Exhibit 10.1
LICENSING AGREEMENT
THIS AGREEMENT is made effective this 14 day of September, 2009.
BETWEEN:
PACKETERA COMMUNICATIONS INC., a body corporate duly incorporated
pursuant to the laws of the Province of British Columbia and having an
office at Suite 200 - 375 Water Street, Vancouver, British Columbia,
V6B 1B6;
("Packetera")
OF THE FIRST PART
AND:
SHADOW MARKETING INC., a body corporate duly incorporated pursuant to
the laws of the State of Nevada and having an office at 17365 S.W.
13th Street, Pembroke Pines, Florida, 33029;
("Shadow")
OF THE SECOND PART
WHEREAS:
A. Packetera is in the business of developing and licensing telecommunications
services and products;
B. In connection with its business operations, Packetera owns various products
and services as described in Schedule "A" to this Agreement (collectively, the
"Products") and has existing agreements to supply such Products (the "Existing
Agreements"); and
C. Shadow wishes to acquire from Packetera, and Packetera wishes to sell to
Shadow, its interest in the Existing Agreements, as well as an exclusive
worldwide license to use, sell, market, distribute and/or sublicense the
Products;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
premises and mutual agreements and covenants herein contained, the parties
hereby covenant and agree as follows:
1. GRANT OF LICENSE AND ASSIGNMENT OF EXISTING AGREEMENTS
1.1 Packetera hereby grants to Shadow, subject to the terms and conditions
herein, an exclusive worldwide license (the "License") to use, sell, market,
distribute and/or sublicense the Products and to retain all proceeds realized
from the sale of such Products.
1.2 The License shall preclude Packetera from selling any interest in its
Products to present customers or other third parties. Packetera shall assign its
entire right, title and interest in and to all Existing Agreements to Shadow.
1.3 The License shall include all future telecommunications services and
products that Packetera develops, designs or produces subsequent to the date of
this Agreement. This shall include, without limitation, the following services
and products that Packetera is currently developing: instant messaging and
presence, session initiation protocol conferencing solutions, Softphones for
enterprise, Google mashup with lookup and callback, device integration of
Softphones on personal digital assistants, Wi-Fi and mobile phones.
1.4 Shadow shall have the right to use any existing or future trademarks and
other intellectual property that Packetera owns in connection with its use of
the License.
1.5 The License shall be effective for a period of 75 years from Closing (as
defined herein).
1.6 Shadow shall have the right to extend the License to any agent or affiliate
of its choice, including any subsidiary, provided that it shall first notify
Packetera in writing of the identity of such person.
1.7 Shadow may grant sublicenses to third parties, provided that each sublicense
states that it is subject to the terms and conditions of this Agreement. Shadow
shall deliver to Packetera an executed copy of each sublicense within 15 days of
the sublicense being executed.
2. CONSIDERATION FOR LICENSE
2.1 In consideration of Packetera granting the License and assigning the
Existing Agreements to Shadow, Shadow shall deliver to Packetera at Closing, a
certificate representing 30,600,000 post forward-split common shares (the
"License Shares") in the capital of Shadow.
2.2 Packetera acknowledges that the Shares may be subject to resale restrictions
imposed by applicable regulatory authorities.
3. PACKETERA'S REPRESENTATIONS
Packetera hereby makes the following representations and warranties to Shadow,
each of which is true and correct on the date hereof and will be true and
correct at Closing:
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(a) Packetera owns a 100% right, title and interest in and to the
Products, which are free and clear of all liens, charges and
encumbrances, all of which Products are in the possession of or under
the control of Packetera;
(b) Packetera is a party to the Existing Agreements, copies of which are
attached hereto as Schedule "B", which are all in good standing and
enforceable, and which are summarized as follows:
Date of Agreement Parties to Agreement
----------------- --------------------
May 8, 2009 Packetera and One World United Inc.
June 22, 2009 Packetera and Voice S.r.l.
September 1, 2009 Packetera and Isource Communications
(c) Packetera has the full right, authority and capacity to enter into
this Agreement, and comply with the terms set out herein, without
first obtaining the consent of any other person;
(d) Packetera is a body corporate, duly incorporated and in good standing
under the laws of British Columbia with full power and absolute
capacity to enter into this Agreement and this Agreement has been
authorized by all necessary corporate acts and deeds in order to give
effect to the terms hereof.
(e) the performance of this Agreement will not be in violation of the
Memorandum or Articles of Packetera or of any Agreement to which
Packetera is a party and will not give any person or company any right
to terminate or cancel any agreement or any right enjoyed by Packetera
and will not result in the creation or imposition of any lien,
encumbrance or restriction of any nature whatsoever in favour of a
third party upon or against the Products or the Existing Agreements;
(f) there has been no act of God, damage, destruction, loss, labour
disruption or trouble, or other event (whether or not covered by
insurance) materially and adversely affecting any of the Products or
the organization, operations, affairs, business, properties, prospects
or financial condition or position of Packetera's business operations;
(g) Packetera holds all permits, licences, registrations and
authorizations necessary to own and operate the Products and carry on
its business;
(h) Packetera has not, directly or indirectly, engaged or entered into any
transaction or incurred any liability or obligation which might
materially and adversely affect any of the Products or Existing
Agreements;
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(i) there is no indebtedness of Packetera or is shareholders to any person
which might, by operation of law or otherwise, now or hereafter
constitute or be capable of forming an encumbrance upon any of the
Products or Existing Agreements;
(j) no action, suit, judgment, investigation, inquiry, assessment,
reassessment, litigation, determination or administrative or other
proceeding or arbitration before or of any court, arbitrator or
governmental authority is in process, or pending or threatened,
against or relating to the Products or the Existing Agreements and no
state of facts exists which could constitute the basis therefor;
(k) none of the Products is in any respect infringing the right of any
person under or in respect of any patent, design, trade mark, trade
name, copyright or other industrial or intellectual property;
(l) the Products and Existing Agreements constitute all of the rights,
assets and properties that are usually and ordinarily used or held for
use in connection with or otherwise related to the operation of
Packetera's business; and
(m) except as disclosed in this Agreement, neither Packetera nor any of
its shareholders has any information or knowledge of any fact relating
to its business, the Products, the Existing Agreements or the
transactions contemplated hereby which might reasonably be expected to
affect, materially and adversely, any of the Products or the
organization, operations, affairs, properties, prospects or financial
condition or position of the business.
4. SHADOW'S REPRESENTATIONS
Shadow hereby makes the following representations and warranties to Packetera,
each of which is true and correct on the date hereof and will be true and
correct at Closing:
(a) Shadow is a body corporate, duly incorporated and in good standing
under the laws of the State of Nevada with full power and absolute
capacity to enter into this Agreement and the terms of this Agreement
have been authorized by all necessary corporate acts and deeds in
order to give effect to the terms hereof;
(b) Shadow is in good standing with the United States Securities &
Exchange Commission (the "Commission") and the Financial Industry
Regulatory Authority. All of Shadow's filings submitted to the
Commission are true and accurate as at the date of such filing;
(c) as of the date of this Agreement, Shadow's authorized capital consists
of 200,000,000 shares of common stock with a par value of $0.001 per
share, of which 7,445,000 shares of common stock are issued and
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outstanding as fully paid and non-assessable shares and 59,882,500
shares of common stock shall be issued and outstanding as fully paid
and non-assessable shares at Closing, including the License Shares;
(d) the License Shares will, upon issuance, be validly issued,
non-assessable and free and clear of all liens, charges and
encumbrances, other than resale restrictions imposed by applicable
securities laws;
(e) no person, firm or corporation has any written or verbal agreement or
option, understanding or commitment or any right or privilege capable
of becoming an agreement for the subscription or issuance of any
securities in the capital of Shadow;
(f) the Articles and Bylaws of Shadow permit its to carry on its present
and intended businesses, including the business contemplated through
the use of the License;
(g) the corporate records and minute books of Shadow contain complete and
accurate minutes of all meetings of the directors and shareholders of
Shadow held since incorporation;
(h) Shadow has no knowledge of any:
(i) actions, suits, investigations or proceedings against Shadow
which are in progress, pending or threatened;
(ii) outstanding judgments of any kind against Shadow; or
(iii)occurrences or events which have, or might reasonably be
expected to have, a material adverse effect on Shadow's current
or intended business.
(i) Shadow has no subsidiaries and owns no interest in any corporation,
partnership, proprietorship or any other business entity;
(j) Shadow's financial statements as filed with the United States
Securities & Exchange Commission (the "Financial Statements"), have
been prepared in accordance with United States generally accepted
accounting principles and fairly represent Shadow's financial position
at that date. Since the date to which Shadow's Financial Statements
were prepared:
(i) there has not been any material adverse change in the financial
position, assets, liabilities, results of operations, business,
prospects or condition, financial or otherwise, of Shadow or any
damage, loss or other change in circumstances materially
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affecting the business or assets of Shadow or its right or
capacity to carry on business before or after Closing;
(ii) Shadow has not waived or surrendered any right of material value;
(iii)the business of Shadow has been conducted in the ordinary
course; and
(iv) Shadow has not guaranteed, or agreed to guarantee, any debt,
liability or other obligation of any person, firm or corporation;
(k) Shadow is not a party to any contracts, leases, licenses, commitments
and other agreements relating to its assets or its business;
(l) Shadow does not have and has never had any employees; and
(m) there are no outstanding orders, judgments, injunctions, awards or
decrees of any court, arbitrator or governmental or regulatory body
involving Shadow. No suit, action or legal, administrative,
arbitration or other proceeding or reasonable basis therefor, or, to
the best of Shadow's knowledge, no investigation by any governmental
agency, pertaining to Shadow or its assets is pending or has been
threatened against Shadow which could adversely affect the financial
condition or prospects of Shadow or the conduct of the business
thereof or any of Shadow's assets or materially adversely affect the
ability of Shadow to consummate the transactions contemplated by this
Agreement.
5. EFFECT OF REPRESENTATIONS
5.1 The representations and warranties of Packetera and Shadow (the "Parties")
set out above form a part of this Agreement and are conditions upon which the
Parties have relied in entering into this Agreement and shall survive the
Packetera's grant of the License and the assignment of the Existing Agreements
to Shadow.
5.2 The Parties will indemnify and save each other harmless from all loss,
damage, costs, actions and suits arising out of or in connection with any breach
of any representation, warranty, covenant, agreement or condition made by it and
contained in this Agreement.
6. CLOSING
Packetera's grant of the License and assignment of the Existing Agreements to
Shadow shall be closed at the office of Packetera at 10:00 A.M. (Vancouver time)
on October 16, 2009, or on such other date or at such other place as may be
agreed upon by the parties (the "Closing").
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7. ACTIONS BY THE PARTIES PENDING CLOSING
From and after the date hereof and until Closing, Packetera and Shadow covenant
and agree that:
(a) Shadow, and its authorized representatives, shall have full access
during normal business hours to all documents of Packetera relating to
the Products and the Existing Agreements and Packetera shall furnish
to Shadow or its authorized representatives all information with
respect to the Products and the Existing Agreements as Shadow may
reasonably request;
(b) Packetera, and its authorized representatives, shall have full access
during normal business hours to all documents relating to Shadow's
affairs that Packetera may reasonably request; and
(c) Packetera shall not enter into any contract or commitment to purchase
or sell any interest in the Products or Existing Agreements without
the prior written consent of Shadow, which consent shall not be
unreasonably withheld.
8. CONDITIONS PRECEDENT TO PACKETERA'S OBLIGATIONS
Each and every obligation of Packetera to be performed at Closing shall be
subject to the satisfaction by Closing of the following conditions, unless
waived in writing by Packetera:
(a) The representations and warranties made by Shadow in this Agreement
shall be true and correct as of Closing with the same effect as though
such representations and warranties had been made or given at Closing;
(b) The name of Shadow shall be changed to "Itokk, Inc." and Shadow shall
have completed a split of its common stock such that every share
issued and outstanding prior to the split shall have been exchanged
for 8.5 post-split shares of Shadow;
(c) The 4,000,000 shares of restricted common stock currently issued and
outstanding to Shadow's directors (the "Restricted Shares") shall be
returned to treasury;
(d) Shadow shall have incorporated a wholly owned subsidiary ("Shadow's
Subsidiary") that shall hold as assets the License and the Existing
Agreements;
(e) Shadow shall appoint four of Packetera's nominees as its officers and
directors;
(f) Shadow's current officers and directors shall resign from their
respective positions;
(g) Shadow shall deliver to Packetera:
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(i) a certificate representing 30,600,000 shares of common stock in
the capital of Shadow, which shall be validly issued,
non-assessable and free and clear of all liens, charges and
encumbrances, other than resale restrictions imposed by
applicable securities laws as noted by a legend or legends
affixed to the back of the certificate;
(ii) copies of resolutions of Shadow's Board of Directors authorizing
the execution of this Agreement, the purchase of the License and
the Existing Agreements, the return of the Restricted Shares to
Shadow's treasury, the forward split whereby each current share
of common stock of Shadow shall be exchanged for 8.5 post-split
shares, the change of Shadow's name to Itokk, Inc., the
appointment of three of Packetera's nominees as officers and
directors of Shadow, the incorporation of its subsidiary, and the
issuance of 30,600,000 shares of common stock in its capital to
Packetera; and
(iii)copies of incorporation documents for Shadow's wholly owned
subsidiary;
(iv) pro forma financial statements and Form 10 information in the
required form for a filing in accordance with the requirements of
Form 8-K.
9. CONDITIONS PRECEDENT TO SHADOW'S OBLIGATIONS
Each and every obligation of Shadow to be performed at Closing shall be subject
to the satisfaction by Closing of the following conditions, unless waived in
writing by Shadow:
(a) The representations and warranties made by Packetera in this Agreement
shall be true and correct as of Closing with the same effect as though
such representations and warranties had been made or given by Closing;
(b) Packetera shall deliver to Shadow:
(i) written evidence of the grant of the License and the assignment
of the Existing Agreements to Shadow's Subsidiary in a form
acceptable to Shadow;
(ii) a copy of resolutions of Packetera's Board of Directors
authorizing the execution of this Agreement and the grant of the
License and assignment of the Existing Agreements to Shadow's
Subsidiary; and
(iii)a copy of minutes of a meeting of the shareholders of Packetera
approving Packetera's disposal of substantially its whole
undertaking to Shadow upon the terms of this Agreement.
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10. FURTHER ASSURANCES
The parties hereto covenant and agree to do such further acts and execute and
deliver all such further deeds and documents as shall be reasonably required in
order to fully perform and carry out the terms and intent of this Agreement.
11. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement to date between the parties
hereto and supersedes every previous agreement, communication, expectation,
negotiation, representation or understanding, whether oral or written, express
or implied, statutory or otherwise, between the parties with respect to the
subject of this Agreement.
12. NOTICE
12.1 Any notice required to be given under this Agreement shall be deemed to be
well and sufficiently given if delivered by hand or if mailed by registered
mail, in the case of Packetera addressed as follows:
Packetera Communications Inc.
Suite 200 - 375 Water Street
Vancouver, British Columbia, V6B 1B6
and in the case of Shadow addressed as follows:
Shadow Marketing Inc.
17365 S.W. 13th Street
Pembroke Pines, Florida, 33029
and any notice given as aforesaid shall be deemed to have been given, if
delivered, when delivered, or if sent by registered mail, on the seventh
business day after the date of mailing.
12.2 Either party may time to time by notice in writing change its address and
fax number for the purpose of this section.
13. TIME OF ESSENCE
Time shall be of the essence of this Agreement.
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14. TITLES
The titles to the respective sections hereof shall not be deemed a part of this
Agreement but shall be regarded as having been used for convenience only.
15. SEVERABILITY
If any one or more of the provisions contained herein should be invalid, illegal
or unenforceable in any respect in any jurisdictions, the validity, legality and
enforceability of such provisions shall not in any way be affected or impaired
thereby in any other jurisdiction and the validity, legality and enforceability
of the remaining provisions contained herein shall not in any way be affected or
impaired thereby.
16. APPLICABLE LAW
The situs of the Agreement is Vancouver, British Columbia, and for all purposes
this Agreement will be governed exclusively by and construed and enforced in
accordance with laws prevailing in the Province of British Columbia. The parties
agree to attorn to the jurisdiction of the Courts of the Province of British
Columbia.
17. ENUREMENT
This Agreement shall enure to the benefit of and be binding upon the parties
hereto and their respective successors and permitted assigns.
IN WITNESS WHEREOF Packetera and Shadow have duly executed this Agreement
effective as of the date and year above written.
PACKETERA COMMUNICATIONS INC. SHADOW MARKETING INC.
per: per:
----------------------------- -----------------------------
Authorized Signatory Authorized Signatory
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SCHEDULE "A"
TO THAT CERTAIN AGREEMENT MADE AS OF SEPTEMBER 14, 2009
BETWEEN PACKETERA COMMUNICATIONS INC.
AND SHADOW MARKETING, INC.
Packetera's services and products consist of:
Product/Service Description
--------------- -----------
Npoints-SIP- Framework application programming interface
Callback web-to-voice applications Click-to-Talk, mobile VoIP, web
www.itokk.com triggered callback/SIP voice
www.itokk.mobi products and services and
voice-card signatures
Session initiation protocol-Softphone Packetera Softphone Suite, Video
Products + Voice and Presence
www.itokksoft.com
Virtual calling card products Virtual calling cards, PINless
www.itokkexpress.com access, web recharge
Social VoIP Social VoIP for web communities
www.itokksocial.com and collaboration solutions
IP devices End-points integrated on IP device
www.itokkgadgets.com (USB flash memory, wifi handsets)
Hosted network platform Strategic partnerships with VoIP
service Providers
Engineering consulting providing engineering consulting
services specializing in VoIP
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