SHARE PURCHASE AGREEMENT
THIS
AGREEMENT is
made
as of the 30th
day of
August, 2006
AMONG:
VOXPATH
HOLDINGS, INC.,
a
corporation formed pursuant to the laws of the State of Nevada and having an
office for business at 000 Xxxxx Xxxx, #000, Xxxxxx, Xxxx 00000.
(“Voxpath”)
AND:
THE
RETIREMENT SOLUTION, INC.,
a
company formed pursuant to the laws of the State of Nevada and having an office
for business located at 000 X. Xxxxxxx Xxxxxx, Xxxxxxxxx XX 00000
(“Retirement”)
AND:
The
shareholders of Retirement, each of whom are set forth on the signature page
of
this Agreement (the “Retirement Shareholders”)
WHEREAS:
A. The
Retirement Shareholders own 121,500,000 shares of common stock, $0.001 par
value, being 100% of the presently issued and outstanding Retirement Shares;
B. Voxpath
is a reporting company whose common stock is quoted on the Over-the-Counter
Bulletin Board; and
C. The
respective Boards of Directors of Voxpath and Retirement deem it advisable
and
in the best interests of Voxpath and Retirement that Retirement become a
wholly-owned subsidiary of Voxpath (the “Acquisition”) pursuant to this
Agreement.
NOW
THEREFORE THIS AGREEMENT WITNESSETH THAT
in
consideration of the premises and the mutual covenants, agreements,
representations and warranties contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the
parties hereto hereby agree as follows:
ARTICLE
1
DEFINITIONS
AND INTERPRETATION
Definitions
1.1 In
this
Agreement the following terms will have the following meanings:
|
(a)
|
“Acquisition”
means the Acquisition, at the Closing, of Retirement by Voxpath pursuant
to this Agreement;
|
|
(b)
|
“Acquisition
Shares”
means the 100,000,000 Voxpath Common Shares to be issued to the Retirement
Shareholders at Closing pursuant to the terms of the
Acquisition;
|
|
(c)
|
“Agreement”
means this share purchase agreement among Voxpath, Retirement, and
the
Retirement Shareholders;
|
|
(d)
|
“Voxpath
Accounts Payable and Liabilities”
means all accounts payable and liabilities of Voxpath, on a consolidated
basis, due and owing or otherwise constituting a binding obligation
of
Voxpath and its subsidiaries (other than a Voxpath Material Contract)
as
of March 31, 2006 as set forth is Schedule “A”
hereto;
|
|
(e)
|
“Voxpath
Accounts Receivable”
means all accounts receivable and other debts owing to Voxpath, on
a
consolidated basis, as of March 31, 2006 as set forth in Schedule
“B”
hereto;
|
|
(f)
|
“Voxpath
Assets”
means the undertaking and all the property and assets of the Voxpath
Business of every kind and description wheresoever situated including,
without limitation, Voxpath Equipment, Voxpath Inventory, Voxpath
Material
Contracts, Voxpath Accounts Receivable, Voxpath Cash, Voxpath Intangible
Assets and Voxpath Goodwill, and all credit cards, charge cards and
banking cards issued to Voxpath;
|
|
(g)
|
“Voxpath
Bank Accounts”
means all of the bank accounts, lock boxes and safety deposit boxes
of
Voxpath and its subsidiaries or relating to the Voxpath Business
as set
forth in Schedule “C” hereto;
|
(h) “Voxpath
Business”
means
all aspects of any business conducted by Voxpath and its
subsidiaries;
|
(i)
|
“Voxpath
Cash”
means all cash on hand or on deposit to the credit of Voxpath and
its
subsidiaries on the Closing Date;
|
|
(j)
|
“Voxpath
Common Shares”
means the shares of common stock in the capital of
Voxpath;
|
|
(k)
|
“Voxpath
Debt to Related Parties”
means the debts owed by Voxpath to any affiliate, director or officer
of
Voxpath as described in Schedule “D”
hereto;
|
|
(l)
|
“Voxpath
Equipment”
means all machinery, equipment, furniture, and furnishings used in
the
Voxpath Business, including, without limitation, the items more
particularly described in Schedule “E”
hereto;
|
|
(m)
|
“Voxpath
Financial Statements”
means, collectively, the audited consolidated financial statements
of
Voxpath for the fiscal year ended December 31, 2005, together with
the
unqualified auditors’ report thereon, and the unaudited consolidated
financial statements of Voxpath for the three month period ended
March 31,
2006, true copies of which are attached as Schedule “F”
hereto;
|
|
(n)
|
“Voxpath
Goodwill”
means the goodwill of the Voxpath Business including the right to
all
corporate, operating and trade names associated with the Voxpath
Business,
or any variations of such names as part of or in connection with
the
Voxpath Business, all books and records and other information relating
to
the Voxpath Business, all necessary licenses and authorizations and
any
other rights used in connection with the Voxpath
Business;
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-2-
|
(o)
|
“Voxpath
Insurance Policies”
means the public liability insurance and insurance against loss or
damage
to the Voxpath Assets and the Voxpath Business as described in Schedule
“G” hereto;
|
|
(p)
|
“Voxpath
Intangible Assets”
means all of the intangible assets of Voxpath and its subsidiaries,
including, without limitation, Voxpath Goodwill, all trademarks,
logos,
copyrights, designs, and other intellectual and industrial property
of
Voxpath and its subsidiaries;
|
|
(q)
|
“Voxpath
Inventory”
means all inventory and supplies of the Voxpath Business as of March
31,
2006, as set forth in Schedule “H” hereto;
and
|
|
(r)
|
“Voxpath
Material Contracts”
means the burden and benefit of and the right, title and interest
of
Voxpath and its subsidiaries in, to and under all trade and non-trade
contracts, engagements or commitments, whether written or oral, to
which
Voxpath or its subsidiaries are entitled whereunder Voxpath or its
subsidiaries are obligated to pay or entitled to receive the sum
of
$10,000 or more including, without limitation, any pension plans,
profit
sharing plans, bonus plans, loan agreements, security agreements,
indemnities and guarantees, any agreements with employees, lessees,
licensees, managers, accountants, suppliers, agents, distributors,
officers, directors, attorneys or others which cannot be terminated
without liability on not more than one month’s notice, and those contracts
listed in Schedule “I” hereto.
|
|
(s)
|
“Closing”
means the completion, on the Closing Date, of the transactions
contemplated hereby in accordance with Article 9
hereof;
|
|
(t)
|
“Closing
Date”
means the day on which all conditions precedent to the completion
of the
transaction as contemplated hereby have been satisfied or waived,
but in
any event no later than September,
2006;
|
|
(u)
|
“Retirement
Accounts Payable and Liabilities”
means all accounts payable and liabilities of Retirement, due and
owing or
otherwise constituting a binding obligation of Retirement (other
than a
Retirement Material Contract) as of March 31, 2006 as set forth in
Schedule “J” hereto;
|
|
(v)
|
“Retirement
Accounts Receivable”
means all accounts receivable and other debts owing to Retirement,
as of
March 31, 2006 as set forth in Schedule “K”
hereto;
|
| (w) |
“Retirement
Assets”
means the undertaking and all the property and assets of the Retirement
Business of every kind and description wheresoever situated including,
without limitation, Retirement Equipment, Retirement Inventory, Retirement
Material Contracts, Retirement Accounts Receivable, Retirement Cash,
Retirement Intangible Assets and Retirement Goodwill, and all credit
cards, charge cards and banking cards issued to
Retirement;
|
| (x) |
“Retirement
Bank Accounts”
means all of the bank accounts, lock boxes and safety deposit boxes
of
Retirement or relating to the Retirement Business as set forth in
Schedule
“L” hereto;
|
| (y) |
“Retirement
Business”
means all aspects of the business conducted by
Retirement;
|
|
(z)
|
“Retirement
Cash”
means all cash on hand or on deposit to the credit of Retirement
on the
Closing Date;
|
-3-
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(aa)
|
“Retirement
Debt to Related Parties”
means the debts owed by Retirement and its subsidiaries to the Retirement
Shareholders or to any family member thereof, or to any affiliate,
director or officer of Retirement or the Retirement Shareholders
as
described in Schedule “M”;
|
|
(bb)
|
“Retirement
Equipment”
means all machinery, equipment, furniture, and furnishings used in
the
Retirement Business, including, without limitation, the items more
particularly described in Schedule “N”
hereto;
|
|
(cc)
|
“Retirement
Financial Statements”
means collectively, the audited financial statements of Retirement
for the
two fiscal years ended December 31, 2005, together with the unqualified
auditors’ report thereon, and the unaudited consolidated financial
statements of Retirement for the three month period ended March 31,
2006,
true copies of which are attached as Schedule “O” hereto;
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|
(dd)
|
“Retirement
Goodwill”
means the goodwill of the Retirement Business together with the exclusive
right of Voxpath to represent itself as carrying on the Retirement
Business in succession of Retirement subject to the terms hereof,
and the
right to use any words indicating that the Retirement Business is
so
carried on including the right to use the name “Retirement” or “Retirement
International” or any variation thereof as part of the name of or in
connection with the Retirement Business or any part thereof carried
on or
to be carried on by Retirement, the right to all corporate, operating
and
trade names associated with the Retirement Business, or any variations
of
such names as part of or in connection with the Retirement Business,
all
telephone listings and telephone advertising contracts, all lists
of
customers, books and records and other information relating to the
Retirement Business, all necessary licenses and authorizations and
any
other rights used in connection with the Retirement
Business;
|
|
(ee)
|
“Retirement
Insurance Policies”
means the public liability insurance and insurance against loss or
damage
to Retirement Assets and the Retirement Business as described in
Schedule
“P” hereto;
|
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(ff)
|
“Retirement
Intangible Assets”
means all of the intangible assets of Retirement, including, without
limitation, Retirement Goodwill, all trademarks, logos, copyrights,
designs, and other intellectual and industrial property of Retirement
and
its subsidiaries;
|
|
(gg)
|
“Retirement
Inventory”
means all inventory and supplies of the Retirement Business as of
March
31, 2006 as set forth in Schedule “Q”
hereto;
|
|
(hh)
|
“Retirement
Material Contracts”
means the burden and benefit of and the right, title and interest
of
Retirement in, to and under all trade and non-trade contracts, engagements
or commitments, whether written or oral, to which Retirement is entitled
in connection with the Retirement Business whereunder Retirement
is
obligated to pay or entitled to receive the sum of $10,000 or more
including, without limitation, any pension plans, profit sharing
plans,
bonus plans, loan agreements, security agreements, indemnities and
guarantees, any agreements with employees, lessees, licensees, managers,
accountants, suppliers, agents, distributors, officers, directors,
attorneys or others which cannot be terminated without liability
on not
more than one month’s notice, and those contracts listed in Schedule “R”
hereto;
|
-4-
|
(ii)
|
“Retirement
Related Party Debts”
means the debts owed by the Retirement Shareholders or by any family
member thereof, or by any affiliate, director or officer of Retirement
or
the Retirement Shareholders, to Retirement as described in Schedule
“S”;
|
|
(jj)
|
“Retirement
Shares”
means all of the issued and outstanding shares of Retirement’s equity
stock;
|
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(kk)
|
“Place
of Closing”
means the offices of Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP, or such
other
place as Voxpath and Retirement may mutually agree
upon;
|
Any
other
terms defined within the text of this Agreement will have the meanings so
ascribed to them.
Captions
and Section Numbers
1.2 The
headings and section references in this Agreement are for convenience of
reference only and do not form a part of this Agreement and are not intended
to
interpret, define or limit the scope, extent or intent of this Agreement or
any
provision thereof.
Section
References and Schedules
1.3 Any
reference to a particular “Article”, “section”, “paragraph”, “clause” or other
subdivision is to the particular Article, section, clause or other subdivision
of this Agreement and any reference to a Schedule by letter will mean the
appropriate Schedule attached to this Agreement and by such reference the
appropriate Schedule is incorporated into and made part of this Agreement.
The
Schedules to this Agreement are as follows:
Information
concerning Voxpath
Schedule
“A” Voxpath
Accounts Payable and Liabilities
Schedule
“B” Voxpath
Accounts Receivable
Schedule
“C” Voxpath
Bank Accounts
Schedule
“D” Voxpath
Debts to Related Parties
Schedule
“E” Voxpath
Equipment
Schedule
“F” Voxpath
Financial Statements
Schedule
“G” Voxpath
Insurance Policies
Schedule
“H” Voxpath
Inventory
Schedule
“I”
Voxpath
Material Contracts
Information
concerning Retirement
Schedule
“J” Retirement
Accounts Payable and Liabilities
Schedule
“K” Retirement
Accounts Receivable
Schedule
“L” Retirement
Bank Accounts
Schedule
“M” Retirement
Debts to Related Parties
Schedule
“N” Retirement
Equipment
Schedule
“O” Retirement
Financial Statements
Schedule
“P” Retirement
Insurance Policies
Schedule
“Q” Retirement
Inventory
Schedule
“R” Retirement
Material Contracts
Schedule
“S” Retirement Related Party Debts
-5-
Severability
of Clauses
1.4 If
any
part of this Agreement is declared or held to be invalid for any reason, such
invalidity will not affect the validity of the remainder which will continue
in
full force and effect and be construed as if this Agreement had been executed
without the invalid portion, and it is hereby declared the intention of the
parties that this Agreement would have been executed without reference to any
portion which may, for any reason, be hereafter declared or held to be
invalid.
ARTICLE
2
THE
ACQUISITION
Sale
of Shares
2.1 The
Retirement Shareholders hereby agree to sell to Voxpath the Retirement Shares
in
exchange for the Acquisition Shares on the Closing Date and to transfer to
Voxpath on the Closing Date a 100% undivided interest in and to the Retirement
Shares free from all liens, mortgages, charges, pledges, encumbrances or other
burdens with all rights now or thereafter attached thereto.
Allocation
of Consideration
2.2 The
Acquisition Shares shall be allocated to the Retirement Shareholders on the
basis of .8230452 Acquisition Shares for each one Retirement Share held by
a
Retirement Shareholder as set forth in Schedule 2.2 attached
hereto.
Adherence
with Applicable Securities Laws
2.2 The
Retirement Shareholders agree that they are acquiring the Acquisition Shares
for
investment purposes and will not offer, sell or otherwise transfer, pledge
or
hypothecate any of the Acquisition Shares issued to them (other than pursuant
to
an effective Registration Statement under the Securities
Act of 1933,
as
amended) directly or indirectly unless:
|
(a)
|
the
sale is to Voxpath;
|
|
(b)
|
the
sale is made pursuant to the exemption from registration under the
Securities
Act of 1933, as amended,
provided by Rule 144 thereunder; or
|
|
(c)
|
the
Acquisition Shares are sold in a transaction that does not require
registration under the Securities
Act of 1933, as amended,
or
any applicable United States state laws and regulations governing
the
offer and sale of securities, and the vendor has furnished to Voxpath
an
opinion of counsel to that effect or such other written opinion as
may be
reasonably required by Voxpath.
|
The
Retirement Shareholders acknowledge that the certificates representing the
Acquisition Shares shall bear the following legend:
NO
SALE,
OFFER TO SELL, OR TRANSFER OF THE SHARES REPRESENTED BY THIS CERTIFICATE SHALL
BE MADE UNLESS A REGISTRATION STATEMENT UNDER THE FEDERAL SECURITIES ACT OF
1933, AS AMENDED, IN RESPECT OF SUCH SHARES IS THEN IN EFFECT OR AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF SAID ACT IS THEN IN FACT APPLICABLE TO
SAID SHARES.
-6-
ARTICLE
3
REPRESENTATIONS
AND WARRANTIES
OF
VOXPATH
Representations
and Warranties
3.1 Voxpath
hereby represents and warrants in all material respects to Retirement and the
Retirement Shareholders, with the intent that Retirement and the Retirement
Shareholders will rely thereon in entering into this Agreement and in approving
and completing the transactions contemplated hereby, that:
Voxpath
- Corporate Status and Capacity
|
(a)
|
Incorporation.
Voxpath is a corporation duly incorporated and validly subsisting
under
the laws of the State of Nevada and in good standing with the office
of
the Secretary of State for the State of
Nevada;
|
|
(b)
|
Carrying
on Business.
Voxpath conducts the business described in its filings with the Securities
and Exchange Commission and does not conduct any other business.
Voxpath
is duly authorized to carry on such business in the State of Utah.
The
nature of the Voxpath Business does not require Voxpath to register
or
otherwise be qualified to carry on business in any other
jurisdictions;
|
|
(c)
|
Corporate
Capacity.
Voxpath has the corporate power, capacity and authority to own the
Voxpath
Assets and to enter into and complete this
Agreement;
|
|
(d)
|
Reporting
Status; Listing.
Voxpath is required to file current reports with the Securities and
Exchange Commission pursuant to section 13 of the Securities Exchange
Act
of 1934, the Voxpath Common Shares are registered under section 12(g)
of
the Securities Exchange Act of 1934 and are quoted on the Over-the-Counter
Bulletin Board, and all reports required to be filed by Voxpath with
the
Securities and Exchange Commission or NASD have been filed;
|
Voxpath
- Capitalization
|
(e)
|
Authorized
Capital.
The authorized capital of Voxpath consists of 700,000,000 Voxpath
Common
Shares, $0.001 par value and no shares of preferred stock, of which
71,603,434 Voxpath Common Shares, and no shares of preferred stock
are
presently issued and outstanding;
|
| (f) |
No
Option, Warrant or Other Right.
No person, firm or corporation has any agreement, option, warrant,
preemptive right or any other right capable of becoming an agreement,
option, warrant or right for the acquisition of Voxpath Common Shares
or
for the purchase, subscription or issuance of any of the unissued
shares
in the capital of Voxpath;
|
Voxpath
- Records and Financial Statements
|
(g)
|
Charter
Documents.
The charter documents of Voxpath and its subsidiaries have not been
altered since the incorporation of each, respectively, except as
filed in
the record books of Voxpath or its subsidiaries, as the case may
be;
|
-7-
|
(h)
|
Corporate
Minute Books.
The corporate minute books of Voxpath and its subsidiaries are complete
and each of the minutes contained therein accurately reflect the
actions
that were taken at a duly called and held meeting or by consent without
a
meeting. All actions by Voxpath and its subsidiaries which required
director or shareholder approval are reflected on the corporate minute
books of Voxpath and its subsidiaries. Voxpath and its subsidiaries
are
not in violation or breach of, or in default with respect to, any
term of
their respective Certificates of Incorporation (or other charter
documents) or by-laws.
|
|
(i)
|
Voxpath
Financial Statements.
The Voxpath Financial Statements present fairly, in all material
respects,
the assets and liabilities (whether accrued, absolute, contingent
or
otherwise) of Voxpath, on a consolidated basis, as of the respective
dates
thereof, and the sales and earnings of the Voxpath Business during
the
periods covered thereby, in all material respects and have been prepared
in substantial accordance with generally accepted accounting principles
consistently applied;
|
|
(j)
|
Voxpath
Accounts Payable and Liabilities.
There are no material liabilities, contingent or otherwise, of Voxpath
or
its subsidiaries which are not disclosed in Schedule “A” hereto or
reflected in the Voxpath Financial Statements except those incurred
in the
ordinary course of business since the date of the said schedule and
the
Voxpath Financial Statements, and neither Voxpath nor its subsidiaries
have guaranteed or agreed to guarantee any debt, liability or other
obligation of any person, firm or corporation. Without limiting the
generality of the foregoing, all accounts payable and liabilities
of
Voxpath as of March 31, 2006, are described in Schedule “A”
hereto;
|
|
(k)
|
Voxpath
Accounts Receivable.
All the Voxpath Accounts Receivable result from bona fide business
transactions and services actually rendered without, to the knowledge
and
belief of Voxpath, any claim by the obligor for set-off or counterclaim.
Without limiting the generality of the foregoing, all accounts receivable
of Voxpath as of March 31, 2006, are described in Schedule “B”
hereto;
|
|
(l)
|
Voxpath
Bank Accounts.
All of the Voxpath Bank Accounts, their location, numbers and the
authorized signatories thereto are as set forth in Schedule “C”
hereto;
|
|
(m)
|
No
Debt to Related Parties.
Except as disclosed in Schedule “D” hereto, neither Voxpath nor any of its
subsidiaries is, and on Closing will not be, indebted to any affiliate,
director or officer of Voxpath except accounts payable on account
of bona
fide business transactions of Voxpath incurred in normal course of
the
Voxpath Business, including employment agreements, none of which
are more
than 30 days in arrears;
|
|
(n)
|
No
Related Party Debt to Voxpath.
No director or officer or affiliate of Voxpath is now indebted to
or under
any financial obligation to Voxpath or any subsidiary on any account
whatsoever, except for advances on account of travel and other expenses
not exceeding $1,000 in total;
|
|
(o)
|
No
Dividends.
No dividends or other distributions on any shares in the capital
of
Voxpath have been made, declared or authorized since the date of
Voxpath
Financial Statements;
|
|
(p)
|
No
Payments.
No payments of any kind have been made or authorized since the date
of the
Voxpath Financial Statements to or on behalf of officers, directors,
shareholders or employees of Voxpath or its subsidiaries or under
any
management agreements with Voxpath or its subsidiaries, except payments
made in the ordinary course of business and at the regular rates
of salary
or other remuneration payable to
them;
|
-8-
|
(q)
|
No
Pension Plans.
There are no pension, profit sharing, group insurance or similar
plans or
other deferred compensation plans affecting
Voxpath;
|
|
(r)
|
No
Adverse Events.
Since the date of the Voxpath Financial
Statements
|
|
(i)
|
there
has not been any material adverse change in the consolidated financial
position or condition of Voxpath, its subsidiaries, its liabilities
or the
Voxpath Assets or any damage, loss or other change in circumstances
materially affecting Voxpath, the Voxpath Business or the Voxpath
Assets
or Voxpath’ right to carry on the Voxpath Business, other than changes in
the ordinary course of business,
|
|
(ii)
|
there
has not been any damage, destruction, loss or other event (whether
or not
covered by insurance) materially and adversely affecting Voxpath,
its
subsidiaries, the Voxpath Business or the Voxpath
Assets,
|
|
(iii)
|
there
has not been any material increase in the compensation payable or
to
become payable by Voxpath to any of Voxpath’ officers, employees or agents
or any bonus, payment or arrangement made to or with any of
them,
|
|
(iv)
|
the
Voxpath Business has been and continues to be carried on in the ordinary
course,
|
|
(v)
|
Voxpath
has not waived or surrendered any right of material
value,
|
|
(vi)
|
neither
Voxpath nor its subsidiaries have discharged or satisfied or paid
any lien
or encumbrance or obligation or liability other than current liabilities
in the ordinary course of business,
and
|
|
(vii)
|
no
capital expenditures in excess of $10,000 individually or $30,000
in total
have been authorized or made.
|
Voxpath
- Income Tax Matters
|
(s)
|
Tax
Returns.
All tax returns and reports of Voxpath and its subsidiaries required
by
law to be filed have been filed and are true, complete and correct,
and
any taxes payable in accordance with any return filed by Voxpath
and its
subsidiaries or in accordance with any notice of assessment or
reassessment issued by any taxing authority have been so
paid;
|
|
(t)
|
Current
Taxes.
Adequate provisions have been made for taxes payable for the current
period for which tax returns are not yet required to be filed and
there
are no agreements, waivers, or other arrangements providing for an
extension of time with respect to the filing of any tax return by,
or
payment of, any tax, governmental charge or deficiency by Voxpath
or its
subsidiaries. Voxpath is not aware of any contingent tax liabilities
or
any grounds which would prompt a reassessment including aggressive
treatment of income and expenses in filing earlier tax
returns;
|
-9-
Voxpath
- Applicable Laws and Legal Matters
|
(u)
|
Licenses.
Voxpath and its subsidiaries hold all licenses and permits as may
be
requisite for carrying on the Voxpath Business in the manner in which
it
has heretofore been carried on, which licenses and permits have been
maintained and continue to be in good standing except where the failure
to
obtain or maintain such licenses or permits would not have a material
adverse effect on the Voxpath
Business;
|
|
(v)
|
Applicable
Laws.
Neither Voxpath nor its subsidiaries have been charged with or received
notice of breach of any laws, ordinances, statutes, regulations,
by-laws,
orders or decrees to which they are subject or which apply to them
the
violation of which would have a material adverse effect on the Voxpath
Business, and neither Voxpath nor its subsidiaries are in breach
of any
laws, ordinances, statutes, regulations, bylaws, orders or decrees
the
contravention of which would result in a material adverse impact
on the
Voxpath Business;
|
|
(w)
|
Pending
or Threatened Litigation.
There is no material litigation or administrative or governmental
proceeding pending or threatened against or relating to Voxpath,
its
subsidiaries, the Voxpath Business, or any of the Voxpath Assets
nor does
Voxpath have any knowledge of any deliberate act or omission of Voxpath
or
its subsidiaries that would form any material basis for any such
action or
proceeding;
|
|
(x)
|
No
Bankruptcy.
Neither Voxpath nor its subsidiaries have made any voluntary assignment
or
proposal under applicable laws relating to insolvency and bankruptcy
and
no bankruptcy petition has been filed or presented against Voxpath
or its
subsidiaries and no order has been made or a resolution passed for
the
winding-up, dissolution or liquidation of Voxpath or its subsidiaries;
|
|
(y)
|
Labor
Matters.
Neither Voxpath nor its subsidiaries are party to any collective
agreement
relating to the Voxpath Business with any labor union or other association
of employees and no part of the Voxpath Business has been certified
as a
unit appropriate for collective bargaining or, to the knowledge of
Voxpath, has made any attempt in that
regard;
|
|
(z)
|
Finder’s
Fees.
Neither Voxpath nor its subsidiaries are party to any agreement which
provides for the payment of finder’s fees, brokerage fees, commissions or
other fees or amounts which are or may become payable to any third
party
in connection with the execution and delivery of this Agreement and
the
transactions contemplated herein;
|
Execution
and Performance of Agreement
|
(aa)
|
Authorization
and Enforceability.
The execution and delivery of this Agreement, and the completion
of the
transactions contemplated hereby, have been duly and validly authorized
by
all necessary corporate action on the part of
Voxpath;
|
|
(bb)
|
No
Violation or Breach.
The execution and performance of this Agreement will
not:
|
|
(i)
|
violate
the charter documents of Voxpath or result in any breach of, or default
under, any loan agreement, mortgage, deed of trust, or any other
agreement
to which Voxpath or its subsidiaries are
party,
|
-10-
|
(ii)
|
give
any person any right to terminate or cancel any agreement including,
without limitation, the Voxpath Material Contracts, or any right
or rights
enjoyed by Voxpath or its
subsidiaries,
|
|
(iii)
|
result
in any alteration of Voxpath’ or its subsidiaries’ obligations under any
agreement to which Voxpath or its subsidiaries are party including,
without limitation, the Voxpath Material
Contracts,
|
|
(iv)
|
result
in the creation or imposition of any lien, encumbrance or restriction
of
any nature whatsoever in favor of a third party upon or against the
Voxpath Assets,
|
|
(v)
|
result
in the imposition of any tax liability to Voxpath or its subsidiaries
relating to the Voxpath Assets, or
|
|
(vi)
|
violate
any court order or decree to which either Voxpath or its subsidiaries
are
subject;
|
The
Voxpath Assets - Ownership and Condition
|
(cc)
|
Business
Assets.
The Voxpath Assets comprise all of the property and assets of the
Voxpath
Business, and no other person, firm or corporation owns any assets
used by
Voxpath or its subsidiaries in operating the Voxpath Business, whether
under a lease, rental agreement or other arrangement, other than
as
disclosed in Schedules “E” or “H”
hereto;
|
|
(dd)
|
Title.
Voxpath or its subsidiaries are the legal and beneficial owner of
the
Voxpath Assets, free and clear of all mortgages, liens, charges,
pledges,
security interests, encumbrances or other claims whatsoever, save
and
except as disclosed in Schedules “E” or “H”
hereto;
|
|
(ee)
|
No
Option.
No person, firm or corporation has any agreement or option or a right
capable of becoming an agreement for the purchase of any of the Voxpath
Assets;
|
|
(ff)
|
Voxpath
Insurance Policies.
Voxpath and its subsidiaries maintain the public liability insurance
and
insurance against loss or damage to the Voxpath Assets and the Voxpath
Business as described in Schedule “G”
hereto;
|
|
(gg)
|
Voxpath
Material Contracts.
The Voxpath Material Contracts listed in Schedule “I” constitute all of
the material contracts of Voxpath and its
subsidiaries;
|
|
(hh)
|
No
Default.
There has not been any default in any material obligation of Voxpath
or
any other party to be performed under any of the Voxpath Material
Contracts, each of which is in good standing and in full force and
effect
and unamended (except as disclosed in Schedule “I” hereto), and Voxpath is
not aware of any default in the obligations of any other party to
any of
the Voxpath Material Contracts;
|
|
(ii)
|
No
Compensation on Termination.
There are no agreements, commitments or understandings relating to
severance pay or separation allowances on termination of employment
of any
employee of Voxpath or its subsidiaries. Neither Voxpath nor its
subsidiaries are obliged to pay benefits or share profits with any
employee after termination of employment except as required by
law;
|
-11-
Voxpath
Assets - Voxpath Equipment
|
(jj)
|
Voxpath
Equipment.
The Voxpath Equipment has been maintained in a manner consistent
with that
of a reasonably prudent owner and such equipment is in good working
condition;
|
Voxpath
Assets - Voxpath Goodwill and Other Assets
|
(kk)
|
Voxpath
Goodwill.
Voxpath and its subsidiaries does not carry on the Voxpath Business
under
any other business or trade names. Voxpath does not have any knowledge
of
any infringement by Voxpath or its subsidiaries of any patent, trademarks,
copyright or trade secret;
|
The
Voxpath Business
|
(ll)
|
Maintenance
of Business.
Since the date of the Voxpath Financial Statements, Voxpath and its
subsidiaries have not entered into any material agreement or commitment
except in the ordinary course and except as disclosed
herein;
|
|
(mm)
|
Subsidiaries.
Voxpath does not own any subsidiaries and does not otherwise own,
directly
or indirectly, any shares or interest in any other corporation,
partnership, joint venture or firm;
and
|
Voxpath
- Acquisition Shares
|
(nn)
|
Acquisition
Shares.
The Acquisition Shares when delivered to the Retirement Shareholders
pursuant to the Acquisition shall be validly issued and outstanding
as
fully paid and non-assessable shares and the Acquisition Shares shall
be
transferable upon the books of Voxpath, in all cases subject to the
provisions and restrictions of all applicable securities
laws.
|
Non-Merger
and Survival
3.2 The
representations and warranties of Voxpath contained herein will be true at
and
as of Closing in all material respects as though such representations and
warranties were made as of such time. Notwithstanding the completion of the
transactions contemplated hereby, the waiver of any condition contained herein
(unless such waiver expressly releases a party from any such representation
or
warranty) or any investigation made by Retirement or the Retirement
Shareholders, the representations and warranties of Voxpath shall survive the
Closing.
Indemnity
3.3 Voxpath
agrees to indemnify and save harmless Retirement and the Retirement Shareholders
from and against any and all claims, demands, actions, suits, proceedings,
assessments, judgments, damages, costs, losses and expenses, including any
payment made in good faith in settlement of any claim (subject to the right
of
Voxpath to defend any such claim), resulting from the breach by it of any
representation or warranty made under this Agreement or from any
misrepresentation in or omission from any certificate or other instrument
furnished or to be furnished by Voxpath to Retirement or the Retirement
Shareholders hereunder.
-12-
ARTICLE
4
COVENANTS
OF VOXPATH
Covenants
4.1 Voxpath
covenants and agrees with Retirement and the Retirement Shareholders that it
will:
|
(a)
|
Conduct
of Business.
Until the Closing, conduct the Voxpath Business diligently and in
the
ordinary course consistent with the manner in which the Voxpath Business
generally has been operated up to the date of execution of this Agreement;
|
|
(b)
|
Preservation
of Business.
Until the Closing, use its best efforts to preserve the Voxpath Business
and the Voxpath Assets and, without limitation, preserve for Retirement
Voxpath’s and its subsidiaries’ relationships with any third party having
business relations with them;
|
|
(c)
|
Access.
Until the Closing, give Retirement, the Retirement Shareholders,
and their
representatives full access to all of the properties, books, contracts,
commitments and records of Voxpath, and furnish to Retirement, the
Retirement Shareholders and their representatives all such information
as
they may reasonably request; and
|
|
(d)
|
Procure
Consents.
Until the Closing, take all reasonable steps required to obtain,
prior to
Closing, any and all third party consents required to permit the
Acquisition and to preserve and maintain the Voxpath Assets
notwithstanding the change in control of Retirement arising from
the
Acquisition.
|
Authorization
4.2 Voxpath
hereby agrees to authorize and direct any and all federal, state, municipal,
foreign and international governments and regulatory authorities having
jurisdiction respecting Voxpath and its subsidiaries to release any and all
information in their possession respecting Voxpath and its subsidiaries to
the
Retirement Shareholders. Voxpath shall promptly execute and deliver to the
Retirement Shareholders any and all consents to the release of information
and
specific authorizations which the Retirement Shareholders reasonably requires
to
gain access to any and all such information.
Survival
4.3 The
covenants set forth in this Article shall survive the Closing for the benefit
of
Retirement and the Retirement Shareholders.
ARTICLE
5
REPRESENTATIONS
AND WARRANTIES OF
THE
RETIREMENT SHAREHOLDERS
Representations
and Warranties
5.1 The
Retirement Shareholders hereby jointly and severally represent and warrant
in
all material respects to Voxpath, with the intent that it will rely thereon
in
entering into this Agreement and in approving and completing the transactions
contemplated hereby, that:
-13-
Retirement
- Company Status and Capacity
|
(a)
|
Formation.
Retirement is a corporation duly incorporated and validly subsisting
under
the laws of the State of Nevada and in good standing with the office
of
the Secretary of State for the State of
Nevada;
|
|
(b)
|
Carrying
on Business.
Retirement carries on the Retirement Business primarily in the State
of
South Carolina and carries on material business activity in other
jurisdiction. The nature of the Retirement Business does not require
Retirement to register or otherwise be qualified to carry on business
in
any jurisdiction;
|
|
(c)
|
Legal
Capacity.
Retirement has the legal power, capacity and authority to own Retirement
Assets, to carry on the Business of Retirement and to enter into
and
complete this Agreement;
|
Retirement
- Capitalization
|
(d)
|
Authorized
Capital.
The authorized capital of Retirement consists of 300,000,000 shares
of
common stock, $0.001 par value;
|
|
(e)
|
Ownership
of Retirement Shares.
The issued and outstanding shares of Retirement common stock will
on
Closing consist of 121,500,000 shares of common stock, $0.001 par
value,
(being the Retirement Shares), which shares on Closing shall be validly
issued and outstanding as fully paid and non-assessable shares. The
Retirement Shareholders will be at Closing the registered and beneficial
owners of the 121,500,000 Retirement Shares. The Retirement Shares
owned
by the Retirement Shareholders will on Closing be free and clear
of any
and all liens, charges, pledges, encumbrances, restrictions on transfer
and adverse claims whatsoever;
|
|
(f)
|
Options,
Warrants or Other Rights.
Except as set forth in Schedule 5.1(f) attached hereto, no person,
firm or
corporation has any agreement, option, warrant, preemptive right
or any
other right capable of becoming an agreement, option, warrant or
right for
the acquisition of Retirement Shares held by the Retirement Shareholders
or for the purchase, subscription or issuance of any of the unissued
shares in the capital of Retirement;
|
|
(g)
|
No
Restrictions.
There are no restrictions on the transfer, sale or other disposition
of
Retirement Shares contained in the charter documents of Retirement
or
under any agreement;
|
Retirement
- Records and Financial Statements
|
(h)
|
Charter
Documents.
The charter documents of Retirement have not been altered since its
formation date, except as filed in the record books of
Retirement;
|
|
(i)
|
Minute
Books.
The minute books of Retirement are complete and each of the minutes
contained therein accurately reflect the actions that were taken
at a duly
called and held meeting or by consent without a meeting. All actions
by
Retirement which required director or shareholder approval are reflected
on the corporate minute books of Retirement. Retirement is not in
violation or breach of, or in default with respect to, any term of
its
Certificate of Incorporation (or other charter documents) or
by-laws.
|
|
(j)
|
Retirement
Financial Statements.
The Retirement Financial Statements present fairly, in all material
respects, the assets and liabilities (whether accrued, absolute,
contingent or otherwise) of Retirement as of the date thereof, and
the
sales and earnings of the Retirement Business during the periods
covered
thereby, in all material respects, and have been prepared in substantial
accordance with generally accepted accounting principles consistently
applied;
|
-14-
|
(k)
|
Retirement
Accounts Payable and Liabilities.
There are no material liabilities, contingent or otherwise, of Retirement
which are not disclosed in Schedule “J” hereto or reflected in the
Retirement Financial Statements except those incurred in the ordinary
course of business since the date of the said schedule and the Retirement
Financial Statements, and Retirement has not guaranteed or agreed
to
guarantee any debt, liability or other obligation of any person,
firm or
corporation. Without limiting the generality of the foregoing, all
accounts payable and liabilities of Retirement as of December 31,
2005 are
described in Schedule “J” hereto;
|
|
(l)
|
Retirement
Accounts Receivable.
All the Retirement Accounts Receivable result from bona fide business
transactions and services actually rendered without, to the knowledge
and
belief of the Retirement Shareholders, any claim by the obligor for
set-off or counterclaim. Without limiting the generality of the foregoing,
all accounts receivable of Retirement as of December 31, 2005, are
described in Schedule “K” hereto;
|
|
(m)
|
Retirement
Bank Accounts.
All of the Retirement Bank Accounts, their location, numbers and
the
authorized signatories thereto are as set forth in Schedule “L”
hereto;
|
|
(n)
|
No
Debt to Related Parties.
Except as disclosed in Schedule “M” hereto, Retirement is not and on
Closing will not be, indebted to the Retirement Shareholders nor
to any
family member thereof, nor to any affiliate, director or officer
of
Retirement or the Retirement Shareholders except accounts payable
on
account of bona fide business transactions of Retirement incurred
in
normal course of Retirement Business, including employment agreements
with
the Retirement Shareholders, none of which are more than 30 days
in
arrears;
|
|
(o)
|
No
Related Party Debt to Retirement.
Except as set forth on Schedule “M” hereto, no Retirement Shareholder nor
any director, officer or affiliate of Retirement is now indebted
to or
under any financial obligation to Retirement on any account whatsoever,
except for advances on account of travel and other expenses not exceeding
$5,000 in total;
|
|
(p)
|
No
Dividends.
No dividends or other distributions on any shares in the capital
of
Retirement have been made, declared or authorized since the date
of the
Retirement Financial Statements;
|
|
(q)
|
No
Payments.
No payments of any kind have been made or authorized since the date
of the
Retirement Financial Statements to or on behalf of the Retirement
Shareholders or to or on behalf of officers, directors, shareholders
or
employees of Retirement or under any management agreements with
Retirement, except payments made in the ordinary course of business
and at
the regular rates of salary or other remuneration payable to
them;
|
|
(r)
|
No
Pension Plans.
There are no pension, profit sharing, group insurance or similar
plans or
other deferred compensation plans affecting Retirement, except as
set
forth in the Retirement Financial
Statements;
|
-15-
|
(s)
|
No
Adverse Events.
Since the date of the Retirement Financial
Statements:
|
|
(i)
|
there
has not been any material adverse change in the consolidated financial
position or condition of Retirement, its liabilities or the Retirement
Assets or any damage, loss or other change in circumstances materially
affecting Retirement, the Retirement Business or the Retirement Assets
or
Retirement’s right to carry on the Retirement Business, other than changes
in the ordinary course of business,
|
|
(ii)
|
there
has not been any damage, destruction, loss or other event (whether
or not
covered by insurance) materially and adversely affecting Retirement,
the
Retirement Business or the Retirement
Assets,
|
|
(iii)
|
there
has not been any material increase in the compensation payable or
to
become payable by Retirement to the Retirement Shareholders or to
any of
Retirement’s officers, employees or agents or any bonus, payment or
arrangement made to or with any of
them,
|
|
(iv)
|
the
Retirement Business has been and continues to be carried on in the
ordinary course,
|
|
(v)
|
Retirement
has not waived or surrendered any right of material
value,
|
|
(vi)
|
Retirement
has not discharged or satisfied or paid any lien or encumbrance or
obligation or liability other than current liabilities in the ordinary
course of business, and
|
|
(vii)
|
no
capital expenditures in excess of $10,000 individually or $30,000
in total
have been authorized or made;
|
Retirement
- Income Tax Matters
|
(t)
|
Tax
Returns.
All tax returns and reports of Retirement required by law to be filed
have
been filed and are true, complete and correct, and any taxes payable
in
accordance with any return filed by Retirement or in accordance with
any
notice of assessment or reassessment issued by any taxing authority
have
been so paid;
|
|
(u)
|
Current
Taxes.
Adequate provisions have been made for taxes payable for the current
period for which tax returns are not yet required to be filed and
there
are no agreements, waivers, or other arrangements providing for an
extension of time with respect to the filing of any tax return by,
or
payment of, any tax, governmental charge or deficiency by Retirement.
Retirement is not aware of any contingent tax liabilities or any
grounds
which would prompt a reassessment including aggressive treatment
of income
and expenses in filing earlier tax
returns;
|
Retirement
- Applicable Laws and Legal Matters
|
(v)
|
Licenses.
Retirement holds all licenses and permits as may be requisite for
carrying
on the Retirement Business in the manner in which it has heretofore
been
carried on, which licenses and permits have been maintained and continue
to be in good standing except where the failure to obtain or maintain
such
licenses or permits would not have a material adverse effect on the
Retirement Business;
|
-16-
|
(w)
|
Applicable
Laws.
Retirement has not been charged with or received notice of breach
of any
laws, ordinances, statutes, regulations, by-laws, orders or decrees
to
which they are subject or which applies to them the violation of
which
would have a material adverse effect on the Retirement Business,
and, to
the knowledge of the Retirement Shareholders, Retirement is not in
breach
of any laws, ordinances, statutes, regulations, by-laws, orders or
decrees
the contravention of which would result in a material adverse impact
on
the Retirement Business;
|
|
(x)
|
Pending
or Threatened Litigation.
There is no material litigation or administrative or governmental
proceeding pending or threatened against or relating to Retirement,
the
Retirement Business, or any of the Retirement Assets, nor do the
Retirement Shareholders have any knowledge of any deliberate act
or
omission of Retirement that would form any material basis for any
such
action or proceeding;
|
|
(y)
|
No
Bankruptcy.
Retirement has not made any voluntary assignment or proposal under
applicable laws relating to insolvency and bankruptcy and no bankruptcy
petition has been filed or presented against Retirement and no order
has
been made or a resolution passed for the winding-up, dissolution
or
liquidation of Retirement;
|
|
(z)
|
Labor
Matters.
Retirement is not party to any collective agreement relating to the
Retirement Business with any labor union or other association of
employees
and no part of the Retirement Business has been certified as a unit
appropriate for collective bargaining or, to the knowledge of the
Retirement Shareholders, has made any attempt in that
regard;
|
|
(aa)
|
Finder’s
Fees.
Retirement is not a party to any agreement which provides for the
payment
of finder’s fees, brokerage fees, commissions or other fees or amounts
which are or may become payable to any third party in connection
with the
execution and delivery of this Agreement and the transactions contemplated
herein;
|
Execution
and Performance of Agreement
|
(bb)
|
Authorization
and Enforceability.
The execution and delivery of this Agreement, and the completion
of the
transactions contemplated hereby, have been duly and validly authorized
by
all necessary corporate action on the part of
Retirement;
|
|
(cc)
|
No
Violation or Breach.
The execution and performance of this Agreement will
not
|
|
(i)
|
violate
the charter documents of Retirement or result in any breach of, or
default
under, any loan agreement, mortgage, deed of trust, or any other
agreement
to which Retirement is a party,
|
|
(ii)
|
give
any person any right to terminate or cancel any agreement including,
without limitation, Retirement Material Contracts, or any right or
rights
enjoyed by Retirement,
|
|
(iii)
|
result
in any alteration of Retirement’s obligations under any agreement to which
Retirement is a party including, without limitation, the Retirement
Material Contracts,
|
|
(iv)
|
result
in the creation or imposition of any lien, encumbrance or restriction
of
any nature whatsoever in favor of a third party upon or against the
Retirement Assets,
|
-17-
|
(v)
|
result
in the imposition of any tax liability to Retirement relating to
Retirement Assets or the Retirement Shares,
or
|
|
(vi)
|
violate
any court order or decree to which either Retirement is subject;
|
Retirement
Assets - Ownership and Condition
|
(dd)
|
Business
Assets.
The Retirement Assets, comprise all of the property and assets of
the
Retirement Business, and neither the Retirement Shareholders nor
any other
person, firm or corporation owns any assets used by Retirement in
operating the Retirement Business, whether under a lease, rental
agreement
or other arrangement, other than as disclosed in Schedules “N” or “Q”
hereto;
|
|
(ee)
|
Title.
Retirement is the legal and beneficial owner of the Retirement Assets,
free and clear of all mortgages, liens, charges, pledges, security
interests, encumbrances or other claims whatsoever, save and except
as
disclosed in Schedules “N” or “Q”
hereto;
|
|
(ff)
|
No
Option.
No person, firm or corporation has any agreement or option or a right
capable of becoming an agreement for the purchase of any of the Retirement
Assets;
|
|
(gg)
|
Retirement
Insurance Policies.
Retirement maintains the public liability insurance and insurance
against
loss or damage to the Retirement Assets and the Retirement Business
as
described in Schedule “P” hereto;
|
|
(hh)
|
Retirement
Material Contracts.
The Retirement Material Contracts listed in Schedule “R” constitute all of
the material contracts of
Retirement;
|
|
(ii)
|
No
Default.
There has not been any default in any material obligation of Retirement
or
any other party to be performed under any of Retirement Material
Contracts, each of which is in good standing and in full force and
effect
and unamended (except as disclosed in Schedule “R”), and Retirement is not
aware of any default in the obligations of any other party to any
of the
Retirement Material Contracts;
|
|
(jj)
|
No
Compensation on Termination.
There are no agreements, commitments or understandings relating to
severance pay or separation allowances on termination of employment
of any
employee of Retirement. Retirement is not obliged to pay benefits
or share
profits with any employee after termination of employment except
as
required by law;
|
Retirement
Assets - Retirement Equipment
|
(kk)
|
Retirement
Equipment.
The Retirement Equipment has been maintained in a manner consistent
with
that of a reasonably prudent owner and such equipment is in good
working
condition;
|
Retirement
Assets - Retirement Goodwill and Other Assets
|
(ll)
|
Retirement
Goodwill.
Retirement carries on the Retirement Business only under the name
“Retirement
Technologies, Inc.”
and variations thereof and under no other business or trade names.
The
Retirement Shareholders do not have any knowledge of any infringement
by
Retirement of any patent, trademark, copyright or trade
secret;
|
-18-
The
Business of Retirement
|
(mm)
|
Maintenance
of Business.
Since the date of the Retirement Financial Statements, the Retirement
Business has been carried on in the ordinary course and Retirement
has not
entered into any material agreement or commitment except in the ordinary
course; and
|
|
(nn)
|
Subsidiaries.
Retirement does not own any subsidiaries and does not otherwise own,
directly or indirectly, any shares or interest in any other corporation,
partnership, joint venture or firm and Retirement does not own any
subsidiary and does not otherwise own, directly or indirectly, any
shares
or interest in any other corporation, partnership, joint venture
or
firm.
|
Non-Merger
and Survival
5.2 The
representations and warranties of Retirement contained herein will be true
at
and as of Closing in all material respects as though such representations and
warranties were made as of such time. Notwithstanding the completion of the
transactions contemplated hereby, the waiver of any condition contained herein
(unless such waiver expressly releases a party from any such representation
or
warranty) or any investigation made by Voxpath, the representations and
warranties of Retirement shall survive the Closing.
Indemnity
5.3 The
Retirement Shareholders agree to indemnify and save harmless Voxpath from and
against any and all claims, demands, actions, suits, proceedings, assessments,
judgments, damages, costs, losses and expenses, including any payment made
in
good faith in settlement of any claim (collectively, the “Claims”) (subject to
the right of the Retirement Shareholders to defend any such claim), resulting
from the breach by any of them of any representation or warranty of such party
made under this Agreement or from any misrepresentation in or omission from
any
certificate or other instrument furnished or to be furnished by Retirement
or
the Retirement Shareholders to Voxpath hereunder; provided, however, the
Retirement Shareholders shall not be required to indemnify Voxpath for any
such
Claims in excess of the value of the Retirement Shares.
ARTICLE
6
COVENANTS
OF RETIREMENT AND
THE
RETIREMENT SHAREHOLDERS
Covenants
6.1 Retirement
and the Retirement Shareholders covenant and agree with Voxpath that they
will:
|
(a)
|
Conduct
of Business.
Until the Closing, conduct the Retirement Business diligently and
in the
ordinary course consistent with the manner in which the Retirement
Business generally has been operated up to the date of execution
of this
Agreement;
|
|
(b)
|
Preservation
of Business.
Until the Closing, use their best efforts to preserve the Retirement
Business and the Retirement Assets and, without limitation, preserve
for
Voxpath Retirement’s relationships with their suppliers, customers and
others having business relations with
them;
|
-19-
|
(c)
|
Access.
Until the Closing, give Voxpath and its representatives full access
to all
of the properties, books, contracts, commitments and records of Retirement
relating to Retirement, the Retirement Business and the Retirement
Assets,
and furnish to Voxpath and its representatives all such information
as
they may reasonably request;
|
|
(d)
|
Procure
Consents.
Until the Closing, take all reasonable steps required to obtain,
prior to
Closing, any and all third party consents required to permit the
Acquisition and to preserve and maintain the Retirement Assets, including
the Retirement Material Contracts, notwithstanding the change in
control
of Retirement arising from the
Acquisition;
|
|
(e)
|
Reporting
and Internal Controls.
From and after the Closing, the Retirement Shareholders shall forthwith
take all required actions to implement internal controls on the business
of Retirement to ensure that Retirement and Voxpath comply with Section
13(b)(2) of the Securities and Exchange Act of 1934;
|
|
(f)
|
1934
Act Reports.
From and after the Closing Date, take all such steps as are necessary
to
discharge all reporting obligations imposed upon them by the Securities
Exchange Act of 1934;
|
|
(g)
|
Prohibitions.
From and for a period of twelve (12) months after the Closing Date,
not
effect any reverse splits, remove assets from Retirement without
valid
consideration, register shares pursuant to Form S-8, and will not
issue
shares for consideration less than a 50% discount to the then current
market price of the Voxpath, which percentage shall be determined
at the
commencement of any offering to be
conducted.
|
Authorization
6.2 Retirement
hereby agrees to authorize and direct any and all federal, state, municipal,
foreign and international governments and regulatory authorities having
jurisdiction respecting Retirement to release any and all information in their
possession respecting Retirement to Voxpath. Retirement shall promptly execute
and deliver to Voxpath any and all consents to the release of information and
specific authorizations which Voxpath reasonably require to gain access to
any
and all such information.
Survival
6.3 The
covenants set forth in this Article shall survive the Closing for the benefit
of
Voxpath.
ARTICLE
7
CONDITIONS
PRECEDENT
Conditions
Precedent in favor of Voxpath
7.1 Voxpath’s
obligations to carry out the transactions contemplated hereby are subject to
the
fulfillment of each of the following conditions precedent on or before the
Closing:
|
(a)
|
all
documents or copies of documents required to be executed and delivered
to
Voxpath hereunder will have been so executed and
delivered;
|
-20-
|
(b)
|
all
of the terms, covenants and conditions of this Agreement to be complied
with or performed by Retirement or the Retirement Shareholders at
or prior
to the Closing will have been complied with or
performed;
|
|
(c)
|
title
to the Retirement Shares held by the Retirement Shareholders and
to the
Retirement Assets will be free and clear of all mortgages, liens,
charges,
pledges, security interests, encumbrances or other claims whatsoever,
save
and except as disclosed herein, and the Retirement Shares shall be
duly
transferred to Voxpath;
|
|
(d)
|
subject
to Article 8 hereof, there will not have
occurred
|
|
(i)
|
any
material adverse change in the financial position or condition of
Retirement, its liabilities or the Retirement Assets or any damage,
loss
or other change in circumstances materially and adversely affecting
Retirement, the Retirement Business or the Retirement Assets or
Retirement’s right to carry on the Retirement Business, other than changes
in the ordinary course of business, none of which has been materially
adverse, or
|
|
(ii)
|
any
damage, destruction, loss or other event, including changes to any
laws or
statutes applicable to Retirement or the Retirement Business (whether
or
not covered by insurance) materially and adversely affecting Retirement,
the Retirement Business or the Retirement Assets;
|
|
(e)
|
the
transactions contemplated hereby shall have been approved by all
other
regulatory authorities having jurisdiction over the subject matter
hereof,
if any;
|
|
(f)
|
the
transactions contemplated hereby shall have been approved by the
Board of
Directors and shareholders of Retirement;
|
|
(g)
|
on
or prior to the Closing Date, Retirement and/or the Retirement
Shareholders shall have acquired all of the ordinary shares held
by
Retirement Shareholders that are not participating in this Agreement
so
that Voxpath shall acquire 100% of the presently issued and outstanding
Retirement Shares; and
|
|
(h)
|
on
or prior to the Closing Date, Retirement shall have delivered the
Retirement Financial Statements.
|
Waiver
by Voxpath
7.2 The
conditions precedent set out in the preceding section are inserted for the
exclusive benefit of Voxpath and any such condition may be waived in whole
or in
part by Voxpath at or prior to the Closing by delivering to Retirement a written
waiver to that effect signed by Voxpath. In the event that the conditions
precedent set out in the preceding section are not satisfied on or before the
Closing, Voxpath shall be released from all obligations under this
Agreement.
Conditions
Precedent in Favor of Retirement and the Retirement
Shareholders
7.3 The
obligations of Retirement and the Retirement Shareholders to carry out the
transactions contemplated hereby are subject to the fulfillment of each of
the
following conditions precedent on or before the Closing:
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|
(a)
|
all
documents or copies of documents required to be executed and delivered
to
Retirement hereunder will have been so executed and
delivered;
|
|
(b)
|
all
of the terms, covenants and conditions of this Agreement to be complied
with or performed by Voxpath at or prior to the Closing will have
been
complied with or performed;
|
|
(c)
|
Voxpath
will have delivered the Acquisition Shares to be issued pursuant
to the
terms of the Acquisition to Retirement at the Closing and the Acquisition
Shares will be registered on the books of Voxpath in the name of
the
holder of Retirement Shares at the time of
Closing;
|
|
(d)
|
title
to the Acquisition Shares will be free and clear of all mortgages,
liens,
charges, pledges, security interests, encumbrances or other claims
whatsoever;
|
|
(e)
|
subject
to Article 8 hereof, there will not have
occurred
|
|
(i)
|
any
material adverse change in the financial position or condition of
Voxpath,
its subsidiaries, their liabilities or the Voxpath Assets or any
damage,
loss or other change in circumstances materially and adversely affecting
Voxpath, the Voxpath Business or the Voxpath Assets or Voxpath’ right to
carry on the Voxpath Business, other than changes in the ordinary
course
of business, none of which has been materially adverse,
or
|
|
(ii)
|
any
damage, destruction, loss or other event, including changes to any
laws or
statutes applicable to Voxpath or the Voxpath Business (whether or
not
covered by insurance) materially and adversely affecting Voxpath,
its
subsidiaries, the Voxpath Business or the Voxpath
Assets;
|
|
(f)
|
the
transactions contemplated hereby shall have been approved by all
other
regulatory authorities having jurisdiction over the subject matter
hereof,
if any;
|
|
(g)
|
the
transactions contemplated hereby shall have been approved by the
Board of
Directors of Voxpath;
|
|
(i)
|
each
of the directors and officers of Voxpath shall have resigned as directors
and/or officers of Voxpath;
|
|
(j)
|
Xxxxxxx
Xxxxxx shall have been appointed as the Chairman of the Board of
the Board
of Directors of Voxpath and Xxxxx Xxxxx shall have been appointed
to the
Board of Directors, provided, however, such appointment of Xxxxx
Xxxxx
shall not become effective until 10 days after the mailing of the
Schedule
14f.
|
Waiver
by Retirement and the Retirement Shareholders
7.4 The
conditions precedent set out in the preceding section are inserted for the
exclusive benefit of Retirement and the Retirement Shareholders and any such
condition may be waived in whole or in part by Retirement or the Retirement
Shareholders at or prior to the Closing by delivering to Voxpath a written
waiver to that effect signed by Retirement and the Retirement Shareholders.
In
the event that the conditions precedent set out in the preceding section are
not
satisfied on or before the Closing, Retirement and the Retirement Shareholders
shall be released from all obligations under this Agreement.
Nature
of Conditions Precedent
-22-
7.5 The
conditions precedent set forth in this Article are conditions of completion
of
the transactions contemplated by this Agreement and are not conditions precedent
to the existence of a binding agreement. Each party acknowledges receipt of
the
sum of $10.00 and other good and valuable consideration as separate and distinct
consideration for agreeing to the conditions of precedent in favor of the other
party or parties set forth in this Article.
Termination
7.6 Notwithstanding
any provision herein to the contrary, if the Closing does not occur on or before
September, 2006 (the “Termination Date”), this Agreement will be at an end and
will have no further force or effect, unless otherwise agreed upon by the
parties in writing.
Confidentiality
7.7 Notwithstanding
any provision herein to the contrary, the parties hereto agree that the
existence and terms of this Agreement are confidential and that if this
Agreement is terminated pursuant to the preceding section the parties agree
to
return to one another any and all financial, technical and business documents
delivered to the other party or parties in connection with the negotiation
and
execution of this Agreement and shall keep the terms of this Agreement and
all
information and documents received from Retirement and Voxpath and the contents
thereof confidential and not utilize nor reveal or release same, provided,
however, that Voxpath will be required to issue a news release regarding the
execution and consummation of this Agreement and file a Current Report on Form
8-K with the Securities and Exchange Commission respecting the proposed
Acquisition contemplated hereby together with such other documents as are
required to maintain the currency of Voxpath’s filings with the Securities and
Exchange Commission.
ARTICLE
8
RISK
Material
Change in the Business of Retirement
8.1 If
any
material loss or damage to the Retirement Business occurs prior to Closing
and
such loss or damage, in Voxpath’ reasonable opinion, cannot be substantially
repaired or replaced within sixty (60) days, Voxpath shall, within two (2)
days
following any such loss or damage, by notice in writing to Retirement, at its
option, either:
|
(a)
|
terminate
this Agreement, in which case no party will be under any further
obligation to any other party; or
|
|
(b)
|
elect
to complete the Acquisition and the other transactions contemplated
hereby, in which case the proceeds and the rights to receive the
proceeds
of all insurance covering such loss or damage will, as a condition
precedent to Voxpath’ obligations to carry out the transactions
contemplated hereby, be vested in Retirement or otherwise adequately
secured to the satisfaction of Voxpath on or before the Closing
Date.
|
Material
Change in the Voxpath Business
8.2 If
any
material loss or damage to the Voxpath Business occurs prior to Closing and
such
loss or damage, in Retirement’s reasonable opinion, cannot be substantially
repaired or replaced within sixty (60) days, Retirement shall, within two (2)
days following any such loss or damage, by notice in writing to Voxpath, at
its
option, either:
-23-
|
(a)
|
terminate
this Agreement, in which case no party will be under any further
obligation to any other party; or
|
|
(b)
|
elect
to complete the Acquisition and the other transactions contemplated
hereby, in which case the proceeds and the rights to receive the
proceeds
of all insurance covering such loss or damage will, as a condition
precedent to Retirement’s obligations to carry out the transactions
contemplated hereby, be vested in Voxpath or otherwise adequately
secured
to the satisfaction of Retirement on or before the Closing
Date.
|
ARTICLE
9
CLOSING
Closing
9.1 The
Acquisition and the other transactions contemplated by this Agreement will
be
closed at the Place of Closing on Closing Date in accordance with the closing
procedure set out in this Article.
Documents
to be Delivered by Retirement
9.2 On
or
before the Closing, Retirement and the Retirement Shareholders will deliver
or
cause to be delivered to Voxpath:
|
(a)
|
the
original or certified copies of the charter documents of Retirement,
including amendments thereof, and all corporate records documents
and
instruments of Retirement, the corporate seal of Retirement and all
books
and accounts of Retirement;
|
|
(b)
|
all
reasonable consents or approvals required to be obtained by Retirement
for
the purposes of completing the Acquisition and preserving and maintaining
the interests of Retirement under any and all Retirement Material
Contracts and in relation to Retirement
Assets;
|
|
(c)
|
certified
copies of such resolutions and minutes of the shareholders and directors
of Retirement as are required to be passed to authorize the execution,
delivery and implementation of this
Agreement;
|
|
(d)
|
an
acknowledgement from Retirement and the Retirement Shareholders of
the
satisfaction of the conditions precedent set forth in section 7.3
hereof;
|
|
(e)
|
the
certificates or other evidence of ownership of the Retirement Shares,
together with such other documents or instruments required to effect
transfer of ownership of the Retirement Shares to Voxpath;
|
|
(f)
|
declaration
of acceptance by Xxxxxxx Xxxxxx of being elected as a member of the
Board
of Directors of Retirement, and
|
|
(g)
|
such
other documents as Voxpath may reasonably require to give effect
to the
terms and intention of this
Agreement.
|
Documents
to be Delivered by Voxpath
9.3 On
or
before the Closing, Voxpath shall deliver or cause to be delivered to Retirement
and the Retirement Shareholders:
-24-
|
(a)
|
share
certificates representing the Acquisition Shares duly registered
in the
names of the holders of shares of Retirement Common
Stock;
|
|
(b)
|
certified
copies of such resolutions of the directors of Voxpath as are required
to
be passed to authorize the execution, delivery and implementation
of this
Agreement;
|
|
(c)
|
a
certified copy of a resolution of the directors of Voxpath dated
as of the
Closing Date appointing the nominees of Retirement as officers of
Retirement and appointing the nominee of the Retirement Shareholders
to
the board of directors of Voxpath;
|
|
(d)
|
resignations
of all of the officers of Voxpath as of the Closing
Date;
|
|
(e)
|
undated
resignation of Xxxxx Xxxxxxxx as director of Voxpath;
|
|
(f)
|
an
acknowledgement from Voxpath of the satisfaction of the conditions
precedent set forth in section 7.1
hereof;
|
|
(g)
|
certificate
or incorporation and good standing certificate of Voxpath;
and
|
|
(h)
|
such
other documents as Retirement may reasonably require to give effect
to the
terms and intention of this
Agreement.
|
ARTICLE
10
POST-CLOSING
MATTERS
Forthwith
after the Closing, Voxpath, Retirement and the Retirement Shareholders, as
the
case may be, agree to use all their best efforts to:
|
(a)
|
issue
a news release reporting the
Closing;
|
|
(b)
|
file
a Form 8-K with the Securities and Exchange Commission disclosing
the
terms of this Agreement within 4 days of the Closing which includes
the
audited financial statements of Retirement as well as pro forma financial
information of Retirement and Voxpath as required by Item 310 of
Regulation SB as promulgated by the Securities and Exchange
Commission;
|
|
(c)
|
file
reports on Forms 13D and 3 with the Securities and Exchange Commission
disclosing the acquisition of the Acquisition Shares by the Retirement
Shareholders;
|
|
(d)
|
file
with the Securities and Exchange Commission Schedule 14f1 disclosing
the
change in control of Voxpath and, 10 days after such filing, date
the
resolutions appointing Xxxxx Xxxxx to the board of directors of Voxpath;
and
|
|
(e)
|
change
the name of Voxpath to “The Retirement Solution, Inc.” of such other name
as determined by the Board of Directors of Voxpath;
|
|
(i)
|
obtain
adequate funding which will enable Retirement to pursue its business
plan
for the subsequent twelve (12) months;
and
|
-25-
|
(j)
|
associate
itself with financial intermediaries who have the experience and
capability to provide financial public relations and market
support.
|
ARTICLE
11
GENERAL
PROVISIONS
Arbitration
11.1 The
parties hereto shall attempt to resolve any dispute, controversy, difference
or
claim arising out of or relating to this Agreement by negotiation in good faith.
If such good negotiation fails to resolve such dispute, controversy, difference
or claim within fifteen (15) days after any party delivers to any other party
a
notice of its intent to submit such matter to arbitration, then any party to
such dispute, controversy, difference or claim may submit such matter to
arbitration in the City of New York, New York.
Notice
11.2 Any
notice required or permitted to be given by any party will be deemed to be
given
when in writing and delivered to the address for notice of the intended
recipient by personal delivery, prepaid single certified or registered mail,
or
telecopier. Any notice delivered by mail shall be deemed to have been received
on the fourth business day after and excluding the date of mailing, except
in
the event of a disruption in regular postal service in which event such notice
shall be deemed to be delivered on the actual date of receipt. Any notice
delivered personally or by telecopier shall be deemed to have been received
on
the actual date of delivery.
Addresses
for Service
11.3 The
address for service of notice of each of the parties hereto is as
follows:
|
(a)
|
Voxpath:
|
000
Xxxxx
Xxxx #000
Xxxxxx,
Xxxx 00000
Attention:
Telephone
no.
Facsimile
no.
With
a
copy to:
Xxxxxx
X.
Xxxxx, P.C.
0000
Xxxxxxxx Xxxx.
Xxxxxxx,
Xxxx 00000
Telephone
no. (000) 000-0000
Facsimile
no. (000) 000-0000
|
(b)
|
Retirement
or the Retirement Shareholders:
|
000
X.
Xxxxxxx Xxxxxx
Xxxxxxxxx
XX 00000
Attention:
Telephone
no.
Facsimile
no.
With
a
copy to:
-26-
Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxx Xxxxxxx, Esq.
Phone:
(000) 000-0000
Telecopier:
(000) 000-0000
Change
of Address
11.4 Any
party
may, by notice to the other parties change its address for notice to some other
address in North America and will so change its address for notice whenever
the
existing address or notice ceases to be adequate for delivery by hand. A post
office box may not be used as an address for service.
Further
Assurances
11.5 Each
of
the parties will execute and deliver such further and other documents and do
and
perform such further and other acts as any other party may reasonably require
to
carry out and give effect to the terms and intention of this
Agreement.
Time
of the Essence
11.6 Time
is
expressly declared to be the essence of this Agreement.
Entire
Agreement
11.7 The
provisions contained herein constitute the entire agreement among Retirement,
the Retirement Shareholders and Voxpath respecting the subject matter hereof
and
supersede all previous communications, representations and agreements, whether
verbal or written, among Retirement, the Retirement Shareholders and Voxpath
with respect to the subject matter hereof.
Enurement
11.8 This
Agreement will enure to the benefit of and be binding upon the parties hereto
and their respective heirs, executors, administrators, successors and permitted
assigns.
Assignment
11.9 This
Agreement is not assignable without the prior written consent of the parties
hereto.
Counterparts
11.10 This
Agreement may be executed in counterparts, each of which when executed by any
party will be deemed to be an original and all of which counterparts will
together constitute one and the same Agreement. Delivery of executed copies
of
this Agreement by telecopier will constitute proper delivery, provided that
originally executed counterparts are delivered to the parties within a
reasonable time thereafter.
Applicable
Law
11.11 This
Agreement shall be enforced, governed by and construed in accordance with the
laws of the State of New York applicable to agreements made and to be performed
entirely within such state, without regard to the principles of conflict of
laws
The parties hereto hereby submit to the exclusive jurisdiction of the United
States federal courts located in New York, New York with respect to any dispute
arising under this Agreement, the agreements entered into in connection herewith
or the transactions contemplated hereby or thereby. All parties irrevocably
waive the defense of an inconvenient forum to the maintenance of such suit
or
proceeding. All parties further agree that service of process upon a party
mailed by first class mail shall be deemed in every respect effective service
of
process upon the party in any such suit or proceeding. Nothing herein shall
affect either party’s right to serve process in any other manner permitted by
law. All parties agree that a final non-appealable judgment in any such suit
or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on such judgment or in any other lawful manner. The party which does not
prevail in any dispute arising under this Agreement shall be responsible for
all
fees and expenses, including attorneys’ fees, incurred by the prevailing party
in connection with such dispute.
[Remainder
of page intentionally left blank.]
-27-
IN
WITNESS WHEREOF
the
parties have executed this Agreement effective as of the day and year first
above written.
| VOXPATH HOLDINGS, INC. | |||
| |
|
|
|
| By: | /s/ Xxxxx Xxxxxxxx | ||
| Xxxxx Xxxxxxxx, Chief Executive Officer | |||
| THE RETIREMENT SOLUTION, INC. | |||
| By: | /s/ Xxxxxxx Xxxxxx | ||
| Xxxxxxx Xxxxxx, Chief Executive Officer | |||
SHAREHOLDERS
OF THE RETIREMENT SOLUTION, INC.
FOLLOW
-28-
