EXHIBIT 10.3
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ADMINISTRATIVE SERVICES AGREEMENT
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This Administrative Services Agreement (the "Agreement") is entered
into this 6th day of January, 2006 by and between iVoice, Inc., a New Jersey
corporation, with its principal office at 000 Xxxxx 00, Xxxxxxx, XX, 00000
("iVoice"), and Xxxxxx Pharmaceuticals, Ltd. (f/k/a iVoice Acquisition Corp.), a
New Jersey corporation, with its principal office at 000 Xxxxx 00, Xxxxxxx, XX,
00000 (the "Company").
The Company is a wholly owned subsidiary of iVoice and has relied since
its inception upon various administrative services provided by iVoice.
The Company desires to engage iVoice to continue after the date hereof
to provide certain administrative services hereinafter described (the
"Services"), and iVoice desires to provide the Services, on the terms and
subject to the conditions hereinafter set forth.
The Company is party to an agreement and plan of merger, dated January
__, 2006 among the iVoice, the Company, Xxxxxx Pharmaceuticals, Ltd., a New York
corporation ("TPL"), and certain shareholders named therein (the "Merger
Agreement"), pursuant to which, on even date herewith, TPL will merge (the
"Merger") with and into the Company;
It is the intention of the parties to this agreement that upon the
consummation of the Merger, the Surviving Corporation (as defined in the Merger
Agreement) shall be bound and obligated to this Agreement as the successor in
interest to the Company;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein set forth, the parties hereto agree as follows:
1. Services
1.1 During the term of this Agreement, iVoice shall provide
the following Services to the Company:
a. Contract review
b. Issuing sales orders
c. Invoicing
d. Collections
e. Review inventory records, warehousing reports, etc.
f. Manage employee records
g. Process payroll
h. Manage insurance coverages (health, liability, etc)
i. Accounts Payable
j. Accounts Receivable
k. Expense reimbursement
l. Vendor payments
m. Manage cash accounts
n. Maintain accounting records
o. Prepare periodic tax filings
p. Manage quarterly review and year-end audit in
conjunction with outside auditors
1.2 iVoice shall perform the Services in a timely and
efficient manner, in accordance with all applicable laws, regulations and
ordinances, and shall assign to each of the Services substantially the same
priority as assigned to services of like category performed in its own
operations.
1.3 The parties agree that the Shareholder Representative (as
defined in that certain Agreement and Plan of Merger, dated January __ 2006
among iVoice, the Company, iVoice Acquisition Corp and certain shareholders
named therein) shall be deemed a third party beneficiary for the limited purpose
of enforcing the Company's rights hereunder. Notwithstanding the foregoing, in
the event that iVoice shall cease to control a majority of the voting securities
of the Company, such Shareholder Representative shall no longer be deemed a
third party beneficiary hereunder.
2. Term
2.1 The term of this Agreement shall commence at the date
hereof, and shall continue until the second anniversary thereof, unless earlier
terminated or extended in accordance with the provisions of this Section 2.
2.2 The term of this Agreement may be extended for up to two
additional one-year periods upon written notice from the Company to iVoice at
least 30 days prior to the scheduled expiration thereof and in consideration for
the Services thereunder, the Company shall issue to iVoice an additional
Debenture (as defined in Section 3 hereof) in the principal amount of $50,000
for each such additional one-year period.
2.3 This Agreement may be terminated, and any one or more of
the Services may be reduced in scope or eliminated in its entirety, at any time
during the term hereof upon 90 days' prior written notice from the Company to
iVoice.
2.4 In the event that the Company shall consummate an initial
public offering ("IPO") of its Common Stock (as defined herein) this Agreement
shall terminate on the closing date of such IPO with immediate effect.
3. Fees
In consideration for the Services, the Company shall issue to
iVoice an Administrative Service Convertible Debenture (the "Debenture") in the
amount of $100,000 in the form attached as an exhibit to this Agreement. The
Debenture shall have a term of seven (7) years, and shall bear interest at ten
percent (10%) per annum. Both principal and interest shall be due at the end of
the term. The Debenture shall also be convertible in accordance with its term
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into shares of the Company's Class A Common Stock ("Common Stock")at the price
per share equal to an amount equal to eighty percent (80%) of the lowest closing
bid price of the Common Stock for the five (5) trading days immediately
preceding the Conversion Date (as defined therein), once the Company is listed
on a either The National Association of Securities Dealers Inc.'s
Over-The-Counter Bulletin Board, Nasdaq SmallCap Market, or American Stock
Exchange, or such other principal stock exchange. The holders of the Debenture
shall also have registration rights for the shares underlying the Debenture.
4. Obligations and Relationship
Both parties to this Agreement shall at all times act as
independent contractors and, notwithstanding anything contained herein, the
relationship established hereunder between the parties shall not be construed as
a partnership, joint venture or other form of joint enterprise. Except as
expressly authorized by a party hereto, no party shall be authorized to make any
representations or to create or assume any obligation or liability in respect of
or on behalf of the other party, and this Agreement shall not be construed or
constituting either party or the agent of the other party.
5. Limited Liability; Indemnification
5.1 iVoice shall not be liable to the Company for any loss,
claim, expense or damage, including indirect, special, consequential or
exemplary damages, for any act or omission performed or omitted by it hereunder
so long as its act or omission does not constitute fraud, bad faith or gross
negligence. iVoice shall not be liable to the Company for the consequences of
any failure or delay in performing any Services if the failure shall be caused
by labor disputes, strikes or other events or circumstances beyond its control
and it shall have provided prompt notice to the Company of its inability to
perform Services and the reason therefor.
5.2 In any action, suit or proceeding (other than an action by
or in the right of the Company) to which iVoice or any agent or employee of
iVoice performing Services hereunder (an "Indemnitee") was or is a party by
reason of his or its performance or non-performance of Services, the Company
shall indemnify the Indemnitee and hold the Indemnitee harmless from and against
expenses, judgments, fines and amounts paid (with the consent of the Company) in
settlement actually and reasonably incurred by the Indemnitee in connection
therewith if the Indemnitee acted in good faith and provided that the
Indemnitee's conduct does not constitute negligence or misconduct.
6. Confidentiality
Any and all information obtained by iVoice in connection with
the Services contemplated by this Agreement shall be held in the strictest
confidence and not disclosed to any other person without the prior written
consent of the Company.
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7. Notices
All notices or other communications required or permitted to
be given pursuant to this Agreement shall be in writing and shall be considered
as duly given on: (a) the date of delivery, if delivered in person against
written receipt therefor, or by nationally recognized overnight delivery service
or (b) five (5) days after mailing if mailed from within the continental United
States by postage pre-paid certified mail, return receipt requested to the party
entitled to receive the same:
If to iVoice: iVoice, Inc.
000 Xxxxx 00
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
And if to the Company: Xxxxxx Pharmaceuticals, Ltd.
c/o iVoice, Inc.
000 Xxxxx 00
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Any party may change its address by giving notice to the other
party stating its new address. Commencing on the tenth (10th) day after the
giving of such notice, such newly designated address shall be such party's
address for the purpose of all notices or other communications required or
permitted to be given pursuant to this Agreement.
8. Binding Effect
This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties and their respective
successors.
9. No Third Party Beneficiaries
This Agreement is solely for the benefit of the parties hereto
and shall not confer upon third parties and remedy, claim, cause of action or
other right in addition to those existing without reference to this Agreement.
10. Entire Agreement
This Agreement constitutes the entire agreement between the
parties with respect to the subject matters covered hereby and supersedes any
prior agreement or understanding between the parties with respect to those
matters.
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11. Assignment; Amendment; Waiver
This Agreement is not assignable, except that upon the
consummation of the Merger, the rights and obligations of the Company shall
inure to the Surviving Corporation as successor in interest to the Company.
Except as provided in the immediately prior sentence, neither the rights nor the
duties arising hereunder may be assigned or delegated. This Agreement may not be
amended nor may any rights hereunder be waived except by an instrument in
writing signed by the party sought to be charged with the amendment or waiver.
The failure of a party to insist upon strict adherence to any term of this
Agreement on any occasion shall not be considered a waiver or deprive that party
of the right thereafter to insist upon strict adherence to that term or any
other term of this Agreement.
12. Governing Law
This Agreement shall be construed in accordance with and
governed by the laws of the State of New Jersey, without giving effect to the
provisions, policies or principles thereof relating to choice or conflict of
laws.
13. Headings
The section and other headings contained in this Agreement are
for reference purposes only and shall not affect the meaning or interpretation
of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first above written.
IVOICE, INC.
By:
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Xxxxx Xxxxxxx
President
XXXXXX PHARMACEUTICALS, LTD.
By:
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Xxxxx Xxxxxxx
President
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EXHIBIT
FORM OF DEBENTURE
6
G:\iVoice\Xxxxxx Pharma Reg St\final Administrative Services Agreement_v5.DOC
