XESP 8-K
Electronic Servitor Publication Network, Inc. (XESP)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
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c/o INCORPORATING SERVICES, LTD.
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ELECTRONIC SERVITOR PUBLICATION NETWORK, INC.
Form 8-K
Current Report
Special Note Regarding Forward-Looking Statements
This current report contains forward-looking statements made by Electronic Servitor Publication Network, Inc (the “Company”). These statements involve known and unknown risks, uncertainties, and other factors that may cause our actual results, performance, or achievements to be materially different from any future results, performances, or achievements expressed or implied by the forward-looking statements. In some cases, forward-looking statements are identified by terms such as “anticipates,” “believes,” “could,” “estimates,” “expects,” “intends,” “may,” “plans,” “potential,” “predicts,” “projects,” “should,” “would,” and similar expressions intended to identify forward-looking statements. Forward-looking statements reflect the Company’s current views respecting future events and are based on assumptions and subject to risks and uncertainties.
Also, forward-looking statements represent the Company’s estimates and assumptions only as of the date of this report. You should read this report and the documents that the Company references and files as exhibits to this report in their entirety and with the understanding that actual future results may be materially different from what the Company expects. Except as required by law, the Company assumes no obligation to update any forward-looking statements publicly, or to update the reasons actual results could differ materially from those anticipated in any forward-looking statements, even if new information becomes available or other events occur in the future.
Item 1.01. Entry into a Material Definitive Agreement.
On December 22, 2023, the Company entered into the following transactions:
| 1) | An Asset Purchase Agreement (the “Asset Purchase Agreement”) with Phitech Management, LLC, a limited liability company organized under the laws of Minnesota (“Phitech”); and | |
| 2) | An Agreement and Plan of Merger (the “Merger Agreement”) with Pointward Inc., a corporation organized under the laws of Delaware (“Pointward”). |
A brief description of such transactions is provided in response to Item 2.01.
Item 2.01. Completion of Acquisition or Disposition of Assets.
The transactions disclosed in response to Item 1.01 include: (i) the purchase of assets of Phitech by the Company; and (ii) the Company’s merger with Pointward, whereby the Company shall be the surviving corporation.
Asset Purchase Agreement
Pursuant to the terms of the Asset Purchase Agreement dated December 22, 2023, the Company has agreed to pay an aggregate purchase price of Two Million Five Hundred Thousand Dollars ($2,500,000), plus the assumption of the assumed liabilities as defined in such Asset Purchase Agreement, for Phitech’s assets, including its proprietary technology; and, upon consummation of the transaction, the Company shall cancel Ten Million (10,000,000) shares of the Company’s common stock held by Phitech, representing 100% of Phitech’s ownership of the Company, and such shares shall be returned to the Company’s treasury.
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Agreement and Plan of Merger
Following consummation of the Asset Purchase Agreement on December 22, 2023, the Company entered into a Merger Agreement with Pointward. Pursuant to the terms of the Merger Agreement, the Company shall be the surviving corporation and all of the outstanding capital stock of Pointward were converted into shares of the Company’s common stock. Accordingly, the Company issued 39,252,000 shares of the Company’s common stock to the former holders of Pointward and the former stockholders of Pointward (not including any ownership of the Company’s capital stock held by such persons prior to the Merger) hold approximately 72% of the outstanding shares of the Company’s capital stock.
As former stockholders of Pointward, Peter Hager, Eric Swann, Greg Shockey, and Thomas Spruce received shares of the Company’s capital stock. Peter Hager is the Company’s Chief Executive Officer. Eric Swann and Greg Shockey are consultants of the Company. Thomas Spruce is the Company’s Chief Operations Officer and director.
Proprietary Technology
Peter Hager, our Chief Executive Officer, controls both Phitech and Pointward. The Company hired Mr. Hager with the intent of acquiring certain proprietary technology held by Pointward and Phitech. The Company acquired such proprietary technology pursuant to the terms of the Merger Agreement and Asset Purchase Agreement.
Pointward owns intellectual property proprietary to enhance digital user engagement and experience management. Phitech owns proprietary technology including the Digital Engagement Engine and other programs and processes that automate and provide dynamic digital engagement and activation experiences. Phitech utilizes its microservices architecture and workflow sequencing, to enhance content publication, content distribution, and user interaction management.
Item 7.01. Regulation FD Disclosure.
On December 27, 2023 and December 28, 2023, the Company issued press releases announcing the transactions disclosed in response to Item 1.01 and Item 2.01.
Item 8.01. Other Events.
On December 28, 2023, the Company moved its offices and operations to 107 Chestnut Street East, Suite 100, Stillwater, MN 55082-5524.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
Certain exhibits listed below are incorporated by reference as so marked with the date and filing with which such exhibits were filed with the Securities and Exchange Commission).
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Company has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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ELECTRONIC SERVITOR PUBLICATION NETWORK, INC.
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| Date: January 2, 2024 | By: | /s/ Thomas Spruce |
| Thomas Spruce | ||
| Chief Operations Officer | ||
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Exhibit 2.1
ASSET PURCHASE AGREEMENT
BY AND BETWEEN
ELECTRONIC SERVITOR PUBLICATION NETWORK, INC. AND
PHITECH MANAGEMENT, LLC.
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement"), dated as of December 22, 2023, is entered into between Phitech Management, LLC, a Minnesota limited liability company ("Seller") and Electronic Servitor Publication Network, Inc, a Delaware corporation ("Buyer").
RECITALS
WHEREAS, Seller wishes to sell and assign to Buyer, and Buyer wishes to purchase and assume from Seller, the rights and obligations of Seller to the Purchased Assets and the Assumed Liabilities (as defined herein), subject to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE
Section 1.01 Purchase and Sale of Assets. Subject to the terms and conditions set forth herein, Seller shall sell, assign, transfer, convey and deliver to Buyer, and Buyer shall purchase from Seller, all of Seller's right, title and interest in all licensing agreements, related trade-secrets and associated knowhow, including methods, techniques, specifications, procedures, information, systems, knowledge and business processes for its software code and modules consisting of a workflow and application suite built on a microservices architecture designed to connect people and content through dynamic content provisioning.(the "Purchased Assets"), free and clear of any mortgage, pledge, lien, charge, security interest, claim or other encumbrance ("Encumbrance").
Section 1.02 Assumption of Liabilities. Subject to the terms and conditions set forth herein, Buyer shall assume and agree to pay, perform and discharge the liabilities arising after the Closing (as defined herein) under the Purchased Assets, but only to the extent that such liabilities and obligations, excluding taxes related to shares, do not relate to any breach, default or violation by Seller on or prior to the Closing (collectively, the "Assumed Liabilities"). Other than the Assumed Liabilities, Buyer shall not assume any liabilities or obligations of Seller of any kind, whether known or unknown, contingent, matured or otherwise, whether currently existing or hereinafter created.
Section 1.03 Purchase Price. The aggregate purchase price for the Purchased Assets shall be Two Million Five Hundred Thousand Dollars ($2,500,000) (the "Purchase Price"), plus the assumption of the Assumed Liabilities. The Buyer shall pay the Purchase Price in one or more payments to Seller by or before March 31, 2024 (the “Due Date”) in cash by wire transfer in accordance with the wire transfer instructions set forth in Section 7.02 Notices. The Buyer shall pay the Assumed Liabilities no later than 30 calendar days upon receiving notification from the Seller or its agents.
Section 1.04 Non-Payment of Purchase Price. In the event that the Buyer does not pay the Purchase Price by the Due Date and the Buyer and Seller have not mutually agreed upon on a different method of payment that is documented in an Amendment to this Agreement, then
| (a) | Buyer shall have an additional 90 days to cure pay the full Purchase Price plus any interest. | |
| (b) | If the Buyer does not pay the full Purchase Price and interest within the 90 days, the Buyer shall provide quarterly to the Seller and Seller shall accept as additional payment of the Purchase Price, a quantity of stock options of the Company’s stock equal to 1/4th of the unpaid Purchase Price as valued by the stock price as of the Agreement Execution Date and continuing quarterly until the full Purchase Price and interest is paid in full. | |
| (c) | Seller shall be entitled to begin earning interest on the value of the Purchase Price, or the remaining balance owed, beginning on the day following the Due Date at a rate of eight percent (8%) per annum to be paid quarterly until the Purchase Price is paid in full. |
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ARTICLE II
CLOSING
Section 2.01 Closing. The closing of the transactions contemplated by this Agreement (the "Closing") shall take place simultaneously with the execution of this Agreement on the date of this Agreement (the "Closing Date"). The consummation of the transactions contemplated by this Agreement shall be deemed to occur at 12:01 a.m. on the Closing Date.
Section 2.02 Closing Deliverables.
| (a) | At the Closing, Seller shall deliver to Buyer the following: |
| i. | the Disclosure Schedules as defined in Section 3.04(b) and attached to this Agreement as Exhibit A; | |
| ii. | a document from the Secretary or Assistant Secretary (or equivalent officer) of Seller certifying as to (A) the resolutions of the board of directors of Seller, duly adopted and in effect, which authorize the execution, delivery and performance of this Agreement and the transactions contemplated hereby, and (B) the names and signatures of the officers of Seller authorized to sign this Agreement and the documents to be delivered hereunder; | |
| iii. | such other customary instruments of transfer, assumption, filings or documents, in form and substance reasonably satisfactory to Buyer, as may be required to give effect to this Agreement; and | |
| iv. | documentation for the return of the 10 million shares of vested and unvested Electronic Servitor Publication Network Inc. stock (the “10 Million Shares”) to Buyer. The 10 Million Shares shall be contributed to the treasury of the Buyer for cancellation. The Seller hereby acknowledges and consents to the cancellation of the 10 Million Shares. |
| (b) | At the Closing, Seller shall deliver to Buyer the following: |
| i. | a document from the Secretary or Assistant Secretary (or equivalent officer) of Buyer certifying as to (A) the resolutions of the board of directors of Buyer, duly adopted and in effect, which authorize the execution, delivery and performance of this Agreement and the transactions contemplated hereby, and (B) the names and signatures of the officers of Buyer authorized to sign this Agreement and the documents to be delivered hereunder. |
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer that the statements contained in this Article III are true and correct as of the date hereof. For purposes of this Article III, "Seller's knowledge," "knowledge of Seller" and any similar phrases shall mean the actual or constructive knowledge of any director or officer of Seller, after due inquiry.
Section 3.01 Organization and Authority of Seller; Enforceability. Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Minnesota. Seller has full corporate power and authority to enter into this Agreement and the documents to be delivered hereunder, to carry out its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance by Seller of this Agreement and the documents to be delivered hereunder and the consummation of the transactions contemplated hereby have been duly authorized by all requisite corporate action on the part of Seller. This Agreement and the documents to be delivered hereunder have been duly executed and delivered by Seller, and (assuming due authorization, execution and delivery by Buyer) this Agreement and the documents to be delivered hereunder constitute legal, valid and binding obligations of Seller, enforceable against Seller in accordance with their respective terms.
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Section 3.02 No Conflicts; Consents. The execution, delivery and performance by Seller of this Agreement and the documents to be delivered hereunder, and the consummation of the transactions contemplated hereby, do not and will not: (a) violate or conflict with the certificate of incorporation, by-laws or other organizational documents of Seller; (b) violate or conflict with any judgment, order, decree, statute, law, ordinance, rule or regulation applicable to Seller or the Purchased Assets; (c) conflict with, or result in (with or without notice or lapse of time or both) any violation of, or default under, or give rise to a right of termination, acceleration or modification of any obligation or loss of any benefit under any contract or other instrument to which Seller is a party or to which any of the Purchased Assets are subject; or (d) result in the creation or imposition of any Encumbrance on the Purchased Assets, with the exception of transferring certain third party hosting and licensing fees, to the Buyer. No consent, approval, waiver or authorization is required to be obtained by Seller from any person or entity (including any governmental authority) in connection with the execution, delivery and performance by Seller of this Agreement and the consummation of the transactions contemplated hereby.
Section 3.03 Title to Purchased Assets. Seller owns and has good title to the Purchased Assets, free and clear of Encumbrances.
Section 3.04 Intellectual Property.
| (a) | “Intellectual Property” means any and all of the following in any jurisdiction throughout the world: (i) trademarks and service marks, including all applications and registrations and the goodwill connected with the use of and symbolized by the foregoing; (ii) copyrights, including all applications and registrations related to the foregoing; (iii) trade secrets and confidential know-how; (iv) patents and patent applications; (v) websites and internet domain name registrations; and (vi) other intellectual property and related proprietary rights, interests and protections (including all rights to sue and recover and retain damages, costs and attorneys' fees for past, present and future infringement and any other rights relating to any of the foregoing). |
| (b) | The “Disclosure Schedules” lists all Intellectual Property included in the Purchased Assets ("Purchased IP"). Seller owns or has adequate, valid and enforceable rights to use all the Purchased IP, free and clear of all Encumbrances. Seller is not bound by any outstanding judgment, injunction, order or decree restricting the use of the Purchased IP, or restricting the licensing thereof to any person or entity. |
| (c) | Seller's prior and current use of the Purchased IP has not and does not infringe, violate, dilute or misappropriate the Intellectual Property of any person or entity and there are no claims pending or threatened by any person or entity with respect to the ownership, validity, enforceability, effectiveness or use of the Purchased IP. No person or entity is infringing, misappropriating, diluting or otherwise violating any of the Purchased IP, and neither Seller nor any affiliate of Seller has made or asserted any claim, demand or notice against any person or entity alleging any such infringement, misappropriation, dilution or other violation. |
Section 3.05 Legal Proceedings. There is no claim, action, suit, proceeding or governmental investigation ("Action") of any nature pending or, to Seller's knowledge, threatened against or by Seller (a) relating to or affecting the Purchased Assets [or the Assumed Liabilities]; or (b) that challenges or seeks to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement. No event has occurred or circumstances exist that may give rise to, or serve as a basis for, any such Action.
Section 3.06 Brokers. No broker, finder or investment banker is entitled to any brokerage, finder's or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Seller.
Section 3.07 Full Disclosure. No representation or warranty by Seller in this Agreement and no statement contained in the Disclosure Schedules to this Agreement or any certificate or other document furnished or to be furnished to Buyer pursuant to this Agreement contains any untrue statement of a material fact, or omits to state a material fact necessary to make the statements contained therein, in light of the circumstances in which they are made, not misleading.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller that the statements contained in this Article IV are true and correct as of the date hereof. For purposes of this Article IV, "Buyer's knowledge," "knowledge of Buyer" and any similar phrases shall mean the actual or constructive knowledge of any director or officer of Buyer, after due inquiry.
Section 4.01 Organization and Authority of Buyer; Enforceability. Buyer is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. Buyer has full corporate power and authority to enter into this Agreement and the documents to be delivered hereunder, to carry out its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance by Buyer of this Agreement and the documents to be delivered hereunder and the consummation of the transactions contemplated hereby have been duly authorized by all requisite corporate action on the part of Buyer. This Agreement and the documents to be delivered hereunder have been duly executed and delivered by Buyer, and (assuming due authorization, execution and delivery by Seller) this Agreement and the documents to be delivered hereunder constitute legal, valid and binding obligations of Buyer enforceable against Buyer in accordance with their respective terms.
Section 4.02 No Conflicts; Consents. The execution, delivery and performance by Buyer of this Agreement and the documents to be delivered hereunder, and the consummation of the transactions contemplated hereby, do not and will not: (a) violate or conflict with the certificate of incorporation, by-laws or other organizational documents of Buyer; or (b) violate or conflict with any judgment, order, decree, statute, law, ordinance, rule or regulation applicable to Buyer. No consent, approval, waiver or authorization is required to be obtained by Buyer from any person or entity (including any governmental authority) in connection with the execution, delivery and performance by Buyer of this Agreement and the consummation of the transactions contemplated hereby.
Section 4.03 Legal Proceedings. There is no Action of any nature pending or, to Buyer's knowledge, threatened against or by Buyer that challenges or seeks to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement. No event has occurred or circumstances exist that may give rise to, or serve as a basis for, any such Action.
Section 4.04 Brokers. No broker, finder or investment banker is entitled to any brokerage, finder's or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Buyer.
ARTICLE V
COVENANTS
Section 5.01 Public Announcements. Unless otherwise required by applicable law or stock exchange requirements, neither party shall make any public announcements regarding this Agreement or the transactions contemplated hereby without the prior written consent of the other party (which consent shall not be unreasonably withheld or delayed).
Section 5.02 Transfer Taxes. All transfer, documentary, sales, use, stamp, registration, stock transaction, value added and other such taxes and fees (including any penalties and interest) incurred in connection with this Agreement and the documents to be delivered hereunder shall be borne and paid by Buyer when due.
Section 5.03 Further Assurances. Following the Closing, each of the parties hereto shall execute and deliver such additional documents, instruments, conveyances and assurances and take such further actions as may be reasonably required to carry out the provisions hereof and give effect to the transactions contemplated by this Agreement and the documents to be delivered hereunder.
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ARTICLE VI
INDEMNIFICATION
Section 6.01 Survival. All representations, warranties, covenants and agreements contained herein and all related rights to indemnification shall survive the Closing.
Section 6.02 Indemnification. Buyer shall defend, indemnify and hold harmless, and defend Seller and it’s affiliates, stockholders, directors, officers and employees from and against all claims, judgments, damages, liabilities, settlements, losses, costs and expenses, including attorneys' fees and disbursements, arising from or relating to the actions and responsibilities of the Buyer, or any third party, except for:
| (a) | any inaccuracy in or breach of any of the representations or warranties by the Seller contained in this Agreement or any document to be delivered hereunder; or |
| (c) | any breach or non-fulfillment of any covenant, agreement or obligation to be performed by the Seller pursuant to this Agreement or any document to be delivered hereunder. |
Section 6.03 Tax Treatment of Indemnification Payments. All indemnification payments made by Seller under this Agreement shall be treated by the parties as an adjustment to the Purchase Price for tax purposes, unless otherwise required by law. All additional taxes for these payments will be paid by the Buyer.
Section 6.04 Cumulative Remedies. The rights and remedies provided in this Article VI are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
ARTICLE V
MISCELLANEOUS
Section 7.01 Expenses. All costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the Buyer.
Section 7.02 Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the [third] day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 7.02):
| If to Seller: |
Phitech Management, LLC 400 First Avenue North Suite 100 Minneapolis, MN 55401 Bank Wire Instructions: (on file) |
| If to Buyer: |
Electronic Servitor Publication Network, Inc 400 First Avenue North Suite 100 Minneapolis, MN 55401 Phone: 833.991.0800 E-mail: [email protected] Attention: Thomas Spruce, COO |
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Section 7.03 Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
Section 7.04 Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Section 7.05 Entire Agreement. This Agreement and the documents to be delivered hereunder constitute the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersede all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements in the body of this Agreement and the documents to be delivered hereunder, the Exhibits and Disclosure Schedules (other than an exception expressly set forth as such in the Disclosure Schedules), the statements in the body of this Agreement will control.
Section 7.06 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. Neither party may assign its rights or obligations hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. No assignment shall relieve the assigning party of any of its obligations hereunder.
Section 7.07 No Third-party Beneficiaries. Except as provided in Article VI, this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Section 7.08 Amendment and Modification. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto.
Section 7.09 Waiver. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Section 7.10 Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Minnesota without giving effect to any choice or conflict of law provision or rule (whether of the State of Minnesota or any other jurisdiction).
Section 7.11 Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in the federal courts of the United States of America or the courts of the State of Minnesota, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
Section 7.12 Waiver of Jury Trial. Each party acknowledges and agrees that any controversy which may arise under this Agreement is likely to involve complicated and difficult issues and, therefore, each such party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
Section 7.13 Specific Performance. The parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy to which they are entitled at law or in equity.
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Section 7.14 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
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PHITECH MANAGEMENT, LLC
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By__/s/ Peter Hager___________________ Name: Peter Hager Title: Managing Member |
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ELECTRONIC SERVITOR PUBLICATION NETWORK, INC.
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By__/s/ Thomas Spruce________________ Name: Thomas Spruce Title: Chief Operations Officer |
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EXHIBIT A
Disclosure Schedules
[REDACTED]
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Exhibit 2.2
AGREEMENT AND PLAN OF MERGER
BY AND BETWEEN
ELECTRONIC SERVITOR PUBLICATION NETWORK, INC. and
POINTWARD INC.
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this “Agreement”) between ELECTRONIC SERVITOR PUBLICATION NETWORK, INC., a Delaware corporation ("XESP"), and POINTWARD INC., a Delaware corporation ("Pointward"), each or together being sometimes referred to herein as the "Constituent Corporations."
RECITALS
WHEREAS, the board of directors of each Constituent Corporation deems it advisable that the Constituent Corporations merge into a single corporation (the “Merger");
AGREEMENT
NOW THEREFORE, in consideration of the premises and the respective mutual covenants, representations and warranties herein contained, the parties agree as follows:
1. Surviving Corporation. Pointward shall be merged with and into XESP which shall be the surviving corporation (hereinafter the "Surviving Corporation") in accordance with the applicable laws of the State of Delaware.
2. Merger Date. The Merger shall become effective (the "Merger Date") upon the completion of:
(i) Adoption of this Agreement by a majority of the voting shareholders of Pointward and by a majority of the voting shareholders of XESP pursuant to the General Corporation Law of Delaware;
(ii) Execution and filing of the Certificate of Merger with the Secretary of State of the State of Delaware in accordance with the General Corporation Law of Delaware.
3. Time of Filings. The Certificate of Merger shall be filed with the Secretary of State of Delaware upon the approval of this Agreement by the shareholders of the Constituent Corporations, respectively, and the fulfillment or waiver of the terms and conditions herein.
4. Accounting Period. Notwithstanding any other provision herein relating to the Merger Date, for all accounting purposes the effective date of the Merger shall be as of December 22, 2023.
5. Governing Law. The Surviving Corporation shall be governed by the laws of the State of Delaware.
6. Certificate of Incorporation. The Certificate of Incorporation of XESP shall be the Certificate of Incorporation of the Surviving Corporation from and after the Merger Date, subject to the right of the Surviving Corporation to amend its Certificate of Incorporation in accordance with the laws of the State of Delaware.
7. Bylaws. The Bylaws of the Surviving Corporation shall be the Bylaws of XESP as in effect on the date of this Agreement.
8. Name of Surviving Corporation. The name of the Surviving Corporation will be Electronic Servitor Publication Network, Inc.
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9. Board of Directors and Officers. The members of the board of directors of the Surviving Corporation shall be the members of the board of directors of XESP on the Merger Date. The officers of the Surviving Corporation shall be the officers of XESP on the Merger Date.
10. Conversion. The mode of carrying the merger into effect and the manner and basis of converting the shares of Pointward into shares of the Surviving Corporation are as follows:
(i)The aggregate number of Pointward shares issued and outstanding on the Merger Date shall, by virtue of the Merger and without any action on the part of the holders thereof, be converted into an equal number of shares of XESP common stock and issued in accordance with the schedule set forth in Exhibit A.
(ii)Subject to such adjustments, there shall be 55,418,001 shares of XESP Common stock issued and outstanding upon completion of the Merger held as follows: 39,252,000 common shares held by the shareholders of Pointward (“Shareholders”); and 11,416,001 shares held by the current shareholders of XESP.
(iii)The XESP Common stock shall be issued to the holders of Pointward shares in exchange for their shares on a one for one basis.
(iv)All outstanding warrants of Pointward and any other outstanding rights to purchase the shares of Pointward shall be adjusted, pursuant to the terms contained in such warrants or other rights documents, for conversion to warrants or rights to purchase stock of XESP on the same ratio as provided by the Merger.
(v)Fractional shares of XESP Common stock shall not be issued, but in lieu thereof XESP shall round up fractional shares to the next highest whole number.
(vi)The shares of XESP Common stock to be issued in exchange for Pointward shares hereunder shall be proportionately reduced by any shares owned by Shareholders who shall have timely objected to the Merger (the "Dissenting Shares") in accordance with the provisions of the General Corporation Law of Delaware which objections will be dealt with as provided in those sections.
(vii) Each share of Pointward that is issued and outstanding and owned by Shareholders on the Merger Date shall, by virtue of the Merger and without any action on the part of the Shareholders, be retired and canceled.
(viii) Each certificate evidencing ownership of shares of XESP Common stock issued and outstanding on the Merger Date or held by XESP in its treasury shall continue to evidence ownership of the same number of shares of XESP Common stock.
11.Exchange of Certificates. As promptly as practicable after the Merger Date, each holder of an outstanding certificate or certificates theretofore representing shares of Pointward (other than certificates representing Dissenting Shares) shall surrender such certificate(s) for cancellation and shall receive in exchange a certificate or certificates representing the number of full shares of XESP common stock into which the shares of Pointward represented by the certificate or certificates so surrendered shall have been converted.
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12.Unexchanged Certificates. Until surrendered, each outstanding certificate that prior to the Merger Date represented Pointward shares (other than certificates representing Dissenting Shares) shall be deemed for all purposes, other than the payment of dividends or other distributions, to evidence ownership of the number of shares of XESP common stock into which it was converted. No dividend or other distribution payable to holders of XESP common stock as of any date subsequent to the Merger Date shall be paid to the holders of outstanding certificates of Pointward shares; provided, however, that upon surrender and exchange of such outstanding certificates (other than certificates representing Dissenting Shares), there shall be paid to the record holders of the certificates issued in exchange therefor the amount, without interest thereon, of dividends and other distributions that would have been payable subsequent to the Merger Date with respect to the shares of XESP common stock represented thereby.
13.Effect of the Merger. On the Merger Date, the separate existence of Pointward shall cease (except insofar as continued by statute), and it shall be merged with and into the Surviving Corporation. All the property, real, personal, and mixed, of each of the Constituent Corporations, and all debts due to either of them, shall be transferred to and vested in the Surviving Corporation, without further act or deed. The Surviving Corporation shall thenceforth be responsible and liable for all the liabilities and obligations, including liabilities to holders of Dissenting Shares, of each of the Constituent Corporations, and any claim or judgment against either of the Constituent Corporations may be enforced against the Surviving Corporation.
14.Approval of Shareholders. This Agreement shall be adopted by the shareholders of the Constituent Corporations, respectively, at meetings of such shareholders and called for that purpose or by written consent pursuant to and according to the applicable state laws thereto, if so required. There shall be required for the adoption of this Agreement the affirmative vote of the holders of at least a majority of all the voting shares issued and outstanding and entitled to vote for each of the Constituent Corporations, if required by applicable state law thereto.
15.Representations and Warranties of Pointward. Pointward represents and warrants as follows:
(i)Corporate Status. Pointward is a company duly organized, validly existing, and in good standing under the laws of the Delaware and is licensed or qualified as a foreign corporation in all states in which the nature of its business or the character or ownership of its properties makes such licensing or qualification necessary.
(ii)Capitalization. The authorized capital stock of Pointward consists of $0.0001 par value shares of which 39,252,000 shares are issued and outstanding, all fully paid and nonassessable. There are no other classes of equity ownership issued or authorized.
(iii)Subsidiaries. Pointward has no subsidiaries.
(iv)Financial Statements. The financial statements for the period beginning December 31, 2021 (inception of Pointward) to the Merger Date, or such other period as acceptable to XESP (“Pointward’s Financial Statements”), furnished in a manner acceptable to XESP, are correct and fairly present the financial condition of Pointward as of the dates and for the periods involved, and such statements were prepared in accordance with U.S. generally accepted accounting principles consistently applied.
(v)Undisclosed Liabilities. Pointward had no liabilities of any nature except to the extent reflected or reserved against in Pointward's Financial Statements, whether accrued, absolute, contingent, or otherwise, including, without limitation, tax liabilities and interest due or to become due, and Pointward's accounts receivable, if any, are collectible in accordance with the terms of such accounts, except to the extent of the reserve therefor in Pointward's Financial Statements.
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(vi)Absence of Material Changes. Between the date of Pointward’s Financial Statements and the date of this Agreement, there have not been, except as set forth in a list certified by the CEO of Pointward and delivered to XESP, (1) any changes in Pointward's financial condition, assets, liabilities, or business which, in the aggregate, have been materially adverse; (2) any damage, destruction, or loss of or to Pointward's property, whether or not covered by insurance; (3) any declaration or payment of any dividend or other distribution in respect of Pointward's capital stock, or any direct or indirect redemption, purchase, or other acquisition of any such stock; or (4) any increase paid or agreed to in the compensation, retirement benefits, or other commitments to employees.
(vii)Litigation. There is no litigation or proceeding pending, or to Pointward’s knowledge threatened, against or relating to Pointward, its properties or business, except as set forth in a list certified by the CEO of Pointward and delivered to XESP.
(viii) Contracts. Pointward is not a party to any material contracts other than those disclosed to XESP. Pointward currently has a license with Pointward Inc., incorporated under the laws of the State of Minnesota on December 15, 1975 (“Pointward Minnesota”), whereby Pointward Minnesota licenses certain intellectual property from Pointward. Upon execution of this Agreement and performance thereunder, XESP hereby grants Pointward Minnesota a world-wide, non-exclusive, limited-use license to use the intellectual property acquired hereunder for creative, consulting, go-to-market and supply chain services within certain specific industries, including, but not limited to medical technology, medical device, plant-based medicine, nutraceuticals, supplements, and healthcare markets, and such other markets as mutually agreed upon by XESP and Pointward Minnesota (the “License”). Pointward Minnesota may not sell, assign, convey, or otherwise transfer this License without prior written consent of XESP. This License may be amended, modified or supplemented by an agreement in writing signed by XESP and Pointward Minnesota.
(ix)No Violation. Execution of this Agreement and performance by Pointward hereunder has been duly authorized by all requisite corporate action on the part of Pointward, and this Agreement constitutes a valid and binding obligation of Pointward, performance hereunder will not violate any provision of any charter, bylaw, indenture, mortgage, lease, or agreement, or any order, judgment, decree, law, or regulation to which any property of Pointward is subject or by which Pointward is bound.
(x)Title to Property. Pointward has good and marketable title to all properties and assets, real and personal, reflected in Pointward's Financial Statements, except as since sold or otherwise disposed of in the ordinary course of business, and Pointward's properties and assets are subject to no mortgage, pledge, lien, or encumbrance, except for liens shown therein, with respect to which no default exists except as disclosed to XESP.
(xi)Corporate Authority. Pointward has full corporate power and authority to enter into this Agreement and to carry out its obligations hereunder, and will deliver at the Closing a copy of resolutions of its board of directors authorizing execution of this Agreement by its officers and performance thereunder. Further, Pointward has obtained all permissions, consents and forbearances, in writing, required to transfer good and marketable title to all properties and assets, real and personal, reflected in Pointward's Financial Statements.
(xii)Access to Records. From the date of this Agreement to the Closing, Pointward will (1) give to XESP and its representatives full access during normal business hours to all of its offices, books, records, contracts, and other corporate documents and properties so that XESP may inspect and audit them and (2) furnish such information concerning Pointward's properties and affairs as XESP may reasonably request.
(xiii)Confidentiality. Until the Closing (and permanently if there is no Closing), Pointward and the Shareholders will keep confidential any information which they obtain from XESP concerning its properties, assets, and business. If the transactions contemplated by this Agreement are not consummated, Pointward and the Shareholders will return to XESP all written matter with respect to XESP obtained by them in connection with the negotiation or consummation of this Agreement.
16. Representations and Warranties of the Shareholders. The Shareholders, individually and separately, represent and warrant as follows:
(i)Title to Units. The Shareholders, and each of them, are the owners, free and clear of any liens and encumbrances, of the number of Pointward shares which are listed in the attached schedule and which they have contracted to convert.
(ii)Litigation. There is no litigation or proceeding pending, or to each Shareholder’s knowledge threatened, against or relating to shares of Pointward held by the Shareholders.
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(iii)Restrictions on Transfer of XESP Common Stock Shares. In connection with the conversion of Pointward shares into common stock shares of XESP under this Agreement, each Shareholder hereby represents and warrants to the Company as follows:
| a. | The Shareholder is acquiring and will hold the XESP Common stock for investment for his or her account only and not with a view to, or for resale in connection with, any “distribution” thereof within the meaning of the Securities Act. |
| b. | The Shareholder understands that the XESP Common stock issued under this Agreement have not been registered under the Securities Act by reason of a specific exemption therefrom and that the XESP Common stock must be held indefinitely, unless their sale or other transfer is subsequently registered under the Securities Act or the Shareholder obtains an opinion of counsel, in form and substance satisfactory to the Company and its counsel, that such registration is not required. The Shareholder further acknowledges and understands that the Company is under no obligation to register the XESP Common stock . |
| c. | The Shareholder is aware of Rule 144 under the Securities Act, which permits limited public resales of securities acquired in a non-public offering, subject to the satisfaction of certain conditions. These conditions may include (without limitation) that certain current public information about the issuer be available, that the resale occur only after a holding period required by Rule 144 has been satisfied, that the sale occur through an unsolicited “broker’s transaction,” and that the amount of securities being sold during any three-month period not exceed specified limitations. The Shareholder acknowledges and understands that the conditions for resale set forth in Rule 144 have not been satisfied as of the Merger Date and that the Surviving Corporation is not required to take action to satisfy any such conditions. |
| d. | The Shareholder will not sell, transfer or otherwise dispose of the XESP Common stock acquired under this Agreement in violation of the Securities Act, the Securities Exchange Act of 1934, or the rules promulgated thereunder, including Rule 144 under the Securities Act. The Shareholder agrees that he or she will not dispose of the XESP Common stock acquired under this Agreement unless and until he or she has complied with all requirements of this Agreement applicable to the disposition of the XESP Common stock and he or she has provided the Surviving Corporation with written assurances, in substance and form satisfactory to the Surviving Corporation, that (A) the proposed disposition does not require registration of the XESP Common stock under the Securities Act or all appropriate action necessary for compliance with the registration requirements of the Securities Act or with any exemption from registration available under the Securities Act (including Rule 144) has been taken and (B) the proposed disposition will not result in the contravention of any transfer restrictions applicable to the XESP Common stock under applicable state law. |
| e. | The Shareholder has received and has had access to such information as he or she considers necessary or appropriate for deciding whether to invest in the XESP Common stock, and the Shareholder has had an opportunity to ask questions and receive answers from the management of the Surviving Corporation regarding the terms and conditions of the issuance of the XESP Common stock . |
| f. | The Shareholder is aware that his or her investment in the Surviving Corporation is a speculative investment that has limited liquidity and is subject to the risk of complete loss. The Shareholder is able, without impairing his or her financial condition, to hold the XESP Common stock for an indefinite period and to suffer a complete loss of his or her investment in the XESP Common stock . |
| 6 |
| g. | The Shareholder acknowledges that regardless of whether the offer and sale of the XESP Common Stock have been registered under the Securities Act or have been registered or qualified under the securities laws of any State or other relevant jurisdiction, the Surviving Corporation at its discretion may impose restrictions upon the sale, pledge or other transfer of the XESP Common Stock (including the placement of appropriate legends on the stock certificates (or electronic equivalent) or the imposition of stop transfer instructions) and may refuse (or may be required to refuse) to transfer XESP Common Stock acquired hereunder (or XESP Common Stock proposed to be transferred in a subsequent transfer) if, in the judgment of the Company, such restrictions, legends or refusal are necessary or appropriate to achieve compliance with the Securities Act or other relevant securities or other laws, including without limitation under Regulation S of the Securities Act or pursuant to another available exemption from registration. |
| h. | The Shareholder acknowledges that the Surviving Corporation shall not be required to (i) transfer on its books any XESP Common Stock that have been sold or transferred in contravention of this Agreement or (ii) treat as the owner of XESP Common Stock shares, or otherwise to accord voting, dividend or liquidation rights to, any subsequent transferee to whom XESP Common Stock have been transferred in contravention of this Agreement. |
17. Representations and Warranties of XESP. XESP represents and warrants as follows:
(i)Corporate Status. XESP is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware and is licensed or qualified as a foreign corporation in all states in which the nature of its business or the character or ownership of its properties makes such licensing or qualification necessary.
(ii)Capitalization. The authorized capital stock of XESP consists of 100,000,000 shares of common stock, $.0001 par value per share, of which 11,416,001 shares are issued and outstanding, all fully paid and nonassessable and 1,000 shares of Series A Preferred Stock, of which 1,000 shares are issued and outstanding, all fully paid and nonassessable.
(iii)Subsidiaries. XESP has no subsidiaries.
(iv)Public Company. XESP is a reporting company pursuant to Section 12 of the Securities Exchange Act of 1934.
(v)Public Filings. XESP has filed all reports required to be filed by it under Section 13 of the Securities Exchange Act of 1934.
(vi)Financial Statements. The financial statements of XESP as of July 31, 2023 or such other period as acceptable to Pointward (“XESP’s Financial Statements”) furnished to Pointward are correct and fairly present the financial condition of XESP as of the dates and for the periods involved, and such statements were prepared in accordance with generally accepted accounting principles consistently applied.
(vii)Undisclosed Liabilities. XESP had no liabilities of any nature except to the extent reflected or reserved against in XESP’s Financial Statements, whether accrued, absolute, contingent, or otherwise, including, without limitation, tax liabilities and interest due or to become due, and XESP's accounts receivable, if any, are collectible in accordance with the terms of such accounts, except to the extent of the reserve therefor in XESP's Financial Statements.
(viii)Absence of Material Changes. Between the date of XESP’s Financial Statements and the date of this Agreement, there have not been, except as set forth in a list certified by the CEO of XESP and delivered to Pointward, (1) any changes in XESP's financial condition, assets, liabilities, or business which, in the aggregate, have been materially adverse; (2) any damage, destruction, or loss of or to XESP's property, whether or not covered by insurance; (3) any declaration or payment of any dividend or other distribution in respect of XESP's capital stock, or any direct or indirect redemption, purchase, or other acquisition of any such stock; or (4) any increase paid or agreed to in the compensation, retirement benefits, or other commitments to employees.
| 7 |
(ix)Litigation. There is no litigation or proceeding pending, or to XESP’s knowledge threatened, against or relating to XESP, its properties or business, except as documented and delivered by an executive of XESP to Pointward.
(x)Contracts. XESP is not a party to any material contract other than those in the normal course of business or otherwise disclosed to Pointward.
(xi)No Violation. Execution of this Agreement and performance by XESP hereunder has been duly authorized by all requisite corporate action on the part of XESP, and this Agreement constitutes a valid and binding obligation of XESP, performance hereunder will not violate any provision of any charter, bylaw, indenture, mortgage, lease, or agreement, or any order, judgment, decree, law, or regulation to which any property of XESP is Subject or by which XESP is bound.
(xii)Title to Property. XESP has good and marketable title to all properties and assets, real and personal, reflected in XESP's Financial Statements, except as sold or otherwise disposed of in the ordinary course of business, and XESP's properties and assets are Subject to no mortgage, pledge, lien, or encumbrance, except for liens shown therein, with respect to which no default exists.
(xiii) Corporate Authority. XESP has full corporate power and authority to enter into this Agreement and to carry out its obligations hereunder, and will deliver at the Closing a certified copy of resolutions of its board of directors authorizing execution of this Agreement by its officers and performance thereunder.
(xiv)Confidentiality. Until the Closing (and permanently if there is no Closing), XESP and its representatives will keep confidential any information which they obtain from Pointward concerning its properties, assets, and business. If the transactions contemplated by this Agreement are not consummated, XESP will return to Pointward all written matter with respect to XESP obtained by it in connection with the negotiation or consummation of this Agreement.
18.Legends. All certificates evidencing the XESP Common stock acquired under this Agreement in an unregistered transaction shall bear the following legend (and such other restrictive legends as are required or deemed advisable under the provisions of any applicable law):
“THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”) OR ANY SECURITIES LAWS OF ANY U.S. STATE, AND MAY NOT BE SOLD, REOFFERED, PLEDGED, ASSIGNED, ENCUMBERED OR OTHERWISE TRANSFERRED OR DISPOSED WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR AN OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED. IN THE ABSENCE OF REGISTRATION OR THE AVAILABILITY (CONFIRMED BY OPINION OF COUNSEL) OF AN ALTERNATIVE EXEMPTION FROM REGISTRATION UNDER THE ACT (INCLUDING WITHOUT LIMITATION IN ACCORDANCE WITH REGULATION S UNDER THE ACT), THESE SHARES MAY NOT BE SOLD, REOFFERED, PLEDGED, ASSIGNED, ENCUMBERED OR OTHERWISE TRANSFERRED OR DISPOSED OF. HEDGING TRANSACTIONS INVOLVING THESE SHARES MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE ACT.”
If required by the authorities of any State in connection with the issuance of XESP Common stock acquired under this Agreement, the legend or legends required by such State authorities shall also be endorsed on all such certificates.
19.Closing.
(i)The transfers and deliveries to be made pursuant to this Agreement (the "Closing") shall be made by and take place at the offices of XESP or other location designated by the Constituent Corporations without requiring the meeting of the parties hereof. All proceedings to be taken and all documents to be executed at the Closing shall be deemed to have been taken, delivered and executed simultaneously, and no proceeding shall be deemed taken nor documents deemed executed or delivered until all have been taken, delivered and executed.
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(ii)Any copy, facsimile telecommunication or other reliable reproduction of the writing or transmission required by this Agreement or any signature required thereon may be used in lieu of an original writing or transmission or signature for any and all purposes for which the original could be used, provided that such copy, facsimile telecommunication or other reproduction shall be a complete reproduction of the entire original writing or transmission or original signature.
20. Conduct Pending the Closing. XESP and Pointward covenant that between the date of this Agreement and the Closing as to each of them:
(i)No change will be made in the charter documents, by-laws, or other corporate documents of Pointward or XESP.
(ii)Pointward and XESP will each use their best efforts to maintain and preserve its business organization, employee relationships, and goodwill intact, and will not enter into any material commitment except in the ordinary course of business.
(iii)None of the shareholders will sell, transfer, assign, hypothecate, lien, or otherwise dispose or encumber the shares owned by them.
21. Termination. This Agreement may be terminated (1) by mutual consent in writing; (2) by either XESP or Pointward if there has been a material misrepresentation or material breach of any warranty or covenant by any other party; or (3) by Pointward if the Closing shall not have taken place by the date stated, unless adjourned to a later date by mutual consent.
22. Arbitration
Scope. The parties hereby agree that any and all claims (except only for requests for injunctive or other equitable relief) whether existing now, in the past or in the future as to which the parties or any affiliates may be adverse parties, and whether arising out of this agreement or from any other cause, will be resolved by arbitration before the American Arbitration Association.
Covenant To Arbitrate. The parties covenant that under no conditions will any party or any affiliate file any action against the other (except only requests for injunctive or other equitable relief) in any forum other than before the American Arbitration Association, and the parties agree that any such action, if filed, shall be dismissed upon application and shall be referred for arbitration hereunder with costs and attorney's fees to the prevailing party.
23. General Provisions
(i)Further Assurances. From time to time, each party will execute such additional instruments and take such actions as may be reasonably required to carry out the intent and purposes of this Agreement.
(ii)Waiver. Any failure on the part of either party hereto to comply with any of its obligations, agreements, or conditions hereunder may be waived in writing by the party to whom such compliance is owed.
(iii)Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been given if delivered in person or sent by prepaid first-class certified mail, return receipt requested, or recognized commercial courier service, as follows:
If to Electronic Servitor Publication Network, Inc., to
Attn: Thomas Spruce, COO
Electronic Servitor Publication Network, Inc.
400 1st Ave N., Ste. 100
Minneapolis, MN 55401
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If to Pointward Inc., to
Peter Hager, CEO
Pointward Inc.
400 1st Ave. N., Ste. 100
Minneapolis, MN 55401
(iv) Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware.
(v) Assignment. This Agreement shall inure to the benefit of, and be binding upon, the parties hereto and their successors and assigns; provided, however, that any assignment by either party of its rights under this Agreement without the written consent of the other party shall be void.
(vi) Counterparts. This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
Signatures sent by facsimile transmission shall be deemed to be evidence of the original execution thereof.
(vii)Effective Date. This effective date of this Agreement shall be December 22, 2023.
* * *
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SIGNATURES
IN WITNESS WHEREOF, the parties have executed this Agreement.
ELECTRONIC SERVITOR PUBLICATION NETWORK, INC.
By /s/ Thomas Spruce
Thomas Spruce, Chief Operating Officer
POINTWARD INC.
By /s/ Peter Hager
Peter Hager, Chief Executive Officer
| 11 |
EXHIBIT A
SHAREHOLDER SIGNATURE PAGES TO
AGREEMENT AND PLAN OF MERGER
BETWEEN
ELECTRONIC SERVITOR PUBLICATION NETWORK, INC. and
POINTWARD INC.
[REDACTED]
| 12 |
SHAREHOLDER SIGNATURE PAGE TO
AGREEMENT AND PLAN OF MERGER
BETWEEN
ELECTRONIC SERVITOR PUBLICATION NETWORK, INC. AND
POINTWARD INC.
By execution below, the undersigned Shareholders of Pointward Inc. acknowledge that each such Shareholder has read and consents to the Agreement and Plan of Merger between Electronic Servitor Publication Network, Inc. and Pointward Inc. (the “Merger”). Each undersigned Shareholder acknowledges that pursuant to the Merger, the Shareholders of Pointward Inc. will become shareholders of Electronic Servitor Publication Network, Inc. thereof with any resultant rights, obligations, debts or assets ascribed to such shareholders.
[REDACTED]
| Signature | Pointward Inc. Shares held | Total Number of Electronic Servitor Publication Network, Inc. Common Stock to be Issued | ||
| By: | ||||
|
Printed name:
|
| 13 |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation in this Current Report on Form 8-K of our report dated January 2, 2024, relating to the financial statements of Pointward Inc. as of and for the years ended December 31, 2022 and 2021 and to all references to our firm included in this Current Report.
/S/ BF Borgers CPA PC
Certified Public Accountants
Lakewood, CO
January 2, 2024
Exhibit 99.1
POINTWARD INC.
FINANCIAL STATEMENTS
| Report of Independent Registered Public Accounting Firm | F-2 |
| Balance Sheets as of December 31, 2022 and 2021 | F-3 |
| Statements of Operations for the Years ended December 31, 2022 and 2021 | F-4 |
| Statement of Changes in Stockholders’ Deficit for the Years ended December 31, 2022 and 2021 | F-4 |
| Statements of Cash Flows for the Years ended December 31, 2022 and 2021 | F-6 |
| Notes to Financial Statements | F-7 |
| F-1 |
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FORM
To the shareholders and the board of directors of Pointward Inc.
Opinion on the Financial Statements
We have audited the accompanying balance sheets of Pointward Inc. as of December 31, 2022 and 2021, the related statements of operations, stockholders' equity (deficit), and cash flows for the years then ended, and the related notes (collectively referred to as the "financial statements"). In our opinion, the consolidated financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2022 and 2021, and the results of its operations and its cash flows for the years then ended, in conformity with accounting principles generally accepted in the United States.
Substantial Doubt about the Company’s Ability to Continue as a Going Concern
The accompanying financial statements have been prepared assuming that the Company will continue as a going concern. As discussed in Note 3 to the financial statements, the Company has suffered recurring losses from operations and has a significant accumulated deficit. In addition, the Company continues to experience negative cash flows from operations. These factors raise substantial doubt about the Company's ability to continue as a going concern. Management's plans in regard to these matters are also described in Note 3. The financial statements do not include any adjustments that might result from the outcome of this uncertainty.
Basis for Opinion
These consolidated financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on the Company's financial statements based on our audit. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) ("PCAOB") and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits we are required to obtain an understanding of internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion.
Our audit included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audit also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audit provides a reasonable basis for our opinion.
/S/ BF Borgers CPA PC
BF Borgers CPA PC (PCAOB ID 5041)
We have served as the Company's auditor since 2023
Lakewood, CO
January 2, 2024
| F-2 |
POINTWARD INC.
BALANCE SHEETS
| December 31, | December 31, | |||||||
| 2022 | 2021 | |||||||
| ASSETS | ||||||||
| Current Assets: | ||||||||
| Cash | $ | – | $ | – | ||||
| Total Assets | $ | – | $ | – | ||||
| LIABILITIES AND STOCKHOLDERS' DEFICIT | ||||||||
| Current Liabilities: | ||||||||
| Loan payable – related party | $ | 1,600 | $ | 1,400 | ||||
| Total Liabilities | 1,600 | 1,400 | ||||||
| Stockholders' Deficit: | ||||||||
| Preferred stock, $0.0001 par value; 20,000,000 shares authorized, 10,000 shares issued and outstanding | 1 | 1 | ||||||
| Common stock, $0.0001 par value; 100,000,000 shares authorized, no shares issued and outstanding | – | – | ||||||
| Accumulated deficit | (1,601 | ) | (1,401 | ) | ||||
| Total Stockholders’ Deficit | (1,600 | ) | (1,400 | ) | ||||
| Total Liabilities and Stockholders' Deficit | $ | – | $ | – | ||||
The accompanying notes are an integral part of these financial statements.
| F-3 |
POINTWARD INC.
STATEMENTS OF OPERATIONS
| For the Years Ended | ||||||||
| December 31, | ||||||||
| 2022 | 2021 | |||||||
| Operating Expenses: | ||||||||
| General & administrative expenses | $ | 200 | $ | 741 | ||||
| Total operating expenses | 200 | 741 | ||||||
| Loss from operations | (200 | ) | (741 | ) | ||||
| Loss before income taxes | (200 | ) | (741 | ) | ||||
| Provision for income taxes | – | – | ||||||
| Net Loss | $ | (200 | ) | $ | (741 | ) | ||
| Loss per share, basic and diluted | $ | – | $ | – | ||||
| Weighted average shares, basic and diluted | – | – | ||||||
The accompanying notes are an integral part of these financial statements.
| F-4 |
POINTWARD INC.
STATEMENT OF CHANGES IN STOCKHOLDERS’ DEFICIT
YEARS ENDED DECEMBER 31, 2022 AND 2021
| Preferred Stock | Common Stock | Additional Paid in | Accumulated | Total Stockholders’ | ||||||||||||||||||||||||
| Shares | Amount | Shares | Amount | Capital | Deficit | Deficit | ||||||||||||||||||||||
| Balance at December 31, 2020 | 10,000 | $ | 1 | – | $ | – | $ | – | $ | (660 | ) | $ | (659 | ) | ||||||||||||||
| Net loss | – | – | – | – | – | (741 | ) | (741 | ) | |||||||||||||||||||
| Balance at December 31, 2021 | 10,000 | 1 | – | – | – | (1,401 | ) | (1,400 | ) | |||||||||||||||||||
| Net loss | – | – | – | – | – | (200 | ) | (200 | ) | |||||||||||||||||||
| Balance at December 31, 2022 | 10,000 | 1 | – | $ | – | $ | – | $ | (1,601 | ) | $ | (1,600 | ) | |||||||||||||||
The accompanying notes are an integral part of these financial statements.
| F-5 |
POINTWARD INC.
STATEMENTS OF CASH FLOWS
| For the Years Ended | ||||||||
| December 31, | ||||||||
| 2022 | 2021 | |||||||
| Cash flows from operating activities: | ||||||||
| Net loss | $ | (200 | ) | $ | (741 | ) | ||
| Adjustments to reconcile net loss to net cash used in operating activities: | ||||||||
| Changes in assets and liabilities: | – | – | ||||||
| Net cash used in operating activities | (200 | ) | – | |||||
| Cash flows from investing activities: | – | – | ||||||
| Cash flows from financing activities: | ||||||||
| Loans payable – related party | 200 | 741 | ||||||
| Net cash provided by financing activities | 200 | 741 | ||||||
| Net change in cash | – | – | ||||||
| Cash, beginning of year | – | – | ||||||
| Cash, end of year | $ | – | $ | – | ||||
The accompanying notes are an integral part of these financial statements.
| F-6 |
POINTWARD INC.
Notes to the Financial Statements
December 31, 2022
NOTE 1 - ORGANIZATION AND DESCRIPTION OF BUSINESS
Pointward Inc, (the “Company”, “Pointward”) was incorporated under the laws of the State of Delaware on December 18, 2020.
Pointward is an IP holding company focused on digital channel activation and digital customer engagement protocols designed to identify audience segments and engage each segment based on the digital relationship pathway. The digital relationship pathway becomes increasingly personalized within stage gates, based upon business logic embedded into the relationship pathway workflow, which allows more relevant engagements at each stage.
NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Basis of Presentation
The Company’s financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America (“U.S. GAAP”).
Use of Estimates
The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.
Concentration of credit risk
Financial instruments which potentially subject the Company to concentration of credit risk consist of cash deposits and customer receivables. The Company maintains cash with various major financial institutions. The Company performs periodic evaluations of the relative credit standing of these institutions. To reduce risk, the Company performs credit evaluations of its customers and maintains reserves when necessary for potential credit losses.
Cash and cash equivalents
We consider all highly liquid securities with original maturities of three months or less when acquired to be cash equivalents. There were no cash equivalents as of December 31, 2022 and 2021.
Income Taxes
We follow ASC 740-10-30, which requires recognition of deferred tax assets and liabilities for the expected future tax consequences of events that have been included in the financial statements or tax returns. Under this method, deferred tax assets and liabilities are based on the differences between the financial statement and tax bases of assets and liabilities using enacted tax rates in effect for the fiscal year in which the differences are expected to reverse. Deferred tax assets are reduced by a valuation allowance to the extent management concludes it is more likely than not that the assets will not be realized. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the fiscal years in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in the Statements of Income in the period that includes the enactment date.
| F-7 |
We adopted ASC 740-10-25 (“ASC 740-10-25”) with regard to uncertainty income taxes. ASC 740-10-25 addresses the determination of whether tax benefits claimed or expected to be claimed on a tax return should be recorded in the financial statements. Under ASC 740-10-25, we may recognize the tax benefit from an uncertain tax position only if it is more likely than not that the tax position will be sustained on examination by the taxing authorities, based on the technical merits of the position. The tax benefits recognized in the financial statements from such a position should be measured based on the largest benefit that has a greater than 50% likelihood of being realized upon ultimate settlement. ASC 740-10-25 also provides guidance on derecognition, classification, interest and penalties on income taxes, and accounting in interim periods and requires increased disclosures. We had no material adjustments to our liabilities for unrecognized income tax benefits according to the provisions of ASC 740-10-25.
Stock-based compensation
We account for equity-based transactions with employees and non-employees under the provisions of FASB ASC Topic 718, “Compensation – Stock Compensation” (Topic 718), which establishes that equity-based payments to employees and non-employees are recorded at the grant date the fair value of the equity instruments the entity is obligated to issue when the employees and non-employees have rendered the requisite service and satisfied any other conditions necessary to earn the right to benefit from the instruments. Topic 718 also states that observable market prices of identical or similar equity or liability instruments in active markets are the best evidence of fair value and, if available, should be used as the basis for the measurement for equity and liability instruments awarded in these share-based payment transactions. However, if observable market prices of identical or similar equity or liability instruments are not available, the fair value shall be estimated by using a valuation technique or model that complies with the measurement objective, as described in FASB ASC Topic 718.
Net Income (Loss) Per Common Share
Net income (loss) per common share is computed pursuant to section 260-10-45 of the FASB Accounting Standards Codification. Basic net income (loss) per common share is computed by dividing net income (loss) by the weighted average number of shares of common stock outstanding during the period. Diluted net income (loss) per common share is computed by dividing net income (loss) by the weighted average number of shares of common stock and potentially outstanding shares of common stock during the period. The weighted average number of common shares outstanding and potentially outstanding common shares assumes that the Company incorporated as of the beginning of the first period presented. As of December 31, 2022 and 2021, there are are no potentially dilutive shares of common stock.
Recent Accounting Pronouncements
The Company has implemented all applicable accounting pronouncements that are in effect. These pronouncements did not have any material impact on the financial statements unless otherwise disclosed, and the Company does not believe that there are any other new accounting pronouncements that have been issued that might have a material impact on its financial position or results of operations.
NOTE 3 - GOING CONCERN
The accompanying financial statements have been prepared on a going concern basis, which contemplates the realization of assets and the satisfaction of liabilities in the normal course of business. The Company has no revenue and has an accumulated a deficit as of December 31, 2022. The Company requires capital for its contemplated operational and marketing activities. The Company’s ability to raise additional capital through the future issuances of common stock is unknown. The obtainment of additional financing, the successful development of the Company’s contemplated plan of operations, and its transition, ultimately, to the attainment of profitable operations are necessary for the Company to continue operations. These conditions and the ability to successfully resolve these factors raise substantial doubt about the Company’s ability to continue as a going concern. The financial statements of the Company do not include any adjustments that may result from the outcome of these uncertainties.
| F-8 |
NOTE 4 – RELATED PARTY TRANSACTIONS
Since inception our CEO Peter Hager has advanced the Company funds to pay for our limited operating expenses. The advances are non-interest bearing and due on demand. As of December 31, 2022 and 2021, the Company owes Mr. Hager $1,600 and $1,400, respectively.
As of December 31, 2022 and 2021, Mr. Hager owns all of the 10,000 shares of preferred stock issued and outstanding.
NOTE 5 – PREFERRED STOCK
The Company has authorized 20,00,000 shares of preferred stock. No shares have been designated as of December 31, 2022.
NOTE 6 - INCOME TAX
Deferred taxes are provided on a liability method whereby deferred tax assets are recognized for deductible temporary differences and operating loss and tax credit carry forwards and deferred tax liabilities are recognized for taxable temporary differences. Temporary differences are the differences between the reported amounts of assets and liabilities and their tax bases. Deferred tax assets are reduced by a valuation allowance when, in the opinion of management, it is more likely than not that some portion or all of the deferred tax assets will not be realized. Deferred tax assets and liabilities are adjusted for the effects of changes in tax laws and rates on the date of enactment. The Company is using the U.S. federal income tax rate of 21%.
The provision for Federal income tax consists of the following December 31:
| 2022 | 2021 | |||||||
| Federal income tax benefit attributable to: | ||||||||
| Current Operations | $ | 42 | $ | 156 | ||||
| Less: valuation allowance | (42 | ) | (156 | ) | ||||
| Net provision for Federal income taxes | $ | – | $ | – | ||||
The cumulative tax effect at the expected rate of 21% of significant items comprising our net deferred tax amount is as follows:
| 2022 | 2021 | |||||||
| Deferred tax asset attributable to: | ||||||||
| Net operating loss carryover | $ | (336 | ) | $ | (294 | ) | ||
| Less: valuation allowance | (336 | ) | 294 | |||||
| Net deferred tax asset | $ | – | $ | – | ||||
At December 31, 2022, the Company had net operating loss carry forwards of approximately $336 that may be offset against future taxable income. No tax benefit has been reported in the December 31, 2022 or 2021 financial statements since the potential tax benefit is offset by a valuation allowance of the same amount.
| F-9 |
Due to the change in ownership provisions of the Tax Reform Act of 1986, net operating loss carry forwards for Federal income tax reporting purposes are subject to annual limitations. Should a change in ownership occur, net operating loss carry forwards may be limited as to use in future years.
ASC Topic 740 provides guidance on the accounting for uncertainty in income taxes recognized in a company’s financial statements. Topic 740 requires a company to determine whether it is more likely than not that a tax position will be sustained upon examination based upon the technical merits of the position. If the more-likely-than-not threshold is met, a company must measure the tax position to determine the amount to recognize in the financial statements.
The Company files income tax returns in the U.S. federal jurisdiction, and various state and local jurisdictions. Federal income tax returns prior to fiscal year 2017 are closed.
The Company includes interest and penalties arising from the underpayment of income taxes in the statements of operations in the provision for income taxes. As of December 31, 2022, the Company had no accrued interest or penalties related to uncertain tax positions.
NOTE 7 – SUBSEQUENT EVENTS
In accordance with SFAS 165 (ASC 855-10) management has performed an evaluation of subsequent events through the date that the financial statements were issued and has determined that it has the following material subsequent events to disclose in these financial statements.
On September 15, 2023, Mr. Hager purchased 7,782,000 shares of common stock for total proceeds of $778.
On September 15, 2023, Calisota Tech LLC, a Company controlled by Mr. Hager purchased 7,782,000 shares of common stock for total proceeds of $778.
On September 19, 2023, Greg Shockey purchased 5,900,000 shares of common stock for total proceeds of $590.
On September 19, 2023, Forty7 Select Holdings LLC, a Company controlled by Mr. Shockey, purchased 3,000,000 shares of common stock for total proceeds of $300.
During September 2023, a total of 14,788,000 shares of common stock were sold to other individuals for total proceeds of $1,479.
| F-10 |
Exhibit 99.2
Electronic Servitor Publication Network, Inc. Finalizes the Acquisition of Assets of PhiTech Management LLC
MINNEAPOLIS, Dec. 27, 2023 (GLOBE NEWSWIRE) -- via IBN -- Electronic Servitor Publication Network, Inc. (OTCQB: XESP), a digital engagement company, has finalized its purchase of the assets of PhiTech Management, LLC (“PhiTech”), a digital activation and engagement technology company.
PhiTech provides customer and content workflow applications designed to connect people with customized content through dynamic content provisioning creating relevant digital relationships. On Dec. 22, 2023, XESP acquired PhiTech’s proven proprietary Digital Engagement Engine™, a sophisticated tech stack built on microservices architecture that helps companies enhance the reach and lift of their content to targeted and new audiences.
“The asset purchase of PhiTech allows XESP to further automate and enhance our foundational digital activation and engagement technology —the Digital Engagement Engine —while bringing increased value, efficiencies and growth for our customers,” said Peter Hager, XESP CEO.
XESP previously accessed PhiTech technologies, processes and support through a licensing agreement signed in October 2021. The agreement provided XESP with rights to use PhiTech technology and services for the eSports and eGaming markets and right of first refusal for other industries for additional fees. XESP now owns the technology in accordance with the terms of an Asset Purchase Agreement by and between XESP and PhiTech dated Dec. 22, 2023.
Thomas Spruce, XESP COO and sole director, said: “We are excited about this acquisition that further strengthens our capabilities and enhances shareholder and client value. Over the past two years, we had the opportunity to fully assess the capabilities of PhiTech’s technologies through our licensing agreement and to check their fit with the commercialization of our managed services and with our strategic plans. It quickly became apparent that the fit was a good one and we then began to pursue bringing those assets into our company.”
XESP will expand business development planning and communications through channel partners and consultants and fully engage in efforts to create rapid expansion and adoption of its managed service product across multiple verticals.
About Electronic Servitor Publication Network
Electronic Servitor Publication Network, Inc. (OTCQB: XESP) is a digital engagement company providing growth for B2B companies through its digital activation and engagement solutions for multiple verticals. XESP’s managed service product is powered by a sophisticated tech stack – the Digital Engagement Engine™. XESP’s technology provides intelligent interaction management, dynamic content provisioning, and a logic-driven workflow that creates relevant digital experiences that accelerate an audience from awareness to action – driving growth for client companies.
Company Contact:
Denny Spruce, COO
833.991.0800
Corporate Communications:
InvestorBrandNetwork (IBN)
Los Angeles, California
www.InvestorBrandNetwork.com
310.299.1717 Office
Exhibit 99.3
Electronic Servitor Publication Network Finalizes Merger with Pointward Inc., an IP Holding
MINNEAPOLIS, Dec. 28, 2023 (GLOBE NEWSWIRE) -- via IBN -- Electronic Servitor Publication Network, Inc. (OTCQB: XESP), a digital engagement company, has finalized its merger with Pointward Inc., a Delaware intellectual property holding company, for its channel activation and customer engagement assets.
Pointward’s intellectual property includes proven models, methods, protocols, tools and technologies designed to identify audience segments and engage each segment with customized content to create relevant, one-to-one digital relationship pathways.
Thomas Spruce, XESP COO and sole director, said: “We are pleased that we are now able to utilize Pointward’s impressive portfolio of intellectual property to enhance our managed service product and to gain the capability and expertise to serve both highly regulated and unregulated markets.”
Along with the previously announced purchase of PhiTech Management LLC, XESP has assembled a formidable portfolio of technology, capability, and expertise that positions the Company as a market leader in the digital engagement space.
XESP CEO Peter Hager said: “As part of our continued evolution and vision of digital transformation leadership, the deep IP from Pointward will be a major enhancement to our workflows and create immediate value for our channel partners and customers alike.”
XESP had already finalized operational integration plans and will fully integrate the technologies and tools into its technology stack, the Digital Engagement Engine ™.
About Electronic Servitor Publication Network
Electronic Servitor Publication Network, Inc. (OTCQB: XESP) is a digital engagement company providing growth for B2B companies through its digital activation and engagement solutions for multiple verticals. XESP’s managed service product is powered by a sophisticated tech stack – the Digital Engagement Engine™. XESP’s technology provides intelligent interaction management, dynamic content provisioning, and a logic-driven workflow that creates relevant digital experiences that accelerate an audience from awareness to action – driving growth for client companies.
Company Contact:
Denny Spruce, COO
833.991.0800
Corporate Communications:
InvestorBrandNetwork (IBN)
Los Angeles, California
www.InvestorBrandNetwork.com
310.299.1717 Office