Exhibit 10.1
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement"), effective as of the 22nd
day of September, 2011 (the "Effective Date"), by and between BaxTech Asia Pte
Ltd, with an address at 190 Middle Road #19-05, Fortune Centre, Singapore 688979
("Seller"), and Voz Mobile Cloud Ltd (f/k/a Oro-Plata Resources, Inc.), a
Washington corporation with an address at 435 Aspen Drive #8, Park City, UT
84098 ("Purchaser").
WHEREAS, Seller is the owner of the Assets (as defined herein); and
WHEREAS, Seller wishes to sell, and Purchaser wishes to purchase, the
Assets upon the terms and conditions herein set forth.
NOW, THEREFORE, in consideration of the mutual covenants, representations,
warranties, conditions, and agreements hereinafter expressed, and for other good
and valuable consideration, the receipt and sufficiency which are hereby
acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. Without limiting the effect of any other terms defined in the
text of this Agreement, the following words shall have the meaning given them in
this Section 1.
1.1 "Assets" mean the Patents together with the Trademark.
1.2 "Escrow Agent" means Lucosky Brookman LLP, 33 Wood Avenue South, 6th Floor,
Iselin, NJ 08830.
1.3 "Governmental Authority" means any (i) nation, principality, state,
commonwealth, province, territory, county, municipality, district or other
jurisdiction of any nature; (ii) federal, state, local, municipal, foreign or
other government; (iii) governmental or quasi governmental authority of any
nature (including any governmental division, subdivision, department, agency,
bureau, branch, office, commission, council, board, instrumentality, officer,
official, representative, organization, unit, body or entity and any court or
other tribunal); (iv) multinational organization or body; or (v) person or
entity exercising, or entitled to exercise, any executive, legislative,
judicial, administrative, regulatory, taxing or arbitral authority or power of
any nature.
1.4 "Legal Requirement" means any federal, state, local, municipal, foreign or
other law, statute, legislation, constitution, principle of common law,
resolution, ordinance, code, Order, edict, decree, proclamation, treaty,
<PAGE>
convention, rule, regulation, permit, ruling, directive, pronouncement,
requirement (licensing or otherwise), specification, determination, decision,
opinion or interpretation that is, has been or may in the future be issued,
enacted, adopted, passed, approved, promulgated, made, implemented or otherwise
put into effect by or under the authority of any Governmental Authority.
1.5 "Liability" or "Liabilities" means all liabilities and/or obligations,
direct, indirect, absolute or contingent, whether accrued, vested or otherwise
and whether or not reflected or required to be reflected on the financial
statements of a person or entity.
1.6 "Lien" means any lien, security interest, pledge, option, title retention
agreement, charge, claim, liability, judgment, license, restriction, encumbrance
or rights of others of any nature whatsoever.
1.7 "Order" means any judgment, order, writ, judgment, injunction, or decree of
any court or other Governmental Authority.
1.8 "Patents" means those patents that are listed, identified and described on
Schedule 1.7 hereto and, with respect to such listed patents, all pending,
abandoned, expired, completed and issued U.S. and foreign patent applications
and patents therefor, as applicable (including all renewals, reissues,
re-examinations, divisions, continuations, continuations-in-part and extensions
thereof, foreign equivalence thereto, provisional and non-provisional
applications), whether granted or registered or not, and all rights to obtain
registrations and extensions of registrations, or other legal protections,
wherever such rights exist throughout the world, together with: (i) all rights
to sue in equity or at law for any and all infringements or other impairments of
such listed patents occurring prior to the date of this Agreement, including the
right to receive and retain the proceeds and damages relating to those
infringements, misappropriation and other impairments or violations thereof, and
any novel change, improvements, additions or expansions of such listed patents;
(ii) all current contracts and future sales and contracts pertaining to such
listed patents; (iii) all authorizations of Governmental Authorities (and
pending applications therefore), including permits, licenses, certificates,
consents, variances and approvals, and (iv) all files and documents relating to
any of the foregoing.
1.9 "Trademark" means the trademark identified and described on Schedule 1.8
hereto and any and all pending, expired, abandoned, registered, unregistered,
and common law U.S. and foreign trademark applications and trademarks, service
mark applications and service marks, designs, logos, and trade dress, including
the goodwill related to the foregoing, and all federal and state registrations
thereof related thereto.
2
<PAGE>
2. SALE AND PURCHASE OF ASSETS; PURCHASE PRICE:
2.1 On the date ("Closing Date") of the consummation of the transactions
contemplated hereby (the "Closing"), Seller shall convey, sell, transfer and
assign, and cause Smith & Hopen, PA, U.S. registered patent attorneys ("Smith &
Hopen"), to deliver to Purchaser evidence of, and Purchaser shall purchase,
acquire and accept from Seller, free from any Liens, all of Seller's right,
title and interest in and to the Assets.
2.2 On the Closing Date, Purchaser shall issue, convey and sell, and cause
Escrow Agent to deliver to Seller, and Seller shall purchase, acquire and accept
from Purchaser, stock certificates of Purchaser for an aggregate of eleven
million (11,000,000) newly-issued shares of common stock of Purchaser (the
"Purchase Price"). Additionally, Seller shall nominate, and Purchaser shall
appoint, two board members (together, the "Seller Directors") to the board of
directors of Purchaser. The initial Seller Directors shall be Lawrence Lee Seng
Huat and John F. Baxter, Jr.
3. ESCROW. Prior to the Closing Date, Seller and Purchaser shall enter into that
certain escrow agreement attached hereto as Exhibit A (the "Escrow Agreement")
with Escrow Agent, pursuant to which, among other things, Escrow Agent shall
release the items held in escrow by Escrow Agent to the appropriate party hereto
in accordance with the terms and conditions set forth in the Escrow Agreement.
After the execution of the Escrow Agreement and prior to the Closing Date:
3.1 Seller shall deposit with Smith & Hopen one or more assignment documents to
be filed with the U.S. Patent and Trademark Office ("USPTO") assigning,
transferring, selling and conveying all of the Patents to Purchaser in such form
as can be properly filed with the USPTO without any further action of Seller
(i.e., completed, accurate and executed) (the "Assignment Documents"); and
3.2 Purchaser shall deposit with Escrow Agent the Purchase Price.
4. NO ASSUMPTION OF LIABILITIES. Purchaser shall not assume any liabilities or
obligations of Seller in connection with, related to or with respect to the
Assets. Without limiting the foregoing, Purchaser shall not assume:
4.1 any Liability of Seller arising out of or in connection with any claim or
proceeding (regardless of whether made or instituted prior to or subsequent to
the Closing Date) to the extent arising out of or in connection with the Assets
which occurred on or prior to the Closing Date; and
3
<PAGE>
4.2 any Liability of Seller arising out of or in connection with non-compliance
with any Legal Requirement or Order applicable to the Assets on or prior to the
Closing Date.
5. NON-ASSIGNABLE ASSETS: To the extent that the legal interest in any of the
Assets, or any claim, right or benefit arising thereunder or resulting
therefrom, cannot be sold, assigned, transferred or conveyed hereunder because
it would be invalid or would constitute a breach of any contract or other
commitment to which Seller is a party or by which Seller or any of the Assets
may be bound, or if any consent of a licensor would be required in connection
with the assignment of any such contract or commitment, this Agreement shall not
constitute an assignment of such Asset; PROVIDED, HOWEVER, that any such Asset
shall be held and/or received by Seller for the benefit of Purchaser and its
successors and assigns. Seller will use its reasonable best efforts to obtain
all consents required for the assignment of any Asset to Purchaser. Until such
consent is obtained, Seller will cooperate with Purchaser and its successors and
assigns in any reasonable arrangement designed to provide for Purchaser and its
successors and assigns the benefit of such Asset, including enforcement for the
benefit of Purchaser and its successors and assigns, of any and all rights of
Seller arising out of the breach or cancellation of any contract or other
commitment in connection with such Asset.
6. SELLER'S REPRESENTATIONS: Seller hereby represents and warrants to Purchaser
as follows:
6.1 Corporate Existence. Seller is a company duly organized, validly existing
and in good standing under the laws of its jurisdiction of formation, and has
full power and authority to own or lease its properties and to carry on its
business as currently conducted. Seller is duly qualified or licensed to do
business in all the jurisdictions it is required to be so qualified or licensed;
6.2 Authorization. Seller has full power and authority to enter into and perform
its obligations under this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this Agreement
by Seller have been duly authorized by all requisite action. This Agreement is
the legal, valid and binding obligation of Seller, enforceable in accordance
with its terms, except that such enforcement may be subject to (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting or
relating to enforcement of creditors' rights generally, and (ii) general
principles of equity;
6.3 No Violation. The execution and delivery of this Agreement by Seller and the
consummation of the transactions contemplated herein do not and will not (i)
violate or result in a default under the charter or governing documents of
Seller, (ii) violate (with or without the giving of notice or the lapse of time
or both) any Legal Requirement or Order applicable to Seller or the Assets,
(iii) violate or breach, or constitute a default under or grounds for
4
<PAGE>
termination of, or result in the acceleration of the performance of the
obligations of Seller under any contract related to the Assets to which Seller
is a party or by which the Assets are bound or affected, (iv) result in creation
of any lien on any of the Assets or (v) prevent the carrying out of the
transactions contemplated hereby. No permit, consent, waiver, approval or
authorization of, or declaration to or filing or registration with, any
Governmental Authority or third party is required in connection with the
execution, delivery or performance of this Agreement by Seller or the
consummation by Seller of the transactions contemplated hereby;
6.4 Licenses and Permits; Compliance with Law. Seller holds all licenses,
certificates, permits, franchises and rights from all applicable Governmental
Authorities necessary for the use of the Assets. Seller is not presently charged
with, or under governmental investigation with respect to, any actual or alleged
violation of any Legal Requirement or Order, nor is it presently the subject of
any pending or threatened adverse proceeding by any Governmental Authority
having jurisdiction over the Assets;
6.5 Litigation. To the best of Seller's knowledge, there is no suit, action,
claim, litigation, grievance, proceeding (administrative, judicial, or in
arbitration, mediation or alternative dispute resolution), Governmental
Authority or grand jury investigation, or other action (any of the foregoing, an
"Action") pending, or to Seller's knowledge, threatened against Seller, by or
against Seller (and Seller has not been a party to any Action including such
claim) involving the Assets, including, without limitation, any Action
challenging, enjoining, or preventing this Agreement, or the consummation of the
transactions contemplated hereby. Seller has not received written notice of any
such claim, asserting the invalidity, misuse or unenforceability, infringement,
misappropriation or other violation of any intellectual property of any third
party, or challenging Seller's ownership of or rights to use any Assets, and, to
Seller's knowledge, there are no grounds for any such claim or challenge;
6.6 Title. Seller is the sole and exclusive owner of all right, title and
interest in and to the Assets, and has good title to the Assets, free and clear
of all Liens, including obligations to transfer or license such Assets, and
there exists no material restriction on the use or transfer or licensing of such
Assets. To Seller's knowledge, the Assets are valid and enforceable and Seller
does not have any obligation to compensate any person or entity for its use of
any Assets. Seller has not granted to any person or entity any license (whether
oral, written, implied or otherwise) to use the Assets. To Seller's knowledge,
none of the Assets has been or is subject to any interference, cancellation,
reexamination, reissue, opposition, or any other proceeding challenging
priority, scope, validity, or ownership anywhere in the world;
6.7 Liabilities. Seller does not have any Liabilities which are associated with
the Assets. The consummation of the transactions contemplated hereby will not
alter, impair, extinguish or invalidate any Assets owned or used by Seller;
5
<PAGE>
6.8 Confidentiality. Seller is taking or has taken all commercially reasonable
actions necessary to maintain, and, to Seller's knowledge, Seller is taking or
has taken all actions necessary to protect, the Assets prior to the effective
date of this Agreement;
6.9 No Adverse Actions. Seller has not:
(a) suffered, permitted or incurred the imposition of any Lien or claim
upon any of the Assets;
(b) committed, suffered, permitted or incurred any default in any
Liability which has had or will have a material adverse effect upon
the Assets;
(c) made or agreed to any adverse change in the terms of any contract or
instrument to which it is a party which may have a material adverse
effect on the Assets;
(d) waived, canceled, sold or otherwise disposed of, for less than the
face amount thereof, any claim or right relating to the Assets which
it has against others;
(e) made any disclosure of any confidential or proprietary information of
Seller other than to Purchaser and its representatives, agents,
attorneys and accountants or to Seller's own employees in the ordinary
course;
(f) made any waiver of any claims or rights related to any of the Assets
or abandonment or lapse of any of the Assets; or
(g) committed to do any of the foregoing except as contemplated by this
Agreement.
6.10 Contracts. There are no contracts relating to the Assets;
6.11 Brokers and Finders. Seller has not retained any broker or finder in
connection with the transactions contemplated herein so as to give rise to any
valid claim for any brokerage or finder's commission, fee or similar
compensation; and
6.12 Disclosure and Accuracy. This Agreement and any schedules and exhibits
hereto disclose all facts material to the Assets. No statement contained herein
or in any certificate, schedule, exhibit, list or other instrument furnished to
Purchaser pursuant to the provisions hereof contains or will contain any untrue
statement of any material fact or omits or will omit to state a material fact
necessary in order to make the statements contained herein or therein not
misleading.
6
<PAGE>
7. PURCHASER'S REPRESENTATIONS: Purchaser hereby represents and warrants to
Seller as follows:
7.1 Corporate Existence. Purchaser is a company duly incorporated, validly
existing and in good standing under the laws of the State of Washington, and has
full power and authority to own or lease its properties and to carry on its
business as currently conducted. Purchaser is duly qualified or licensed to do
business in all the jurisdictions it is required to be so qualified or licensed;
7.2 Authorization. Purchaser has full power and authority to enter into and
perform its obligations under this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this Agreement
by Purchaser have been duly authorized by all requisite action. This Agreement
is the legal, valid and binding obligation of Purchaser, enforceable in
accordance with its terms, except that such enforcement may be subject to (i)
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting or relating to enforcement of creditors' rights generally, and (ii)
general principles of equity;
7.3 No Violation. The execution and delivery of this Agreement by Purchaser and
the consummation of the transactions contemplated herein do not and will not (i)
violate or result in a default under the charter or by-laws of Purchaser, (ii)
violate (with or without the giving of notice or the lapse of time or both) any
Legal Requirement or Order applicable to Purchaser, or (iii) prevent the
carrying out of the transactions contemplated hereby. No permit, consent,
waiver, approval or authorization of, or declaration to or filing or
registration with, any Governmental Authority or third party is required in
connection with the execution, delivery or performance of this Agreement by
Purchaser or the consummation by Purchaser of the transactions contemplated
hereby;
7.4 Brokers and Finders. Purchaser has not retained any broker or finder in
connection with the transactions contemplated herein so as to give rise to any
valid claim for any brokerage or finder's commission, fee or similar
compensation; and
7.5 Disclosure and Accuracy. No statement contained herein or in any
certificate, schedule, exhibit, list or other instrument furnished to Seller
pursuant to the provisions hereof contains or will contain any untrue statement
of any material fact or omits or will omit to state a material fact necessary in
order to make the statements contained herein or therein not misleading.
8. CONDITIONS TO PURCHASER'S OBLIGATIONS AT CLOSING. All obligations of
Purchaser under this Agreement are subject to fulfillment on the Closing Date of
each of the following conditions:
7
<PAGE>
8.1 Representations and Warranties. The representations and warranties of Seller
contained in Section 6 hereof and elsewhere herein shall be true and correct in
all material respects in each case at and as of the Closing Date as though such
representations and warranties were made at and as of such time;
8.2 Covenants. Seller shall have performed and complied in all material respects
with all covenants, agreements and conditions on its part required by this
Agreement to be performed or complied with prior to or at the Closing Date;
8.3 No Litigation or Contrary Judgment. On the Closing Date there shall exist no
valid Order, statute, rule, regulation, executive order, stay, decree, judgment
or injunction which prohibits or prevents the consummation of the transactions
contemplated by this Agreement;
8.4 Assignment. Seller shall have deposited with Smith & Hopen the Assignment
Documents; and
8.5 Other Deliveries. Seller shall deliver or cause to be delivered such other
documents and instruments as may be reasonably requested by Purchaser or its
counsel to consummate the transactions contemplated hereby.
9. CONDITIONS TO SELLER'S OBLIGATIONS. All obligations of Seller under this
Agreement are subject to the fulfillment at the Closing Date of each of the
following conditions:
9.1 Representations and Warranties. The representations and warranties of
Purchaser contained in Section 7 hereof and elsewhere herein shall be true and
correct in all material respects in each case at and as of the Closing Date as
though such representations and warranties were made at and as of such time;
9.2. Covenants. Purchaser shall have performed and complied in all material
respects with all agreements and conditions on its part required by this
Agreement to be performed or complied with prior to or at the Closing Date; and
9.3 No Litigation or Contrary Judgment. On the Closing Date there shall exist no
valid Order, statute, rule, regulation, executive order, stay, decree, judgment
or injunction which prohibits or prevents the consummation of the transactions
contemplated by this Agreement.
8
<PAGE>
9.4 Closing Payment. Purchaser shall have delivered the Purchase Price to Escrow
Agent.
10. POST CLOSING COVENANTS
10.1 Further Assurances; Cooperation. From and after the Closing Date, the
parties hereto shall, on request, cooperate with one another by furnishing any
additional information, executing and delivering any additional documents and
instruments, and doing any and all such other things as may be reasonably
required by the parties hereto or their counsel to consummate or otherwise
implement the transactions contemplated by this Agreement. With respect to the
assignment, prosecution, and maintenance of the Assets, Seller and Purchaser
shall reasonably cooperate for the purposes of transferring ownership and the
responsibility to administer, prosecute, and maintain the Assets to Purchaser;
and
10.2 Public Announcements. Seller shall not (and Seller shall cause its
directors, officers, employees and agents not to) issue or cause the publication
of any press release or other public announcement with respect to the
transactions contemplated by this Agreement without the prior written consent of
Purchaser.
11. INDEMNIFICATION:
11.1 By Seller. Seller agrees to indemnify and hold harmless Purchaser and its
affiliates, and their respective shareholders, directors, officers, employees,
successors, assigns, and agents (the "Purchaser Indemnified Persons") from and
against any and all claims, losses, damages, liabilities, expenses or costs
("Losses"), plus reasonable attorneys' fees and expenses incurred in connection
with Losses and/or enforcement of this Agreement, incurred by Purchaser by
reason of or arising out of or in connection with (i) the breach of any
representation or warranty contained herein or in any certificate or other
document delivered to Purchaser pursuant to the provisions of this Agreement,
(ii) the failure of Seller to perform any act required under this Agreement,
(iii) a claim by any third party with respect to any Liability, contract, other
commitment or state of facts which constitutes a breach of any representation or
warranty contained in Section 6 hereof or in any certificate or other document
delivered by or on behalf of Seller to Purchaser pursuant to the provisions of
this Agreement, or (iv) any Liability of Seller. Purchaser agrees to give prompt
notice to Seller of any claim for which Purchaser seeks indemnification
hereunder, which notice shall include a reasonably detailed description of such
claim, and a period of thirty (30) days to cure such breach, and pay on such
claim. If any claim is brought against Purchaser for which indemnification is
sought from Seller under this Section 11.1, then Purchaser shall control the
contest, defense, settlement or compromise of any such claim (including the
engagement of counsel in connection therewith), at Seller's cost and expense,
including the cost and expense of reasonable attorneys' fees in connection with
such contest, defense, settlement or compromise, and Seller shall have the right
9
<PAGE>
to participate in the contest, defense, settlement or compromise of any such
claim at its own cost and expense, including the cost and expense of reasonable
attorneys' fees in connection with such participation; PROVIDED, HOWEVER, that
Purchaser shall not settle or compromise any such claim without the prior
written consent of Seller, which consent shall not be unreasonably withheld or
delayed. If Seller fails to assume the defense of such claim within 30 days of
receipt of notice of such claim, or if at any time Seller shall fail to defend
in good faith any such claim, Purchaser may assume the defense thereof and may
employ counsel with respect thereto and all fees and expenses of such counsel
shall be paid by Seller, and Purchaser may conduct and defend such claim in such
manner as it may deem appropriate; PROVIDED, HOWEVER, that Purchaser shall not
settle or compromise any such claim without the prior written consent of Seller,
which consent shall not be unreasonably withheld or delayed.
11.2 By Purchaser. Purchaser agrees to indemnify and hold harmless Seller and
its affiliates, and their respective shareholders, directors, officers,
employees, successors, assigns, and agents (the "Seller Indemnified Persons")
from and against any and all claims, losses, damages, liabilities, expenses or
costs ("Losses"), plus reasonable attorneys' fees and expenses incurred in
connection with Losses and/or enforcement of this Agreement, incurred by Seller
by reason of or arising out of or in connection with (i) the breach of any
representation or warranty contained herein or in any certificate or other
document delivered to Seller pursuant to the provisions of this Agreement, (ii)
the failure of Purchaser to perform any act required under this Agreement or
(iii) a claim by any third party with respect to any Liability, contract, other
commitment or state of facts which constitutes a breach of any representation or
warranty contained in Section 7 hereof or in any certificate or other document
delivered by or on behalf of Purchaser to Seller pursuant to the provisions of
this Agreement. Seller agrees to give prompt notice to Purchaser of any claim
for which Seller seeks indemnification hereunder, which notice shall include a
reasonably detailed description of such claim, and a period of thirty (30) days
to cure such breach, and pay on such claim. If any claim is brought against
Seller for which indemnification is sought from Purchaser under this Section
11.2, then Seller shall control the contest, defense, settlement or compromise
of any such claim (including the engagement of counsel in connection therewith),
at Purchaser's cost and expense, including the cost and expense of reasonable
attorneys' fees in connection with such contest, defense, settlement or
compromise, and Seller shall have the right to participate in the contest,
defense, settlement or compromise of any such claim at its own cost and expense,
including the cost and expense of reasonable attorneys' fees in connection with
such participation; PROVIDED, HOWEVER, that Seller shall not settle or
compromise any such claim without the prior written consent of Purchaser, which
consent shall not be unreasonably withheld or delayed. If Purchaser fails to
assume the defense of such claim within 30 days of receipt of notice of such
claim, or if at any time Purchaser shall fail to defend in good faith any such
claim, Seller may assume the defense thereof and may employ counsel with respect
thereto and all fees and expenses of such counsel shall be paid by Purchaser,
and Seller may conduct and defend such claim in such manner as it may deem
10
<PAGE>
appropriate; PROVIDED, HOWEVER, that Seller shall not settle or compromise any
such claim without the prior written consent of Purchaser, which consent shall
not be unreasonably withheld or delayed.
12. MISCELLANEOUS:
12.1 Survival of Representations and Warranties. Notwithstanding any right of
any party hereto to investigate the affairs of any of the parties hereto and
notwithstanding any knowledge of facts determined or determinable by any party
hereto pursuant to such investigation or right of investigation or otherwise
acquired or learned by any of the parties hereto, each of the parties hereto
shall have the right to rely fully upon the representations, warranties,
covenants and agreements of the other party hereto contained in this Agreement
and to pursue all rights and remedies in connection therewith. All
representations, warranties, covenants and agreements shall survive the Closing
and shall expire on the second (2nd) anniversary of the Closing Date (the
"Survival Date").
12.2 Notices. All communications required or permitted to be given hereunder
shall be in writing and shall be deemed to have been duly given if (i) delivered
personally with receipt acknowledged, (ii) sent by registered or certified mail,
return receipt requested, (iii) sent by telecopy with confirmation or (iv) sent
by overnight courier for next business day delivery, addressed to the parties
hereto at the addresses and facsimile numbers contained herein or to such other
addresses or facsimile numbers as any party hereto shall hereafter specify by
communication to the other party in the manner provided in this Section 12.2.
Notice shall be deemed to have been given, received and dated on the earlier of:
(i) when actually received or upon refusal to accept delivery thereof, (ii) on
the date when delivered personally or via telecopy, (iii) one (1) business day
after being sent by overnight courier and (iv) four (4) business days after
mailing.
12.3 Severability. If any term or provisions of this Agreement is held by a
court of competent jurisdiction to be invalid, void, or unenforceable, the
remainder of the terms and provisions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated, and
the parties hereto shall use their best efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term or provision.
12.4 Governing Law; Interpretation; Jurisdiction; Waiver of Jury Trial. This
Agreement shall in all respects be construed in accordance with and governed by
the substantive laws of the State of Washington applicable to contracts executed
and performed entirely within the state, without reference to its choice of law
rules. This Agreement shall be interpreted and construed in accordance with the
laws of the State of Washington without giving effect to the principles of
conflicts of laws thereof. Each party hereto hereby irrevocably submits to the
jurisdiction of the courts of the State of Washington. Each party hereby
11
<PAGE>
irrevocably waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of the venue of any such suit, action
or proceeding brought in any such court, any claim that any such suit, action or
proceeding brought in such a court has been brought in an inconvenient forum,
and the right to object, with respect to any such suit, action or proceeding
brought in any such court, and that such court does not have jurisdiction over
such party. In any such suit, action or proceeding, each party hereby waives, to
the fullest extent it may effectively do so, personal service of any summons,
complaint or other process and agrees that the service thereof may be made by
certified or registered mail, addressed to such party at its address set forth
in the preamble herein. THE PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN
ANY PROCEEDING, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING
IN CONTRACT, TORT OR OTHERWISE. THE PARTIES AGREE THAT ANY OF THEM MAY FILE A
COPY OF THIS SECTION 12.4 WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING,
VOLUNTARY AND BARGAINED-FOR AGREEMENT AMONG THE PARTIES IRREVOCABLY TO WAIVE
TRIAL BY JURY AND THAT ANY PROCEEDING WHATSOEVER BETWEEN THEM SHALL INSTEAD BE
TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
12.5. Entire Agreement. The parties hereto agree that all understandings and
agreements heretofore made between them with respect to the subject matter
hereof are merged into this Agreement and any schedules and exhibits attached
hereto (collectively the "Transaction Documents"), which fully and completely
express their agreement with respect to the subject matter hereof. There are no
promises, agreements, conditions, understandings, warranties or representations,
oral or written, express or implied, among the parties hereto, other than as set
forth in the Transaction Documents. All prior agreements among the parties
hereto with respect to the subject matter hereof are superseded by the
Transaction Documents, which integrate all promises, agreements, conditions and
understandings among the parties hereto with respect to the matters contained
herein.
12.6. Termination, Revocation, Waiver, Modification or Amendment. No
termination, revocation, waiver, modification or amendment of this Agreement
shall be binding unless agreed to in writing and signed by an authorized officer
of each of the parties hereto.
12.7. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original and all of which shall constitute one
and the same agreement. The signature of any party hereto to a counterpart shall
be deemed to be a signature to, and may be appended to, any other counterpart.
12.8. Assignability. This Agreement shall not be assignable by any party hereto
without the prior written consent of the other party hereto.
12
<PAGE>
12.9 Binding Effect. This Agreement shall be binding upon, and shall inure to
the benefit of, the parties hereto and their respective successors and permitted
assigns.
12.10 Waiver. No consent or waiver, express or implied, by any party hereto to
or of any breach or default by any other party in the performance by any other
party of its obligations hereunder shall be deemed or construed to be a consent
to or waiver of any other breach or default in the performance by such other
party of the same or any other obligation of such party hereunder. Failure on
the part of a party hereto to complain of any act or failure to act of any other
party or to declare such other party in default, irrespective of how long such
failure continues, shall not constitute a waiver by such party of its rights
hereunder.
12.11 Additional Remedies. The rights and remedies of any party hereto under
this Agreement shall not be mutually exclusive. The respective rights and
obligations hereunder shall be enforceable by specific performance, injunction
or other equitable remedy, but nothing herein contained is intended to, nor
shall it limit or affect, any other rights in equity or any rights at law or by
statute or otherwise of any party hereto aggrieved as against the other for
breach or threatened breach of any provision hereof, it being the intention of
this Section to make clear the agreement of the parties hereto that their
respective rights and obligations hereunder shall be enforceable in equity as
well as at law or otherwise.
12.12 Expenses. Each of the parties hereto shall pay the fees and expenses
incurred by it in connection with the negotiation, preparation, execution and
performance of this Agreement, including, without limitation, reasonable
attorneys' fees.
12.13 Costs of Enforcement. Except as otherwise set forth herein, the prevailing
party hereto in any proceeding brought to enforce any provision of this
Agreement shall be entitled to recover the reasonable fees and costs of its
counsel, plus all other costs of such proceeding.
12.14 Headings. The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
(Signature page follows)
13
<PAGE>
Signature page to Asset Purchase Agreement
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date above written.
SELLER
BaxTech Asia Pte Ltd
By: /s/ Lawrence Lee
--------------------------------------
Name: Lawrence Lee
Title: Director
PURCHASER
Voz Mobile Cloud Ltd
(f/k/a Oro-Plata Resources, Inc.)
By: /s/ Lawrence Lee
--------------------------------------
Name: Lawrence Lee
Title: Chief Executive Officer
14
<PAGE>
SCHEDULE 1.7
PATENTS
6839412 Audio file transmission method
6385306 Audio file transmission method
6765996 Audio file transmission method
7031439 Audio file transmission method
15
<PAGE>
SCHEDULE 1.8
TRADEMARK
Trademark Registration Registration Next Renewal
Name Jurisdiction Number Date Date
---- ------------ ------ ---- ----
VOICE IN MAIL UNITED STATES 2748600 August 5, 2003 August 5, 2013
16
