DATAXCHG, INC.
PRE-INCORPORATION AGREEMENT
THIS PRE-INCORPORATION AGREEMENT is made and entered into this ____ day
of October, 1999, by and among each of the undersigned (sometimes individually
referred to as a "Party" or collectively referred to as the "Parties"), whose
principal places of business are set forth below their respective names.
RECITALS
WHEREAS, the Parties have collectively agreed to form a for-profit
corporation (the "Corporation" or the "Company") to be organized under the
laws of the State of Delaware for the purpose of operating a business; and
WHEREAS, the Parties have collectively agreed to subscribe for the stock
of the Corporation as set forth in this Agreement; and
WHEREAS, following the formation of the Corporation, the Parties have
agreed that the officers and directors of the Corporation shall be elected in
accordance with, and the capitalization and operation of the Corporation shall
be governed by, the terms and provisions of this Agreement and the
Stockholders Agreement referenced herein.
NOW THEREFORE, in consideration of the foregoing, and of the mutual
covenants and agreements contained herein, the Parties agree as follows:
1. Name. The name of the Corporation shall be DataXchg, Inc.
2. Formation - Articles of Incorporation and Bylaws. The Parties shall
forthwith execute and file with the Delaware Secretary of State, or cause to
be executed and filed with the Colorado Secretary of State, articles of
incorporation in the form annexed to this Agreement as Exhibit "A"
("Articles"), which Articles shall be filed under and in accordance with the
laws of the State of Delaware. After the incorporation of the Corporation, the
Parties shall cause the bylaws annexed hereto as Exhibit "B" to be adopted as
and for the bylaws of the Corporation.
3. Purposes. The purpose for which the Corporation is to be organized
shall be to transact any other lawful business for which corporations may be
organized under the laws of the State of Delaware.
4. Capital Stock. The total number of shares of capital stock which the
Corporation shall have authority to issue shall be one hundred and fifty
million (150,000,000) shares of which one hundred million (100,000,000) shares
shall be designated common stock, having a par value of one tenth of one cent
($.001) each, and of which fifty million (50,000,000) shares shall be
designated preferred stock of the Corporation, having a par value of one cent
($.01) each.
5. Initial Stockholders. The undersigned shall be the initial, and
only, stockholders of the Corporation at the time it is formed. Initially,
shares of common stock shall be issued to the shareholders in such a manner as
to qualify for a tax-free reorganization under Section 351 of the Internal
Revenue Code of 1986, as amended. The initial issuance of shares of common
stock and the capital contributions of the parties are set forth below:
Name Number of Shares Capital Contribution
---- ---------------- --------------------
Xxxxx Xxxxxx 60 Technology transfer and
assignment
XML - Global Technologies,
Inc. 40 Services and working capital
6. Technology Assignments. As his initial capital contribution to the
Company, Xxxxxx shall transfer and assign to the Company all of Xxxxxx'x
right, title and interest in and to certain technology and software related to
certain U.S. Patent No. 5,909,570 and all software known as "Xchg" and
"BizTokens" as well as inventions relating to Template Mapping System for Data
Transmission. Xxxxxx agrees to execute and deliver such forms of Assignment
as the Company and its legal counsel may reasonably request in order to effect
such assignments.
7. License Agreement. Following the assignment of the Technology to
the Company, the Company will enter into a License Agreement with XML - Global
Technologies, Inc. ("XML") pursuant to which XML shall be granted the right to
further develop the Technology and to commercialize the distribution, sale and
marketing of products utilizing the Technology. Under the terms of the
License Agreement, XML shall pay to the Company a royalty equal to 20% of net
sales for sales comprising a combination of (i) the sale or license of
products utilizing the Technology, and (ii) any of XML's suite of products,
including software licensed from third parties, and a royalty of 80% of net
sales for sales composed solely of products utilizing the Technology assigned
to the Company by Xxxxxx.
8. Stockholders Agreement. The undersigned shall each agree as
follows:
a. Transfer of Common Stock.
i. Restrictions on Transfer. The parties agree that they
shall not sell, pledge or otherwise encumber their shares of common stock of
the Corporation without first obtaining the unanimous written consent of the
remaining stockholders of the Corporation, and except in strict accordance
with the provisions of this Agreement. If so pledged, transferred or
encumbered, such stock shall nevertheless remain subject to this Agreement in
the hands of the pledgee, donee or other holder and shall be treated as if
still owned by the transferring stockholder. The Corporation shall neither
transfer nor reissue any stock interest in the Corporation in violation of, or
without proof of compliance with, this Agreement.
ii. Remedies for Violation of Restrictions on Transfer. Any
transfer in violation of the restrictions on transfer outlined in this
Agreement will give rise to the remedies set forth in this Agreement,
including, but not limited to, the forced liquidation of the breaching
stockholder's ownership interest in the Corporation, the revocation of all
licenses and sub-licenses then existing between the Corporation and the
breaching stockholder, and the termination and reversion to the Corporation
of any rights the breaching stockholder may have in and/or to any products
offered by the breaching stockholder in furtherance of the business plan
contemplated by this Agreement and/or any other document or agreement
referenced herein.
iii. Certificate Endorsement. The Corporation and Parties
shall cause any certificates for shares of common stock of the Corporation
subject to this Agreement to be endorsed substantially as follows:
Notice of Restrictions on Disposition
This certificate and the shares of stock represented
thereby are subject to the provisions of a Stockholders
Agreement dated as of __________ ____, ______ (as it may
be amended from time-to-time) whereby the disposition in
any manner of such shares of stock or any interest therein
is restricted. A copy of said Agreement is on file at the
registered office of the Company where it may be
inspected.
b. Sale or Change in Control of Party. A stockholder of the
Corporation that is not a natural person may not, without the advance written
consent of the remaining stockholders of the Corporation, cause or permit an
ownership interest, direct or indirect, in itself to be disposed of such that,
after the disposition, that stockholder ceases to be controlled by the same
persons who control it as of the date of the stockholder's acquisition of
common stock of the Corporation. Any breach of this section will cause the
disposition of the ownership interest to be deemed a transfer in violation of
the restrictions on transfer outlined in this Agreement. Any transfer in
violation of the restrictions on transfer outlined in this Agreement will give
rise to the remedies set forth in this Agreement, including, but not limited
to, the forced liquidation of the breaching stockholder's ownership interest
in the Corporation, the revocation of all licenses and sub-licenses then
existing between the Corporation and the breaching stockholder, and the
termination and reversion to the Corporation of any rights the breaching
stockholder may have in and/or to any products offered by the breaching
stockholder in furtherance of the business plan contemplated by this Agreement
and/or any other document or agreement referenced herein.
c. Governance of Corporation.
i. Election of Directors. The initial Board of Directors of
the Corporation shall consist of Xxxxx Xxxxxxx and Xxxxx Xxxxxx who shall
serve until the next annual meeting of the stockholders of the Corporation and
until their successors have been duly elected and qualified. Thereafter, each
stockholder of the Corporation shall be entitled to nominate one (1) person to
serve as a director of the Corporation, and the stockholders of the
Corporation shall agree to vote their shares of common stock of the
Corporation in favor of the persons so nominated.
ii. Appointment of Officers. The president of the Corporation
shall initially be Xxxxx Xxxxxxx and Xxxxx Xxxxxx. All other officers of the
Corporation shall be appointed by a majority of the Board of Directors of the
Corporation.
iii. Voting. Each shareholder shall have a vote equal to the
number of shares of Corporation common stock it owns on shareholder matters
and each director of the Corporation shall have an equal vote on matters
decided by the Board of Directors.
9. Consulting Agreement. The Company shall enter into a Consulting
Agreement with Xxxxxx pursuant to which Xxxxxx shall provide additional
developmental services to the Company. Under the terms of the Consulting
Agreement, Xxxxxx shall not be entitled to receive any additional compensation
for such services, but shall be entitled to reimbursement for his out of
pocket expenses. The Consulting Agreement shall provide that any and all
inventions, discoveries, improvements, enhancements or upgrades developed by
Xxxxxx as a consultant to the Company shall constitute the proprietary rights
and technology of the Company.
10. Organizational Expenses. The Corporation shall pay its organization
expenses.
11. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware.
12. Assignment. No Party may assign, pledge or transfer this Agreement
or any interest herein without the prior written consent of the other Parties.
13. Waiver. No waiver of any provision of this Agreement is valid unless
it is in writing and signed by the person against whom it is charged.
14. Notices. Any and all notices between the parties provided for or
permitted under this Agreement or by law shall be in writing and shall be
deemed duly served when personally delivered to a Party, or, in lieu of such
personal service, when deposited in the United States Mail, certified, postage
prepaid, addressed to such Party at its principal place of business specified
in this Agreement, or at any address changed in this manner.
15. Attorney's Fees. Should any litigation be commenced between the
Parties concerning any provision of this Agreement or the rights and duties of
any Party in relation thereto, the Party or Parties prevailing in such
litigation shall be entitled, in addition to such other relief as may be
granted, to a reasonable sum as and for their attorney's fees in such
litigation which shall be determined by the Court in such litigation or in a
separate action brought for that purpose.
IN WITNESS WHEREOF, the Parties hereto have duly executed this Agreement
on the day and date first above written:
XML - GLOBAL TECHNOLOGIES, INC.
By:
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XXXXX XXXXXX
