SECURITIES PURCHASE AGREEMENT
Exhibit
10.22
THIS
SECURITIES PURCHASE AGREEMENT (“Agreement”) is entered into as of July 16, 2003
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”), Coliance Communications, Inc., a California corporation
(“Coliance”), and the common and preferred stockholders of Coliance
(collectively 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 38,082,770 shares are issued and
outstanding; 100,000 shares of Class A preferred stock (“Class A Preferred
Stock”), with a par value of $1.00 per share, of which no shares are issued and
outstanding; and 10,000,000 shares of Class B preferred stock (“Class B
Preferred Stock”), with a par value of $1.00 per shares, of which 450,000 shares
are issued and outstanding.
B. Coliance
has authorized capital stock consisting of 8,000,000 shares of common stock,
no
par value, of which 4,985,000 shares are issued and outstanding and held by
the
Selling Common Stockholders; and 10,000,000 shares of Preferred stock, no par
value, of which 2,456,000 shares are issued and outstanding and held by the
Selling Preferred Stockholders (collectively “Selling
Stockholders”).
C. The
Selling Stockholders wish to sell, and the Company wishes to purchase a
non-dilutive 60% of the Coliance Shares on the Closing Date (as defined below),
in exchange for 12,000,000 shares of the Company’s Common Stock (the “Company
Common Shares”), which will exchanged with the Selling
Stockholders.
A
G R E E M E N T
It
is agreed as follows:
1. Securities
Purchase And Reorganization
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 Coliance 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 Common 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 will
be
exchanges pro rate, based on the number of Coliance Shares owned by the Selling
Stockholder at the Closing.
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1.2 Instruments
of Transfer.
(a) Coliance
Shares. Each Selling Stockholder shall deliver to the Company
original certificates evidencing the Coliance 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
Coliance 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, subject to certain
performance benchmarks as identified in paragraph 1.2 (b) i of this Agreement
below. 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.
(i) Performance
Benchmarks. The 12,00,000 of shares of the Company’s Common Stock
will be issued, but released pursuant and subject to certain performance
benchmarks completed by Coliance, as follows:
1. 4,000,000
Common Shares at Closing as identified in paragraph 1.3 of this Agreement,
which
will vest over four (4) equal quarterly periods;
2. 4,000,000
Common Shares once Coliance has generated gross monthly revenues of at least
$100,000 for three (3) consecutive months;
3. 2,000,000
Common Shares at the closing of any Coliance contracts resulting in the sale
of
10,000 USB phones and placed on an operational network; and
4. 2,000,000
Common Shares at the two (2) year anniversary of this Agreement or upon the
market price of the Company’s Common Stock trading at a price of $1.00 or higher
for three (3) consecutive months, whichever occurs sooner.
1.3 Closing. The
closing (“Closing”) of the exchange of the Coliance Shares and the Company
Common Shares shall take place at the offices of the Company at 12:00 p.m.,
local time, on July 16, 2003, 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.
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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 Coliance and the Selling Stockholders
all of the following:
(a) Certificates
representing the Company Common and Preferred 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; and (ii) electing the persons designated as officers and
directors of the Company and Coliance effective as of the Closing
Date.
(d) A
certificate of good standing of the Company from the State of Utah as of the
most recent practicable date.
(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 Coliance Shares, along with duly executed stock
powers, in form and substance satisfactory to the Company.
(b) Such
other documents and instruments as shall be reasonably necessary to effect
the
transactions contemplated hereby.
2.3 Coliance’s
Deliveries at Closing. At or prior to the Closing, Coliance shall
deliver or cause to be delivered to the Company all of the
following:
(a) An
Officer’s Certificate signed by Coliance’s president in the form attached hereto
as Exhibit E.
(b) Certified
resolutions of the Board of Directors of Coliance 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 Coliance from the State of California as of
the
most recent practicable date.
(d) Such
other documents and instruments as shall be reasonably necessary to effect
the
transactions contemplated hereby.
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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 Coliance 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 Coliance Shares or other securities
of Coliance 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 Coliance 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."
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4. Representations
And Warranties Of COLIANCE. Coliance represents, warrants
and covenants to and with the Company as follows
4.1 Organization
and Good Standing. Coliance 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 Coliance consists of 8,000,000 shares of common
stock, no par value, of which 4,985,000 shares are issued and outstanding and
10,000,000 shares of preferred stock, no par value, of which 2,456,900 shares
are issued and outstanding. All outstanding shares of Coliance’s common and
preferred 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 Coliance’s capital stock, and there are no voting, pooling or voting
trust agreements, arrangements or contracts by and among Coliance, its
shareholders, or any of them.
4.3 Validity
of Transactions. This Agreement, and each document executed and
delivered by Coliance 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 Coliance, have been duly executed
and
delivered by Coliance and is each the valid and legally binding obligation
of
Coliance, 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 Coliance, as amended, (ii) any agreement, contract, lease, license
or instrument to which Coliance is a party or by which Coliance or any of its
properties or assets are bound, or (iii) any judgment, decree, order, or writ
by
which Coliance 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 Coliance’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 Coliance 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 Coliance pursuant hereto were or will be complete
and accurate records of such documents.
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5. Representations,
Warranties and Covenants of the Company. The Company
represents, warrants and covenants to and with Coliance 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 38,082,770 shares are
issued and outstanding; 100,000 shares of Class A preferred stock (“Class A
Preferred Stock”), with a par value of $1.00 per share, of which no shares are
issued and outstanding; and 10,000,000 shares of Class B preferred stock (“Class
B Preferred Stock”), with a par value of $1.00 per shares, of which 450,000
shares are issued and outstanding.
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
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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 Coliance 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 Coliance 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.
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5.12 Assets
or Liabilities. Except as set forth on the Company Disclosure
Schedule or the Company’s financial statements dated June 1, 200, 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
December 31, 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 Coliance 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 Coliance
pursuant hereto were or will be complete and accurate records of such
documents.
6. Viper
Representatives’ Lock-up.
6.1 Lock-Up
of Shares. No lock up agreements.
7. Additional
Understandings and Agreements of the Parties
7.1 Access
to Coliance. Coliance 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 Coliance’s
properties, books, contracts, commitments and records and to the audit work
papers and other records of Coliance’s independent
accountants. During such period, Coliance shall use reasonable
efforts to furnish promptly to the Company all information concerning the
business, properties and personnel of Coliance as the Company may reasonably
request, provided that Coliance 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
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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 Coliance all documents obtained from Coliance,
and
any copies made of such documents, extracts and copies thereof.
7.2 Access
to Company. The Company shall afford to Coliance and the Selling
Stockholders and shall cause its independent accountants to afford to Coliance
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 Coliance or
the
Selling Stockholders such information concerning the Company as Coliance 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. Coliance 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
Coliance 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 Coliance 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.
7.3 Name
Change. To be determined.
7.4 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.
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8. Conditions
Precedent
8.1 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 Coliance, 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 Coliance 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.
8.2 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 Coliance. The representations and warranties of
Coliance 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 Coliance.
(c) Performance
of Obligations of Coliance. Coliance 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 Coliance.
(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
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Coliance;
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.
8.3 Conditions
to Obligations of Coliance and the Selling Stockholders. The
obligations of Coliance 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
Coliance 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 Coliance 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 Coliance shall have received
a
certificate to such effect signed by the president of the Company.
(c) Additional
Closing Documents. Coliance 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 Coliance.
9. Miscellaneous.
9.1 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.
9.2 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.
9.3 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.
9.4 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.
-11-
9.5 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.
9.6 Survival
of Representations. All representations, warranties and
agreements contained herein or made in writing by the Company, Coliance 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.
9.7 Expenses
and Attorney Fees. The Company, Coliance 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.
9.8 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 Coliance 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.
9.9 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.
9.10 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.
9.11 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.
9.12 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.
-12-
[THIS
SPACE INTENTIONALLY LEFT BLANK]
-13-
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, President
“COLIANCE” “SELLING
STOCKHOLDERS”
Coliance
Communications,
Inc. Signatures
Appear on Exhibit B
a
California corporation
By:
Xxxxxxx
Xxxxx, President
-14-
COMPANY
DISCLOSURE SCHEDULE
The
following schedule is intended to provide International Concepts Corp. 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 December 31,
2002. Copies of both have been provided Coliance.
EXHIBIT
A
VIPER
REPRESENTATIVES
Name
and
Address
Number of
of
Viper
Representative Signature
Securities
Xxxx
Xxxxxxxxxxx _______________________
6,000,000 shares of common
Xxxxx
Xxxxxxxx _______________________ 6,000,000
shares of common
EXHIBIT
B
LIST
OF SELLING STOCKHOLDERS
|
Name
and Address of Selling Stockholder
|
Signature
|
Number
of COLIANCE Shares
|
Number
of Common Company Shares
|
|
|
_______________
|
||||
|
_______________
|
||||
|
_______________
|
EXHIBIT
C
FORM
OF COMPANY OFFICERS CERTIFICATE
The
undersigned hereby certifies to Coliance and the Selling Stockholders (as those
terms are defined in that certain SECURITIES PURCHASE AGREEMENT dated as of
July
16, 2003 by and among Coliance, the Selling Stockholders, Viper Networks, Inc.
and the Viper Representatives (the “Agreement”)) that:
1. I
am the duly elected and acting President of Viper Networks, Inc., a Utah
corporation (“Company”).
2. This
Officer’s Certificate is being delivered to Coliance 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 July 16, 2003.
__________________________________________
Xxxx
Xxxxxxxxxxx,
President
FORM
OF COMPANY RESOLUTIONS
UNANIMOUS
WRITTEN CONSENT
OF
THE BOARD OF DIRECTORS OF
VIPER
NETWORKS, INC.
A
Utah Corporation
The
undersigned, being all of the directors of Viper Networks, Inc., Inc., a Utah
corporation (the “Corporation”), hereby adopt the following recitals and
resolutions by their unanimous written consent thereto, effective as of July
16,
2003, hereby waiving all notice of and the holding of any meeting of the board
of directors to act upon such resolutions.
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, Coliance Communications, Inc., a California corporation
(“Coliance”), and the stockholders of Coliance (the “Selling Stockholders”)
providing for the acquisition by the Corporation of a non-dilutive 60% interest
in Coliance in exchange for the issuance by the Corporation of an aggregate
of
12,000,000 shares of 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 a
non-dilutive 60% interest in Coliance 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 Coliance 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
12,000,000 shares of Common Stock;
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.
ELECTION
OF DIRECTOR
RESOLVED,
that pursuant to the power conferred on the board of directors of the
Corporation by the Corporation’s Bylaws, subject to the Agreement and the
closing of the transactions contemplated thereby, the board of directors of
the
Corporation hereby determines that the exact number of authorized directors
of
the Corporation shall be three (3), effective immediately until such time as
the
number is changed in accordance with the Corporation’s Bylaws.
RESOLVED,
FURTHER, that Xxxxxxx Xxxxx and Xxx Xxxxxx are hereby elected to serve as a
directors of the Corporation, his term of office to commence immediately and
continue until his successor is duly elected and qualified.
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 July 16, 2003.
____________________________________
Xxxx
Xxxxxxxxxxx
____________________________________
Xxxxx
Xxxxxxxx
EXHIBIT
E
FORM
OF COLIANCE OFFICERS CERTIFICATE
The
undersigned hereby certifies to the Viper Networks, Inc. (“Viper”)
that:
1. I
am the duly elected and acting President of Coliance Communications, Inc.,
a
California corporation (“Coliance”).
2. This
Officer’s Certificate is being delivered to the Viper pursuant to Sections
2.3(a) and 8.2(b) of the Agreement.
3. All
of the representations and warranties of Coliance 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. Coliance
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 July 16, 2003.
__________________________________________
Xxxxxxx
Xxxxx,
President
EXHIBIT
F
FORM
OF COLIANCE RESOLUTIONS
WRITTEN
CONSENT OF DIRECTORS AND SHAREHOLDERS OF
COLIANCE
COMMUNICATIONS, INC.
Pursuant
to the provisions of the
General Corporation Law of California, the undersigned being all the
shareholders and directors of Coliance Communications, 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 July 16,
2003
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.
____________________________________
Xxxxxxx
Xxxxx
____________________________________
All
the Directors and Shareholders of
Coliance
Communications, Inc.
