AGREEMENT FOR THE EXCHANGE OF COMMON STOCK
Exhibit
2.1
THE
SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE 1933 ACT"), NOR REGISTERED UNDER ANY
STATE
SECURITIES LAW, AND ARE "RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN
RULE
144 UNDER THE 1933 ACT. THE SECURITIES
MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT
TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT, OR PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE 1933 ACT, THE
AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF THE
COMPANY.
This
AGREEMENT FOR THE EXCHANGE OF COMMON STOCK made effective this 22nd
day of
December, 2005, by and among Life Exchange, Inc., a Nevada corporation formerly
known as Technology Enterprises (the "ISSUER"), the individuals listed in
Exhibit A attached hereto, (the "SHAREHOLDERS"), which SHAREHOLDERS own all
of
the issued and outstanding shares of Life Exchange, Inc., a Delaware corporation
("LIFE"), and The Vantage Group Ltd. ("VANTAGE"), (the SHAREHOLDERS and VANTAGE,
referred to herein as "INVESTORS").
In
consideration of the mutual promises, covenants, and representations contained
herein, and other good and valuable consideration,
THE
PARTIES HERETO AGREE AS FOLLOWS:
1. EXCHANGE
OF SECURITIES.
Subject
to the terms and conditions of this Agreement, at
the
Closing, the ISSUER shall issue to SHAREHOLDERS, 120,000,000 shares of the
common stock of
ISSUER,
$.001 par value (the "Exchange Shares"), in exchange for 100% of the issued
and
outstanding shares of LIFE, such that LIFE shall become a wholly owned
subsidiary of the ISSUER. The Exchange Shares shall be issued by ISSUER to
the
SHAREHOLDERS pro rata according to their ownership of LIFE set forth on Exhibit
A.
2. ISSUANCE
OF SECURITIES.
Subject
to the terms and conditions of this Agreement, as compensation
due to VANTAGE pursuant to that certain Engagement Letter dated as of August
5,
2005, by
and
between LIFE and VANTAGE (the "Engagement Letter"), at the Closing, ISSUER
shall
issue to VANTAGE,
(a) 15,000,000 shares of the common stock of ISSUER (the "Vantage Shares",
together with the
Exchange Shares, the "Shares") and (b) to protect VANTAGE from dilution of
the
Vantage Shares, a
Warrant
to purchase, at a price equal to $.001 per share , that number of shares of
common stock of ISSUER
such that Vantage, its successors or assigns, shall be entitled to maintain
9.98% of the issued and outstanding
common stock of ISSUER at all times during the twenty-four (24) months following
the date hereof
during which the Warrant shall be exercisable, the form of Warrant is included
as Exhibit B hereto
(the
"Warrant").
3. ISSUER
REPRESENTATIONS AND WARRANTIES.
ISSUER
represents and warrants
to
INVESTORS and LIFE the following:
i.
Organization.
ISSUER
is a corporation duly organized, validly existing, and in good standing under
the laws of Nevada, and has all necessary corporate powers to own properties
and
carry on business, and is duly qualified to do business and is in good standing
in Nevada. All actions taken
by
the incorporators, directors and shareholders of ISSUER have been valid and
in
accordance with
the laws
of the State of Nevada.
-1-
ii. Capitalization.
The
authorized capital stock of the ISSUER consists of 250,000,000 shares of common
stock, $.001 par value, of which 12,021,500 are issued and outstanding, of
which
10,500,000 shall be redeemed by ISSUER from Xxxxx Xxxxxx prior to the Closing
for no consideration, and 20,000,000 shares of preferred stock, $.001 par value,
none of which are issued. All outstanding
shares are fully paid and non assessable, free of liens, encumbrances, options,
restrictions and
legal or
equitable rights of others not a party to this Agreement. Prior to the Closing,
ISSUER shall have declared and paid a 10-for-1 dividend on its issued and
outstanding shares of common stock, not including the shares redeemed from
Xxxxx
Xxxxxx. Immediately following the Closing there will be 150,215,000 shares
of
common stock issued and outstanding. With the exception of the Warrant
referenced in Section 2, there are no outstanding subscriptions, options,
rights, warrants, convertible securities, or other agreements or commitments
obligating ISSUER to issue or to transfer from treasury any additional shares
of
its capital stock. Other than those shares to be redeemed from Pawson, there
are
no agreements or obligations (contingent or otherwise) requiring ISSUER to
repurchase or otherwise acquire
or retire any shares of its capital stock or any warrants, options or other
rights to acquire its capital
stock.
None of the outstanding shares of ISSUER are subject to any stock restriction,
transfer or voting agreements. All of the shareholders of ISSUER have valid
title to such shares and acquired their shares in a lawful transaction and
in
accordance with the laws of Nevada. There are no preemptive rights or rights
of
first refusal or other similar rights with respect to the issuance of the Shares
by ISSUER.
iii. Financial
Statements.
ISSUER
is a nonreporting trading company listed on the Pink Sheets. Copies of its
unaudited balance sheet as of November 30, 2005 are attached hereto as Exhibit
C. The statements attached fairly present the financial position of ISSUER
as of
such date.
iv. Absence
of Changes.
Since
January 1, 2000, there has not been any changes in or amendments to the
corporate structure of ISSUER except as disclosed in the public filings of
the
State of Nevada, or except as disclosed herein.
v.
Assets
and Liabilities.
ISSUER
does not have any assets, nor does it have any debt, liability or obligation
of
any nature, whether accrued, absolute, contingent, or otherwise, and whether
due
or to become due. There is no dispute of any kind between the ISSUER and any
third party. ISSUER is free from any and all liabilities, liens, claims and/or
commitments.
vi.
Ability
to Carry Out Obligations, Enforceability.
ISSUER
has the right, power, and authority to enter into and perform its obligations
under this Agreement. The execution and delivery of this Agreement by ISSUER
and
the performance by ISSUER of its obligations hereunder, and under any
transaction documents executed as a part hereof, will
not
cause, constitute, or conflict with or result in (a) any breach or violation
or
any of the provisions of or constitute a default under any license, indenture,
mortgage, charter, instrument, articles of incorporation, bylaw, or other
agreement or instrument to which ISSUER, its assets, or its shareholders are
a
party, or by which they may be bound, nor will any consents or authorizations
of
any party other than those hereto be required, (b) an event that would cause
ISSUER to be liable to any party, or (c) an event that would result in the
creation or imposition or any lien, charge or encumbrance on any asset of ISSUER
or upon the securities of ISSUER to be acquired hereunder. The execution and
delivery of this Agreement by Issuer and the performance by ISSUER of its
obligations hereunder, and under any transaction documents executed as a part
hereof, has been duly authorized by all necessary or proper corporate action.
The execution, delivery and performance of this Agreement and the transactions
contemplated herein do not require approval or consent of the stockholders
of
ISSUER or the approval or authorization of any governmental authority, any
securities exchange or any other person or entity. Each of this Agreement and
other transaction documents, shall have been duly executed and delivered by
ISSUER and each shall then constitute a legal, valid and binding obligations
of
ISSUER, enforceable against ISSUER in accordance with its terms, subject to
applicable bankruptcy, insolvency,
-2-
fraudulent
conveyance, reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally, and subject, as to enforceability, to general
principles of equity, including principles of commercial reasonableness, good
faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity).
vii. Full
Disclosure.
None of
the representations and warranties made by the ISSUER, or in any certificate
or
memorandum furnished or to be furnished by the ISSUER, contains or will contain
any untrue statement of a material fact, or omit any material fact the omission
of which would be misleading.
viii. Contract
and Leases.
ISSUER
is not a party to any contract, agreement or lease. No person holds a
power
of
attorney from ISSUER.
ix. Compliance
with Laws.
ISSUER
has complied with, and is not in violation of any federal, state, or local
statute, law, and/or regulation pertaining to ISSUER. Based on information
and
belief, ISSUER has complied with applicable federal and state securities laws
in
connection with the issuance, sales and distribution of its securities. ISSUER
is not subject to the Securities Exchange Act of 1934, as amended.
x.
Litigation.
ISSUER
is not (and has not been at any time during the five years preceding the date
hereof) a party to any suit, action, arbitration, or legal, administrative,
or
other proceeding, or pending governmental investigation. To the best knowledge
of the ISSUER, there is no basis for any such action or proceeding and no such
action or proceeding is threatened against ISSUER and ISSUER is not subject
to
or in default with respect to any order, writ, injunction, or decree of any
federal, state, local, or foreign court, department, agency or
instrumentality.
xi. Conduct
of Business.
ISSUER
is not currently, and during the five years preceding the date hereof, has
not
carried on any business.
xii. Corporate
Documents.
Copies
of each of the following documents, which are true complete and correct in
all
respects, have been delivered to LIFE:
| (a) |
Articles
of Incorporation, as amended;
|
| (b) |
Bylaws,
as amended;
|
| (c) |
Minutes
of Shareholders Meetings;
|
| (d) |
Minutes
of Directors Meetings;
|
| (e) |
List
of Officers and Directors;
|
| (f) |
The
Financial Statements ; and
|
|
(g)
|
Stock
register and
stock
records of ISSUER and a current, accurate list of ISSUER's shareholders
and
|
|
(h)
|
A
copy of order of the United States Bankruptcy Court of the District
of
Nevada discharging the petition for bankruptcy protection under the
Bankruptcy Code filed on August 26th,
1996
|
xiii. Documents.
All
minutes, consents or other documents pertaining to ISSUER and
its
capitalization are valid and in accordance with the laws of Nevada.
xiv.
Title.
ISSUER
does not, and during the five years preceding the date hereof has not, owned
or
leased any real property or any personal property. ISSUER has no assets,
properties and rights, whether tangible or intangible.
-3-
xv. Authorization
and Issuance of Shares.
The
issuance of the Shares, the Warrant and the shares of ISSUER common stock
issuable upon exercise of the Warrant has been duly authorized by all necessary
corporate action on the part of ISSUER and, upon delivery to the INVESTORS
will
be free and clear of all liens, security interests, pledges, charges, claims,
encumbrances and restrictions of any kind. The Shares, the Warrant and the
underlying shares of common stock will be validly issued and free and clear
of
all pledges, liens, encumbrances and preemptive rights. Such Shares shall be
subject to Rule 144 restrictions and shall bear such legend on each certificate.
None of such Shares are or will be subject to any voting trust or agreement.
No
person holds or has the right to receive any proxy or similar instrument with
respect to such Shares, except as provided in this Agreement, the ISSUER is
not
a party to any agreement which offersor
grants
to any person the right to purchase or acquire any of the securities to be
issued to SHAREHOLDERS. There is
no
applicable local, state or federal law, rule, regulation,
or decree which would, as a result of the issuance of the Shares, Shares,
impair, restrict or delay the
voting
rights with respect to the Shares.
xvi. Subsidiaries.
There
currently exist no subsidiaries of ISSUER and ISSUER has no equity interest
in
any other entity.
xvii. Labor
Matters.
ISSUER
does not, and during the five years preceding the date hereof, has not had
any
employees.
xvii.
Taxes.
ISSUER
has not incurred any tax liability in the past five (5) years and no tax audits
or other administrative or judicial proceedings are pending or threatened with
regard to any taxes for which ISSUER may be liable.
xviii. Brokers.
No
broker or finder acting on behalf of ISSUER brought about the consummation
of
the transactions contemplated pursuant to this Agreement and ISSUER has no
obligation to any person in respect of any finder's or brokerage fees (or any
similar obligation) in connection with the transactions contemplated by this
Agreement.
xix. Bankruptcy.
There is
no outstanding proceeding instituted by or against ISSUER seeking to adjudicate
it bankrupt or insolvent, or seeking reorganization, adjustment, protection
or
relief or it or any of its debts under any law relating to bankruptcy,
insolvency reorganization, or the entry of an order for relief or the
appointment of a receiver, trustee, custodian or other similar official for
it
or for any substantial part of its property, and any such proceeding by or
against ISSUER arising since the formation of ISSUER has been dismissed,
satisfied, or discharged.
4.
LIFE
REPRESENTATIONS AND WARRANTIES.
LIFE
represents and warrants to ISSUER
the following:
i. Organization.
LIFE is
a corporation duly organized, validly existing, and in good standing under
the
laws of Delaware, has all the necessary corporate powers to own properties
and
carry on a business, and is duly qualified to do business and is in good
standing in
Delaware.
ii. Shareholders
and Issued Stock.
Exhibit
A annexed hereto sets forth the names and share holdings of 100% of LIFE
shareholders.
5.
INVESTMENT
INTENT.
INVESTORS, jointly and severally, make the following representations and
warranties to ISSUER, each and all of which shall survive the execution and
delivery of this Agreement and Closing hereunder:
-4-
i. The
Shares being issued pursuant to this Agreement may not be sold, pledged,
assigned, hypothecated or otherwise transferred, with or without consideration,
only pursuant to an effective registration statement under the Act, or pursuant
to an exemption from registration under the Act, the availability of which
is to
be established to the satisfaction of ISSUER. Prior to any transfer, the party
desiring to transfer any of such shares shall give written notice to ISSUER
expressing its desire to affect the transfer and describing the proposed
transfer.
ii. The
Shares are being acquired for the respective holder's own account with the
present intention of holding such securities for purposes of investment, and
that it has no intention of selling such securities in a public distribution
in
violation of the federal securities laws or any applicable state securities
laws.
iii. Each
of
the INVESTORS acknowledges that ISSUER makes no representations of any kind
concerning its intent or ability to offer or
sell
the
Shares in a public offering or otherwise. Each of the INVESTORS further
understands that ISSUER makes no representation or warranty regarding its
fulfillment in the future of any reporting requirements under the 1934 Act,
or
its dissemination to the public of any current financial or other information
concerning ISSUER, as may be required as a condition for the unregistered resale
of restricted securities.
iv. Each
of
the INVESTORS has consulted with its attorney, financial advisors and others
regarding all financial, securities and tax aspects of the proposed investment,
and said advisors have reviewed this Agreement and all documents relating
thereto on its behalf. Each of the INVESTORS, and their respective advisors,
have sufficient knowledge and experience in business and financial matters
to
evaluate ISSUER, to evaluate the risks and merits of an investment in ISSUER,
to
make an informed investment decision with respect thereto, and to protect such
investor's interest in connection with its investment without need for the
additional information which would be required to be included in a registration
statement prepared and filed in accordance with the 1933 Act.
v.
(a)
Each
of the INVESTORS understands and
agrees that ISSUER prohibits the investment of funds by any persons or entities
that are acting, directly or indirectly, (i) in contravention of any U.S. or
international laws and regulations, including anti-money laundering regulations
or conventions, or (ii) on behalf of terrorists or terrorist organizations,
including those persons or entities that are including on the List of Specially
Designated Nationals and Blocked Persons maintained by the U.S. Treasury
Department's Office of Foreign Assets Control1
("OFAC"), as such list may be amended from time to time (such persons or
entities are collectively referred to as "Prohibited Persons").
(b) Each
of
the INVESTORS represents, warrants and covenants that: (i) it is not, nor is
any
person or entity controlling, controlled by or under common control, a
Prohibited Person, and (ii) to the extent it has any beneficial owners, (a)
it
has carried out thorough due diligence to establish the identities of such
beneficial owners, (b) based on such due diligence, it reasonably believes
that
no such beneficial owners are Prohibited Persons, (c) it holds the evidence
of
such identities and status and will maintain all such evidence for at least
five
years from the date of it's complete withdrawal from ISSUER, and (d) it will
make available such information and any additional information requested by
ISSUER that is required under applicable regulations.
(c) If
any of
the foregoing representations, warranties or covenants ceases to be true or
if
ISSUER no longer reasonably believes that it has satisfactory evidence as to
their truth, notwithstanding any other agreement to the contrary, ISSUER may,
in
accordance with applicable
_________________
1
The
OFAC
list may be accessed on the web at xxxx://xxx.xxxxx.xxx/xxxx
-5-
regulations,
freeze such affected investor's investment, either by prohibiting additional
investments, declining or suspending any withdrawal request and/or segregating
the assets constituting the investment, or such investor's investment may
immediately be involuntarily withdrawn by ISSUER, and ISSUER may also be
required to report such action and to disclose such investor's identity to
OFAC
or other authorities. In the event that ISSUER is required to take any of the
foregoing actions, each investor understands and agrees that it shall have
no
claim against ISSUER, and shall indemnify and hold harmless ISSUER and its
affiliates, directors, members, partners, shareholders, officers, employees
and
agents from any form of damages as -a result of any of the aforementioned
actions.
6. COVENANTS.
i.
Conduct
of Business of Issuer.
Except
as expressly permitted or required by this Agreement, during the period from
the
date of this Agreement to the earlier of the Closing or the termination of
this
Agreement
pursuant to Section 10 hereof:
(a) ISSUER
will conduct its business and operations only in the ordinary and usual course
of business, consistent with past practice;
(b) Except
as
otherwise consented to by LIFE in writing, ISSUER will not: (i) change any
provision of its constituent documents; (ii) declare or pay any dividend or
make
any distribution; (iii) directly or indirectly redeem, purchase or otherwise
acquire, any shares of its outstanding shares or any other securities issued
by
it; (iv) change the number of shares of its authorized share capital; (v) issue
or grant any option, warrant, call, commitment, subscription, right to purchase
or agreement of any character relating to its authorized or issued stock or
any
securities convertible into or exchangeable for shares of such stock; (vi)
directly or indirectly issue or sell any shares or any other securities; (vii)
solicit or encourage the submission of any acquisition proposal for the shares
or substantially all of the assets of ISSUER; (viii) sell, lease, license or
otherwise dispose of any assets or property; (ix) enter into any agreement,
commitments, contracts, or modifications thereto; (x) take any other action
which would cause any of the representations and warranties of ISSUER set forth
in Section 3 not to be true and correct in any material respect as of the date
of this Agreement and as of the Closing as though made as of such date; (xi)
incur, assume or guarantee any indebtedness; (xii) cancel any debts or waive
any
claims or rights; (xiii) change current accounting methods, principles,
practices or its fiscal year or make any material ax election; or (xiv) enter
into any agreement or agree or commit to do any of the foregoing.
-6-
ii. Reasonable
Best Efforts,
Further
Assurances.
Each of
the parties hereto shall take all actions reasonably necessary to comply
promptly with all applicable laws which may be imposed on such party with
respect to the consummation of the transactions contemplated by this Agreement
and shall promptly cooperate with and furnish information to the other party
in
connection with any such requirements imposed upon such party
regarding
the consummation of the transactions contemplated by this Agreement. If at
any
time after the Closing any further action is necessary or desirable to carry
out
the purposes of this Agreement, the proper officers and directors of the parties
hereto shall take, or cause to be taken, all such necessary action.
iii. Access
to Information.
During
the period commencing on the date of this Agreement and continuing through
the
Closing, LIFE shall be permitted to make a full and complete investigation
of
the assets, business, and books and records of ISSUER. No information or
knowledge obtained in any investigation pursuant to this Section 6(iii) shall
affect or be deemed to modify any representation or warranty contained in this
Agreement or the conditions to the obligations of the parties to consummate
the
transactions contemplated by this Agreement.
iv. Reverse
Stock Split.
ISSUER
shall not directly or indirectly effect a reverse split of its issued and
outstanding shares of capital stock for a period of twelve (12) months from
the
date hereof. A breach of this covenant shall and does hereby grantexisting
shareholders of ISSUER immediately prior to the Closing the right, at the option
of such shareholders, to void in its entirety this Agreement and return to
the
shareholders their shares of LIFE and treat this transaction as
though
it
never occurred.
7. CLOSING.
The
closing of this transaction shall take place at 000 Xxxxxxxxxx Xxxxxx Xxxxx,
Xxxxx 000, Xxxx Xxxx Xxxxx, XX 00000 and will be held at 10:00 a.m. EST on
the
third (3rd)Business
Day following the date that all conditions to closing specified herein are
satisfied or waived by the party or parties permitted to do so or at such other
place or time or both as the parties may agree (the "Closing").
8. CONDITIONS
TO CLOSING.
i.
Conditions
to the Obligations of Each Party.
The
respective obligations of each party to effect the transactions contemplated
by
Sections 1 and 2 shall be subject to the fulfillment at or prior to the Closing
of each of the following conditions:
(a) The
ISSUER shall have redeemed 10,500,000 shares of common stock from Xxxxx
Xxxxxx;
(b) A
10-for-1 dividend on the ISSUER's issued and outstanding common stock shall
have
been declared and paid in compliance with the laws of the State of Nevada and
the ISSUER's articles of incorporation and bylaws;
(c) No
litigation, claim or investigation shall have been initiated or threatened
by
any governmental entity or shall have been initiated by any person nor shall
any
statute, rule, regulation or executive order promulgated or enacted by any
governmental entity which in each case
could
reasonably be expected to delay or prevent the consummation of the transactions
contemplated by this Agreement in the manner contemplated herein;
and
(d) All
licenses, permits, consents, approvals, waivers, authorizations, qualifications
and orders of any governmental entity and any other person or entity to
any
-7-
contracts
with ISSUER necessary in connection with the consummation of the transactions
contemplated by this Agreement shall have been obtained.
ii.
Additional
Conditions to the Obligations of the Shareholders.
The
obligation of the SHAREHOLDERS to effect the transactions contemplated by
Section 1 is also subject to each of the following conditions:
(a) The
ISSUER shall have performed each obligation to be performed by it hereunder
on
or prior to the Closing ;
(b) The
representations and warranties of the ISSUER set forth in this Agreement shall
be true and correct at and as of the date of this Agreement and at and as of
the
Closing as though made at and as of the Closing; provided, however, that, with
respect to representations and warranties that are given as of a particular
date
or period and relate solely to such particular date or period shall be true
and
correct only as of such date or period;
(c) From
the
date hereof through the Closing, there shall not have occurred any material
adverse effect on the ISSUER, nor shall any event, fact or circumstance have
occurred during such time that could reasonably be likely to result in a
material adverse effect on the ISSUER;
(d) The
ISSUER shall have delivered such certificates as are reasonably requested by
LIFE certifying the satisfaction of the foregoing conditions.
iii.
Additional
Conditions to the Obligations of Issuer.
The
obligation of the ISSUER to effect the transactions contemplated by
Section 1 and 2 are also subject to each of the following
conditions:
(a) The
INVESTORS shall have performed each obligation to be performed by it hereunder
on or prior to the Closing;
(b) The
representations and warranties of LIFE set forth in this Agreement shall be
true
and correct at and as of the date of this Agreement and at and as of the Closing
as though made at and as of the Closing; provided, however, that, with respect
to representations and warranties that are given as of a particular date or
period and relate solely to such particular date or period shall be true and
correct only as of such date or period;
(c) LIFE
shall have delivered such certificates as are reasonably requested by the Parent
certifying the satisfaction of the foregoing conditions; and
9. DOCUMENTS
TO BE DELIVERED AT CLOSING.
i. By
the
ISSUER
(a)
Board
of Directors Minutes authorizing and approving: (1) the redemption in full
by
the ISSUER of 10,500,000 shares of common stock from Xxxxx Xxxxxx for no
consideration; (2) the declaration and payment of a 10-for-1 stock dividend
on
each share of issued and outstanding common stock, other than the
shares
redeemed from Xxxxx Xxxxxx, in accordance with the laws of the State of Nevada
and the ISSUER's articles of incorporation and bylaws; (3) the issuance of
the
Shares, the Warrant and the shares of common stock issuable upon exercise of
the
Warrant; (4) this Agreement and all other transactions and agreements
contemplated hereby and (5) the appointment of such person(s) as LIFE designates
as a
-8-
director(s)
of ISSUER to be effective immediately following the Closing certified by the
Secretary or Assistant Secretary of ISSUER to be true, correct, complete and
in
full force and effect and unmodified as of the Closing.
(b) The
written resignation of all the officers and directors of ISSUER to be effective
immediately following the Closing.
(c) The
certificate contemplated by Section 8(ii)(d).
(d) All
of
the business and corporate records of ISSUER, including but not limited to
correspondence files, bank statements, check books, savings account books,
minutes of shareholder and directors meetings, financial statements, shareholder
listings, stock transfer records, agreements and contracts.
(e) Such
other minutes of ISSUER's shareholders or directors as may be reasonably
required by SHAREHOLDERS.
(f) An
executed Warrant issued to VANTAGE, signed by ISSUER, in the form included
herewith as Exhibit B.
(g) A
copy of
the articles of incorporation and all amendments thereto of ISSUER, certified
as
of a recent date by the Secretary of State of the State of Nevada.
(h) A
copy of
governmental certificate, dated the most recent practicable date prior to the
Closing, showing that ISSUER is organized and in good standing in the State
of
Nevada and is qualified as a foreign corporation and in good standing in all
other jurisdictions in which it is qualified to transact business.
(i) A
legal
opinion dated the Closing date from counsel to ISSUER in the form reasonably
approved by LIFE, addressed to SHAREHOLDERS and LIFE.
(j)
Stock
certificates representing the Shares.
ii. By
SHAREHOLDERS and LIFE
(a) share
certificates representing 100% of the issued and outstanding stock of LIFE,
duly
endorsed or accompanied by executed instruments of share transfer whereby ISSUER
is identified as the transferee of the Shares.
(b) Consents
signed by all the SHAREHOLDERS consenting to the terms of this
Agreement.
iii. By
VANTAGE
(a) An
executed Warrant issued to VANTAGE, signed by VANTAGE, in the form included
herewith as Exhibit B.
(3)
An
acknowledgment addressed to LIFE that the Engagement Letter has been preformed
in full and LIFE has no further obligations thereunder as a result of the
issuance by the ISSUER of the Vantage Shares and in accordance herewith and
after the Closing such Engagement Letter shall be terminated and of no further
force and effect.
-9-
10.
TERMINATION.
i. This
Agreement may be terminated at any time prior to the Closing:
(a) by
the
mutual written consent of the parties;
(b) by
either
LIFE or the ISSUER, if
(1) any
governmental entity shall have issued an order, decree or ruling or taken any
other action (which order, decree, ruling or other action the parties hereto
shall use their reasonable efforts
to
lift),
which restrains, enjoins or otherwise prohibits the transactions contemplated
by
this Agreement and such order, decree, ruling or other action could reasonably
be expected to result in a material delay in the Closing or a material reduction
in the benefits expected by any of the parties from the transactions
contemplated hereby; or
(2) any
person brings a claim or action before any governmental entity seeking to
restrain, enjoin or otherwise prohibit any of the transactions contemplated
by
this Agreement; or
(c) by
the
SHAREHOLDERS if
(1) the
ISSUER shall have breached any of its representations, warranties or covenants
contained in this Agreement, which would cause a failure of a condition to
closing, and which breach cannot be or has not been cured within 10 days after
the giving of written notice by LIFE to the ISSUER of such breach;
or
(2) prior
to
the Closing, the ISSUER's board of directors shall have withdrawn, modified
or
changed in a manner adverse to the SHAREHOLDERS its approval of this Agreement
or the transactions contemplated hereby; or
(3) the
Closing is not consummated on or before December 31, 2005 (or such later date
as
shall have been approved by the parties), unless the failure of such occurrence
shall be due to the failure of the SHAREHOLDERS or LIFE to perform or observe
the covenants and agreements hereof to be performed or observed thereby at
or
before Closing;
(d) by
the
ISSUER if:
(1) prior
to
the Closing, LIFE shall have breached in any material respect any
representation, warranty or covenant contained in this Agreement, which would
cause a failure of a condition to closing, and which breach cannot be or
hasnot
been
cured within 10 days after the giving of written notice by the ISSUER to LIFE
of
such breach;
(2) the
Closing is not consummated on or before December 31, 2005 (or such later date
as
shall have been approved by the parties).
ii.
In
the event of the termination of this Agreement under Section 10(i), this
Agreement shall become void and have no effect, without any liability on the
part of any party or its directors, officers or stockholders.
-10-
11. REMEDIES.
i. Arbitration.
Any
controversy or claim arising out of, or relating to, this Agreement, or the
making, performance, or interpretation thereof, shall be settled by arbitration.
Arbitration shall be by a single arbitrator experienced in the matters at issue
and selected in accordance with the Commercial Arbitration Rules of the American
Arbitration Association (the "Rules").
The
arbitration shall be held in such place in Dade County, Florida as may be
specified by the arbitrator (or any place upon which Seller, Buyer and the
arbitrator may agree), and shall be conducted in accordance with the Rules
and
(regardless of any other choice of law provision in this Agreement) the United
States Arbitration Act (9 U.S.C. §§ 1-16) to the extent not inconsistent with
this Agreement. The decision of the arbitrator shall be in writing and final
and
binding as to any matters submitted under this section; and, if necessary,
any
decision may be entered in any court of record having jurisdiction over the
subject matter or over the party against whom the judgment is being enforced.
The determination of which party (or combination of them) shall bear the costs
and expenses of such arbitration proceeding shall be determined by the
arbitrator. The arbitrator shall have the discretionary authority to award
that
all or a part of the reasonable attorneys' fees of one party in connection
with
the arbitration shall be reimbursed by another party.
ii. Breach.
Any
breach of the representations and warranties of ISSUER contained in Section
3
above or any breach of the conditions, covenants and agreements of the ISSUER
contained herein and to be completed on or prior to the Closing shall and does
hereby grant the SHAREHOLDERS, upon the election of the holders of a majority
of
those shares of LIFE listed on Exhibit A hereto, to void in its entirety this
Agreement and return to the SHAREHOLDERS their shares in LIFE and treat the
transaction as though it never occurred.
iii. Specific
Performance.
The
INVESTORS, in addition to being entitled to exercise all rights granted by
law,
including recovery of damages, will be entitled to specific performance of
its
rights under this Agreement. The ISSUER agrees that monetary damages would
not
be adequate compensation for anyloss
incurred by reason of a breach of the provisions of this Agreement and hereby
agrees to waive the defense in any action for specific performance that a remedy
at law would be adequate. In any action or proceeding brought to enforce any
provision of this Agreement or where any provision hereof is validly asserted
as
a defense, the successful party shall be entitled to recover reasonable
attorneys' fees in addition to any other available remedy.
12.
MISCELLANEOUS.
i. Captions
and Headings.
The
Article and paragraph headings throughout this Agreement are for convenience
and
reference only, and shall
in
no way
be deemed to define, limit, or add to the meaning of any provision of this
Agreement.
ii. No
Oral Change.
This
Agreement and any provision hereof, may not be waived, changed, modified, or
discharged orally, but only by an agreement in writing signed by the party
against whom enforcement of any waiver, change, modification, or discharge
is
sought.
iii. Non
Waiver.
Except
as otherwise provided herein, no waiver of any covenant, condition, or provision
of this Agreement shall be deemed to have been made unless expressly in writing
and signed by the party against whom such waiver is charged; and (i) the failure
of any party to insist in any one or more cases upon the performance of any
of
the provisions, covenants, or conditions of this Agreement or to exercise any
option herein contained shall not be construed as a waiver or relinquishment
for
the future of any such provisions, covenants, or conditions, (ii) the acceptance
of performance of anything required by this Agreement to be performed with
knowledge of the breach or failure, and (iii) no
-11-
waiver
by
any party of one breach by another party shall be construed as a waiver with
respect to any other or subsequent breach.
iv. Time
of Essence.
Time is
of the essence of this Agreement and of each and every provision
hereof.
v.
Entire
Agreement.
This
Agreement, together with the exhibits and schedules attached hereto and made
a
part hereof by reference, contains the entire Agreement and understanding
between the parties hereto, and supersedes all prior agreements and
understandings.
vi. Counterparts.
This
Agreement may be executed simultaneously in one or more counterparts, each
of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
vii. Notices.
All
notices, requests, demands, and other communications under this Agreement shall
be in writing and shall be deemed to have been duly given on the date of service
if served personally on the party to whom notice is to be given, or on the
third
day after mailing if mailed to he party to whom notice is to be given, by first
class mail, registered or certified, postage prepaid and properly addresses,
and
by fax, as follows:
|
ISSUER:
|
Life
Exchange, Inc.
|
|
|
0000
Xxxxxxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx,
XX 00000
|
||
|
Facsimile:
|
||
|
LIFE:
|
Life
Exchange, Inc.
|
|
|
000
Xxxx Xxxxxx, Xxxxx 0000
Xxxxx Xxxxx, XX 00000
|
||
|
Facsimile:
|
||
|
VANTAGE:
|
The
Vantage Group Ltd.
|
|
|
00
Xxxx Xxxxxx
|
||
|
Xxxxx
0000
|
||
|
Xxx
Xxxx, XX 00000
|
||
|
Facsimile:
|
viii. Severability.
In the
event that any one or more of the provisions contained in this Agreement shall
be determined to be invalid, illegal or unenforceable in any respect for any
reason, the validity, legality and enforceability of any such provision or
provisions in every other respect and the remaining provisions of this Agreement
shall not be in any way impaired.
ix. Governing
Law; Consent to Jurisdiction, Counterparts.
This
Agreement shall be governed by, construed and enforced in accordance with,
the
laws of the Florida without regard to the principles thereof relating
to
conflict
of laws. Each party irrevocably consents to and agrees that any legal or
equitable action, suit or proceeding by or against it with respect to its
rights, obligations or liabilities under
this agreement or any other agreement executed in connection with this Agreement
shall be brought
by such
party only in any court of the United States located in Dade County, Florida,
and each party hereby consents to the jurisdiction of such court.
-12-
(Signatures
begin on the next page. )
-13-
IN
WITNESS WHEREOF, the undersigned has executed the Agreement this
22nd
day of December, 2005.
|
LIFE
EXCHANGE, INC.
|
||
|
By
|
Xxxxx
Xxxxxx
|
|
|
Name
|
/s/
Xxxxx Xxxxxx
|
|
|
Title:
|
President,
Secretary
|
|
|
LIFE
EXCHANGE, INC.
|
||
|
By:
|
Xxxxxx
Xxxxx Xxxxxxxxx
|
|
|
Name:
|
/s/
Xxxxxx Xxxxx Xxxxxxxxx
|
|
|
Title:
|
Chief
Executive Officer
|
|
|
THE
VANTAGE GROUP LTD.
|
||
|
By:
|
Xxxx
Xxxxxx
|
|
|
Name:
|
/s/
Xxxx Xxxxxx
|
|
|
Title:
|
President
|
|
|
SHAREHOLDERS:
|
||
|
/s/
Xxxxxx Xxxxx Xxxxxxxxx
Xxxxxx
Xxxxx Xxxxxxxxx
|
||
|
/s/
Xxxx-Xxxx Xxxxxx
Xxxx-Xxxx
Xxxxxx
|
||
|
/s/
Xxxxx X. Xxxx
Xxxxx
X. Xxxx
|
||
-14-
[SIGNATURE
PAGE TO EXCHANGE AGREEMENT)
|
/s/
Xxxxx X. Xxxx
Xxxxx
X. Xxxx
|
||
|
/s/
Xxxxx X. Xxxxx
Xxxxx
X. Xxxxx
|
||
| /s/
Xxxxxxx X. Xxxx
Xxxxxxx X. Xxxx |
||
|
/s/
Xxxxxx X. Xxxxx
Xxxxxx
X. Xxxxx
|
||
|
/s/
Xxxxxxx X. Xxxx
Xxxxxxx
X. Xxxx
|
||
|
|
||
-15-
