THIS EXCHANGE AGREEMENT made and effective as of July 5, 1999.
A WARRANTS
BETWEEN: ACREX VENTURES LTD., a body corporate, incorporated pursuant to
the laws of the Province of British Columbia and having its registered office at
1710 - 0000 Xxxx Xxxxxxxx Xxxxxx, in the City of Xxxxxxxxx, Xxxxxxxx xx Xxxxxxx
Xxxxxxxx, X0X 0X0, Xxxxxx
(hereinafter referred to as "Acrex")
OF THE FIRST PART
AND:
VOICE MOBILITY INTERNATIONAL, INC., a body corporate, incorporated under
the laws of the State of Nevada, United States of America, having an office at
Xxxxx 000, 0000 Xxxx Xxxxxxxxxx Avenue, in the City of Orange, State of
California, 92868-1950, United States of America
(hereinafter referred to as the "Issuer")
OF THE SECOND PART
AND:
The person, company or other entity described as "Subscriber" on the last
page of this Agreement
(hereinafter referred to as "Subscriber")
OF THE THIRD PART
WHEREAS:
A. Subscriber has signed a Subscription Agreement with Acrex (the "Acrex
Agreement") pursuant to which Subscriber paid to Acrex the amount (in
Canadian funds) shown opposite the Subscriber's name on the last page
hereof ("Subscription Amount") for securities of Acrex;
B. Acrex has not obtained the approval of the Acrex Agreement by the Vancouver
Stock Exchange and therefore wishes to be relieved of its obligations to
Subscriber.
C. The Subscription Amount was loaned by Acrex to Voice Mobility Inc. ("VMI")
on terms which make VMI responsible to repay the said amount (such
obligation being herein described as the "Debt");
D. The Subscriber wishes to acquire rights to purchase voting common shares of
the Issuer ("Shares").
E. The Parties are agreed that VMI's obligation to repay the Subscription
Amount be assigned by Acrex to the Issuer to be applied by the Issuer as
hereinafter provided;
NOW THEREFORE in consideration of the premises and the covenants and
agreements hereinafter contained, the parties agree as follows:
1. Acrex hereby assigns and transfers the Debt to the Issuer.
2. Subscriber agrees to the assignment of the Debt by Acrex to the Issuer and
hereby remises, releases and forever discharges Acrex from any further
liabilities, obligations or commitments whatsoever that exist or might be
alleged to exist pursuant to the Acrex Agreement. The Subscriber further
agrees that the delivery to Acrex of a copy of this Agreement showing the
execution of it by the Subscriber shall be proof to Acrex of the release
herein given to it by the Subscriber.
3. The Issuer agrees, in satisfaction of its obligations under the Debt, that
Subscriber shall have the non-cancellable rights (hereinafter called
"Warrants" or "A" Warrants) to purchase up to the number of Shares in the
capital of the Issuer set opposite Subscriber's name on the final page of
this Agreement, on the following basis:
(a) the Warrants may be exercised by Subscriber in whole or in part from
time to time;
(b) Subscriber may exercise Warrants by giving a notice to such effect to
the Issuer and sending payment of the appropriate amounts of money to
the Issuer;
(c) the Warrants will be exercisable at and for a price of $0.35 (US) per
share on or before December 29, 2000;
(d) the Shares which Subscriber shall receive upon the exercise of
Warrants shall be common shares in the capital of the Issuer as they
are constituted as of the date hereof; PROVIDED THAT if subsequent to
this date, there shall be any alteration in the voting common shares
of the Issuer other than an increase or decrease in the number
authorized or issued, the shares which Subscriber will receive upon
the exercise of Warrants will be shares of the same class as are
equivalent to the shares of the Issuer which Subscriber would receive
if it exercised Warrants on the date of this Agreement;
(e) if Subscriber exercises Warrants and its payments therefore are
cleared into the account of the Issuer, the Issuer shall cause a
certificate for the appropriate number of Shares to be forthwith
issued and delivered to Subscriber; and
(f) the Shares issued to Subscriber pursuant to the exercise of Warrants
will be issued to it as fully paid and non-assessable shares free of
liens, but they will be subject to such trading restrictions as may be
applicable to them from time to time pursuant to the securities laws
of the United States of America and of the Province of Canada in which
the Subscriber resides.
4. Neither the Warrants, nor the Shares that will be issued pursuant to the
exercise of Warrants, have been registered under the United States
Securities Act of 1933 ("Securities Act") or any applicable securities laws
of any State of the United States of America, and will be issued to
Subscriber pursuant to an exemption from registration under the Securities
Act provided by Rule 504 thereunder and pursuant to prospectus exemption
provisions in the securities laws of the Province in which Subscriber
resides.
5. The Issuer covenants and warrants in favour of Subscriber that:
(a) it is a corporation duly incorporated pursuant to the laws of the
State of Nevada, United States of America, and is in good standing and
in full satisfaction of all of its obligations pursuant to the laws
and regulations of the said State;
(b) The shares of the Issuer are traded on the National Association of
Securities Dealers' Over The Counter Bulletin Board ("BB") and the
Issuer is in full compliance with all applicable rules and
requirements of the NASD;
(c) the Issuer is unrestricted in its right to enter into this agreement,
and is not restricted from satisfying its obligations hereunder by the
terms of any other agreement to which it is a party or any outstanding
orders or judgments;
6. Subscriber covenants and warrants in favour of the Issuer that:
(a) Subscriber is acquiring the Warrants for Subscriber's own account and
not for or on behalf of any other person;
(b) Subscriber is acquiring the Warrants for investment and not for
distribution or with the intent to divide Subscriber's participation
with others;
(c) neither Subscriber nor anyone acting on Subscriber's behalf has paid
any commission or other remuneration to any person in connection with
the acquisition of the Warrants; and
(d) Subscriber will not sell the Warrants, or the Shares received on the
exercise of Warrants, without registration under the Securities Act or
other applicable securities laws or regulations, or an exemption
therefrom.
7. Subscriber undertakes to execute or cause to be executed and delivered to
the Issuer, and assist the Issuer in filing on a timely basis any report or
undertaking with any securities commission, stock exchange or other
regulatory authority which may be required by applicable securities
legislation and stock exchange rules in connection with its acquisition of
the Warrants.
8. All covenants, representations, warranties and indemnities made herein
shall survive the closing of this Agreement.
9. The Parties hereto agree to do, execute and deliver, or cause to be done,
executed and delivered, all such further assignments, documents, acts,
matters and things as, from time to time, may be reasonably required to
give effect to this agreement and the obligations of the parties hereunder.
10.
(a) Subscribers residing in Canada shall have the rights of rescission and
action described in its Offering Memorandum dated June 30, 1999 (a
copy of which Subscriber hereby acknowledges having received) and the
various rights of rescission and action granted by the securities laws
of the Provinces in which they reside, and the provisions thereof are
deemed to be included in this Agreement as though they were set out in
full herein.
(b) All of the rights referred to in sub-clause (a) are in addition to,
and not in derogation from, the rights of Subscriber pursuant to the
common law.
11. Time shall be of the essence of this agreement and of each and every part
hereof.
12. This agreement may be executed in any number of counterparts and all such
counterparts taken together shall be deemed to constitute one and the same
instrument.
13. This agreement shall be interpreted according to the laws of the State of
Nevada and the laws of the United States of America applicable therein.
14. Any notice which is required to be given hereunder shall be given in
writing and will be effectively given if the same is:
(a) delivered or mailed by prepaid registered or certified post to the
address of the intended recipient set forth in this agreement;
(b) delivered to a director of an intended corporate recipient;
(c) sent be telecopier (fax) to the intended recipient at the following
numbers:
Subscriber: Number set forth on final page of this Agreement
Issuer: (000) 000-0000
Acrex: (000) 000-0000
provided that any party may give notice to the other parties of new
addresses or new fax numbers to be used for the purpose of this provision.
Any notice which is delivered shall be deemed to have been given on the
date of delivery. Any notice which is sent by telecopier shall be deemed to
be given on the first weekday following the date upon which the telecopied
message is transmitted. Any notice that is sent by prepaid mail shall be
deemed to have been given on the 5th weekday after the date upon which the
notice is mailed from a Post Office in continental Canada or the United
States of America.
15. None of the parties may assign any of their rights hereunder without the
prior written consent of the other parties, such consent not to be
unreasonably withheld.
16. This Agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns.
IN WITNESS WHEREOF the parties hereto have caused this agreement to be
executed by their duly authorized officers as and from the day and year first
above written.
ACREX VENTURES LTD.
Per: /s/ W.E. Xxxxx
-----------------------------
W.E. Xxxxx - Secretary
VOICE MOBILITY INTERNATIONAL, INC.
Per: /s/ X. Xxxxxx
-----------------------------
X. Xxxxxx - President
Subscriber:
---------------------------------------- ------------------
Signature Shares
$
---------------------------------------- ------------------
Name of Subscriber Amount paid Acrex
----------------------------------------
----------------------------------------
Address of Subscriber
----------------------------------------
Fax Number
