Exhibit 10.13
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT AND PLAN OF REORGANIZATION ("Agreement")
is entered into as of November 19, 2002 by and among Viper Networks, Inc., a
Utah corporation ("Company"), those certain representatives of the Company
listed on Exhibit A attached hereto (the "Viper Representatives"), PC Mailbox,
Inc., a California corporation ("PC Mailbox"), and the stockholders of PC
Mailbox (the "Selling Stockholders") listed on Exhibit B attached hereto.
R E C I T A L S
A. The Company has authorized capital stock consisting of 100,000,000
shares of common stock ("Common Stock"), no par value, of which 8,200,000 shares
are issued and outstanding, and 10,100,000 shares of preferred stock, 100,000 of
which are designated as Class A Preferred Stock ("Class A Preferred Stock") none
of which have been issued and 10,000,000 of which are designated as Class B
Preferred Stock ("Class B Preferred Stock") none of which have been issued.
B. PC Mailbox has authorized capital stock consisting of 50,000,000 shares
of common stock, no par value, of which 50,000,000 shares (the "Viper Shares")
are issued and outstanding and held by the Selling Stockholders.
C. The Selling Stockholders wish to sell, and the Company wishes to
purchase a non-dilutive 49% interest in the PC Mailbox Shares on the Closing
Date (as defined below), in exchange for 800,000 shares of the Company's Common
Stock (the "Company Shares"), subject to and upon the terms hereinafter set
forth.
A G R E E M E N T
It is agreed as follows:
1. Securities Purchase
1.1 Agreement to Exchange Securities. Subject to the terms and upon the
conditions set forth herein, each Selling Stockholder agrees to sell, assign,
transfer and deliver to the Company, and the Company agrees to purchase from
each Selling Stockholder, at the Closing (as defined below), the PC Mailbox
Shares owned by the respective Selling Stockholder as set forth on Exhibit A
attached hereto, in exchange for the transfer, at the Closing, by the Company to
each Selling Stockholder a pro rata share of the Company Shares, as determined
according to Section 1.1(a) below.
(a) Determination of Pro Rata Share of Company Shares. The number of
Common Company Shares which each Selling Stockholder is entitled to receive
hereunder shall be determined by multiplying the total number of Company
Shares (i.e., 800,000) by a fraction, the numerator of which is the total
number of PC Mailbox Shares owned by the Selling Stockholder at the Closing
and the denominator of which is the total number of PC Mailbox Shares
issued and outstanding at the Closing (i.e., 50,000,000).
1.2 Instruments of Transfer.
(a) PC Mailbox Shares. Each Selling Stockholder shall deliver to the
Company original certificates evidencing the PC Mailbox Shares along with
executed stock powers, in form and substance satisfactory to the Company,
for purposes of assigning and transferring all of their right, title and
interest in and to the PC Mailbox Shares. From time to time after the
Closing Date, and without further consideration, the Selling Stockholders
will execute and deliver such other instruments of transfer and take such
other actions as the Company may reasonably request in order to facilitate
the transfer to the Company of the securities intended to be transferred
hereunder.
(b) The Company Shares. The Company shall deliver to the Selling
Stockholders on the Closing Date original certificates evidencing the
Company Shares or in the alternative an authorized Treasury Order to the
Company's Transfer Agent for the same, in form and substance satisfactory
to the Selling Stockholders, in order to effectively vest in the Selling
Stockholders all right, title and interest in and to the Company Shares.
From time to time after the Closing Date, and without further
consideration, the Company will execute and deliver such other instruments
and take such other actions as the Selling Stockholders may reasonably
request in order to facilitate the issuance to them of the Company Shares.
1.3 Closing. The closing ("Closing") of the exchange of the Viper Shares
and the Company Shares shall take place at the offices of Viper at 10:00 a.m.,
local time, on November 22, 2002, or at such other time and place as may be
agreed to by all of the parties hereto ("Closing Date").
1.4 Tax Free Reorganization. The parties intend that the transaction under
this Agreement qualify as a tax free reorganization under Section 368 (a)(1)(B)
of the Internal Revenue Code of 1986, as amended.
2. Deliveries At Closing.
2.1 Company's Deliveries at Closing. At or prior to the Closing, the
Company shall deliver or cause to be delivered to PC Mailbox and the Selling
Stockholders all of the following:
(a) Certificates representing the Company Shares, registered in the
names of the Selling Stockholders;
(b) An Officer's Certificate signed by the Company's president in the form
attached hereto as Exhibit C;
(c) Certified resolutions of the Board of Directors of the Company in
the form attached hereto as Exhibit D (i) authorizing the consummation of
the transactions contemplated by this Agreement;
(d) A certificate of good standing of the Company from the State of
Utah as of the most recent practicable date; and
(e) Such other documents and instruments as shall be reasonably
necessary to effect the transactions contemplated hereby.
2.2 Selling Stockholders' Deliveries at Closing. At or prior to the
Closing, the Selling Stockholders shall deliver or cause to be delivered to the
Company all of the following:
(a) Original certificates representing the PC Mailbox Shares, along
with duly executed stock powers, in form and substance satisfactory to the
Company; and
(b) Such other documents and instruments as shall be reasonably
necessary to effect the transactions contemplated hereby.
2.3 PC Mailbox's Deliveries at Closing. At or prior to the Closing, PC
Mailbox shall deliver or cause to be delivered to the Company all of the
following:
(a) An Officer's Certificate signed by PC Mailbox's president in the
form attached hereto as Exhibit E;
(b) Certified resolutions of the Board of Directors of PC Mailbox in
the form attached hereto as Exhibit F authorizing the consummation of the
transactions contemplated by this Agreement;
(c) A certificate of good standing of PC Mailbox from the State of
California as of the most recent practicable date; and
(d) Such other documents and instruments as shall be reasonably
necessary to effect the transactions contemplated hereby.
3. Representations and Warranties of the Selling Stockholders. Each Selling
Stockholder severally represents, warrants and covenants to and with the Company
with respect to himself, as follows:
3.1 Power and Authority. The Selling Stockholder has all requisite
individual power and authority to enter into and to carry out all of the terms
of this Agreement and all other documents executed and delivered in connection
herewith (collectively, the "Documents"). All individual action on the part of
the Selling Stockholder necessary for the authorization, execution, delivery and
performance of the Documents by the Selling Stockholder has been taken and no
further authorization on the part of the Selling Stockholder is required to
consummate the transactions provided for in the Documents. When executed and
delivered by the Selling Stockholder, the Documents shall constitute the valid
and legally binding obligation of the Selling Stockholder enforceable in
accordance with their respective terms, except as limited by applicable
bankruptcy, insolvency reorganization and moratorium laws and other laws
affecting enforcement of creditor's rights generally and by general principles
of equity.
3.2 Ownership of and Title to Securities. The Selling Stockholder
represents that he is the sole owner of the PC Mailbox Shares held by him and
that there are no warrants, options, subscriptions, calls, or other similar
rights of any kind for the issuance or purchase of any of the PC Mailbox Shares
or other securities of PC Mailbox held by the Selling Stockholder. The Selling
Stockholder represents that the Selling Stockholder has and will transfer to the
Company good and marketable title to the PC Mailbox Shares which he owns, free
and clear of all pledges, security interests, mortgages, liens, claims, charges,
restrictions or encumbrances.
3.3 Investment and Related Representations. The Selling Stockholder is
aware that neither the Company Shares nor the offer or sale thereof to the
Selling Stockholder has been registered under the Securities Act of 1933, as
amended ("Act"), or under any state securities law. The Selling Stockholder
understands that the Company Shares will be characterized as "restricted"
securities under federal securities laws inasmuch as they are being acquired in
a transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration under
the Act only in certain limited circumstances. The Selling Stockholder agrees
that the Selling Stockholder will not sell all or any portion of the Company
Shares except pursuant to registration under the Act or pursuant to an available
exemption from registration under the Act. The Selling Stockholder understands
and acknowledges that all certificates representing the Company Shares shall
bear the following legend or a legend of similar import and that the Company
shall refuse to transfer the Company Shares except in accordance with such
restrictions:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER CERTAIN STATE
SECURITIES LAWS. NO SALE OR TRANSFER OF THESE SHARES MAY BE MADE IN THE ABSENCE
OF (1) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR (2) AN OPINION OF
COUNSEL THAT REGISTRATION UNDER THE ACT OR UNDER APPLICABLE STATE SECURITIES
LAWS IS NOT REQUIRED IN CONNECTION WITH SUCH PROPOSED SALE OR TRANSFER."
4. Representations And Warranties Of PC Mailbox. PC Mailbox represents,
warrants and covenants to and with the Company as follows
4.1 Organization and Good Standing. PC Mailbox is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
California and has full corporate power and authority to enter into and perform
its obligations under this Agreement.
4.2 Capitalization. The authorized capital stock of PC Mailbox consists of
50,000,000 shares of common stock, no par value, of which 50,000,000 shares are
issued and outstanding. The shares representing the non-dilutive 49% interest in
PC Mailbox's common stock were offered and sold in compliance with applicable
state and federal securities laws, have been duly authorized and validly issued,
and are fully paid, nonassessable, and free of any preemptive rights. There are
no warrants, options, subscriptions, calls, other similar rights to purchase any
of PC Mailbox's capital stock, and there are no voting, pooling or voting trust
agreements, arrangements or contracts by and among PC Mailbox, its shareholders,
or any of them.
4.3 Validity of Transactions. This Agreement, and each document executed
and delivered by PC Mailbox in connection with the transactions contemplated by
this Agreement, and the performance of the transactions contemplated therein
have been duly authorized by the directors of PC Mailbox, have been duly
executed and delivered by PC Mailbox and is each the valid and legally binding
obligation of PC Mailbox, enforceable in accordance with its terms, except as
limited by applicable bankruptcy, insolvency reorganization and moratorium laws
and other laws affecting enforcement of creditor's rights generally and by
general principles of equity.
4.4 No Conflict. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby do not and will not
conflict with, or result in a breach of any term or provision of, or constitute
a default under or result in a violation of (i) the Certificate of Incorporation
or Bylaws of PC Mailbox, as amended, (ii) any agreement, contract, lease,
license or instrument to which PC Mailbox is a party or by which PC Mailbox or
any of its properties or assets are bound, or (iii) any judgment, decree, order,
or writ by which PC Mailbox is bound or to which it or any of its properties or
assets are subject.
4.5 Approvals and Consents. There are no permits, consents, mandates or
approvals of public authorities, either federal, state or local, or of any third
party necessary for PC Mailbox's consummation of the transactions contemplated
hereby.
4.6 Accuracy of Information. None of the representations or warranties or
information provided and to be provided by the PC Mailbox in this Agreement, or
any schedules or exhibits hereto, contains or will contain any untrue statement
of a material fact or omits or will omit to state any material facts necessary
in order to make the statements and facts contained herein or therein not false
or misleading. Copies of all documents heretofore or hereafter delivered or made
available to PC Mailbox pursuant hereto were or will be complete and accurate
records of such documents.
5. Representations, Warranties and Covenants of the Company. The Company
represents, warrants and covenants to and with PC Mailbox and each of the
Selling Stockholders as follows. As used herein, the term "Company Disclosure
Schedule" shall refer to the Company Disclosure Schedule attached hereto.
5.1 Organization and Good Standing. The Company is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Utah and has full corporate power and authority to enter into and perform its
obligations under this Agreement.
5.2 Capitalization. The Company has authorized capital stock consisting of
100,000,000 shares of common stock ("Common Stock"), no par value, of which
8,200,000 shares are issued and outstanding, and 10,100,000 shares of preferred
stock, 100,000 of which are designated as Class A Preferred Stock ("Class A
Preferred Stock") none of which have been issued and 10,000,000 of which are
designated as Class B Preferred Stock ("Class B Preferred Stock") none of which
of which have been issued. All outstanding shares of the Company's Common Stock
were offered and sold in compliance with applicable state and federal securities
laws, have been duly authorized and validly issued, and are fully paid,
nonassessable, and free of any preemptive rights. There are no warrants,
options, subscriptions, calls, other similar rights to purchase any of the
Company's capital stock, and there are no voting, pooling or voting trust
agreements, arrangements or contracts by and among the Company, its
shareholders, or any of them.
5.3 Validity of Transactions. Except as set forth on the Company Disclosure
Schedule: (i) this Agreement, and each document executed and delivered by the
Company in connection with the transactions contemplated by this Agreement, and
the performance of the transactions contemplated therein have been duly
authorized by the directors of the Company, have been duly executed and
delivered by the Company and is each the valid and legally binding obligation of
the Company, enforceable in accordance with its terms, except as limited by
applicable bankruptcy, insolvency reorganization and moratorium laws and other
laws affecting enforcement of creditor's rights generally and by general
principles of equity; (ii) the Company Shares issuable hereunder, when issued in
accordance with the terms of this Agreement, will be duly authorized, validly
issued, fully paid and nonassessable; and (iii) the Company Shares will be free
of any liens or encumbrances, except for any restrictions imposed by federal or
state securities laws.
5.4 No Conflict. Except as set forth on the Company Disclosure Schedule,
the execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby do not and will not conflict with, or result in
a breach of any term or provision of, or constitute a default under or result in
a violation of (i) the Articles of Incorporation or Bylaws of the Company, as
amended, (ii) any agreement, contract, lease, license or instrument to which the
Company is a party or by which the Company or any of its properties or assets
are bound, or (iii) any judgment, decree, order, or writ by which the Company is
bound or to which it or any of its properties or assets are subject.
5.5 Approvals and Consents. Except as set forth on the Company Disclosure
Schedule, there are no permits, consents, mandates or approvals of public
authorities, either federal, state or local, or of any third party necessary for
the Company's consummation of the transactions contemplated hereby.
5.6 Litigation. Except as set forth in the Company Disclosure Schedule,
there are no suits or proceedings (including without limitation, proceedings by
or before any arbitrator, government commission, board, bureau or other
administrative agency) pending or, to the knowledge of the Company, threatened
against or affecting the Company, the officers or directors of the Company or
any of their respective affiliates or which questions or threatens the validity
of this Agreement or any action to be taken in connection therewith, and neither
the Company nor any of its assets is subject to or in default with respect to
any order, writ, injunction or decree of any federal, state, local or other
governmental department. The Company has not commenced and does not currently
intend to commence any legal proceedings against any other person or entity.
5.7 Taxes. All federal income tax returns and state and local income tax
returns for the Company have been filed as required by law. All taxes as shown
on such returns or on any assessment received subsequent to the filing of such
returns have been paid, and there are no pending assessments or adjustments or
any income tax payable for which reserves, which are reasonably believed by the
Company to be adequate for the payment of any additional taxes that may come
due, have not been established. All other taxes imposed by any government
authority on the Company have been paid and any reports or returns due in
connection therewith have been filed. No outstanding claim for assessment or
collection of taxes has been asserted against the Company and there are no
pending, or to the knowledge of the Company, threatened tax audits, examinations
or claims.
5.8 No Defaults. No material default (or event which, with the passage of
time or the giving of notice, or both, would become a material default) exists
or is alleged to exist with respect to the performance of any obligation either
of the Company under the terms of any indenture, license, mortgage, deed of
trust, lease, note, guaranty, joint venture agreement, operating agreement,
partnership agreement, or other contract or instrument to which the Company is a
party or any of its assets are subject, or by which it is otherwise bound, and,
to the best knowledge of the Company, no such default or event exists or is
alleged to exist with respect to the performance of any obligation of any party
thereto.
5.9 Corporate Documents. The Company has furnished to PC Mailbox and the
Selling Stockholders true and complete copies of the Articles of Incorporation
and Bylaws of the Company certified by its secretary and copies of the
resolutions adopted by the Company's Board of Directors authorizing and
approving this Agreement and the transactions contemplated hereby. The Company
has made available to PC Mailbox and the Selling Stockholders and their
representatives all corporate minute books of the Company, and such minute books
contain complete and accurate records of the proceedings of the Company's
shareholders and directors.
5.10 Contracts and Other Commitments. Except as set forth on the Company
Disclosure Schedule, the Company does not have and is not bound by any contract,
agreement, lease, commitment or proposed transaction, judgment, order, writ or
decree, written or oral, absolute or contingent.
5.11 Compliance with Laws. The Company has complied in all material
respects with all laws, regulations and orders affecting its business and
operations and is not in default under or in violation of any provision of any
federal, state or local rule, regulation or law, including without limitation,
any applicable statute, law or regulation relating to the environment or
occupational health and safety, and no material expenditures are or will be
required in order to comply with any such existing statute, law or regulation.
5.12 Assets or Liabilities. Except as set forth on the Company Disclosure
Schedule or the Company's financial statements dated June 30, 2002, the Company
represents and warrants that it does not have any assets, liabilities or
operations.
5.13 Absence of Certain Changes. Except as set forth on the Company
Disclosure Schedule, since the date of the Company's financial statements dated
June 30, 2002, there has not been any Material Adverse Change or any change of
the kind described in Section 7.4 of this Agreement. For the purposes hereof,
"Material Adverse Change" means any event, circumstance, condition, development
or occurrence causing, resulting in, having or that could reasonably be expected
to have, a material adverse effect on the business, assets or financial
condition of the Company.
5.14 Brokers and Finders. The Company has not dealt with any broker or
finder in connection with the transactions contemplated hereby. The Company has
not incurred, nor shall it incur, directly or indirectly, any liability for any
brokerage or finders' fees, agent commissions or any similar charges in
connection with this Agreement or any transaction contemplated hereby.
5.15 Intercompany and Affiliate Transactions; Insider Interests. Except as
set forth on the Company Disclosure Schedule, there are, and during the last two
years there have been, no transactions, agreements or arrangements of any kind,
direct or indirect, between the Company and any director, officer, employee,
stockholder, or affiliate of the Company, including, without limitation, loans,
guarantees or pledges to, by or for the Company or from, to, by or for any of
such persons, that are currently in effect.
5.16 Accuracy of Information. None of the representations or warranties or
information provided and to be provided by the Company to PC Mailbox or the
Selling Stockholders in this Agreement, or any schedules or exhibits hereto,
contains or will contain any untrue statement of a material fact or omits or
will omit to state any material facts necessary in order to make the statements
and facts contained herein or therein not false or misleading. Copies of all
documents heretofore or hereafter delivered or made available to PC Mailbox
pursuant hereto were or will be complete and accurate records of such documents.
6. Additional Understandings and Agreements of the Parties
6.1 Access to PC Mailbox. PC Mailbox shall afford to the Company and shall
cause its independent accountants to afford to the Company, and its accountants,
counsel and other representatives, reasonable access during normal business
hours during the period prior to the Closing Date to all of PC Mailbox's
properties, books, contracts, commitments and records and to the audit work
papers and other records of PC Mailbox's independent accountants. During such
period, PC Mailbox shall use reasonable efforts to furnish promptly to the
Company all information concerning the business, properties and personnel of PC
Mailbox as the Company may reasonably request, provided that PC Mailbox shall
not be required to disclose any information which it is legally required to keep
confidential. The Company will not use such information for purposes other than
this Agreement and the transaction contemplated hereby and will otherwise hold
such information in confidence (and the Company will cause its consultants and
advisors also to hold such information in confidence) until such time as such
information otherwise becomes publicly available, and in the event of
termination of this Agreement for any reason the Company shall promptly return,
or cause to be returned, to PC Mailbox all documents obtained from PC Mailbox,
and any copies made of such documents, extracts and copies thereof.
6.2 Access to Company. The Company shall afford to PC Mailbox and the
Selling Stockholders and shall cause its independent accountants to afford to PC
Mailbox and the Selling Stockholders, and their accountants, counsel and other
representatives, reasonable access during normal business hours during the
period prior to the Closing Date to all of the Company's properties, books,
contracts, commitments and records and to the audit work papers and other
records of the Company's independent accountants. During such period, the
Company shall use reasonable efforts to furnish promptly to PC Mailbox or the
Selling Stockholders such information concerning the Company as PC Mailbox or
the Selling Stockholders may reasonably request, provided that the Company shall
not be required to disclose any information which it is legally required to keep
confidential. PC Mailbox and the Selling Stockholders will not use such
information for purposes other than this Agreement and the transaction
contemplated hereby and will otherwise hold such information in confidence (and
PC Mailbox and the Selling Stockholders will cause their respective consultants
and advisors also to hold such information in confidence) until such time as
such information otherwise becomes publicly available, and in the event of
termination of this Agreement for any reason PC Mailbox and the Selling
Stockholders shall promptly return, or cause to be returned, to the Company all
documents obtained from the Company, and any copies made of such documents,
extracts and copies thereof.
6.4 Operation of the Company Prior to Closing. During the period from the
date of this Agreement until the Closing, the Company shall not, except as
contemplated, permitted or required by this Agreement, (i) conduct any business
or engage in any activities other than activities related to the closing of the
transactions contemplated by this Agreement; (ii) declare or pay any dividends
on or make any other distributions in respect of any of its capital stock; (iii)
split, combine or reclassify any of its capital stock or issue or authorize the
issuance of any other securities in respect of, in lieu or, or in substitution
for shares of capital stock of the Company except as called for under this
Agreement; (iii) repurchase or otherwise acquire any shares of its capital stock
or rights to acquire any shares of its capital stock; (iv) issue, deliver or
sell or authorize or propose the issuance, delivery or sale of, any shares or
its capital stock or any class or securities convertible into, or rights,
warrants or options to acquire, any such shares or other convertible securities,
except for the issuance and sale of the Company Shares in accordance with the
provisions of this Agreement; (v) become a party to or become bound by or agree
to become a party to or become bound by any contract, instrument, lease,
license, agreement, commitment or undertaking; or (vi) incur or agree to incur
any amount of long or short-term debt for money borrowed, or indemnify or agree
to indemnify others, or incur or agree to incur any debts, obligations or
liabilities whatsoever.
7. Conditions Precedent
7.1 Conditions to Each Party's Obligations. The respective obligations of
each party to consummate the transactions contemplated by this Agreement shall
be subject to the satisfaction on or prior to the Closing of the following
conditions unless waived by such party:
(a) Government Approvals. All authorizations, consents, orders or
approvals of, or declarations or filings with, or expiration of waiting
periods imposed by, any governmental authority necessary for the
consummation of the transactions contemplated by this Agreement shall have
been filed, occurred or been obtained.
(b) Third-Party Approvals. Any and all consents or approvals required
from third parties relating to contracts, licenses, leases and other
instruments, material to the respective businesses of the Company and
Viper, shall have been obtained.
(c) Legal Action. No temporary restraining order, preliminary
injunction or permanent injunction or other order preventing the
consummation of the transactions contemplated by this Agreement shall have
been issued by any federal or state court and remain in effect, and no
litigation seeking the issuance of such an order or injunction, shall be
pending which, in the good faith judgment of PC Mailbox or the Company, has
a reasonable probability of resulting in such order, injunction or damages.
In the event any such order or injunction shall have been issued, each
party agrees to use its reasonable efforts to have any such injunction
lifted.
7.2 Conditions to Obligations of the Company. The obligations of the
Company to consummate the transactions contemplated by this Agreement are
subject to the satisfaction on or prior to the Closing of the following
conditions, unless waived by the Company:
(a) Representations and Warranties of Selling Stockholders. The
representations and warranties of the Selling Stockholders set forth in
this Agreement shall be true and correct in all material respects as of the
date of this Agreement and as if made at and as of the Closing Date, except
as otherwise contemplated by this Agreement.
(b) Representations and Warranties of PC Mailbox. The representations
and warranties of PC Mailbox set forth in this Agreement shall be true and
correct in all material respects as of the date of this Agreement and as if
made at and as of the Closing Date, and the Company shall have received a
certificate to such effect signed by the president of PC Mailbox.
(c) Performance of Obligations of PC Mailbox. PC Mailbox shall have
performed in all material respects all obligations required to be performed
by it under this Agreement prior to the Closing Date, and the Company shall
have received a certificate to such effect signed by the president of PC
Mailbox.
(d) Additional Closing Documents. The Company shall have received (i)
each of the documents or instruments listed in Section 2.2 hereof from the
Selling Stockholders; (ii) each of the documents or instruments listed in
Section 2.3 hereof from PC Mailbox; and (iii) such other documents and
instruments as are required to be delivered pursuant to the provisions of
this Agreement or as otherwise reasonably requested by the Company.
7.3 Conditions to Obligations of PC Mailbox and the Selling Stockholders.
The obligations of PC Mailbox and the Selling Stockholders to consummate the
transactions contemplated by this Agreement are subject to the satisfaction on
or prior to the Closing Date of the following conditions unless waived by PC
Mailbox and the Selling Stockholders:
(a) Representations and Warranties. The representations and warranties
of the Company set forth in this Agreement shall be true and correct in all
material respects as of the date of this Agreement and as if made at and as
of the Closing Date, except as otherwise contemplated by this Agreement,
and PC Mailbox and the Selling Stockholders shall have received a
certificate to such effect signed by the President of the Company.
(b) Performance of Obligations of the Company. The Company shall have
performed in all material respects all obligations required to be performed
by it under this Agreement prior to the Closing Date, and PC Mailbox shall
have received a certificate to such effect signed by the president of the
Company.
(c) Additional Closing Documents. PC Mailbox and the Selling
Stockholders shall have received (i) the documents and instruments
referenced in Section 2.1 hereof; and (ii) such other documents and
instruments as are required to be delivered pursuant to the provisions of
this Agreement or otherwise reasonably requested by PC Mailbox.
8. Miscellaneous.
8.1 Cumulative Remedies. Any person having any rights under any provision
of this Agreement will be entitled to enforce such rights specifically, to
recover damages by reason of any breach of any provision of this Agreement, and
to exercise all other rights granted by law, which rights may be exercised
cumulatively and not alternatively.
8.2 Successors and Assigns. Except as otherwise expressly provided herein,
this Agreement and any of the rights, interests or obligations hereunder may not
be assigned by any of the parties hereto. All covenants and agreements contained
in this Agreement by or on behalf of any of the parties hereto will bind and
inure to the benefit of the respective permitted successors and assigns of the
parties hereto whether so expressed or not.
8.3 Severability. Whenever possible, each provision of this Agreement will
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be prohibited by or invalid
under applicable law, such provision will be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of this
Agreement or the other documents.
8.4 Counterparts. This Agreement may be executed in two or more
counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts when taken together will constitute one and the
same agreement.
8.5 Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties with respect to the subject matter thereof, and
supersedes all prior and contemporaneous agreements and understandings.
8.6 Survival of Representations. All representations, warranties and
agreements contained herein or made in writing by the Company, Viper and the
Selling Stockholders in connection with the transactions contemplated hereby
except any representation, warranty or agreement as to which compliance may have
been appropriately waived, shall survive the execution and delivery of this
Agreement.
8.7 Expenses and Attorney Fees. The Company, PC Mailbox and the Selling
Stockholders shall each pay all of their respective legal and due diligence
expenses in connection with the transactions contemplated by this Agreement,
including, without limiting the generality of the foregoing, legal and
accounting fees.
8.8 Waiver of Conditions. At any time or times during the term hereof, the
Company may waive fulfillment of any one or more of the conditions to its
obligations in whole or in part, and PC Mailbox or the Selling Stockholders may
waive fulfillment of any one or more of the foregoing conditions to their
obligation, in whole or in part, by delivering to the other party a written
waiver or waivers of fulfillment thereof to the extent specified in such written
waiver or waivers. Any such waiver shall be validly and sufficiently authorized
for the purposes of this Agreement if, as to any party, it is authorized in
writing by an authorized representative of such party. The failure of any party
hereto to enforce at any time any provision of this Agreement shall not be
construed to be a waiver of such provision, nor in any way to affect the
validity of this Agreement or any part hereof or the right of any party
thereafter to enforce each and every such provision. No waiver of any breach of
this Agreement shall be held to constitute a waiver of any other or subsequent
breach.
8.9 Law Governing. This Agreement shall be construed and interpreted in
accordance with and governed and enforced in all respects by the laws of the
State of California.
8.10 Attorneys' Fees. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees, costs and disbursements
in addition to any other relief to which such party may be entitled.
8.11 Delivery by Fax. Delivery of an executed counterpart of the Agreement
or any exhibit attached hereto by facsimile transmission shall be equally as
effective as delivery of an executed hard copy of the same. Any party delivering
an executed counterpart of this Agreement or any exhibit attached hereto by
facsimile transmission shall also deliver an executed hard copy of the same, but
the failure by such party to deliver such executed hard copy shall not affect
the validity, enforceability or binding nature effect of this Agreement or such
exhibit.
8.12 Gender Neutral Pronouns. All pronouns and any variations thereof shall
be deemed to refer to the masculine, feminine or neuter, singular or plural, as
the identity of the referenced person, persons, entity or entities may require.
[THIS SPACE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, each of the parties to this Agreement has executed or
caused this Agreement to be executed as of the date first above written.
"COMPANY" "VIPER REPRESENTATIVES"
VIPER NETWORKS, INC., Signatures Appear on Exhibit A
a Utah corporation
By:
-----------------------------------------
Xxxx Xxxxxxxxxxx, Chief Executive Officer
"VIPER" "SELLING STOCKHOLDERS"
PC MAILBOX, INC. Signatures Appear on Exhibit B
a California corporation
By:
-----------------------------------------
Xxxx Xxxxxxx, President
COMPANY DISCLOSURE SCHEDULE
The following schedule is intended to provide PC Mailbox, Inc. and the
Selling Shareholders with additional disclosure regarding the company and must
be read in conjunction Section 5 of the Securities Purchase Agreement.
1. Section 5.12. The last audited financial statements of Company or as of
December 31, 2000. The last unaudited balance sheet is as of June 30, 2002.
Copies of both have been provided PC Mailbox.
EXHIBIT A
VIPER representatives
Name and Address Number of
of Viper Representative Signature Securities
Xxxxx Xxxx --------------------------- 1,800,000
Xxxx Xxxxxxxxxxx --------------------------- 1,800,000
Xxxxx Xxxxxxxx --------------------------- 1,800,000
0000 Xxxxxxxxx Xxx., Xxxxx 000
Xxx Xxxxx, XX 00000
EXHIBIT B
LIST OF SELLING STOCKHOLDERS
Name and Address of Number of PC Mailbox Number of Viper
Selling Stockholder Signature Shares Networks Shares
-------------------------- ------------------------ ------------------------ -------------------
Xxxx Xxxxxxx 24,500,000 800,000
---------------
EXHIBIT C
Form of company officers certificate
The undersigned hereby certifies to PC Mailbox and the Selling Stockholders
(as those terms are defined in that certain Securities Purchase Agreement dated
as of November 19, 2002 by and among PC Mailbox, the Selling Stockholders and
Viper Networks, Inc. (the "Agreement")) that:
1. I am the duly elected and acting Chief Executive Officer of Viper
Networks, Inc., a Utah corporation ("Company").
2. This Officer's Certificate is being delivered to PC Mailbox and the
Selling Stockholders pursuant to Sections 2.1(b) and 8.3(a) of the Agreement.
3. All of the representations and warranties of the Company made in the
Agreement are true and correct in all material respects on and as of the date
hereof as though such representations and warranties had been made or given on
and as of the date hereof .
4. The Company has performed and complied in all material respects with all
of the covenants and agreements made in the Agreement to be performed by or
complied with by the Company on or prior to the date hereof.
Executed effective as of November 19, 2002.
------------------------------------------
Xxxx Xxxxxxxxxxx, Chief Executive Officer
EXHIBIT D
Form of company RESOLUTIONS
UNANIMOUS WRITTEN CONSENT
OF THE BOARD OF DIRECTORS OF
VIPER NETWORKS, INC.
A Utah Colorado Corporation
The undersigned, being all of the directors of Viper Networks, Inc., a Utah
corporation (the "Corporation"), hereby adopt the following recitals and
resolutions by their unanimous written consent thereto, effective as of November
19, 2002, hereby waiving all notice of and the holding of any meeting of the
board of directors to act upon such resolutions.
SECURITIES AGREEMENT AND PLAN OF REORGANIZATION
WHEREAS, there has been presented to the board of directors of this
Corporation a proposed Securities Purchase Agreement (the "Agreement") by and
among this Corporation, PC Mailbox, Inc., a California corporation ("PC
Mailbox"), and the stockholders of PC Mailbox (the "Selling Stockholders")
providing for the acquisition by the Corporation of a non-dilutive 49% interest
in the outstanding shares of stock of PC Mailbox in exchange for the issuance by
the Corporation of an aggregate of 800,000 shares of its common stock; and
WHEREAS, the board of directors of this Corporation deems it to be in the
best interests of the Corporation and its stockholders that the Corporation
acquire the non-dilutive 49% interest in PC Mailbox in accordance with the terms
and conditions of the Agreement.
RESOLVED, that the form, terms and conditions of the Agreement, as
presented to the board of directors, be and they hereby are, in all respects,
approved and adopted;
RESOLVED, FURTHER, that the President of this Corporation is hereby
authorized and directed, for and on behalf of the Corporation, to execute and
deliver the Agreement to PC Mailbox and the Selling Stockholders with such
changes thereto as such officer, in his discretion, deems necessary or
desirable;
RESOLVED, FURTHER, that the officers of the Corporation are further
authorized and empowered to execute any other agreements or documents and take
any further action necessary in order to enable the Corporation to perform its
obligations under the Agreement;
RESOLVED, FURTHER, that the officers of the Corporation are further
authorized and empowered for and on behalf of the Corporation to issue an
aggregate of 800,000 shares of its common stock to the Selling Stockholders in
accordance with the provisions of the Agreement;
RESOLVED, FURTHER, that the officers of the Corporation are further
authorized and empowered for and on behalf of the Corporation to pay all of the
fees and expenses incurred by the Corporation in connection with the negotiation
and consummation of the transactions contemplated by the Agreement;
RESOLVED, FURTHER, that the officers of the Corporation are further
authorized and empowered for and on behalf of the Corporation to prepare or
cause to be prepared, execute and file the appropriate notice and exemption
forms pertaining to the issuance of the Corporation's stock pursuant to the
Agreement as required under applicable federal and state securities laws
including, but not limited to, Form D pursuant to and in accordance with
Regulation D of the Securities Act of 1933.
OMNIBUS RESOLUTIONS
RESOLVED, that the appropriate officers of the Corporation are hereby
authorized, empowered and directed to do or cause to be done any and all such
further acts and things, to execute any and all such further documents as they
may deem necessary or advisable to effect the provisions of the Agreement and to
carry out the intent and accomplish the purposes of the foregoing resolutions.
RESOLVED, FURTHER, that the authority given hereunder shall be deemed
retroactive and any and all acts authorized hereunder performed prior to the
passage of these resolutions are hereby ratified and affirmed.
This Unanimous Written Consent may be executed in one or more counterparts,
each of which shall be an original and all of which together shall be one and
the same instrument. This Unanimous Written Consent shall be filed in the Minute
Book of this Corporation and become a part of the records of this Corporation.
IN WITNESS WHEREOF, the undersigned have executed this Unanimous Written
Consent effective as of November 19, 2002.
------------------------------------
XXXXX XXXX
------------------------------------
XXXX XXXXXXXXXXX
------------------------------------
XXXXX XXXXXXXX
EXHIBIT E
Form of pc mailbox officers certificate
The undersigned hereby certifies to the Viper Networks, Inc. that:
1. I am the duly elected and acting President of PC Mailbox, Inc., a
California corporation ("PC Mailbox").
2. This Officer's Certificate is being delivered to the Viper Netorks, Inc.
pursuant to Sections 2.3(a) and 8.2(b) of the Agreement.
3. All of the representations and warranties of PC Mailbox made in the
Agreement are true and correct in all material respects on and as of the date
hereof as though such representations and warranties had been made or given on
and as of the date hereof .
4. PC Mailbox has performed and complied in all material respects with all
of the covenants and agreements made in the Agreement to be performed by or
complied with by the Company on or prior to the date hereof.
Executed effective as of November 19, 2002.
------------------------------------------
Xxxx Xxxxxxx, President
EXHIBIT F
Form of PC Mailbox RESOLUTIONS
WRITTEN CONSENT OF DIRECTORS AND SHAREHOLDERS OF PC MAILBOX, INC.
Pursuant to the provisions of the General Corporation Law of California,
the undersigned being all the shareholders and directors of PC Mailbox, Inc.
(the "Corporation"), a California Corporation entitled to vote upon the
following resolutions as if the same had been submitted at a formal meeting of
the shareholders and directors of the Corporation duly called and held for the
purpose of acting upon such resolutions, does hereby adopt such resolutions to
the same extent and to have the same force and effect as it adopted by unanimous
vote at a formal meeting of the shareholders and directors of the Corporation
duly called and held for the purpose of acting upon proposals to adopt such
resolutions.
I. Approval of Securities Purchase Agreement
NOW, THEREFORE, IT IS HEREBY
RESOLVED, that the form, terms and provisions of the Securities Purchase
Agreement dated on or about November 19, 2002 by and between Corporation and
Viper Networks, Inc., a Utah Corporation (the "Agreement"), a copy of which has
been reviewed by the undersigned Directors and Shareholders, be and they hereby
are, in all respects approved; and it is further
RESOLVED, that the officers of the Corporation be, and each of them hereby
is, authorized in the name and on behalf of the Corporation to do or cause to be
done all such further acts and things and to take or cause to be taken and any
and all such further actions and to make, execute and deliver or cause to be
made, executed and delivered any and all such documents, agreements,
instruments, certificates, press releases. Filings with governmental agencies
and undertakings as each such officer may deem necessary or advisable to carry
into effect the purposes and intent of the foregoing resolution and the
transactions contemplated thereby, and to perform or cause to be performed any
agreement related thereto and any other agreement referred to herein or
contemplated or authorized hereby, and it is further
RESOLVED, that any and all actions heretofore or hereafter taken by any
officer, agent or employee of the Corporation within the terms of the foregoing
resolutions be and they, hereby are ratified, confirmed, authorized and approved
as the deed of the Corporation, and further
RESOLVED, that the Secretary and Assistant Secretary of the Corporation be
and each of them is hereby authorized and empowered to certify as to all matters
pertaining to the acts, transactions or agreements contemplated in the foregoing
resolutions.
------------------------------------
Xxxx Xxxxxxx, representing
all the Directors and
Shareholders of PC Mailbox,
Inc.
