EXHIBIT 10.1
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STOCK PURCHASE AGREEMENT
by and among
XXXXXX PHARMACEUTICAL ACQUISITION CORP.
"PURCHASER"
AND
XXXXXX PHARMACEUTICALS, LTD.
"COMPANY"
And
IVOICE, INC.
"SELLER"
DATED AUGUST 7, 2006
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT, dated as of August 7, 2006, is made and
entered into by and among Xxxxxx Pharmaceuticals Ltd. (the "Company"),Xxxxxx
Pharmaceutical Acquisition Corp. (the "Purchaser"), and iVoice, Inc. (the
"Seller"). The Purchaser, the Company, and the Seller are sometimes individually
referred to herein as a "Party" and collectively as the "Parties."
RECITALS:
WHEREAS, the Company is engaged in the pharmaceutical business;
WHEREAS, the Seller owns the following securities of Xxxxxx
Pharmaceuticals, Ltd., a New Jersey corporation (hereinafter the "Securities"):
100 shares of Class A Common Stock, 550 shares of Series B Convertible Preferred
Stock, $360,000 of 10% Securied Convertible Debentures issued January 6, 2006,
$100,000 of Administrative Service Convertible Debentures due January 1, 2013
issued January 6, 2006, and $225,000 of Secured Convertible Debentures due
January 1, 2013 issued April 27, 2006;
WHEREAS, upon the terms and conditions set forth herein, the Seller
proposes to sell to the Purchaser and the Purchaser proposes to purchase from
the Seller, all of the Securities;
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants, agreements and conditions hereinafter
set forth, and intending to be legally bound hereby, each Party hereby agrees as
follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain Definitions. The following terms, as used
herein, have the following meanings:
"Affiliate" of any specified Person means any other Person directly or
indirectly Controlling or Controlled by or under direct or indirect common
Control with such specified Person.
"Agreement" means this Stock Purchase Agreement, as amended from time
to time.
"Assets" means all of the assets, properties and rights of the Company,
whether real, personal or mixed, whether tangible or intangible, and wherever
situated, in existence on the date hereof and any additions thereto on or before
the Closing Date.
"Business Day" means any day except Saturday, Sunday or any day on
which banks are generally not open for business in the City of New York, New
York.
"Business" means the present business as operated by the Company on the
date hereof.
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"Closing" means the consummation of the purchase and sale of the
Securities, as set forth in this Agreement.
"Closing Date" means the date on which the Closing occurs.
"Code" means the United States Internal Revenue Code of 1986, as
amended, including effective date and transition rules (whether codified or
not). Any reference herein to a specified provision of the Code shall be deemed
to include a reference to any successor provision thereof.
"Company Ancillary Documents" means any certificate, agreement,
document or other instrument, other than this Agreement, to be executed and
delivered by the Company in connection with the transactions contemplated
hereby.
"Confidential Information" means any data or information concerning the
Company (including trade secrets), without regard to form, regarding (for
example and including, but not limited to) (a) business process models; (b)
proprietary software; (c) research, development, products, services, marketing,
selling, business plans, budgets, unpublished financial statements, licenses,
prices, costs, Contracts, suppliers, customers, and customer lists; (d) the
identity, skills and compensation of employees, contractors, and consultants;
(e) specialized training; and (f) discoveries, developments, trade secrets,
processes, formulas, data, lists, and all other works of authorship, mask works,
ideas, concepts, know-how, designs, and techniques, whether or not any of the
foregoing is or are patentable, copyrightable, or registrable under any
intellectual property Laws or industrial property Laws in the United States or
elsewhere. Notwithstanding the foregoing, no data or information constitutes
"Confidential Information" if such data or information is publicly known and in
the public domain through means that do not involve a breach of any covenant or
obligation set forth in this Agreement.
"Contract" means any contract, sub-contract, agreement, lease, license,
commitment, sale and purchase order, note, loan agreement or any other
instrument, arrangement, or understanding of any kind, whether written or oral,
and whether express or implied.
"Control" means, when used with respect to any specified Person, the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by Contract or
otherwise.
"Customer" means a customer of the Company that paid the Company in the
aggregate more than $25,000 during the six (6)-month period ended June 30, 2006.
"GAAP" means generally accepted accounting principles as applied in the
United States.
"Governmental Entity" means any (i) nation, state, commonwealth,
county, city, town, village, district, or other jurisdiction of any nature, (ii)
federal, state, local, municipal, foreign, or other government, (iii) federal,
state, local or foreign governmental or quasi-governmental authority of any
nature (including any agency, branch, department, board, commission, court or
tribunal), (iv) multi-national or supra-national organization or body, (v) body
exercising, or entitled or purporting to exercise, any administrative,
executive, judicial, legislative, police, regulatory, or taxing authority or
power, including any court or arbitrator, (vi) self-regulatory organization or
(vii) official of any of the foregoing.
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"Intellectual Property" means any or all of the following and all
rights, arising out of or associated therewith: (a) all United States,
international and foreign patents and applications therefor and all reissues,
divisions, renewals, extensions, provisionals, continuations and
continuations-in-part thereof; (b) all inventions (whether patentable or not),
invention disclosures, improvements, proprietary information, know-how,
technology, technical data and customer lists, and all documentation relating to
any of the foregoing throughout the world; (c) all copyrights, copyright
registrations and applications therefor, and all other rights corresponding
thereto throughout the world; (d) all industrial designs and any registrations
and applications therefor throughout the world; (e) all internet uniform
resource locators, domain names, trade names, logos, slogans, designs, common
law trademarks and service marks, trademark and service xxxx registrations and
applications therefor throughout the world; (f) all databases and data
collections and all rights therein throughout the world; (g) all moral and
economic rights of authors and inventors, however denominated throughout the
world; and (h) any similar or equivalent rights to any of the foregoing anywhere
in the world.
"Knowledge" means all facts known by a Person on the date hereof or on
the Closing Date following reasonable inquiry and diligence with respect to the
matters at hand.
"Laws" means all laws, statutes, common law, rules, codes, regulations,
restrictions, ordinances, orders, decrees, approvals, directives, judgments,
rulings, injunctions, writs, awards and decrees of, or issued or entered by, all
Governmental Entities.
"Licenses" means all notifications, licenses, permits (including
environmental, construction and operation permits), franchises, certificates,
approvals, exemptions, classifications, registrations and other similar
documents and authorizations issued by any Governmental Entity, and applications
therefor.
"Liens" mean all mortgages, liens, pledges, security interests,
charges, claims, restrictions and encumbrances of any nature whatsoever.
"Material Adverse Effect" means any state of facts, change, event,
effect or occurrence (when taken together with all other states of fact,
changes, events, effects or occurrences) that has had or is reasonably likely to
have a materially adverse effect on the financial condition, results of
operations, prospects, properties, assets or liabilities (including contingent
liabilities) of the Company. A Material Adverse Effect shall also include any
state of facts, change, event or occurrence that shall have occurred or been
threatened that (when taken together with all other states of facts, changes,
events, effects or occurrences that have occurred or been threatened) has
prevented or materially delayed, or would be reasonably likely to prevent or
materially delay, the performance by any Party of their obligations hereunder or
the consummation of the transactions contemplated hereby.
"Noncompete Period" means the period beginning on the Closing Date and
continuing for a period of five (5) years from the Closing Date.
"Permitted Liens" means (a) Liens for Taxes not yet due and payable,
(b) Liens of carriers, warehousemen, mechanics, materialmen and repairmen
incurred in the ordinary course of business consistent with past practice and
not yet delinquent and (c) in the case of the Real
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Property, zoning, building, or other restrictions, variances, covenants, rights
of way, encumbrances, easements and other minor irregularities in title, none of
which, individually or in the aggregate, (i) interfere in any material respect
with the present use of or occupancy of the affected parcel by the Company, (ii)
have more than an immaterial effect on the value thereof or its use, or (iii)
would impair the ability of such parcel to be sold for its present use.
"Person" means any individual, corporation, partnership, joint venture,
limited liability company, trust, unincorporated organization or Governmental
Entity.
"Purchaser Ancillary Documents" means any certificate, agreement,
document or other instrument, other than this Agreement, to be executed and
delivered by the Purchaser in connection with the transactions contemplated
hereby.
"Registered Intellectual Property" means all United States,
international and foreign: (a) patents and patent applications (including
provisional applications); (b) registered trademarks and service marks,
applications to register trademarks and service marks, intent-to-use
applications, or other registrations or applications related to trademarks and
service marks; (c) registered copyrights and applications for copyright
registration; (d) domain name registrations; and (e) any other Intellectual
Property that is the subject of an application, certificate, filing,
registration or other document issued, filed with, or recorded with any
Governmental Entity.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Seller Ancillary Documents" means any certificate, agreement, document
or other instrument, other than this Agreement, to be executed and delivered by
the Company, Seller or any Affiliate of the Seller in connection with the
transactions contemplated hereby.
"Supplier" means any supplier of goods or services to the Company to
which the Company paid in the aggregate more than $100,000 during the six
(6)-month period ended June 30, 2006.
"Taxes" means all taxes, assessments, charges, duties, fees, levies and
other charges of a Governmental Entity, including income, franchise, capital
stock, real property, personal property, tangible, withholding, employment,
payroll, social security, social contribution, unemployment compensation,
disability, transfer, sales, use, excise, gross receipts, value-added and all
other taxes of any kind for which the Company or the Purchaser may have any
liability imposed by any Governmental Entity, whether disputed or not, and any
related charges, interest or penalties imposed by any Governmental Entity.
"Tax Return" means any report, return, declaration or other
information, in whatever form or medium, required to be supplied to a
Governmental Entity in connection with Taxes, including estimated returns and
reports of every kind with respect to Taxes.
"Termination Date" means the date prior to the Closing when this
Agreement is terminated in accordance with Article X.
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Section 1.2 Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with GAAP.
ARTICLE II
PURCHASE AND SALE
Section 2.1 Agreement to Purchase and Sell. Subject to the
terms and conditions hereof, at the Closing, the Seller shall sell,
assign, transfer and deliver to the Purchaser, and the Purchaser shall
purchase and acquire from the Seller, all right, title and interest of
in and to the Securities, free and clear of all Liens.
ARTICLE III
PURCHASE PRICE; ADJUSTMENTS
Section 3.1 Purchase Price. The aggregate amount to be paid
for the Securities shall be $1,235,100 plus twenty-five (25%) percent
thereof, plus interest and dividends accrued under the terms of such
Securities through the Closing Date (the "Purchase Price").
Section 3.2 Payment of Purchase Price and Delivery of the
Securities.
(a) On the Closing Date, the Purchaser shall pay the Purchase Price to
the Seller.
(b) All payments required under this Section 3.2 or any other provision
hereof shall be made in cash by wire transfer of next day available funds to
such bank account as shall be designated in writing by Seller, or as otherwise
agreed by the Parties.
(c) On the Closing Date the Seller shall deliver certificates
representing the Securities to the Purchaser together with such instruments as
are customary for the lawful and proper negotiation of the same.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE SELLER
Section 4.1 Organization; Share Ownership.
(a) The Seller is a corporation duly formed and validly existing under
the Laws of the State of New Jersey and has all requisite power and authority to
own, lease and operate its properties and to carry on its business as now being
conducted.
(b) The Seller has good title to, and is the record holder and
beneficial owner of, the Securities, free and clear of any Liens, and such
Securities are validly issued, fully paid and nonassessable and in the case of
debentures valid and enforceable obligations of the Company. The Seller is not
bound by any agreement affecting or relating to its right to transfer or vote
the Securities.
Section 4.2 Authorization. The Seller has full corporate
power and authority to execute and deliver this Agreement and the
Seller Ancillary Documents to which it is a party and to perform its
obligations hereunder and thereunder and to consummate the transactions
contemplated hereby and thereby. The execution and delivery of this
Agreement and the Seller Ancillary Documents by the Seller and the
performance by the Seller of its obligations hereunder and thereunder
and the consummation of the transactions provided for herein and
therein have been duly and validly authorized by all necessary
corporate action on the part of the Seller. This Agreement has been,
and the Seller Ancillary Documents shall be as of the Closing Date,
duly executed and delivered by the Seller and do or shall, as the case
may be, constitute the valid and binding agreements of the Seller,
enforceable against the Seller in accordance with their respective
terms.
Section 4.3 Absence of Restrictions and Conflicts. The
execution, delivery and performance by the Seller of this Agreement and
the Seller Ancillary Documents, the consummation of the transactions
contemplated hereby and thereby and the fulfillment of and compliance
with the terms and conditions hereof and thereof do not or shall not
(as the case may be), with the passing of time or the giving of notice
or both, (a) contravene or conflict with any term or provision of the
articles of incorporation or bylaws of the Seller, (b) violate or
conflict with, constitute a breach of or default under, result in the
loss of any benefit under, permit the acceleration of any obligation
under or create in any party the right to terminate, modify or cancel
any Contract to which the Seller is a party, (c) contravene or conflict
with any judgment, decree or order of any Governmental Entity to which
the Seller is a party or by which the Seller or any of its properties
are bound, or (d) contravene or conflict with any Law or arbitration
award applicable to the Seller.
Section 4.4 Required Consents. Schedule 4.4 sets forth each
action, consent, approval, notification, waiver, authorization, order
or filing (each, a "Required Consent" and collectively, the "Required
Consents") under any Law,
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License or other Contract to which the Seller is a party that is
necessary with respect to the execution, delivery and performance of
this Agreement or the Seller Ancillary Documents in order to avoid a
breach or violation of, or giving rise to any right of termination,
cancellation or acceleration of any right or obligation or to a loss of
any benefit under any such Law, License or Contract to which the Seller
is a party. Except as set forth on Schedule 4.4, no consent, approval,
order or authorization of, or registration, declaration or filing with,
any Governmental Entity is required with respect to the Seller in
connection with the execution, delivery or performance of this
Agreement or the Seller Ancillary Documents.
Section 4.5 Legal Proceeding. There are no suits, actions,
claims, proceedings or investigations pending or, to the Knowledge of
the Seller, threatened against, relating to or involving the Seller
which would reasonably be expected to adversely affect the Seller's
ability to consummate the transactions contemplated by this Agreement
or any Seller Ancillary Document.
Section 4.6 Knowledge of Seller. Seller has no Knowledge
that any representation or warranty set forth by the Company in Section
5.3 Article V of the Agreement contains any untrue statement of any
material fact or any omission to state any material fact necessary in
order to make the statements made in light of the circumstances under
which they were made, not misleading.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF
THE COMPANY
The Company represents and warrants to the Purchaser as follows as of
the date hereof and the Closing Date:
Section 5.1 Organization. The Company is a corporation duly
formed and validly existing under the Laws of the State of New Jersey
and has all requisite power and authority to own, lease and operate its
properties and to carry on its business as now being conducted. The
Company is duly qualified or registered as a foreign corporation to
transact business under the Laws of each jurisdiction where the
character of its activities or the location of the properties owned or
leased by it requires such qualification or registration.
Section 5.2 Authorization. At the Closing Date the Company
will have full corporate power and authority to execute and deliver
this Agreement and the Company Ancillary Documents and to perform its
obligations hereunder and thereunder and to consummate the transactions
contemplated hereby and thereby. The execution and delivery of this
Agreement and the Company Ancillary Documents by the Company and the
performance by the Company of its obligations hereunder and thereunder
and the consummation of the transactions provided for herein and
therein at the Closing Date, will have been duly and validly authorized
by all necessary corporate action on the part of the Company. This
Agreement and the Company Ancillary Documents shall be as of the
Closing Date, duly executed and
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delivered by the Company and do or shall, as the case may be,
constitute the valid and binding agreements of the Company, enforceable
against the Company in accordance with their respective terms.
Section 5.3 Balance Sheet. Schedule 5.3 contains the
unaudited balance sheet as of June 30, 2006. The balance sheet is in
conformity with GAAP and has been prepared from, and are in accordance
with, the books and records of the Company, which books and records
have been maintained on a basis consistent with the past practice of
the Company. The balance sheet fairly presents the financial position
of the Company as of the date of such balance sheet. Since December 31,
2005, there has been no change in any accounting (or tax accounting)
policy, practice or procedure of the Company. The Company maintains
accurate books and records reflecting its assets and liabilities and
maintains proper and adequate internal accounting controls which
provide assurance that (i) transactions are executed in accordance with
management's authorization, (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with GAAP,
and (iii) accounts, notes and other receivables and inventory are
recorded accurately, and proper and adequate procedures are implemented
to effect the collection thereof on a current and timely basis.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF PURCHASER
The Purchaser hereby represents and warrants to the Company and the
Seller as follows:
Section 6.1 Organization. The Purchaser is a corporation
duly organized, validly existing and in good standing under the laws of
the State of Delaware and has all requisite corporate power and
authority to own, lease and operate its properties and to carry on its
business as now being conducted.
Section 6.2 Authorization. The Purchaser has full corporate
power and authority to execute and deliver this Agreement and the
Purchaser Ancillary Documents, to perform its obligations hereunder and
thereunder and to consummate the transactions contemplated hereby and
thereby. The execution and delivery of this Agreement and the Purchaser
Ancillary Documents by the Purchaser, the performance by the Purchaser
of its obligations hereunder and thereunder, and the consummation of
the transactions provided for herein and therein have been duly and
validly authorized by all necessary corporate action on the part of the
Purchaser. This Agreement has been and, as of the Closing Date, the
Purchaser Ancillary Documents shall be, duly executed and delivered by
the Purchaser and do or shall, as the case may be, constitute the valid
and binding agreements of the Purchaser, enforceable against the
Purchaser in accordance with their respective terms.
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Section 6.3 Absence of Restrictions and Conflicts. The
execution, delivery and performance of this Agreement and the Purchaser
Ancillary Documents, the consummation of the transactions contemplated
hereby and thereby and the fulfillment of, and compliance with, the
terms and conditions hereof and thereof do not or shall not (as the
case may be), with the passing of time or the giving of notice or both,
(a) contravene or conflict with any term or provision of the charter
documents of the Purchaser, (b) violate or conflict with, constitute a
breach of or default under, result in the loss of any benefit under,
permit the acceleration of any obligation under or create in any party
the right to terminate, modify or cancel any Contract to which the
Purchaser is a party, (c) contravene or conflict with any judgment,
decree or order of any Governmental Entity to which the Purchaser is a
party or by which the Purchaser is bound or (d) contravene or conflict
with any statute, Law, rule or regulation applicable to the Purchaser.
No consent, approval, order or authorization of, or registration,
declaration or filing with, any Governmental Entity is required with
respect to the Purchaser in connection with the execution, delivery or
performance of this Agreement or the Purchaser Ancillary Documents or
the consummation of the transactions contemplated hereby or thereby.
ARTICLE VII
CERTAIN COVENANTS AND AGREEMENTS
Section 7.1 Conduct of Business by the Company. For the
period commencing on the date hereof and ending on the Closing Date,
the Company shall, except as expressly required hereby and except as
otherwise consented to in advance in writing by the Purchaser, conduct
the Business in the ordinary course consistent with past practice and
shall, except as expressly required hereby and except as otherwise
consented to in advance in writing by the Purchaser:
(a) use its commercially reasonable efforts to preserve intact the
goodwill and business organization of the Company, keep the officers and
employees of the Company available to the Purchaser and preserve the
relationships and goodwill of the Company with customers, distributors,
suppliers, employees and other Persons having business relations with the
Company;
(b) maintain its existence and good standing in its jurisdiction of
organization and in each jurisdiction listed on Schedule 5.1(a);
(c) comply with all applicable Laws;
(d) maintain in existing condition and repair (ordinary wear and tear
excepted), consistent with past practices, all buildings, offices, shops and
other structures located on the Real Property, and all equipment, fixtures and
other tangible personal property located on the Real Property;
(e) not authorize for issuance or issue and deliver any additional
shares of its capital stock or securities convertible into or exchangeable for
shares of its capital stock,
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or issue or grant any right, option or other commitment for the issuance of
shares of its capital stock or of such securities, or split, combine or
reclassify any shares of its capital stock;
(f) not amend or modify its articles of incorporation or bylaws;
(g) not declare any dividend, pay or set aside for payment any dividend
or other distribution or make any payment to any shareholder, officer or
director or any Person with whom any such shareholder, officer or director has
any direct or indirect relation, other than the payment of salaries in the
ordinary course of business and consistent with past practice;
(h) not create any subsidiary, acquire any capital stock or other
equity securities of any corporation or acquire any equity or ownership interest
in any business or entity;
(i) not dispose of or permit to lapse any ownership and/or right to the
use of any patent, trademark, trade name, service xxxx, license or copyright of
the Company (including any of the Company Intellectual Property), or dispose of
or disclose to any Person, any Confidential Information;
(j) protect, defend and maintain the ownership, validity and
registration of the Company Intellectual Property, and not allow any of the
Registered Intellectual Property to be abandoned, forfeited, cancelled, expunged
and/or dedicated to the public;
(k) not (i) create, incur or assume any indebtedness, (ii) grant,
create, incur or suffer to exist any Lien on the Assets that did not exist on
the date hereof, (iii) write-down the value of any asset or investment on the
books or records of the Company, except for depreciation and amortization in the
ordinary course of business and consistent with past practice, (iv) cancel any
debt or waive any claim or right, (v) make any commitment for any capital
expenditure to be made on or following the date hereof in excess of $10,000 in
the case of any single expenditure or $20,000 in the case of all capital
expenditures, (vi) enter into any Contract which cannot be cancelled by the
Company on notice of not longer than thirty (30) days and without liability or
penalty of any kind, (vii)enter into any Contract which imposes, or purports to
impose, any obligations or restrictions on any of its Affiliates, or (viii)
settle or compromise any legal proceedings related to or in connection with the
Business;
(l) not (i) increase in any manner the compensation of, or enter into
any new bonus or incentive agreement or arrangement with, any of its employees,
officers, directors or consultants, (ii) pay or agree to pay any additional
pension, retirement allowance or other employee benefit under any Company
Benefit Plan to any of its employees or consultants, whether past or present,
except, in each case, in the ordinary course of business to the extent
consistent with past practice of the Company; provided, however, that the
Company shall not take any action described in this Section 7.1(l) with respect
to (i) any manager, officer or director of the Company or (ii) any Person whose
annualized compensation is $60,000 or more or whose annual compensation for
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the twelve (12)-month period following the Expiration Date is expected to be
$60,000 or more;
(m) except as required by Applicable Benefit Laws, not adopt, amend or
terminate any Company Benefit Plan or increase the benefits provided under any
Company Benefit Plan, or promise or commit to undertake any of the foregoing in
the future;
(n) not enter into a collective bargaining agreement; (o) not enter
into any Employment Agreement;
(p) perform in all material respects all of its obligations under all
Company Contracts and Licenses, and not default or suffer to exist any event or
condition that with notice or lapse of time or both could constitute a default
under any Company Contract or License (except those being contested in good
faith);
(q) not increase any reserves for contingent liabilities (excluding any
adjustment to bad debt reserves in the ordinary course of business consistent
with past practice);
(r) maintain in full force and effect and in the same amounts policies
of insurance comparable in amount and scope of coverage to that maintained as of
the date hereof by or on behalf of the Company;
(s) continue to maintain its books and records in accordance with GAAP
consistently applied and on a basis consistent with past practice and not make
any change in any accounting (or tax accounting) policy, practice or procedure
of the Company;
(t) continue its current cash and inventory management practices; and
(u) not authorize, or commit or agree to take, any of the foregoing
actions, which the Company is required not to take without the Purchaser's prior
written consent.
Section 7.2 Inspection and Access to Information. During the
period commencing on the date hereof and ending on the Closing Date,
the Company shall (and shall cause its officers, directors, employees,
auditors and agents to) provide the Purchaser and its accountants,
investment bankers, counsel, environmental consultants and other
authorized representatives full access, during reasonable hours and
under reasonable circumstances, to any and all of its premises,
employees (including executive officers), properties, contracts,
commitments, books, records and other information (including Tax
Returns filed and those in preparation) and shall cause its officers to
furnish to the Purchaser and its authorized representatives, promptly
upon request therefor, any and all financial, technical and operating
data and other information pertaining to the Company and the Business
and otherwise
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fully cooperate with the conduct of due diligence by the Purchaser and
its representatives.
Section 7.3 Notices of Certain Events. The Company shall
promptly notify the Purchaser of:
(a) any fact, condition, change or event that, individually or in the
aggregate, has had or could reasonably be expected to have a Material Adverse
Effect or otherwise results in any representation or warranty of the Company or
the Seller hereunder being inaccurate in any respect as of the date of such
fact, condition, change or event had such representation or warranty been made
as of such date;
(b) any fact, condition, change or event that causes or constitutes a
breach of any of the representations or warranties of the Company or the Seller
hereunder made as of the date hereof;
(c) any notice or other communication from any Person alleging that the
consent of such Person is or may be required in connection with the transactions
contemplated hereby;
(d) any notice or other communication from or to any Governmental
Entity in connection with the transactions contemplated hereby;
(e) any action, suit, claim, investigation or proceeding commenced or,
to its Knowledge, threatened against, relating to or involving or otherwise
affecting the Company or the Business or that relate to the consummation of the
transactions contemplated hereby; and
(f) (i) the damage or destruction by fire or other casualty of any
material Asset or part thereof or (ii) any material Asset or part thereof
becoming the subject of any proceeding (or, to the Knowledge of the Company,
threatened proceeding) for the taking thereof or of any right relating thereto
by condemnation, eminent domain or other similar governmental action.
The Company hereby acknowledges that the Purchaser does not and shall
not waive any right it may have hereunder solely as a result of such
notifications and any notification given pursuant to this Section.
Section 7.4 Reasonable Efforts; Further Assurances;
Cooperation. Subject to the other provisions hereof, each Party shall
each use its reasonable, good faith efforts to perform its obligations
hereunder and to take, or cause to be taken, and do, or cause to be
done, all things necessary, proper or advisable under applicable Law to
cause the transactions contemplated herein to be effected as soon as
practicable, but in any event on or prior to the Expiration Date, in
accordance with the terms hereof and shall cooperate fully with each
other Party and its officers, directors, employees, agents, counsel,
accountants and other designees in connection with any step required to
be taken as a part of its obligations hereunder, including the
following:
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(a) Each Party shall promptly make its filings and submissions and
shall take all actions necessary, proper or advisable under applicable Laws to
obtain any required approval of any Governmental Entity with jurisdiction over
the transactions contemplated hereby (except that the Purchaser shall have no
obligation to take or consent to the taking of any action required by any such
Governmental Entity that could adversely affect the Business, the Assets or the
transactions contemplated by this Agreement or the Purchaser Ancillary
Documents). The Company shall furnish to the Purchaser all information required
for any application or other filing to be made by the Company pursuant to any
applicable Law in connection with the transactions contemplated hereby;
(b) Each Party shall promptly notify the other Parties of (and provide
written copies of) any communications from or with any Governmental Entity in
connection with the transactions contemplated hereby;
(c) In the event any claim, action, suit, investigation or other
proceeding by any Governmental Entity or other Person is commenced that
questions the validity or legality of the transactions contemplated hereby or
seeks damages in connection therewith, the Parties shall (i) cooperate and use
all reasonable efforts to defend against such claim, action, suit, investigation
or other proceeding, (ii) in the event an injunction or other order is issued in
any such action, suit or other proceeding, use all reasonable efforts to have
such injunction or other order lifted, and (iii) cooperate reasonably regarding
any other impediment to the consummation of the transactions contemplated
hereby; and
(d) The Company shall give all notices to third parties and use its
best efforts (in consultation with the Purchaser) to obtain all third-party
consents (i) necessary, proper or advisable to consummate the transactions
contemplated hereby, (ii) required to be given or obtained, including the
Required Consents or (iii) required to prevent a Material Adverse Effect,
whether prior to, on or following the Closing Date.
Section 7.5 Transfer Taxes; Expenses. Any Taxes or recording
fees payable as a result of the purchase and sale of the Shares or any
other action contemplated hereby (other than any federal, state, local
or foreign Taxes measured by or based upon income or gains imposed upon
the Purchaser) shall be paid by the Purchaser. The Parties shall
cooperate in the preparation, execution and filing of all returns,
questionnaires, applications and other documents regarding Taxes and
all transfer, recording, registration and other fees that become
payable in connection with the transactions contemplated hereby that
are required or permitted to be filed at or prior to the Closing.
Section 7.6 Non-Competition.
(a) Confidential Information. The Company and the Seller shall hold in
confidence at all times following the date hereof all Confidential Information
and shall not disclose, publish or make use of Confidential Information at any
time following the date hereof without the prior written consent of the
Purchaser.
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(b) Noncompetition.
(i) The Company and the Seller hereby acknowledge that (A) the
Company conducts the Business and/or has current plans to expand the
Business throughout the Territory and (B) to protect adequately the
interest of the Purchaser in the business and goodwill of the Company,
it is essential that any noncompetition covenant with respect thereto
cover all of the Business and the entire Territory.
(ii) The Seller shall not, during the Noncompete Period, in any
manner, either directly, indirectly, individually, in partnership,
jointly or in conjunction with any Person, (A) engage in the business
of providing, distributing or selling within the Territory products or
services similar to the Company Services, or (B) have an equity or
profit interest in, advise or render services (of an executive,
marketing, manufacturing, research and development, administrative,
financial, consulting or other nature) or lend money to any Person that
provides, distributes or sells within the Territory products or
services similar to the Company Products or the Services.
(iii) Notwithstanding anything to the contrary, the Seller may
acquire, through the purchase of capital stock or assets, from an
unrelated third party, a business that may compete with the Business of
the Company.
(c) Nonsolicitation. The Seller shall not, during the Noncompete
Period, in any manner, directly, indirectly, individually, in partnership,
jointly or in conjunction with any Person, except as permitted in Section
7.6(b)(iii) above, (i) (x) recruit or solicit or attempt to recruit or solicit,
on any of their behalves or on behalf of any other Person, any employee of the
Company or an Affiliate thereof, (y) encourage any Person (other than the
Purchaser or one of its Affiliates) to recruit or solicit any employee of the
Company or an Affiliate thereof, or (z) otherwise encourage any employee of the
Company or an Affiliate thereof to discontinue his or her employment by the
Company or one of its Affiliates; (ii) solicit any customer of the Company or an
Affiliate thereof who is or has been a customer on or prior to the Closing Date
for the purpose of providing, distributing or selling products or services
similar to the Company Products or the Services; or (iii) persuade or attempt to
persuade any customer or supplier of the Company or any of its Affiliates to
terminate or modify such customer's or supplier's relationship with the Company
or any of its Affiliates.
(d) Severability. In the event a judicial or arbitral determination
is made that any provision of this Section 7.6 constitutes an unreasonable or
otherwise unenforceable restriction against the Company or the Seller, the
provisions of this Section 7.6 shall be rendered void only to the extent that
such judicial or arbitral determination finds such provisions to be unreasonable
or otherwise unenforceable with respect to the Company or the Seller. In this
regard, any judicial authority construing this Agreement shall be empowered to
sever any portion of the Territory, any prohibited business activity or any
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time period from the coverage of this Section 7.6 and to apply the provisions of
this Section 7.6 to the remaining portion of the Territory, the remaining
business activities and the remaining time period not so severed by such
judicial or arbitral authority. Moreover, notwithstanding the fact that any
provision of this Section 7.6 is determined not to be specifically enforceable,
the Purchaser shall nevertheless be entitled to recover monetary damages as a
result of the breach of such provision by the Company or the Seller. The time
period during which the prohibitions set forth in this Section 7.6shall apply
shall be tolled and suspended for a period equal to the aggregate time during
which the Company or the Seller violates such prohibitions in any respect.
(e) Injunctive Relief. Any remedy at law for any breach of the
provisions contained in this Section 7.6 shall be inadequate and the Purchaser
shall be entitled to injunctive relief in addition to any other remedy the
Purchaser might have hereunder.
Section 7.7 Release. In consideration for entering into this
Agreement, the Company, the Purchaser, the Seller and the individual
signatories appended to this Agreement who agree to be bound by this
Section 7.7 of Article VIII (the "Releasor(s)"), on the date hereof,
knowingly, voluntarily and unconditionally release, forever discharge,
and covenant not to xxx the individuals and entities listed on Schedule
7.7 (the "Releasees") from or for any and all claims, causes of action,
demands, suits, debts, obligations, liabilities, damages, losses, costs
and expenses (including attorneys' fees) of every kind or nature
whatsoever, known or unknown, actual or potential, suspected or
unsuspected, fixed or contingent, that such Releasor has or may have,
now or in the future to the end of the world, arising out of, relating
to, or resulting from any act or omission, error, negligence, breach of
contract, tort, violation of law, discrimination, matter or cause
whatsoever from the beginning of time or in the future to the end of
the world; provided, however, that the foregoing release shall not
apply to any claims arising out of this Agreement. Each party hereto
agrees that notwithstanding anything else in this Agreement, the
provisions of this Section 7.7 shall survive Termination of this
Agreement.
Section 7.8 Certain Agreements. Effective on the Closing
Date, the Company and the Seller agree to terminate: (i) the
Administrative Services Agreement dated Xxxxxxx 0, 0000, (xx) the
Investor Registration Rights Agreement dated January 6, 2006 and (iii)
the Security Agreement dated January 6, 2006.
ARTICLE VIII
CONDITIONS TO CLOSING
Section 8.1 Conditions to Obligations of the Purchaser. The
obligations of the Purchaser to consummate the transactions
contemplated hereby shall be subject to the fulfillment (or waiver by
the Purchaser) at or prior to the Closing of each of the following
additional conditions:
(a) Injunction. There shall be no effective injunction, writ or
preliminary restraining order or any order of any nature issued or Law passed by
a Governmental Entity of competent jurisdiction to the effect that the
transactions contemplated hereby may not be consummated as provided herein, no
proceeding or lawsuit shall have been commenced by any Governmental Entity for
the purpose of obtaining any such
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injunction, writ or preliminary restraining order and no written notice shall
have been received from any Governmental Entity indicating an intent to
restrain, prevent, materially delay or restructure the transactions contemplated
hereby, in each case where the Closing would (or would be reasonably likely to)
result in a material fine or penalty payable by the Purchaser or the Company or
a material restriction on the operation of the Business as a result of such
matter.
(b) Consents. All Required Consents shall have been obtained or made on
terms and conditions reasonably satisfactory to the Purchaser.
(c) Representations and Warranties. Each of the representations and
warranties of the Company and the Seller set forth in Article IV and Article V
shall have been true and correct in all material respects as of the date hereof
and shall be true and correct in all material respects as of the Closing Date as
though made on and as of the Closing Date, except that those representations and
warranties that by their terms are qualified by materiality shall be true and
correct in all respects.
(d) Performance of Obligations of the Company and the Seller. The
Company and the Seller shall have performed in all material respects all
covenants and agreements required to be performed by each of them hereunder at
or prior to the Closing.
(e) No Material Adverse Effect. Between the date hereof and the Closing
Date, there shall not have occurred (nor shall the Purchaser have become aware
of) any Material Adverse Effect or any development reasonably likely to result
in a Material Adverse Effect.
Section 8.2 Conditions to Obligations of the Seller. The
obligations of the Seller to consummate the transactions contemplated
hereby shall be subject to the fulfillment (or waiver by the Seller) at
or prior to the Closing of each of the following additional conditions:
(a) Injunction. There shall be no effective injunction, writ or
preliminary restraining order or any order of any nature issued by a
Governmental Entity of competent jurisdiction to the effect that the Acquisition
may not be consummated as provided herein, no proceeding or lawsuit shall have
been commenced by any Governmental Entity for the purpose of obtaining any such
injunction, writ or preliminary restraining order and no written notice shall
have been received from any Governmental Entity indicating an intent to
restrain, prevent, materially delay or restructure the transactions contemplated
hereby, in each case where the Closing would (or would be reasonably likely to)
result in a material fine or penalty payable by the Seller or a material
restriction on the Company's operations as a result of such matter.
(b) Consents. All consents, approvals, orders or authorizations of, or
registrations, declarations or filings with, any Governmental Entity required in
connection with the execution, delivery or performance hereof shall have been
obtained or made on terms and conditions reasonably satisfactory to the Seller.
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(c) Representations and Warranties. Each of the representations and
warranties of the Purchaser set forth in Article VI shall have been true and
correct in all material respects as of the date hereof and shall be true and
correct in all material respects as of the Closing Date as though made on and as
of the Closing Date, except that those representations and warranties that by
their terms are qualified by materiality shall be true and correct in all
respects.
(d) Performance of Obligations by the Purchaser. The Purchaser shall
have performed all covenants and agreements required to be performed by it
hereunder on or prior to the Closing Date.
(e) Ancillary Documents. The Purchaser shall have delivered, or caused
to be delivered, to the Seller and the Company the documents listed in Section
9.3.
ARTICLE IX
CLOSING
Section 9.1 Closing. Subject to the satisfaction or waiver
of the conditions set forth in Article VIII, the Closing shall occur on
five (5) days notice by the Purchaser to the Seller, or such other date
as the Parties may agree. The Closing shall take place at the offices
of Snow Xxxxxx Xxxxxx P.C., 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, or at
such other place as the Parties may agree.
Section 9.2 Company and Seller Closing Deliveries. At the
Closing, the Company and the Seller, as applicable, shall deliver to
the Purchaser the following:
(a) a certificate executed by the Seller as to compliance with the
conditions set forth in Section 8.1(b), (c), and (d) hereof;
(b) certificates representing the Securities, duly endorsed in blank or
accompanied by duly executed stock powers or other assignment documents;
(c) a certificate by the Secretary or any Assistant Secretary of the
Company, dated the Closing Date, as to (1) the good standing of the Company in
its jurisdiction of incorporation and in each other jurisdiction where it is
qualified to do business, (2) no amendments to the Company's charter documents
and (3) the effectiveness of the resolutions of the board of directors of the
Company and the Seller authorizing the execution, delivery and performance
hereof by the Company passed in connection herewith and the transactions
contemplated hereby; and
(d) all other documents required to be entered into by the Company and
the Seller pursuant hereto or reasonably requested by the Purchaser to convey
the Securities to the Purchaser or to otherwise consummate the transactions
contemplated hereby.
Section 9.3 Purchaser Closing Deliveries. On the Closing,
the Purchaser shall have delivered, or caused to be delivered, to the
Seller the following:
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(a) the Purchase Price to be paid at Closing in accordance with such
Section 3.1;
(b) a certificate of an authorized officer as to compliance with the
conditions set forth in Section 8.2(c) and (d);
(c) all other documents required to be entered into or delivered by the
Purchaser at or prior to the Closing pursuant hereto or reasonably requested by
the Company to convey the Securities to the Purchaser or to otherwise consummate
the transactions contemplated hereby.
ARTICLE X
TERMINATION
Section 10.1 Termination. This Agreement may be terminated:
(a) in writing by mutual consent of the Purchaser and the Seller;
(b) by written notice from the Seller to the Purchaser, in the event
the Purchaser (i) fails to perform in any material respect any of its agreements
contained herein required to be performed by it at or prior to the Closing or
(ii) materially breaches any of its representations and warranties contained
herein, which failure or breach is not cured within ten (10) days following the
Seller having notified the Purchaser of its intent to terminate this Agreement
pursuant to this Section 10.1(b);
(c) by written notice from the Purchaser to the Seller, in the event
the Company or the Seller (i) fails to perform in any material respect any of
their agreements contained herein required to be performed by it at or prior to
the Closing or (ii) materially breaches any of their representations and
warranties contained herein, which failure or breach is not cured within ten
(10) days following the Purchaser having notified the Seller of its intent to
terminate this Agreement pursuant to this Section 10.1(c);
(d) by written notice by the Seller to the Purchaser or the Purchaser
to the Seller, as the case may be, in the event the Closing has not occurred on
or prior to October 31, 2006, unless extended by the Parties in writing (the
"Expiration Date") for any reason other than delay or nonperformance of the
Party seeking such termination.
Section 10.2 Limited Effect of Termination. In the event of
termination of this Agreement pursuant to Section 10.1 of Article X,
the "Series A Preferred Shareholders", as listed on Schedule 10.2
herein and described in the Shareholders Agreement dated as of January
6, 2006 by and among the Company, the Seller and the holders of the
Series A Preferred Shareholders, shall be deemed to have consented to
the consummation of a "Spin-Off Transaction" at the behest of the
Seller and waive the other conditions precedent required for a Spin-Off
Transaction to be consumated. Additionally, should the Closing not have
occurred by October
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31, 2006, then the persons specified in Schedule 10.2 herewith hereby
deliver to the Seller a Spin-Off Instruction, pursuant to Article
III.C.5.(a) as set forth in the Company's Certificate of Incorporation,
that the Company, at its sole discretion, shall use its commercially
reasonable efforts to file and cause to become effective a Registration
Statement under the Securities Act of 1933, as amended (the "Securities
Act"), so as to permit the Seller to consummate a Spin-Off Transaction
as contemplated by and defined in a Shareholders' Agreement. Each party
hereto agrees that notwithstanding anything else in this Agreement, the
provisions of this Section 10.2 shall survive Termination of this
Agreement.
Section 10.3 Specific Performance and Other Remedies. Each
Party hereby acknowledges that the rights of each Party to consummate
the transactions contemplated hereby are special, unique and of
extraordinary character and that, in the event that any Party violates
or fails or refuses to perform any covenant or agreement made by it
herein, the non-breaching Party may be without an adequate remedy at
law. In the event that any Party violates or fails or refuses to
perform any covenant or agreement made by such Party herein, the
non-breaching Party or Parties may, subject to the terms hereof and in
addition to any remedy at law for damages or other relief, institute
and prosecute an action in any court of competent jurisdiction to
enforce specific performance of such covenant or agreement or seek any
other equitable relief.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.1 Notices. All notices, communications and
deliveries required or made hereunder must be made in writing signed by
or on behalf of the Party making the same, shall specify the Section
hereunder pursuant to which it is given or being made, and shall be
delivered personally or by telecopy transmission or by a national
overnight courier service or by registered or certified mail (return
receipt requested) (with postage and other fees prepaid) as follows:
To the Purchaser: Xxxxxx Pharmaceutical Acquisition Corp.
c/o Snow Xxxxxx Xxxxxx P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxx and Xxxxxxx Xxxx
Facsimile No.: 000-000-0000
To the Company Xxxxxx Pharmaceuticals, Inc.
c/o Snow Xxxxxx Xxxxxx P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxx and Xxxxxxx Xxxx
Facsimile No.: 000-000-0000
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To the Seller iVoice, Inc.
000 Xxxxx 00
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Facsimile No.: 000-000-0000
with a copy to: Meritz & Xxxxx LLP
0000 X Xxxxxx, XX
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxxxx X. Xxxxx, Esq.
Facsimile No.: 000-000-0000
or to such other representative or at such other address of a party as such
party may furnish to the other parties in writing. Any such notice,
communication or delivery shall be deemed given or made (a) on the date of
delivery, if delivered in person, (b) upon transmission by facsimile if receipt
is confirmed by telephone, (c) upon receipt by the addressee by delivery via a
national overnight courier service or (d) on the fifth (5th) Business Day
following it being mailed by registered or certified mail.
Section 11.2 Schedules and Exhibits. The Schedules and
Exhibits are hereby incorporated into this Agreement and are hereby
made a part hereof as if set out in full herein.
Section 11.3 Assignment; Successors in Interest. No
assignment or transfer by any Party of such Party's rights and
obligations hereunder shall be made except with the prior written
consent of the other Parties; provided that the Purchaser shall,
without the obligation to obtain the prior written consent of any other
Party, be entitled to assign this Agreement or all or any part of its
rights or obligations hereunder to one or more Affiliates of the
Purchaser. This Agreement shall be binding upon and shall inure to the
benefit of the Parties and their respective successors and permitted
assigns, and any reference to a Party shall also be a reference to the
successors and permitted assigns thereof.
Section 11.4 Captions. The titles, captions and table of
contents contained herein are inserted herein only as a matter of
convenience and for reference and in no way define, limit, extend or
describe the scope of this Agreement or the intent of any provision
hereof.
Section 11.5 Controlling Law. This Agreement shall be
governed by and construed and enforced in accordance with the internal
Laws of the State of New York without reference to its choice of law
rules.
Section 11.6 Severability. Any provision hereof that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof,
and any such prohibition or unenforceability in any jurisdiction
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shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by Law, each Party hereby
waives any provision of law that renders any such provision prohibited
or unenforceable in any respect.
Section 11.7 Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original,
and it shall not be necessary in making proof of this Agreement or the
terms hereof to produce or account for more than one of such
counterparts.
Section 11.8 Enforcement of Certain Rights. Nothing expressed
or implied herein is intended, or shall be construed, to confer upon or
give any Person other than the Parties, and their successors or
permitted assigns, any right, remedy, obligation or liability under or
by reason of this Agreement, or result in such Person being deemed a
third-party beneficiary hereof.
Section 11.9 Waiver; Amendment. Any agreement on the part of
a Party to any extension or waiver of any provision hereof shall be
valid only if set forth in an instrument in writing signed on behalf of
such Party. A waiver by a Party of the performance of any covenant,
agreement, obligation, condition, representation or warranty shall not
be construed as a waiver of any other covenant, agreement, obligation,
condition, representation or warranty. A waiver by any Party of the
performance of any act shall not constitute a waiver of the performance
of any other act or an identical act required to be performed at a
later time. This Agreement may not be amended, modified or supplemented
except by written agreement of the Parties.
Section 11.10 Integration. This Agreement and the documents
executed pursuant hereto supersede all negotiations, agreements and
understandings among the Parties with respect to the subject matter
hereof and constitute the entire agreement among the Parties with
respect thereto.
Section 11.11 Interpretation. Where the context requires, the
use of a pronoun of one gender or the neuter is to be deemed to include
a pronoun of the appropriate gender. References herein to any Law shall
be deemed to refer to such Law, as amended from time to time, and all
rules and regulations promulgated thereunder.
Section 11.12 Cooperation Following the Closing. Following the
Closing, each Party shall deliver to the other Parties such further
information and documents and shall execute and deliver to the other
Parties such further instruments and agreements as any other Party
shall reasonably request to consummate or confirm the transactions
provided for herein, to accomplish the purpose hereof or to assure to
any other Party the benefits hereof.
Section 11.13 Transaction Costs. Except as provided above or
as otherwise expressly provided herein, the Parties shall pay their own
fees, costs and expenses incurred in connection herewith and the
transactions contemplated hereby, including the fees, cost and expenses
of its financial advisors, accountants and counsel.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly
executed, as of the date first above written.
XXXXXX PHARMACEUTICAL ACQUISITION CORP.
By:
--------------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
XXXXXX PHARMACEUTICALS, LTD.
By:
--------------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
IVOICE, INC.
By:
--------------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
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The signatuory persons below, constituting all of the Series A Preferred Stock
shareholders of Xxxxxx Pharmaceuticals, Ltd. agree to the terms set forth in
Article VII Section 7.7 and Article X Section 10.2 thereof:
------------------------------
Xxxxxx X. Xxxxxx, Xx.
------------------------------
Xxxx X. Xxxxx
------------------------------
Xxxxxxx X. Xxxxxx
------------------------------
Xxxx Xxxxxxxx
------------------------------
Xxxx X. Xxxxxxxx
------------------------------
Xxxxxxx Xxxxxxxxx
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SCHEDULE 5.1(A)
State of New Jersey
State of New York
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SCHEDULE 5.3
XXXXXX PHARMACEUTICALS, LTD
BALANCE SHEET
AS OF JUNE 30, 2006
June 30, 2006
ASSETS
Current Assets
Checking/Savings
Checking 306,679.53
Total Checking/Savings 306,679.53
Accounts Receivable
Accounts Receivable 49,803.96
Bad debt provision -49,803.96
Total Accounts Receivable 0.00
Other Current Assets
Inventory
Final Assemblies 1,832.27
Inbound Freight & Shipping 11,748.94
POP Display - 12 counter 4,866.73
POP Display - 12 gravity 2,853.81
POP Display - 48 counter 3,749.32
POP Display - 6 Pack Rite Aid 2,671.76
Shipping Boxes - 12 count 716.19
Shipping Boxes - 48 count 902.84
Shrinkbands 1,080.93
Tablets - raw 29,502.12
Tins - raw 44,408.52
Total Inventory 104,333.43
Prepaid Expenses
Admin Fees - iVoice 74,999.98
Prepaid Expenses - Other 42,768.70
Total Prepaid Expenses 117,768.68
Total Other Current Assets 222,102.11
Total Current Assets 528,781.64
Fixed Assets
Equipment 120,808.21
Equipment - A/D -6,322.06
Total Fixed Assets 114,486.15
Other Assets
Intangible-Customer List 93,533.13
Security Deposits 1,975.46
Trademarks 7,613.00
Total Other Assets 103,121.59
TOTAL ASSETS 746,389.38
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LIABILITIES & EQUITY
Liabilities
Current Liabilities
Accounts Payable
Accounts Payable 88,044.85
Total Accounts Payable 88,044.85
Other Current Liabilities
Accrued Expenses 24,325.97
Convertible Debenture iVoice 711,261.03
Notes Payable - Xxxxxx 20,000.00
Payroll Liabilities 18.20
Total Other Current Liabilities 755,605.20
Total Current Liabilities 843,650.05
Total Liabilities 843,650.05
Equity
Capital Stock
Class A Common 227,158.12
Series A Convertible Preferred 5,000.00
Series B Convertible Preferred 550,000.00
Total Capital Stock 782,158.12
Dividend Expense -19,438.35
Retained Earnings -227,058.12
Net Income -632,922.32
Total Equity -97,260.67
TOTAL LIABILITIES & EQUITY 746,389.38
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SCHEDULE 7.7
iVoice, Inc.
Xxxxxx Pharmaceuticals, Ltd.
Xxxxxx Pharmaceutical Acquisition Corp.
Meritz & Xxxxx LLP
Xxxxxx Xxxxxxx
Xxxxx Xxxxx
Xxxx Xxxxxx
Xxxxx Xxxxxx, Jr.
Xxxxxxxx X. Xxxxx
Xxxxxx X. Xxxxxx, Xx.
Xxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
Xxxx Xxxxxxxx
Xxxx X. Xxxxxxxx
Xxxxxxx Xxxxxxxxx
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SCHEDULE 10.2
Xxxxxx X. Xxxxxx, Xx.
Xxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
Xxxx Xxxxxxxx
Xxxx X. Xxxxxxxx
Xxxxxxx Xxxxxxxxx
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