from the registration requirements of the
Securities Act, as amended, and any applicable state securities laws and the
rules and regulations promulgated thereunder, and (iv) be free and clear of
encumbrances, other than encumbrances that might have been created by the
Sellers.
4.5 No Governmental Action Required. The execution and delivery by
Purchaser of this Agreement does not and will not, and the consummation of the
transactions contemplated hereby will not, require any action by or in respect
of, or filing with, any governmental body, agency, governmental official or
self-regulating organization.
4.6 Compliance with Applicable Law. To the best of its knowledge,
Purchaser is in compliance with and conforms in all material respects with all
statutes, laws, ordinances, rules, regulations, orders, restrictions and all
other legal requirements of any domestic or foreign government or any
instrumentality thereof having jurisdiction over the conduct of its businesses
or the ownership of its properties.
4.7 Investment Intent. Purchaser is acquiring the Shares for its own
account for investment and not with a view to, or for sale or other disposition
in connection with, any distribution of all or any part thereof.
4.8 Restricted Securities. Purchaser understands that the Shares have
not been registered pursuant to the Securities Act or any applicable state
securities laws, that the Shares will be characterized as "restricted
securities" under federal securities laws, and that under such laws and
applicable regulations the Shares cannot be sold or otherwise disposed of
without registration under the Securities Act or an exemption there from.
4.9 Regulatory Compliance. Purchaser duly filed and made available to
the Company and Sellers (i) the annual reports on Form 10-KSB for its fiscal
years ended December 31, 2003 and December 31, 2002, (ii) its proxy or
information statements relating to meetings of, or actions taken without a
meeting by, the stockholders of the Company held since December 31, 2002, and
(iii) all other reports, statements, forms, schedules, registration statements
and other documents required to be filed by it with the Securities and Exchange
Commission (the "Commission") since December 31, 2002. As used herein, the term
"SEC Reports" means all of the reports and other filings referred to in the
preceding clauses (i) through (iii). Each of the SEC Reports, at the time of its
filing, complied in all material respects with the requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and the rules
and regulations of the Commission promulgated there under and other federal,
state and local laws, rules and regulations applicable to such documents and did
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
4.10 Brokers. No broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission payable by the Sellers or the
Company in connection with the transactions contemplated by this Agreement.
ARTICLE 5
COVENANTS OF THE PARTIES
5.1 General. In case at any time after the Closing Date any further
action is necessary or desirable to carry out the purposes of this Agreement,
each of the Parties will take such further action (including the execution and
delivery of such further instruments and documents) as any other Party may
reasonably request, all at the sole cost and expense of the requesting Party
(unless the requesting Party is entitled to indemnification there for under
Article 6 below). The Sellers agree that from and after the Closing Date,
Purchaser will be entitled to review and inspect all documents, books, records
(including Tax records), properties, agreements, field operations, environmental
records and compliance, and financial data of any sort relating to the Company,
and to discuss the Company with its employees, customers and vendors. If for any
reason the Closing Date does not occur, Purchaser agrees to maintain the
confidentiality of and not use for its benefit any information obtained about
the Company in the course of such review.
5.2 Notices and Consents. The Sellers will, and will cause the Company
to, give any notices to third parties, and the Sellers will use their best
efforts, and will cause the Company to use its best efforts, to obtain any
third-party Consents that Purchaser may request. Each of the Parties will (and
the Sellers will cause the Company to) give any notices to, make any filings
with, and use its best efforts to obtain any required authorizations, Consents,
and approvals of governmental bodies.
5.3 Transition. Sellers will not take any action that is designed or
intended to have the effect of discouraging any lessor, licensor, customer,
supplier, or other business associate of the Company from maintaining the same
business relationships with the Company after the Closing as it maintained with
the Company prior to the Closing. The Sellers will refer all customer inquiries
relating to the business of the Company to Purchaser from and after the Closing.
5.4 Regulatory Filings. To the extent required, prior to the Closing
Date, Purchaser shall properly prepare and file with the Commission all
documents required pursuant to the Exchange Act, related to the execution,
delivery and performance of this Agreement required to (i) complete the
transactions contemplated by this Agreement; and (ii) any reports that may be
required to be filed utilizing Form 8-K, as promulgated by the Commission (the
"Filings").
5.5 Registration Rights. In addition to the rights of Sellers under the
Securities Act, including SEC Rule 144, if at any time during the two years
after the Closing, Purchaser shall prepare and file one or more registration
statements under the Securities Act with respect to public offering of equity
securities of Purchaser, other than a registration statement on Forms X-0, X-0,
or similar form, Purchaser will include in any such registration statement such
information as is required, and such number of shares of Common Stock held by
the Sellers to permit a public offering of such shares of Common Stock in an
amount of shares equal to 25% of the Purchase Price Shares and 15% of the then
issued Warrant Shares; provided, however, that if, in the written opinion of the
Purchaser's managing underwriter, if any, for such offering, the inclusion of
the shares requested to be registered, when added to the securities being
registered by Purchaser or the selling security holder(s), would exceed the
maximum amount of Purchaser's securities that can be marketed without otherwise
materially and adversely affecting the entire offering, then Purchaser may
exclude from such offering that portion of the shares required to be so
registered so that the total number of securities to be registered is within the
maximum number of shares that, in the opinion of the managing underwriter, may
be marketed without otherwise materially and adversely affecting the entire
offering. Purchaser shall bear all fees and expenses other than the fees and
expenses of Sellers' counsel incurred in the preparation and filing of such
registration statement and related state registrations, to the extent permitted
by applicable law, and the furnishing of copies of the preliminary and final
prospectus thereof to such Sellers.
ARTICLE 6
INDEMNIFICATION
6.1 Indemnification Obligation. Subject to the provisions of this
Article 6, each party (each an "Indemnifying Party") shall indemnify and save
harmless each of the other parties and their respective officers, directors,
employees, agents and successors and assigns, and each person who controls each
of the parties within the meaning of the Securities Act or the Exchange Act,
from and against any and all liabilities, losses, damages, claims (whether or
not meritorious), judgments, fines, settlements and other costs and expenses
(including reasonable attorneys' fees and expenses) based upon, arising out of
or resulting from (i) any breach of any representation or warranty, (ii) any
breach of or failure to perform any covenant or agreement, by such Indemnifying
Party set forth in this Agreement or (iii) any action, claim, litigation or
proceeding ("Litigation") brought by any third party arising out of the
transactions contemplated hereby.
6.2 Indemnification Procedure for Third Party Claims. The party seeking
indemnification under this Article 6 (the "Indemnified Party") shall, promptly
after the receipt of notice of the commencement of any Litigation against such
Indemnified Party in respect of which indemnity may be sought under this Article
6, notify the Indemnifying Party in writing of the commencement thereof (the
"Indemnification Notice"). The failure of any Indemnified Party to give the
Indemnifying Party an Indemnification Notice shall not relieve the Indemnifying
Party from any liability which it may have to such Indemnified Party under this
Article 6 except to the extent that such Indemnifying Party shall have been
prejudiced thereby. In case any such Litigation shall be brought against any
Indemnified Party, the Indemnifying Party shall be entitled to participate
therein, and to the extent that it may wish, to assume the defense thereof, with
counsel reasonably satisfactory to such Indemnifying Party by giving written
notice of the Indemnifying Party's election to assume the defense within thirty
(30) days after its receipt of the Indemnification Notice, and after timely
written notice from the Indemnifying Party to such Indemnified Party of its
election so to assume the defense thereof, such Indemnifying Party will not be
liable to such Indemnified Party under this Article 6 for any legal expense
subsequently incurred by such Indemnified Party in connection with the defense
thereof nor for any settlement thereof entered into by the Indemnified Party
without the consent of the corresponding Indemnifying Party; provided that (i)
if an Indemnifying Party shall elect not to assume (or shall fail within the
time period set forth above to elect to assume) the defense of such Litigation,
or shall subsequently fail to diligently maintain the defense thereof, or (ii)
if counsel for the Indemnified Party reasonably determines (x) that there may be
a conflict between the positions of Indemnifying and of the Indemnifying and of
the Indemnified Party in defending such Litigation or (y) that there may be
legal defenses available to such Indemnifying Party different from or in
addition to those available to such Indemnifying Party, then separate counsel
for the Indemnified Party shall be entitled to participate in and conduct the
defense, in the case of clauses (i) and (ii) (x), or such different defenses, in
the case of clause (ii) (y), and such Indemnifying Party in connection
therewith, and, in the case of clause (i), for any settlement of such Litigation
entered into by the Indemnified Party. The corresponding Indemnifying Party
shall not enter into any settlement of any such Litigation without the consent
of the Indemnified Party, which consent shall not be unreasonably withheld or
delayed.
6.3 Disclaimer of Representations and Warranties. Other than
representations and warranties made by the parties in Articles 2, 3 and 4
hereof, each of the parties disclaims any other warranties, expressed or
implied, written or oral, related to their business, including but not limited
to, warranties or merchantability or fitness for any particular purpose.
6.4 Limitation on Indemnification. An Indemnifying Party shall not be
obligated to indemnify an Indemnified Party under this Article 6 unless and
until all losses with respect to which the Indemnifying Party has
indemnification obligations hereunder exceed $25,000 in the aggregate, following
which the Indemnifying Party shall be obligated to indemnity or hold harmless
the Indemnified Party for all such losses in excess of such amount. In no event
shall the indemnification obligations of each of the parties hereunder exceed
$500,000 in the aggregate.
6.5 Survival of Representations and Warranties. The representations and
warranties of each of the parties contained in this Agreement shall survive
until the date that is eighteen (18) months years after the Closing Date, except
for the representations and warranties contained in Sections 3.8 and 3.13 which
shall survive until the expiration of any applicable statutes of limitation
provided by law. The obligation of an Indemnifying Party to hold harmless an
Indemnified Party shall be extended automatically to include any time necessary
to resolve a claim for indemnification that was made in accordance with the
terms hereof before the expiration of the survival period, but not resolved
prior to its expiration and any such extension shall apply as to the specific
claims asserted and not resolved within the survival period. The liability
associated with any such item shall continue until such claim shall have been
finally settled, decided or adjudicated.
6.6 Settlement of Disputes. Arbitration. All disputes with respect to
any claim for indemnification under this Article VII and all other disputes and
controversies of every kind and nature between the parties hereto arising out of
or in connection with this Agreement shall be submitted to arbitration pursuant
to the following procedures:
(i) After a dispute or controversy arises, either party may,
in a written notice delivered to the other party, demand such
arbitration. Such notice shall include a statement of the matter in
controversy;
(ii) Within 30 days after receipt of such demand, an
arbitrator shall be chosen by the American Arbitration Association
("AAA");
(iii) The arbitration hearing shall be held within 30 days of
the appointment of the arbitrator in Ft. Lauderdale, Florida, at a
location designated by the arbitrator. The Commercial Arbitration Rules
of the AAA shall be used and the substantive laws of the State of
Florida (excluding conflict of laws provisions) shall apply;
(iv) An award rendered by the arbitrator appointed pursuant to
this Agreement shall be final and binding on all parties to the
proceeding, shall deal with the question of costs of the arbitration
and all related matters, shall not award punitive damages, and judgment
on such award may be entered by either party in a court of competent
jurisdiction; and
(v) Except as set forth in subsection (b) below, the parties
stipulate that the provisions of this Section 6.4 shall be a complete
defense to any suit, action or proceeding instituted in any federal,
state, or local court or before any administrative tribunal with
respect to any controversy or dispute arising out of this Agreement.
The arbitration provisions hereof shall, with respect to such
controversy or dispute, survive the termination or expiration of this
Agreement.
(b) Emergency Relief. Notwithstanding anything in this Section 6.4 to
the contrary, either party may seek from a court any provisional remedy that may
be necessary to protect any rights or property of such party pending the
establishment of the arbitral tribunal or its determination of the merits of the
controversy.
ARTICLE 7
CLOSING, DELIVERY OF DOCUMENTS AND POST CLOSING COVENANTS
7.1 Closing. The Closing referred to in Section 1.2 hereof shall occur
as a single integrated transaction, as follows.
(a) Deliveries by Sellers. Sellers shall deliver to Purchaser:
(i) the Certificates;
(ii) copies of resolutions by the Board of Directors of
the Company approving the terms of this Agreement and
the execution of the Agreement by the Company;
(iii) copies of all books, records and documents relating
to the Company, including the corporate records and
stock records of the Company;
(iv) resignations of Xxxxx and Xxxxxxxxx as directors and
officers of the Company;
(vi) the Consents;
(vii) a certificate executed by Xxxxx and Xxxxxxxxx dated
as of the Closing Date to the effect that all
representations and warranties of Sellers and the
Company are true and correct in all material respects
and all covenants to be performed by them or the
Company at or as of the Closing have been performed
in all material respects; and
(viii) any other such instruments, documents and
certificates as are required to be delivered by
Sellers or its representatives pursuant to the
provisions of this Agreement.
(b) Delivery by Purchaser. Purchaser shall deliver to Sellers:
(i) certificates representing the Purchase Price Shares
duly issued in the name of Sellers; within 20 days
(ii) certificates representing the Warrants; to be issued
after the 1st of the year (January 01, 2005)
(iii) copies of resolutions of the Board of Directors of
Purchaser approving the terms of the Agreement and
the execution of this Agreement by Purchaser;
(iv) a certificate executed by an executive officer of
Purchaser dated as of the Closing Date to the effect
that all representations and warranties of Purchaser
are true and correct in all material respects and all
covenants to be performed by Purchaser at or as of
the Closing have been performed in all material
respects;
(v) the Filings and any material consents, approvals,
regulatory filings or any other additional
authorizations from governmental authorities or
self-regulating organizations to consummate the
transactions contained herein;
(vi) any other such instruments, documents and
certificates as are required to be delivered by
Purchaser pursuant to the provisions of this
Agreement.
ARTICLE 8
MISCELLANEOUS
8.1 Entire Agreement. This Agreement sets forth the entire agreement
and understanding of the parties hereto with respect to the transactions
contemplated hereby, and supersedes all prior agreements, arrangements and
understanding related to the subject matter hereof. No understanding, promise,
inducement, statement of intention, representation, warranty, covenant or
condition, written or oral, express or implied, whether by statute or otherwise,
has been made by any party hereto which is not embodied in this Agreement or the
written statement, certificates, or other documents delivered pursuant hereto or
in connection with the transactions contemplated hereby, and no party hereto
shall be bound by or liable for any alleged understanding, promise, inducement,
statement, representation, warranty, covenant or condition not set forth.
8.2 Notices. Any notice or communications hereunder must be in writing
and given by depositing same in the United States mail addressed to the party to
be notified, postage prepaid and registered or certified mail with return
receipt requested or by delivering same in person. Such notices shall be deemed
to have been received on the date on which it is hand delivered or on the third
business day following the date on which it is to be mailed. For purpose of
giving notice, the addresses of the parties shall be:
If to Sellers:
--------------
Xxxxxx Xxxxx and Xxxxxx Xxxxxxxxx
0000 XX 00 XX XXXXX 000 X
XXXXX XX 00000
Fax: 000-000-0000
If to Purchaser to:
-------------------
VoIP, Inc.
00000 XX 00xx Xxxxxx Xxxxx 000
Xxxxxx Xxxx, Xx. 00000
Fax 000-000-0000
If to Company to:
-----------------
Vox Consulting Group 0000 XX
00 XX XXXXX 000 X XXXXX XX
00000
Fax: 000-000-0000
8.3 Governing Law. This Agreement shall be governed in all respects,
including validity, construction, interpretation and effect, by the laws of the
State of Florida (without regard to principles of conflicts of law).
8.4 Consent to Jurisdiction. Each party irrevocably submits to the
exclusive jurisdiction of the appropriate state or federal court in the State of
Florida for the purposes of any suit, action or other proceeding arising out of
this Agreement or any transaction contemplated hereby. Each party agrees to
commence any such action, suit or proceeding solely in courts sitting in Ft.
Lauderdale, Florida. The parties agree that any service of process to be made
hereunder may be made by certified mail, return receipt requested, addressed to
the party at the address appearing in Section 8.2. Sellers and Purchaser each
waives any objection based on forum non-conveniens. Nothing in this paragraph
shall affect the right of Sellers or Purchaser to serve legal process in any
other manner permitted by law.
8.5 Counterparts. This Agreement may be executed by the parties hereto
in separate counterparts each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
8.6 Waivers and Amendments; Non-Contractual Remedies; Preservation of
Remedies. This Agreement may be amended, superseded, canceled, renewed, or
extended, and the terms hereof may be waived, only by a written instrument
signed by authorized representatives of the parties or, in the case of a waiver,
by an authorized representative of the party waiving compliance. No such written
instrument shall be effective unless it expressly recites that it is intended to
amend, supersede, cancel, renew or extend this Agreement or to waive compliance
with one or more of the terms hereof, as the case may be. No delay on the part
of any party in exercising any right, power or privilege hereunder shall operate
as a waiver thereof, nor shall any waiver on the part of any party of any such
right, power or privilege, or any single or partial exercise of any such right,
power of privilege, preclude any further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein provided are
cumulative and are not exclusive of any rights or remedies that any party may
otherwise have at law or in equity.
8.7 Binding Effect; No Assignment, No Third-Party Rights. This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and permitted assigns. This Agreement is not
assignable without the prior written consent of each of the parties hereto. This
Agreement is for the sole benefit of the parties hereto and their permitted
assigns, [and nothing herein, expressed or implied, shall give or be construed
to give to any person, including any union or any employee or former employee of
Sellers, any legal or equitable rights, benefits or remedies of any nature
whatsoever, including any rights of employment for any specified period, under
or by reason of this Agreement].
8.8 Severability of Provisions. If any provision or any portion of any
provision of this Agreement or the application of any such provision or any
portion thereof to any person or circumstance, shall be held invalid or
unenforceable, the remaining portion of such provision and the remaining
provisions of the Agreement, or the application of such provision or portion of
such provision is held invalid or unenforceable to person or circumstances other
than those as to which it is held invalid or unenforceable, shall not be
affected thereby and such provision or portion of any provision as shall have
been held invalid or unenforceable shall be deemed limited or modified to the
extent necessary to make it valid and enforceable, in no event shall this
Agreement be rendered void or unenforceable.
8.9 Exhibits and Schedules. All exhibits annexed hereto, and all
schedules referred to herein, are hereby incorporated in and made a part of this
Agreement as if set forth herein. Any matter disclosed on any schedule referred
to herein shall be deemed also to have been disclosed on any other applicable
schedule referred to herein.
8.10 Captions. All section titles or captions contained in this
Agreement or in any schedule or exhibit annexed hereto or referred to herein,
and the table of contents to this Agreement, are for convenience only, shall not
be deemed a part of this Agreement and shall not affect the meaning or
interpretation of this Agreement. All references herein to sections shall be
deemed references to such parts of this Agreement, unless the context shall
otherwise require.
8.11 Expenses. Except as otherwise expressly provided in this
Agreement, whether or not the Closing Date occurs, each party hereto shall pay
its own expenses incidental to the preparation of this Agreement, the carrying
out of the provisions hereof and the consummation of the transactions
contemplated hereby. For the avoidance of doubt, any legal fees and expenses
incurred by the Sellers or the Company in connection with entering into this
Agreement and the transactions contemplated hereby shall be paid by the Sellers
and not the Company.
8.12 Public Announcements. Except as otherwise required by law,
including, without limitation, Purchaser's reporting obligations under the
Exchange Act, no public disclosure of the terms of the transactions contemplated
hereby shall be made by either party without the prior written consent of the
other parties, which consent will not be unreasonably withheld or delayed.
8.13 Disclosure Schedule. Sellers and the Company shall prepare and
deliver the Disclosure Schedule upon execution of this Agreement, and shall
amend it as necessary to keep current the information therein. The Disclosure
Schedule shall make reference to any Section of this Agreement and contain all
information necessary to make such disclosure accurate and not misleading.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, as
of the date first written herein above.
By: /s/ Xxxxxx Xxxxx
---------------------------------
Xxxxxx Xxxxx
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------
Xxxxxx Xxxxxxxxx
VOIP, INC.
By: /s/ Xxxxxx Xxxxxxx
---------------------------------
Xxxxxx Xxxxxxx, President
Vox Consulting Group, Inc
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------
Xxxxxx Xxxxxxxxx, Chief Executive Officer
By: /s/ Xxxxxx Xxxxx
---------------------------------
Xxxxxx Xxxxx
