ACQUISITION AGREEMENT
THIS
AGREEMENT is dated for
reference this ___ day of January, 2008.
BETWEEN:
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VOICESERVE,
INC.
(“VOICESERVE”), a company incorporated pursuant to the laws of
Delaware and having an office located at Cavendish House, 000 Xxxxx
Xxx
Xxxxxxxx, Xxxxxxxx, Xxxxxxxxx XX0 0XX;
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(“Voiceserve”)
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OF
THE FIRST PART
AND:
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XXXXXXXXX
XXXXXX (“Oglaza”),
XXXXXX XXXXX (“Xxxxx”) and XXXXXX XXXXXXXXX (“Xxxxxxxxx”), being
the principals to VOIPSWITCH, INC.
(“VOIPSWITCH”), a company incorporated pursuant to the laws of
Seychelles and having an office located at Xxxxxxx Xxxxx, 0xx
Xxxxx, Xxxxxx Xxxxxx, Xxxx, Xxxxxxxxxx;
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("VoipSwitch”)
OF
THE SECOND PART
WHEREAS:
A.
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VoipSwitch
is a company that provides a platform that allows implementing
various
types of Voice Over the Internet Protocol (“VOIP”) services; and
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B.
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Voiceserve
is a global telecommunications company;
and
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C.
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Voiceserve
desires to purchase all the issued and outstanding shares of common
stock
in the capital of VoipSwitch (the “Shares”) and all of the assets of
VoipSwitch as listed in Schedule A (the “Assets”) on the terms and
conditions hereinafter set forth;
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NOW
THEREFORE THIS AGREEMENT
WITNESSES that in consideration of the premises and mutual agreements and
covenants herein contained, the parties hereby covenant and agree as
follows:
1.
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VOIPSWITCH’S
REPRESENTATIONS
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Voipswitch
hereby makes the following
representations and warranties to Voiceserve, each of which is true and correct
on the date hereof and will be true and correct on the Closing Date, each of
which shall be unaffected by any investigation made by Voiceserve and shall
survive the Closing Date:
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(a)
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The
authorized capital of Voipswitch consists of 100,000 shares of common
stock at a par value of $1.00 per share and. The total number of
common
shares issued and outstanding as of January 10, 2008 is 100,000.
As of
January 10, 2008, there are no shares of preferred stock issued and
outstanding. Additionally, as of January 10, 2008, there are no
outstanding or authorized options, dividends, warrants, agreements,
subscriptions, calls, demand or rights of any character relating
to the
capital stock of VoipSwitch;
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1
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(b)
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VoipSwitch
is a corporation duly incorporated, validly existing and in good
standing
under the laws of Seychelles and has all requisite corporate power
and
authority to own its property and operate its business as and where
it is
now being conducted;
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(c)
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VoipSwitch
is duly licensed or qualified and in good standing in the province
of
Delaware, which is the sole jurisdiction in which the nature of
VoipSwitch’s assets or the business conducted by VoipSwitch makes
qualification necessary;
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(e)
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VoipSwitch
has good and marketable title to all of its assets free and clear
of all
mortgages, liens, pledges, charges, claims, leases, restrictions
or
encumbrances of any nature whatsoever, and subject to no restrictions
with
respect to transferability. All of VoipSwitch’s assets are in its
possession and control;
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(f)
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VoipSwitch
has not given a power of attorney, which is currently in effect,
to any
person, firm or corporation for any purpose whatsoever;
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(g)
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VoipSwitch
has not entered into any other agreement or granted any option to
sell or
otherwise transfer any of its assets;
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(h)
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To
the knowledge of VoipSwitch, each contract, lease, license, commitment
and
agreement to which it is a party is in full force and effect and
constitutes a legal, valid and binding obligation of all of the parties
thereto. VoipSwitch is not in default and has not received or given
any
notice of default, and to VoipSwitch’s knowledge, no other party thereto
is in default, under any such contract, lease, license, commitment
or
other agreement or under any other obligation relating to VoipSwitch’s
assets or its business;
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(i)
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There
are no outstanding orders, judgments, injunctions, awards or decrees
of
any court, arbitrator or governmental or regulatory body involving
VoipSwitch. No suit, action or legal, administrative, arbitration
or other
proceeding or reasonable basis therefor, or, to the best of VoipSwitch’s
knowledge, no investigation by any governmental agency pertaining
to
VoipSwitch or its assets is pending or has been threatened against
VoipSwitch which could adversely affect the financial condition or
prospects of VoipSwitch or the conduct of the business thereof or
any of
VoipSwitch’s assets or materially adversely affect the ability of the
shareholders of VoipSwitch to consummate the transactions contemplated
by
this Agreement;
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(j)
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To
its knowledge, VoipSwitch has not infringed any patent or patent
application, copyright or copyright application, trademark or trademark
application or trade name or other proprietary or intellectual property
right of any other person or received any notice of a claim of such
infringement;
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(k)
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VoipSwitch
has the right to use all data and information necessary to permit
the
conduct of its business from and after the Closing Date, as such
business
is and has been normally conducted;
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(l)
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The
Articles of VoipSwitch permit it to carry on its present business
and to
enter into this Agreement;
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(m)
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The
performance of this Agreement will not be in violation of the Articles
of
VoipSwitch or any agreement to which VoipSwitch is a party and will
not
give any person any right to terminate or cancel any agreement or
any
right enjoyed by VoipSwitch and will not result in the creation or
imposition of any lien, encumbrance or restriction of any nature
whatsoever in favour of a third party upon or against the assets
of
VoipSwitch;
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2
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(n)
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VoipSwitch
holds all permits, licences, registrations and authorizations necessary
for it to conduct its business;
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(o)
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VoipSwitch
is not in violation of any federal, state, municipal or other law,
regulation or order of any government or regulatory authority;
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(p)
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VoipSwitch
has filed with the appropriate government agencies all tax or information
returns and tax reports required to be filed, and such filings are
substantially true, complete and correct;
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(q)
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All
federal, state, municipal, foreign, sales, property or excise or
other
taxes whether or not yet due have been fully paid or adequately provided
for;
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(r)
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The
corporate records and minute books of VoipSwitch contain complete
and
accurate minutes of all meetings of the directors and shareholders
of
VoipSwitch held since incorporation;
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(s)
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All
material transactions of VoipSwitch have been promptly and properly
recorded or filed in or with its respective books and records; and
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(t)
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VoipSwitch
has complied with all laws, rules, regulations and orders applicable
to it
relating to employment, including those relating to wages, hours,
collective bargaining, occupational health and safety, employment
standards and workers' compensation.
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2.
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VOICESERVE'S
REPRESENTATIONS
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Voiceserve
hereby makes the following
representations and warranties to VoipSwitch, each of which is true and correct
on the date hereof and will be true and correct on the Closing Date, each of
which shall be unaffected by any investigation made by Voiceserve and shall
survive the Closing Date:
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(a)
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The
authorized capital of Voiceserve consists of 100,000,000 shares of
common
stock at a par value of $0.001 per share and 100,000,000 shares of
preferred stock with a par value of $0.001 per share. The total number
of
common shares issued and outstanding as of January 10, 2008 is 23,477,425.
As of January 10, 2008, there are no shares of preferred stock issued
and
outstanding. Additionally, as of January 10, 2008, there no are
outstanding or authorized options, dividends, warrants, agreements,
subscriptions, calls, demand or rights of any character relating
to the
capital stock of Voiceserve;
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(b)
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Voiceserve
is a corporation duly incorporated, validly existing and in good
standing
under the laws of the State of Delaware and has all requisite corporate
power and authority to own its property and operate its business
as and
where it is now being conducted;
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(c)
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Voiceserve
is in good standing with respect to its filings with the Delaware
Secretary of State;
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(d)
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Voiceserve
has no subsidiaries and owns no interest in any corporation, partnership,
proprietorship or any other business entity;
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(e)
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Voiceserve
currently has no assets or liabilities other than cash received for
share
subscriptions;
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(f)
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Voiceserve
has not entered into any other agreement or granted any option to
sell or
otherwise transfer any of its assets or its securities;
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3
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(g)
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Voiceserve
is not a party to any contracts, leases, licenses, commitments and
other
agreements relating to its assets or its business;
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(h)
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There
are no outstanding orders, judgments, injunctions, awards or decrees
of
any court, arbitrator or governmental or regulatory body involving
Voiceserve. No suit, action or legal, administrative, arbitration
or other
proceeding or reasonable basis therefor, or, to the best of Voiceserve’s
knowledge, no investigation by any governmental agency, pertaining
to
Voiceserve or its assets is pending or has been threatened against
Voiceserve which could adversely affect the financial condition or
prospects of Voiceserve or the conduct of the business thereof or
any of
Voiceserve’s assets or materially adversely affect the ability of
Voiceserve to consummate the transactions contemplated by this Agreement;
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(i)
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The
Articles and Bylaws of Voiceserve permit it to carry on its present
business and to enter into this Agreement;
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(j)
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The
performance of this Agreement will not be in violation of the Articles
or
Bylaws of Voiceserve or any agreement to which Voiceserve is a party;
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(k)
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Voiceserve
is not in violation of any federal, state, municipal or other law,
regulation or order of any government or regulatory authority;
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(l)
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Voiceserve
has filed with the appropriate government agencies all tax or information
returns and tax reports required to be filed, and such filings are
substantially true, complete and correct;
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(m)
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No
federal, state, municipal, foreign, sales, property or excise or
other
taxes are payable by Voiceserve;
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(n)
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The
corporate records and minute books of Voiceserve contain complete
and
accurate minutes of all meetings of the directors and shareholders
of
Voiceserve held since incorporation; and
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(o)
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All
material transactions of Voiceserve have been promptly and properly
recorded or filed in or with its respective books and records.
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3.
SALE OF SHARES
On
the Closing Date, upon the terms and
conditions herein set forth, Voiceserve agrees to pay Xxxxxxxxx Xxxxxx, Xxxxxx
Xxxxx and Xxxxxx Xxxxxxxxx (or their designated nominees) U.S. $200,000
representing in total U.S. $600,000 being 20% of the Consideration Price, such
amounts to be paid in cleared funds upon completion of the acquisition of the
entire issued share capital of VoipSwitch and Voiceserve being registered as
the
beneficial owner of the entire issued share capital of VoipSwitch
(“Completion”). At the end of each month following Completion for a period of 12
months, Voiceserve will pay to each of Xxxxxxxxx Xxxxxx, Xxxxxx Xxxxx and Xxxxxx
Xxxxxxxxx (or their designated nominees) U.S. $16,666.66 (the “Individual
Payment”) representing in total U.S. $600,000 being 20% of the Consideration
Price. Upon Completion, the balance of the Consideration Price, being U.S.
$1,800,000, shall be paid through the issuance to Xxxxxxxxx Xxxxxx, Xxxxxx
Xxxxx
and Xxxxxx Xxxxxxxxx (or their designated nominees) of restricted shares of
Voiceserve’s common stock (“Consideration Shares”) at a price per share of U.S.
$0.48. Each of Xxxxxxxxx Xxxxxx, Xxxxxx Xxxxx and Xxxxxx Xxxxxxxxx
(or their designated nominees) shall be entitled to the Consideration Shares
in
equal proportions of 1,250,000 (33% x the number of Consideration Shares
representing U.S. $1,800,000 to be issued). For the avoidance of
doubt, the Consideration Shares each have the right to vote one share of
Voiceserve’s common stock. For the further avoidance of doubt
issuance of Consideration Shares shall be conditional upon each of Xxxxxxxxx
Xxxxxx, Xxxxxx Xxxxx and Xxxxxx Xxxxxxxxx entering into a service contract
with
Voiceserve (or such other entity nominated by Voiceserve) as referred to in
paragraph 4 below and each of Xxxxxxxxx Xxxxxx, Xxxxxx Xxxxx and Xxxxxx
Xxxxxxxxx continuing to supply their services to Voiceserve (or such other
entity nominated by Voiceserve) for a period of not less than 36 months
following Completion.
4
Upon
Completion, each of Xxxxxxxxx Xxxxxx, Xxxxxx Xxxxx and Xxxxxx Xxxxxxxxx will
enter into a service contract with Voiceserve (or such other entity nominated
by
Voiceserve) on terms to be agreed between the parties. It is a
condition of the terms contained in this letter that transactions 1 to 4 above
are to be agreed together as part of a composite transaction.
4.
CLOSING
The
sale and purchase of the Share
shall be closed at the office of VoipSwitch at 10:00 A.M. (Greenwich Mean time)
on January 15, 2008 or on such other date or at such other place as may be
agreed upon by the parties (the “Closing Date”).
5.
ACTIONS BY THE PARTIES PENDING CLOSING
From
and after the date hereof and
until the Closing Date, Voiceserve and VoipSwitch covenant and agree
that:
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(a)
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Voiceserve
and VoipSwitch, and their authorized representatives, shall have
full
access during normal business hours to all documents of Voiceserve
and
VoipSwitch and each party shall furnish to the other party or its
authorized representatives all information with respect to the affairs
and
business of Voiceserve and VoipSwitch as the parties may reasonably
request;
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(b)
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Voiceserve
and VoipSwitch shall conduct their business diligently and substantially
in the manner previously conducted and Voiceserve and VoipSwitch
shall not
make or institute any unusual or novel methods of purchase, sale,
management, accounting or operation, except with the prior written
consent
of the other party. Neither Voiceserve nor VoipSwitch shall enter
into any
contract or commitment to purchase or sell any assets or engage in
any
transaction not in the usual and ordinary course of business without
the
prior written consent of the other party;
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(c)
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Without
the prior written consent of the other party, neither Voiceserve
nor
VoipSwitch shall transfer any of its assets or the assets of its
subsidiaries.
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(d)
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Without
the prior written consent of the other party, neither Voiceserve
nor
VoipSwitch shall increase or decrease the compensation provided to
its
employees, officers, directors or agents;
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(e)
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Neither
Voiceserve nor VoipSwitch will amend its Articles of Incorporation
or
Bylaws, or make any changes in its respective authorized or issued
capital
without the prior written approval of the other party;
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(f)
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Neither
Voiceserve nor VoipSwitch shall act or omit to do any act, or permit
any
act or omission to act, which will cause a breach of any contract,
commitment or obligation; and
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(g)
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Neither
Voiceserve nor VoipSwitch will declare or pay any dividend or make
any
distribution, directly or indirectly, in respect of their respective
capital stock, nor will they directly or indirectly redeem, purchase,
sell
or otherwise acquire or dispose of shares in their respective capital
stock.
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6.
CONDITIONS PRECEDENT TO VOIPSWITCH’S OBLIGATIONS
Each
and every obligation of VoipSwitch
to be performed on the Closing Date shall be subject to the satisfaction by
the
Closing Date of the following conditions, unless waived in writing by
Voiceserve:
5
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(a)
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The
representations and warranties made by VoipSwitch in this Agreement
shall
be true and correct on and as of the Closing Date with the same effect
as
though such representations and warranties had been made or given
by the
Closing Date;
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(b)
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VoipSwitch
shall have performed and complied with all of their obligations under
this
Agreement which are to be performed or complied with by them by the
Closing Date;
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(c)
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VoipSwitch
shall have provided Voiceserve with the opportunity to review all
of
VoipSwitch’s relevant financial records and Voiceserve shall be satisfied
with such review as Voiceserve may determine in its sole opinion;
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(d)
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VoipSwitch
shall have obtained the necessary consent of its shareholders to
effect
the transactions contemplated herein;
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(e)
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VoipSwitch
shall deliver to Voiceserve:
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(i)
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a
certified true copy of resolutions of VoipSwitch’s Board of Directors
authorizing the transfer of the Shares from Oglaza, Xxxxx and
Xxxxxxxxx and to Voiceserve, the registration of the
Shares in the name of the Voiceserve and the issuance of a share
certificate representing the Shares in the name of the Voiceserve;
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(ii)
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share
certificates representing the Shares issued in the name of and accompanied
by duly executed Irrevocable Powers of Attorney to transfer the Shares
to
Voiceserve; and
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(iii)
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A
share certificate or certificates registered in the name of the
Voiceserve, signed by the President of VoipSwitch, representing the
Shares.
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7.
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CONDITIONS
PRECEDENT TO VOICESERVE’S OBLIGATIONS
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Each
and every obligation of Oglaza,
Xxxxx and Xxxxxxxxx and VoipSwitch to be performed on the Closing Date shall
be
subject to the satisfaction by the Closing Date of the following conditions,
unless waived in writing by VoipSwitch:
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(a)
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The
representations and warranties made by Voiceserve in this Agreement
shall
be true and correct on and as of the Closing Date with the same effect
as
though such representations and warranties had been made or given
by the
Closing Date;
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(b)
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Voiceserve
shall have performed and complied with all of its obligations under
this
Agreement which are to be performed or complied with by its by the
Closing
Date;
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(c)
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Voiceserve
shall deliver to VoipSwitch:
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(i)
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a
certified true copy of resolutions of Voiceserve’s Board of Directors
authorizing the issuance of the Consideration Shares to Oglaza, Xxxxx
and
Xxxxxxxxx;
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(ii)
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share
certificates representing the VoipSwitch Shares issued in the names
of
Oglaza, Xxxxx and Xxxxxxxxx in equal amounts in accordance with paragraph
3 herein, representing the Shares; and
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6
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(iii)
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U.S
$200,000 delivered each to Oglaza, Xxxxx and Xxxxxxxxx.
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8.
ADDITIONAL TERMS
In
addition to the Actions by the
Parties Pending Closing, the Conditions Precedent to VoipSwitch’s Obligations
and the Conditions Precedent to Voiceserve’s Obligations, the Closing Date shall
be subject to the satisfaction by the Closing Date of the following conditions,
unless mutually waived in writing by both Parties:
(a)
Voiceserve shall appoint a person designated by VoipSwitch as Director on
Voiceserve’s Board of Directors (the “Appointee”). Such Appointee
shall serve an initial three-year term from the Closing Date (“Appointee
Term”). Should the Appointee Term expire, Appointee resign or be
removed from the Board of Directors, for any reason, any replacement of
Appointee will be discussed and agreed upon by both
Parties. Notwithstanding the above, any extension of the Appointee
Term will be discussed and agreed upon by both Parties.
(b)
Voiceserve hereby agrees to increase the total U.S. $600,000, being 20% of
the
Consideration Price, to be paid in cleared funds upon completion of the
acquisition of the entire issued share capital of VoipSwitch and Voiceserve
to
Xxxxxxxxx Xxxxxx, Xxxxxx Xxxxx and Xxxxxx Xxxxxxxxx by a percentage equal to
the
percentage of increase above approximately U.S. $375,000 of net profit reported
in VoipSwitch’s financial statement reported after the date of this
Agreement. Should Voiceserve agree to increase the total U.S.
$600,000, being 20% of the Consideration Price, to be paid in cleared funds
upon
completion of the acquisition of the entire issued share capital of VoipSwitch
and Voiceserve in accord with this Section 8(b), Voiceserve hereby agrees to
decrease the amount of the Consideration Price paid over twelve months from
the
Closing Date to Oglaza, Xxxxx and Xxxxxxxxx to reflect a lesser amount owed
in
cash in the Consideration Price.
(c)
Voiceserve hereby agrees to provide a monthly salary of $6,000 to each Xxxxxxxxx
Xxxxxx, Xxxxxx Xxxxx and Xxxxxx Xxxxxxxxx (individually the “Employee”) to be
paid on the first (1st)
business day of each month after the Closing Date for a three-year term from
the
Closing Date (“Employee Term”). Any extension of the Employee Term
will be discussed and agreed upon by both Parties.
(d)
Notwithstanding the terms in Section 3, following Completion, should the net
profits for any month of VoipSwitch be less than the aggregate total of the
Individual Payment due to the respective Employee (“Net Profit Condition”),
Voiceserve will not be liable to pay an aggregate total of the Individual
Payment greater than the net profits of that month of
VoipSwitch. Should a Net Profit Condition occur, to satisfy its
obligations under Section 8(c) Voiceserve shall therefore provide an Individual
Payment to the respective Employee, equal to a third of the monthly net profits
of VoipSwitch. Should subsequent monthly net profits exceed the net
monthly profits of VoipSwitch after a Net Profit Condition, any Employee paid
an
Individual Payment for any month less than $16,666.66 shall receive the
difference between the Individual Payment received and $16,666.66.
9.
FURTHER ASSURANCES
The
parties hereto covenant and agree
to do such further acts and execute and deliver all such further deeds and
documents as shall be reasonably required in order to fully perform and carry
out the terms and intent of this Agreement.
9.
ENTIRE AGREEMENT
This
Agreement constitutes the entire
agreement to date between the parties hereto and supersedes every previous
agreement, communication, expectation, negotiation, representation or
understanding, whether oral or written, express or implied, statutory or
otherwise, between the parties with respect to the subject of this
Agreement.
7
10.
NOTICE
10.1
Any notice required to be given under this Agreement shall be deemed to be
well
and sufficiently given if delivered by hand to either party at their respective
addresses first noted above.
10.2
Either party may time to time by notice in writing change its address for the
purpose of this section.
11.
TIME OF ESSENCE
Time
shall be of the essence of this
Agreement.
12.
TITLES
The
titles to the respective sections
hereof shall not be deemed a part of this Agreement but shall be regarded as
having been used for convenience only.
13.
SCHEDULES
The
schedules attached to this
Agreement are incorporated into this Agreement by reference and are deemed
to be
part hereof.
14.
SEVERABILITY
If
any one or more of the provisions
contained herein should be invalid, illegal or unenforceable in any respect
in
any jurisdictions, the validity, legality and enforceability of such provisions
shall not in any way be affected or impaired thereby in any other jurisdiction
and the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired
thereby.
15.
APPLICABLE LAW
The
state of the Agreement is Delaware,
and for all purposes this Agreement will be governed exclusively by and
construed and enforced in accordance with laws prevailing in the State of
Delaware. The parties hereto agree to attorney to the jurisdiction of
the Courts of the State of Delaware.
16.
ENUREMENT
This
Agreement shall enure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns.
[signature
pages to follow]
8
IN
WITNESS WHEREOF this
Agreement has been executed as of the day and year first above
written.
VOICESERVE,
INC.
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XXXXXXXXX
XXXXXX
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BY:
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BY:
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VOICESERVE,
INC.
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XXXXXX
XXXXX
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BY:
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BY:
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VOICESERVE,
INC.
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XXXXXX
XXXXXXXXX
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BY:
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BY:
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9
Schedule
A
1.
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All
Customer Orders
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2.
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All
Inventories
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3.
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All
intangible assets (including without limitation all patents, trade
secrets, service marks, websites, customer lists, inventions, formulae,
processes and permits, and all licenses, agreements and applications
with
respect to any of the foregoing, together with any goodwill associated
with any of the foregoing) of VoipSwitch, including without limitation
the
right to VoipSwitch’s bank
accounts.
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