Exhibit 10.13
Acquisition Agreement
Between Xynery Corporation and Voyaware, Inc.
Xynergy Inc.
269 So. Xxxxxxx Drive, Suite 938
Beverly Hills, Ca. 90212
Agreement made this 30th day of September 2002, between Voyaware, Inc. (VWARE) a
corporation organized under the laws of the State of Nevada, with its principal
office located at 0000 Xxxxx Xx., Xxxxxxxxx, Xxxxx 00000, hereafter referred to
as seller, and Xynergy Corporation, a corporation organized under the laws of
the State of Nevada, with its principal office located at 000 Xxxxx Xxxxxxx
Xxxxx, Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxxxx, hereafter referred to as buyer.
As designated signer for Seller is also in control of a majority of shares for
seller, seller indicates approval by seller's stockholders of the terms and
conditions of this agreement and the nature and amount of the consideration to
be received by seller hereunder, the parties agree as follows:
SECTION ONE.
PROMISE TO BUY AND SELL
Seller agrees to sell and buyer agrees to purchase all the assets and property
of seller, including its good will, as well as the items listed in Exhibits A,
B, C, D, and E, attached hereto and made a part hereof, for the consideration,
under the terms and conditions, and subject to the warranties and
representations set forth in this agreement.
SECTION TWO.
CLOSING; DOCUMENTS DELIVERABLE
The closing of the sale shall take place on September 30, 2002, and documents
will be signed and transferred via facsimile. At the closing, seller shall
deliver to buyer such deeds, bills of sale, assignments, and other instruments
of transfer as may be necessary to vest in buyer good and marketable title to
the property and assets sold under this agreement.
At closing, or within 72 hours thereafter, buyer shall initiate issuance of
sufficient shares to pay seller the entire purchase price as specified in this
agreement. All documents and papers to which the parties are entitled under this
agreement, unless otherwise specified in this agreement, shall also be delivered
at the closing.
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SECTION THREE.
CONSIDERATION
Buyer, in consideration of the covenants, conditions, and representations of
seller, recited in this agreement, shall pay to seller, on closing, or on it s
earliest opportunity thereafter, 6,000,000 shares of common stock in buyer.
Assets transferred to buyer shall be valued as follows: 65% ownership of seller,
and ownership of all assets, letters of interest/intent, domain names,
contracts, intellectual property, and personnel. The total estimated value of
all assets transferred from the seller to the buyer is $60,000.00. The purchase
price shall be allocated as follows: 6,500,000 shares of common stock of buyer
in exchange for 650,000 shares of common stock in seller (which represents 65%
of all issued and outstanding shares of seller on a fully diluted basis).
At the closing of this agreement, Voyaware shall have a total of 1,00,000 shares
issued and outstanding. For each share of VWARE common stock transferred buyer,
buyer will transfer to seller 10 shares of common stock in buyer. Seller's
shareholders shall retain 350,000 shares of VWARE common stock under the terms
outlined in the following paragraph.
Upon completion of the prospectus and other requirements to file an offering
under Regulation 504, and in order to complete VWARE 's initial financing of
$500,000.00, buyer will issue an additional 10,000,000 shares of VWARE common
stock to be used in the financing. Of the 9,000,000 additional common shares
issued 3,150,000 common shares will be issued to existing shareholders of seller
at a 9 for 1 ratio, thus protecting the seller's shareholders 35% interest in
VWARE. Sellers shareholders will retain anti-dilution protection of 35% of all
issued and outstanding shares of VWARE for a period of one year, or until such
prior time as a secondary offering is initiated with the intention of listing
VWARE as a publicly traded security, at which time the anti-dilution protection
of VWARE shareholders may be reduced to a minimum of 30% of all issued and
outstanding shares of VWARE. Any further dilution of seller's existing
shareholders prior to listing VWARE as a publicly traded copy will require
majority consent f rom sellers existing shareholders.
Buyer will allocate a sufficient number of common shares in XYNY, as well as
it's best effort to cause allocated shares to be registered, in order to achieve
financing in the amount of no less than $500,000.00 within a period of one year
for VWARE business development. Buyer agrees that the first $11,000.00 in
financing acquired may be used to repay an outstanding debt to seller's original
investor. Seller shall be responsible for preparation of all documents and
requirements of the registration process of buyers common shares, for which
buyer is not responsible.Example; seller shall provide complete prospectus, as
well as all other documents required for VWARE to complete an SB-2 or Regulation
505 or 506 Registration (Or other agreed upon Registration), as well as any
assistance or additional requirements necessary to complete the registration of
XYNY or VWARE common shares. In the event that buyer is unable to obtain
financing of $500,000 within a specified one year period, at the sellers
discretion, said shares may be returned intact by both parties and this
agreement dissolved.
Principal seller shareholders will designate 2 of 5 seats on the VWARE Board of
Directors.
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Primary shareholder of seller will receive 1 of 5 seats on the XYNY Board of
Directors.
SHARE PRICE GUARANTEE
In the event that the total 6,500,000 shares of common stock have a total value
of less than $60,000.00 on December 30, 2002, buyer will issue sufficient
additional common shares to seller, which will total $60,000.00 when combined
with the original 6,500,000 common shares.
SECTION FOUR.
WARRANTIES AND COVENANTS OF SELLER
Seller agrees, represents, and warrants as follows:
(a). Seller is duly incorporated and authorized to do business under the laws of
the State of Nevada.
(b). The execution of this agreement has been duly authorized by seller board of
directors.
(c). Seller has the approval of its shareholders of the terms and conditions of
this agreement and of the nature and amount of the consideration to be received
by seller hereunder.
(d). Seller has good and marketable title to all assets and property sold
hereunder, except as otherwise stated in the exhibits attached hereto and except
for property disposed of or encumbered in the ordinary course of business. All
tangible property sold hereunder is in good condition and repair and conforms to
all applicable zoning, building, safety, and other regulations.
(e). Seller agrees to use its best efforts to obtain the necessary consents for
the assignment or transfer of any contract, lease, license, or permit to be
assigned or transferred hereunder and to perform its duties under such
contracts, leases, licenses, and permits without default until the closing date.
(f). Seller agrees to continue normal operations of the business, and to report
directly to the buyers board of directors or any designated officers on a
monthly basis to provide progress and growth reports, as well as to follow any
instructions or mandates from buyer for a period of no less than 12 months from
the closing date.
(g). Seller agrees to disclose to buyer not later than 10 days after the closing
date, all trade secrets, relevant contacts, and technical information held or
controlled by seller and relating to the business sold hereunder. Buyer shall
have the right to use the name of seller, and seller agrees not to use, or
authorize others to use, its name or a similar name.
(h). Until the closing date of this agreement, seller shall not, without the
written consent of buyer, dispose of or encumber any of the assets or property
to be sold hereunder, with the exception of any transactions occurring in the
ordinary course of seller business. Seller shall use its best efforts to
preserve its business and good will. Seller further agrees to permit buyer, and
its representatives, full access to its property and records any time prior to
the closing date during normal business hours and to supply all information
concerning its property and affairs as buyer may reasonably demand.
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SECTION FIVE.
RESOLUTION OF CLAIMS; INDEMNIFICATION OF PARTIES
In case of claim of breach of contract by either party, the party so claiming
shall notify the other party in writing, indicating the alleged breach and the
amount of damages claimed therefore. In case of dispute as to the existence of a
breach, or the amount of damages therefore, the parties shall submit the dispute
to an arbitration board to be defined by buyer at such time as is required. The
decision of the arbitration board shall be final where unanimous, but either
party dissatisfied with the a decision of the arbitration board which is less
than final shall have customary recourse to the judicial system of the State of
California.
Except as otherwise expressly provided in this agreement, seller shall indemnify
buyer against any liability connected with the assets or business sold hereunder
accruing as a result of acts or omissions occurring before the closing date, and
buyer shall indemnify seller against any such liability accruing as a result of
acts or omissions occurring after the closing date. Each party to this agreement
shall cooperate with the other party in defending claims for which the other
party is or may be liable under this provision by giving notice to the other
party of the assertion or existence of any such claim and by furnishing such
documents and information as may be useful in defense of such claims.
SECTION SIX.
TRANSFER OF TITLE; RISK OF LOSS
Title to the assets and property sold hereunder shall pass to buyer on the
closing date on delivery to it of the proper instruments of transfer. If at any
time any of the tangible property sold hereunder shall have been lost or
damaged, except for damage or loss through use and wear in the ordinary course
of business, by any cause or event beyond the reasonable power and control of
seller, buyer shall be entitled to collect all insurance proceeds collectible by
reason of such loss or damage or, if the amount of the loss or damage exceeds
fifty percent (50%) of the value of that property, buyer shall have the right to
elect to complete the sale and collect all insurance proceeds or to terminate
this agreement in lieu of any other right or remedy.
If buyer becomes entitled to collect insurance under this provision, the
purchase price of lost or damaged assets covered by insurance shall not be
reduced.
SECTION SEVEN.
IMPOSSIBILITY OF PERFORMANCE
If, except as otherwise provided in this agreement, either party shall be
prevented from completing the sale for any cause beyond its reasonable power and
control, the other party may elect to accept partial performance or, in lieu of
any other remedy, elect to terminate this agreement.
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SECTION EIGHT.
SALES AND USE TAXES
Any sales or use tax payable by reason of the sale of any of the assets under
this agreement shall be paid by buyer, and such payment shall not be construed
as part of the purchase price. Seller agrees to furnish to buyer resale
certificates for any items sold to buyer for resale. Seller shall also obtain
and deliver to buyer a clearance receipt of the transaction for sales and use
taxes due from seller.
SECTION NINE.
INVENTORY OF GOODS TO BE SOLD
Buyer shall assume ownership of all inventory, stock, supplies, fixtures,
furnishings, and equipment on September 30, 2002. The inventory of seller stock
in trade shall set forth the aggregate value for which the items are to be sold
under this agreement based on seller's actual cost for each item.
Seller shall retain title to all its documents and records, except those agreed
to be transferred under this agreement. Any such documents or records that buyer
may reasonably require after the closing date for use in connection with the
future financing, assets, or business sold hereunder shall be delivered or made
available to buyer. Each party shall forward to the other party all
correspondence, documents, or payments relating to the assets or business sold
hereunder to which the other party is entitled under the terms of this
agreement. Before destroying any records or papers connected with the assets or
business sold hereunder, each party shall first offer them to the other party.
SECTION ELEVEN.
COSTS
Seller shall bear the cost of title insurance premiums, financial audit, and
record costs. All other costs incidental to the sale hereunder shall be borne by
the parties in accordance with prevailing custom.
SECTION TWELVE.
INTERPRETATION OF AGREEMENT
12.1. There are no agreements, warranties, or representations, express or
implied, except those expressly set forth in this agreement. All agreements,
representations, and warranties contained in this agreement shall apply as of
the closing date and shall survive the closing of this agreement.
12.2. This agreement shall not be assignable by buyer without the written
consent of seller. Subject to this provision, this agreement shall be binding on
and benefit the successors and assigns of the parties.
12.3. This agreement is to be governed by and construed under the laws of the
State of California.
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In witness whereof the parties have executed this agreement in duplicate at
designate place of execution on September 30, 2002.
Xynergy Corp Voyaware, Inc.
Per: Per:
/s/ Xxxxxx Xxxxxx /s/ Xxxxxxxx Xxxxx
----------------- -------------------
Xxxxxx Xxxxxx President & Chairman Xxxxxxxx Xxxxx President & Director
Witness: Witness:
[Attach exhibits]
Employment, Invention, and Confidentiality Agreement for Xxxxxxxx Xxxxx
Employment, Invention, and Confidentiality Agreement for Xxxx Xxxx Employment,
Invention, and Confidentiality Agreement for Xxxx Xxxxx Employment, Invention,
and Confidentiality Agreement for Xxxx Xxxxx Employment, Invention, and
Confidentiality Agreement for Xxxx Xxxxxxx
