Exhibit 2.1
AGREEMENT AND PLAN OF REORGANIZATION
AMONG
UINTAH MOUNTAIN COPPER COMPANY,
VOXPATH ACQUISITION CORP.,
VOXPATH NETWORKS, INC.,
AND
THE MAJOR SHAREHOLDERS
LISTED ON SCHEDULE A HERETO
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (hereinafter the "Agreement")
is entered into effective as of this 19th day of August, 2005, by and among
Uintah Mountain Copper Company, a Nevada corporation (hereinafter "Parent");
Voxpath Acquisition Corp., a newly formed Delaware corporation and wholly owned
subsidiary of Parent (hereinafter "Merger Sub"); the Major Shareholders listed
on Schedule A hereto (hereinafter the "Major Shareholders"); and Voxpath
Networks, Inc., a Delaware corporation (hereinafter the "Company").
RECITALS
WHEREAS, Parent desires to acquire the Company as a wholly-owned
subsidiary and to issue shares of Parent Common Stock (as defined below) to the
stockholders of the Company upon the terms and conditions set forth herein.
Merger Sub is a wholly-owned subsidiary corporation of Parent that shall be
merged into the Company, whereupon the Company shall be the surviving
corporation of said merger and shall become a wholly-owned subsidiary of Parent
(Merger Sub and the Company are sometimes collectively hereinafter referred to
as the "Constituent Corporations").
WHEREAS, the boards of directors of each of Parent, Merger Sub and the
Company deem it advisable and in the best interests of such corporations and
their respective stockholders that Merger Sub merge with and into the Company
pursuant to this Agreement and the Delaware Certificate of Merger (in the form
attached hereto as Exhibit A) and pursuant to applicable provisions of law (such
transaction hereafter referred to as the "Merger").
WHEREAS, Merger Sub has an authorized capitalization consisting of
50,000,000 shares of common stock, par value $0.001 per share, of which
50,000,000 shares shall be issued and outstanding and owned by Parent as of the
closing of the Merger.
WHEREAS, Parent has an authorized capitalization consisting of
100,000,000 shares of common stock, par value $0.001 per share ("Parent Common
Stock"), of which, 700,000 shares of Parent Common Stock shall be, as of the
Effective Date ( as defined below), issued and outstanding and no shares of
Parent Common Stock are reserved for issuance pursuant to options, warrants or
other securities that are convertible into or exchangeable for Parent Common
Stock, in each case as of the Effective Date.
WHEREAS, the Company has an authorized capitalization consisting of
79,000,000 shares of common stock, par value $0.001 per share ("Company Common
Stock"), and 61,000,000 shares of preferred stock, par value $0.001 per share
("Company Preferred Stock"), of which, 4,952,681 shares of Company Common Stock
are currently issued and outstanding, and 18,348,430 shares of Company Common
Stock are subject to currently issued and outstanding options and warrants, and
19,617,590 shares of Company Preferred Stock, have been designated as Series D
Convertible Preferred Stock ("Company Series D Preferred Stock"), all of which
are issued and outstanding, and 41,382,410 of which have been designated as
Series E Convertible Preferred Stock ("Company Series E Preferred Stock") in
each case as of the Effective Date.
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NOW THEREFORE, for the mutual consideration set out herein, and other
good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties agree as follows:
AGREEMENT
1. Plan of Reorganization. The parties to this Agreement do hereby agree
that Merger Sub shall be merged with and into the Company upon the terms and
conditions set forth herein and in accordance with the provisions of the
Delaware General Corporation Law. It is the intention of the parties hereto that
this transaction qualify as a tax-free reorganization under Section 368(a)(2)(E)
of the Internal Revenue Code of 1986, as amended, and related sections
thereunder.
2. Terms of Merger. In accordance with the provisions of this Agreement and
the requirements of applicable law, Merger Sub shall be merged with and into the
Company as of the Effective Date (the terms "Closing" and "Effective Date" are
defined in Section 7 hereof). The Company shall be the surviving corporation
(hereinafter the "Surviving Corporation") and the separate existence of Merger
Sub shall cease when the Merger shall become effective. Consummation of the
Merger shall be upon the following terms and subject to the conditions set forth
herein:
(a) Corporate Existence.
(i) Commencing with the Effective Date, the Surviving Corporation
shall continue its corporate existence as a Delaware corporation and (i) it
shall thereupon and thereafter possess all rights, privileges, powers,
franchises and property (real, personal and mixed) of each of the
Constituent Corporations; (ii) all debts due to either of the Constituent
Corporations, on whatever account, all causes in action and all other
things belonging to either of the Constituent Corporations shall be taken
and deemed to be transferred to and shall be vested in the Surviving
Corporation by virtue of the Merger without further act or deed; and (iii)
all rights of creditors and all liens, if any, upon any property of any of
the Constituent Corporations shall be preserved unimpaired, limited in lien
to the property affected by such liens immediately prior to the Effective
Date, and all debts, liabilities and duties of the Constituent Corporations
shall thenceforth attach to the Surviving Corporation.
(ii) At the Effective Date, (i) the Fifth Amended and Restated
Certificate of Incorporation of the Company, as amended, shall be the
Certificate of Incorporation of the Surviving Corporation, and the By-laws
of the Company, as existing immediately prior to the Effective Date, shall
be and remain the By-laws of the Surviving Corporation; (ii) the members of
the Board of Directors of the Company holding office immediately prior to
the Effective Date shall remain as the members of the Board of Directors of
the Surviving Corporation (if on or after the Effective Date a vacancy
exists on the Board of Directors of the Surviving Corporation, such vacancy
may thereafter be filled in a manner provided by applicable law and the
By-laws of the Surviving Corporation); and (iii) until the Board of
Directors of the Surviving Corporation shall otherwise determine, all
persons who hold offices of the Company at the Effective Date shall
continue to hold the same offices of the Surviving Corporation.
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(b) Conversion of Securities. As of the Effective Date and without any
action on the part of Parent, Merger Sub, the Company or the holders of any of
the securities of any of these corporations, each of the following shall occur:
(i) Each share of Company Common Stock issued and outstanding
immediately prior to the Effective Date shall be converted into 0.1563
shares of Parent Common Stock (the "Conversion Ratio"). All such shares of
Company Common Stock shall no longer be outstanding and shall automatically
be canceled and shall cease to exist, and each certificate previously
evidencing any such shares shall thereafter represent the right to receive,
upon the surrender of such certificate in accordance with the provisions of
Section 4 hereof, certificates evidencing such number of shares of Parent
Common Stock, respectively, into which such shares of Company Common Stock
were converted. The holders of such certificates previously evidencing
shares of Company Common Stock outstanding immediately prior to the
Effective Date shall cease to have any rights with respect to such shares
of Company Common Stock except as otherwise provided herein or by law. The
shares of Parent Common Stock issued to the holders of the capital stock of
the Company shall be subject to certain restrictions on any sale,
assignment, transfer, encumbrance or other manner of disposition as more
fully set forth below;
(ii) Each share of Company Series D Preferred Stock issued and
outstanding immediately prior to the Effective Date shall be automatically
converted into 0.1563 shares of Parent Common Stock. All such shares of
Company Series D Preferred Stock shall no longer be outstanding and shall
automatically be canceled and shall cease to exist, and each certificate
previously evidencing any such shares shall thereafter represent the right
to receive, upon the surrender of such certificate in accordance with the
provisions of Section 4 hereof, certificates evidencing such number of
shares of Parent Common Stock, respectively, into which such shares of
Company Series D Preferred Stock were converted. The holders of such
certificates previously evidencing shares of Company Series D Preferred
Stock outstanding immediately prior to the Effective Date shall cease to
have any rights with respect to such shares of Company Series D Preferred
Stock except as otherwise provided herein or by law. The shares of Parent
Common Stock issued to the holders of the capital stock of the Company
shall be subject to certain restrictions on any sale, assignment, transfer,
encumbrance or other manner of disposition as more fully set forth below;
(iii) Each share of Company Series E Preferred Stock issued and
outstanding immediately prior to the Effective Date shall be automatically
converted into 0.1563 shares of Parent Common Stock. All such shares of
Company Series E Preferred Stock shall no longer be outstanding and shall
automatically be canceled and shall cease to exist, and each certificate
previously evidencing any such shares shall thereafter represent the right
to receive, upon the surrender of such certificate in accordance with the
provisions of Section 4 hereof, certificates evidencing such number of
shares of Parent Common Stock, respectively, into which such shares of
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Company Series E Preferred Stock were converted. The holders of such
certificates previously evidencing shares of Company Series E Preferred
Stock outstanding immediately prior to the Effective Date shall cease to
have any rights with respect to such shares of Company Series E Preferred
Stock except as otherwise provided herein or by law. The shares of Parent
Common Stock issued to the holders of the capital stock of the Company
shall be subject to certain restrictions on any sale, assignment, transfer,
encumbrance or other manner of disposition as more fully set forth below;
(iv) Any shares of capital stock of the Company held in the treasury
of the Company immediately prior to the Effective Date shall automatically
be canceled and extinguished without any conversion thereof and no payment
shall be made with respect thereto;
(v) Each share of capital stock of Merger Sub issued and outstanding
immediately prior to the Effective Date shall remain in existence as one
share of common stock of the Surviving Corporation, which shall be owned by
Parent;
(vi) Notwithstanding anything in this Agreement to the contrary, any
shares of Voxpath Capital Stock issued and outstanding immediately prior to
the Effective Time and held by a holder (a "Dissenting Stockholder") who
has not voted in favor of the Merger or consented thereto in writing and
who has properly demanded appraisal for such shares in accordance with the
Delaware General Corporation Law ("Dissenting Shares") shall not be
converted into a right to receive the Parent Common Stock at the Effective
Time, but shall represent and become the right to receive such
consideration as may be determined to be due to such Dissenting Stockholder
pursuant to the laws of the State of Delaware, unless and until such holder
fails to perfect or withdraws or otherwise loses such holder's right to
appraisal and payment under the Delaware General Corporation Law (the
"DGCL"). At the Effective Time, by virtue of the Merger and without any
action on the part of the holder thereof, all Dissenting Shares shall be
cancelled and shall cease to exist. If, after the Effective Time, such
Dissenting Stockholder fails to perfect or withdraws or otherwise loses
such holder's right to appraisal, such former Dissenting Shares held by
such holder shall be treated as if they had been converted as of the
Effective Time into a right to receive, upon surrender as provided above,
Parent Common Stock without any interest thereon. Voxpath shall give
Voxpath Holdings, Inc. prompt notice of any demands received for appraisal
of shares of Voxpath capital, any withdrawals of any such demands and any
other instruments served pursuant to the DGCL and received by Voxpath.
(c) Other Matters.
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(i) The shares of Parent Common Stock to be issued pursuant to this
Agreement to the current stockholders of the Company (the "Company
Stockholders") shall be subject to a prohibition against any sale,
assignment, transfer, encumbrance or other manner of disposition (a
"Transfer"), for a period of twelve (12) months after the Effective Date
(the "Transfer Restriction"). After the Effective Date, the Board of
Directors of Parent (as then constituted) shall release ten percent (10%)
of such shares from the Transfer Restriction for each thirty day period
that has elapsed subsequent to the Effective Time. The Board of Directors
of Parent, in their sole discretion, depending on market conditions, may
elect to release more or less than ten percent (10%) of such shares from
the Transfer Restrictions in any thirty day period. The number of shares of
Parent Common Stock held by the former Company shareholders to be released
from the Transfer Restriction shall in any case be determined pro-rata
based on the ownership of Parent Common Stock among the former Company
shareholders.
A. The certificates representing shares of Parent Common Stock to be
issued pursuant to this Agreement shall, unless and until the
Transfer Restriction has been released as to the shares such
certificate represents, bear the following legend:
B. "THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER AND MAY NOT BE SOLD, ASSIGNED,
TRANSFERRED, ENCUMBERED OR IN ANY MANNER DISPOSED OF UNTIL ONE
YEAR FROM THE DATE OF ISSUANCE OR AT SUCH EARLIER TIME AS THE
RESTRICTIONS ARE REMOVED BY THE CORPORATION."
C. Parent may impose stop-transfer orders to effectuate these
provisions.
(ii) Upon the effectiveness of the Merger, each outstanding option or
warrant to purchase Company Common Stock, whether or not then exercisable,
shall be converted into an option or warrant to purchase (in substitution
for each share of Company Common Stock subject to an option or warrant to
purchase Company Common Stock) 0.1563 shares of Parent Common Stock at a
price equal to the exercise price per share in effect immediately prior to
the Merger divided by the Conversion Ratio. All other terms and conditions
of each option or warrant to purchase Company Common Stock shall remain the
same.
(iii) At the Closing, the Board of Directors of Parent shall increase
the size of the Board of Directors of Parent to consist of four (4)
directors and the existing directors of Parent shall nominate and elect to
the Board of Directors of Parent Xxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxxx,
Kalvirayan S. Mani and Kumar X. Xxxxxxxxxxx, or such other persons
designated by the Company, and all of the persons serving as directors and
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officers of Parent immediately prior to the Closing shall thereafter resign
from all of their positions with Parent, all subject to compliance with
Rule 14f-1 promulgated under the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
3. Escrow. On the Effective Date, Parent and the Major Shareholders shall
deliver to The Drage Law Firm, P.C. (the "Escrow Agent") certificates
representing 140,000 shares of Parent Common Stock (the "Escrow Shares"). The
Escrow Shares shall be held in escrow for the purpose of securing the
indemnification obligations of the Major Shareholders set forth in this
Agreement. The Escrow Shares shall be held by the Company under the Escrow
Agreement attached hereto as Exhibit B and pursuant to the terms thereof. The
Escrow Shares shall be held as a trust fund and shall not be subject to any
lien, attachment, trustee process or any other judicial process of any creditor
of any party, and shall be held and disbursed solely for the purposes and in
accordance with the terms of the Escrow Agreement.
(a) The adoption of this Agreement and the approval of the Merger by
the Major Shareholders shall constitute approval of the Escrow Agreement
and of all of the arrangements relating thereto, including without
limitation the placement of the Escrow Shares in escrow and the appointment
of the Shareholder Representatives.
(b) During the term of the Escrow Agreement, all dividends paid on the
Escrow Shares will be distributed currently to the Major Shareholders and
all voting rights of the Escrow Shares will be exercisable by or on behalf
of the Major Shareholders or their authorized agent(s).
4. Delivery of Shares. Promptly after the Effective Date, Parent shall mail
to each record holder of certificates formerly representing all of such holder's
shares of Company capital stock (the "Old Certificates"), at the address set
forth on books of Parent, (i) a notice of the effectiveness of the Merger and
(ii) a Letter of Transmittal in a form reasonably acceptable to the Company. The
Letter of Transmittal shall include an undertaking to be bound by the
restrictions on transfer contained herein. Upon surrender of an Old Certificate,
together with a Letter of Transmittal duly executed and completed in accordance
with the instructions thereto, the holder of such Old Certificate (other than
Old Certificates representing Dissenting Shares) shall be entitled to receive in
exchange therefor, certificates representing the shares of Parent Common Stock
into which such holder's shares of Company capital stcok were converted pursuant
to the Merger (the "New Certificates"), that such holder is entitled to receive,
which shall be delivered by Parent in accordance with the instructions provided
by such holder in the Letter of Transmittal executed by such holder. Until
surrendered and exchanged as herein provided, each outstanding certificate
which, prior to the Effective Date, represented Company Common Stock shall be
deemed for all corporate purposes to evidence ownership of the same number of
shares of Parent Common Stock into which the shares of Company Common Stock
represented by such certificate shall have been so converted. No dividends or
other distributions declared or made with respect to Parent Common Stock after
the Effective Date will be paid to the holder of any certificate that prior to
the Effective Date evidenced shares of Company Common Stock until the holder of
such certificate surrenders or exchanges such certificate as herein provided.
Subject to the effect of any applicable abandoned property, escheat or similar
laws, following surrender of any such certificate, there will be paid to the
holder of the certificates evidencing shares of Parent Common Stock issued in
exchange therefor, without interest, (i) the amount of dividends or other
distributions with a record date after the Effective Date theretofore paid with
respect to such shares of Parent Common Stock and (ii) at the appropriate
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payment date, the amount of dividends or other distributions, with a record date
after the Effective Date but prior to the surrender and a payment date occurring
after surrender, payable with respect to such shares of Parent Common Stock less
any withholding taxes which are required thereon. No party hereto will be liable
to any former holder of Company Common Stock for any Parent Common Stock or
dividends or distributions thereon in each case delivered to a public official
pursuant to any applicable abandoned property, escheat or similar law. In the
event any certificate representing Company Common Stock shall have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the holder
of Company Common Stock claiming such certificate to be lost, stolen or
destroyed and an agreement by such holder to indemnify and hold harmless Parent
and the Surviving Corporation against any claim that may be made against them
with respect to such certificate, Parent will issue in exchange for such lost,
stolen or destroyed certificate Parent Common Stock to which such holder is
entitled pursuant to this Agreement.
5. Representations of the Company. The Company hereby represents and
warrants as follows, which warranties and representations shall also be true as
of the Closing:
(a) As of the Effective Date, 4,952,681 shares of Company Common Stock
are issued and outstanding, 19,617,590 shares of the Company Series D
Preferred Stock are issued and outstanding, and 33,966,986 shares of the
Company Series E Preferred Stock are issued and outstanding. Other than the
exercise or conversion of outstanding options or warrants to purchase
Company Common Stock, the foregoing shares represent all of the shares of
the Company's capital stock that will be issued and outstanding as of the
Closing.
(b) The issued and outstanding shares of Company Common Stock and
Company Preferred Stock constitute duly authorized, validly issued shares
of capital stock of the Company. All issued and outstanding shares of
Company Common Stock and Company Preferred Stock are fully paid and
nonassessable.
(c) The Company audited financial statements as of and for the year
ended March 31, 2005, which have been made available to Parent (hereinafter
referred to as the "Company Financial Statements"), fairly present the
financial condition of the Company as of the date thereof and the results
of its operations for the period covered. Other than as set forth in any
schedule or Exhibit attached hereto, and except as may otherwise be set
forth or referenced herein, there are no material liabilities or
obligations, either fixed or contingent, not disclosed or referenced in the
Company Financial Statements or in any exhibit thereto or notes thereto
other than contracts or obligations occurring in the ordinary course of
business since March 31, 2005; and no such contracts or obligations
occurring in the ordinary course of business constitute liens or other
liabilities which materially alter the financial condition of the Company
as reflected in the Company Financial Statements. The Company has or will
have at the Closing, good title to all assets shown on the Company
Financial Statements subject only to dispositions and other transactions in
the ordinary course of business, the disclosures set forth therein and
liens and encumbrances of record. The Company Financial Statements have
been prepared in accordance with generally accepted accounting principles
(except as may be indicated therein or in the notes thereto and except for
the absence of footnotes).
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(d) Except as set forth in Schedule 5(d), since March 31, 2005 there
have not been any material adverse changes in the financial position of the
Company except changes arising in the ordinary course of business, which
changes will not materially and adversely affect the financial position of
the Company.
(e) The Company is not a party to any material pending litigation or,
to the knowledge (herein, "Knowledge"), of its executive officers, any
governmental investigation or proceeding, not reflected in the Company
Financial Statements, and, to its Knowledge, no material litigation,
claims, assessments or any governmental proceedings are threatened against
the Company.
(f) The Company is in good standing in the State of Delaware, and is
in good standing and duly qualified to do business in each state where the
Company is required to be so qualified except where the failure to so
qualify would have no material negative impact on the Company.
(g) The Company has, or by the Closing will have, filed all material
tax, governmental and/or related forms and reports (or extensions thereof)
due or required to be filed in the ordinary course of business and has (or
will have) paid or made adequate provisions for all taxes or assessments
which have become due as of the Closing, except where the failure to do so
would not have a material adverse effect on the Company.
(h) The Company has not materially breached any material agreement to
which it is a party. The Company has made available to Parent copies of or
access to all material contracts, commitments and/or agreements to which
the Company is a party, including all contracts covering relationships or
dealings with related parties or affiliates.
(i) The Company has no subsidiary corporations.
(j) The Company has made its corporate financial records, minute
books, and other corporate documents and records available for review to
present management of Parent prior to the Closing, during reasonable
business hours and on reasonable notice.
(k) The Company has the corporate power to enter into this Agreement
and to perform its obligations hereunder. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby
have been or will prior to the Closing be duly authorized by the Board of
Directors of the Company and by the stockholders of the Company. The
execution of this Agreement does not materially violate or breach any
material agreement or contract to which the Company is a party, and the
Company, to the extent required, has (or will have by Closing) obtained all
necessary approvals or consents required by any agreement to which the
Company is a party. The execution and performance of this Agreement will
not violate or conflict with any provision of the Certificate of
Incorporation or By-laws of the Company.
(l) Information regarding the Company which has been delivered by the
Company to Parent for use in connection with the Merger, is true and
accurate in all material respects.
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6. Representations of Parent, Merger Sub and the Major Shareholder. Parent,
Merger Sub and the Major Shareholders hereby jointly and severally represent and
warrant as follows, each of which representations and warranties shall also be
true as of the Closing:
(a) As of the Closing, the shares of Parent Common Stock to be issued
and delivered to the Company Stockholders hereunder and in connection
herewith will, when so issued and delivered, constitute duly authorized,
validly and legally issued, fully-paid, nonassessable shares of Parent
capital stock, will not be issued in violation of any preemptive or similar
rights and will be issued free and clear of all liens and encumbrances. As
of the Closing, the shares of Parent Common Stock to be reserved for
issuance to the holders of options and warrants to purchase Company Common
Stock, when so issued and delivered in accordance with such options or
warrants, will constitute duly authorized, validly and legally issued,
fully-paid, nonassessable shares of Parent capital stock, will not be
issued in violation of any preemptive or similar rights and will be issued
free and clear of all liens and encumbrances.
(b) Parent and Merger Sub each has the corporate power to enter into
this Agreement and to perform its obligations hereunder. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby (i) have been duly authorized by the respective Boards
of Directors of Parent and Merger Sub and by Parent as the sole stockholder
of Merger Sub and (ii) do not need to be approved or authorized by the
stockholders of Parent. This Agreement has been duly executed and delivered
by each of Parent and Merger Sub and constitutes a legal, valid and binding
obligation of Parent and Merger Sub, enforceable against Parent and Merger
Sub in accordance with its terms except as enforcement may be limited by
applicable bankruptcy, insolvency or other laws affecting creditor's rights
generally or by legal principles of general applicability governing the
availability of equitable remedies. The execution and performance of this
Agreement will not constitute a material breach of any agreement,
indenture, mortgage, license or other instrument or document to which
Parent, Merger Sub or any Major Shareholder is a party or to which it is
otherwise subject and will not violate any judgment, decree, order, writ,
law, rule, statute, or regulation applicable to Parent, Merger Sub, any
Major Shareholder or their respective properties. The execution and
performance of this Agreement will not violate or conflict with any
provision of the respective Articles of Incorporation or Certificate of
Incorporation or by-laws of either Parent or Merger Sub.
(c) Parent has delivered to the Company a true and complete copy of
its audited financial statements for the fiscal years ended December 30,
2002, 2003 and 2004, and the unaudited financial statements for the three
months ended March 31, 2005 (the "Parent Financial Statements"). The Parent
Financial Statements are complete, accurate and fairly present the
financial condition of Parent as of the dates thereof and the results of
its operations for the periods then ended. There are no material
liabilities or obligations either fixed or contingent not reflected
therein. The Parent Financial Statements have been prepared in accordance
with generally accepted accounting principles applied on a consistent basis
(except as may be indicated therein or in the notes thereto) and fairly
present the financial position of Parent as of the dates thereof and the
results of its operations and changes in financial position for the periods
then ended. Merger Sub has no financial statements because it was recently
formed solely for the purpose of effectuating the Merger and it has been,
is and will remain inactive except for purposes of the Merger, and it has
no assets, liabilities, contracts or obligations of any kind other than as
incurred in the ordinary course of business in connection with its
incorporation in Delaware. Parent has no subsidiaries (other than Merger
Sub) or affiliates and does not have any direct or indirect equity
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participation or similar interest in any corporation, partnership, limited
liability company, joint venture, trust or other business. Merger Sub has
no subsidiaries or affiliates (other than Parent) and does not have any
direct or indirect equity participation or similar interest in any
corporation, partnership, limited liability company, joint venture, trust
or other business.
(d) Since March 31, 2005, there have not been any material adverse
changes in the financial condition of Parent. At the Closing, neither
Parent nor Merger Sub shall have any material assets other than those
reflected in the Parent Financial Statements. At Closing, Parent shall have
entered into agreements effective as of the Effective Time to convert all
liabilities of Parent into shares of Parent Common Stock such that at the
Effective Time Parent shall not have any liabilities of any kind. Merger
Sub now has no, and at Closing shall not have any, liabilities of any kind.
(e) Neither Parent nor Merger Sub is a party to, or the subject of,
any pending litigation, claims, or governmental investigation or proceeding
not reflected in the Parent Financial Statements, and to the Knowledge of
any Major Shareholder, Parent and Merger Sub, there are no lawsuits,
claims, assessments, investigations, or similar matters, threatened or
contemplated against or affecting Merger Sub, Parent, or the management or
properties of Parent or Merger Sub.
(f) Parent and Merger Sub are each duly organized, validly existing
and in good standing under the laws of the jurisdiction of their
incorporation; each has the corporate power to own, lease and operate its
property and to carry on its business as now being conducted and is duly
qualified to do business and in good standing to do business in any
jurisdiction where so required except where the failure to so qualify would
have no material negative impact. Neither corporation is required to be
qualified to do business in any state other than the States of Nevada and
Utah.
(g) Parent and Merger Sub have each filed all federal, state, county
and local income, excise, property and other tax, governmental and/or other
returns, forms, filings, or reports, which are due or required to be filed
by it prior to the date hereof and have paid or made adequate provision in
the Parent Financial Statements for the payment of all taxes, fees, or
assessments which have or may become due pursuant to such returns, filings
or reports or pursuant to any assessments received. Neither Parent nor
Merger Sub is delinquent or obligated for any tax, penalty, interest,
delinquency or charge and there are no tax liens or encumbrances applicable
to either corporation.
(h) At the Effective Date (without giving effect to the issuance of
Parent Common Stock pursuant to the Merger), Parent's authorized capital
stock will consist of 100,000,000 shares of Parent Common Stock, of which
700,000 shares of Parent Common Stock will be issued and outstanding.
Merger Sub's capitalization consists solely of 50,000,000 authorized shares
of common stock, par value $0.001 per share, of which 50,000,000 shares are
outstanding, all of which are owned by Parent, free and clear of all liens,
claims and encumbrances. All outstanding shares of capital stock of Parent
and Merger Sub are, and shall be at Closing, validly issued, fully paid and
nonassessable. There are no existing options, convertible or exchangeable
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securities, calls, claims, warrants, preemptive rights, registration rights
or commitments of any character relating to the issued or unissued capital
stock or other securities of either Parent or Merger Sub. There are no
voting trusts, proxies or other agreements, commitments or understandings
of any character to which Parent or Merger Sub is a party or by which
Parent or Merger Sub is bound with respect to the voting of any capital
stock of Parent or Merger Sub. There are no outstanding stock appreciation,
phantom stock or similar rights with respect to any capital stock of Parent
or Merger Sub. There are no outstanding obligations to repurchase, redeem
or otherwise acquire any shares of capital stock of Parent or Merger Sub.
(i) Parent and Merger Sub have (and at the Closing they will have)
disclosed in writing to the Company all events, conditions and facts
materially affecting the business, financial conditions (including any
liabilities, contingent or otherwise) or results of operations of either
Parent or Merger Sub.
(j) The financial records, minute books, and other documents and
records of Parent and Merger Sub have been made available to the Company
prior to the Closing. The records and documents of Parent and Merger Sub
that have been delivered to the Company constitute all of the records and
documents of Parent and Merger Sub that any Major Shareholder is aware of
or that are in his or her possession or in the possession of Parent or
Merger Sub.
(k) Neither Parent nor Merger Sub has breached, nor is there any
pending, or to the Knowledge of any Major Shareholder, any existing or
threatened claim that Parent or Merger Sub has breached, any of the terms
or conditions of any agreements, contracts, commitments or other documents
to which it is a party or by which it is, or its properties are bound. The
execution and performance of this Agreement will not violate any provisions
of applicable law or any agreement to which Parent or Merger Sub is
subject. Each of Parent and Merger Sub hereby represent and warrant that it
is not a party to any material contract or commitment, and that it has
disclosed to the Company in writing all previous or existing relationships
or dealings with related or controlling parties or affiliates of Parent,
Merger Sub or any Major Shareholder. Each of Parent and Merger Sub hereby
represent and warrant that there are no currently existing agreements with
any affiliates, related or controlling persons or entities of Parent,
Merger Sub or any Major Shareholder.
(l) Parent has complied with all of the provisions relating to the
issuance of securities, and for the registration thereof, under the
Securities Act of 1933, as amended (the "Securities Act"), other applicable
securities laws, and all applicable blue sky laws in connection with any
and all of its stock issuances. There are no outstanding, pending or
threatened stop orders or other actions or investigations relating thereto
involving federal and state securities laws. All issued and outstanding
shares of Parent's capital stock were offered and sold in compliance with
federal and state securities laws and were not offered, sold or issued in
violation of any preemptive right, right of first refusal or right of first
offer and are not subject to any right of recission.
(m) Parent was organized for the purpose of developing mining claims
and was not formed for the purpose of engaging in a merger or acquisition
with an unidentified company and is not, nor has it ever been, a blank
check company.
12
(n) All information regarding Parent which has been provided to the
Company by Parent or set forth in any document or other communication,
disseminated to any former, existing or potential shareholders of Parent or
to the public or filed with The National Association of Securities Dealers,
Inc. ("NASD") or the Securities and Exchange Commission ("SEC") or any
state securities regulators or authorities is true, complete, accurate in
all material respects, not misleading, and was and is in full compliance
with all securities laws and regulations.
(o) Parent is and has been in compliance with, and Parent has
conducted any business previously owned or operated by it in compliance
with, all applicable laws, orders, rules and regulations of all
governmental bodies and agencies, including applicable securities laws and
regulations (including, without limitation, the Sarbanes Oxley Act of 2002)
and environmental laws and regulations, except where such noncompliance has
and will have, in the aggregate, no material adverse effect. Parent has not
received notice of any noncompliance with the foregoing, nor does it or any
Major Shareholder have Knowledge of any claims or threatened claims in
connection therewith. Parent has never conducted any operations or engaged
in any business transactions whatsoever other than as set forth in the
reports Parent has previously filed with the SEC.
(p) Without limiting the foregoing, (i) Parent and any other person or
entity for whose conduct Parent is legally held responsible are and have
been in material compliance with all applicable federal, state, regional,
and local laws, statutes, ordinances, judgments, rulings and regulations
relating to any matters of pollution, protection of the environment, health
or safety, or environmental regulation or control, and (ii) neither Parent
nor any other person for whose conduct Parent is legally held responsible
has manufactured, generated, treated, stored, handled, processed, released,
transported or disposed of any hazardous substance on, under, from or at
any of Parent's properties or in connection with Parent's operations.
(q) Parent has timely filed all required documents, reports and
schedules with the SEC, the NASD and any applicable state or regional
securities regulators or authorities (collectively, the "Parent SEC
Documents"). As of their respective dates, the Parent SEC Documents
complied in all material respects with the requirements of the Securities
Act, the Exchange Act, the NASD rules and regulations and state and
regional securities laws and regulations, as the case may be, and, at the
respective times they were filed, none of the Parent SEC Documents
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading. The financial statements (including, in each case,
any notes thereto) of Parent included in the Parent SEC Documents complied
as to form and substance in all material respects with applicable
accounting requirements and the rules and regulations of the SEC with
respect thereto, were prepared in accordance with generally accepted
accounting principles (except as may be indicated therein or in the notes
thereto) applied on a consistent basis during the periods involved (except
as may be indicated therein or in the notes thereto) and fairly presented
in all material respects the financial position of Parent as of the
respective dates thereof and the results of its operations and its cash
flows for the periods then ended (subject, in the case of unaudited
statements, to normal year-end audit adjustments and to any other
adjustments described therein).
13
(r) Except as and to the extent specifically disclosed in this
Agreement and as may be specifically disclosed or reserved against as to
amount in the latest balance sheet contained in the Parent Financial
Statements, there is no basis for any assertion against Parent of any
material liabilities or obligations of any nature, whether absolute,
accrued, contingent or otherwise and whether due or to become due, known or
unknown, including, without limitation, any liability for taxes (including
e-commerce sales or other taxes), interest, penalties and other charges
payable with respect thereto. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby will
(a) result in any payment (whether severance pay, unemployment compensation
or otherwise) becoming due from Parent to any person or entity, including
without limitation any employee, director, officer or affiliate or former
employee, director, officer or affiliate of Parent, (b) increase any
benefits otherwise payable to any person or entity, including without
limitation any employee, director, officer or affiliate or former employee,
director, officer or affiliate of Parent, or (c) result in the acceleration
of the time of payment or vesting of any such benefits.
(s) No aspect of Parent's past or present business, operations or
assets is of such a character as would restrict or otherwise hinder or
impair Parent from carrying on the business of Parent as it is presently
being conducted by Parent.
(t) Parent has no material contracts, commitments, arrangements, or
understandings relating to its business, operations, financial condition,
prospects or otherwise. For purposes of this Section 6, "material" means
payment or performance of a contract, commitment, arrangement or
understanding which is expected to involve payments in excess of $2,000.
(u) Other than this Agreement and the transactions contemplated
hereby, there are no outstanding contracts, commitments or bids, or
services, development, sales or other proposals of either Parent or Merger
Sub.
(v) There are no outstanding lease commitments that cannot be
terminated without penalty upon 30-days notice, or any purchase
commitments, in each case of either Parent or Merger Sub.
(w) No representation or warranty by Parent or Merger Sub contained in
this Agreement and no statement contained in any certificate, schedule or
other communication furnished pursuant to or in connection with the
provisions hereof contains or shall contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein not misleading. There is no current or prior event
or condition of any kind or character pertaining to Parent that may
reasonably be expected to have a material adverse effect on Parent or its
subsidiaries. Except as specifically indicated elsewhere in this Agreement,
all documents delivered by Parent in connection herewith have been and will
be complete originals, or exact copies thereof.
(x) Assuming all corporate consents and approvals have been obtained
and assuming the appropriate filings and mailings are made by Parent under
the Securities Act, the Exchange Act, with the NASD, and with the Secretary
of State of Delaware, the execution and delivery by Parent of this
Agreement and the closing documents and the consummation by Parent of the
transactions contemplated hereby do not and will not (i) require the
14
consent, approval or action of, or any filing or notice to, any
corporation, firm, person or other entity or any public, governmental or
judicial authority (except for such consents, approvals, actions, filing or
notices the failure of which to make or obtain will not in the aggregate
have a material adverse effect); or (ii) violate any order, writ,
injunction, decree, judgment, ruling, law, rule or regulation of any
federal, state, county, municipal, or foreign court or governmental
authority applicable to Parent, or its business or assets. Parent is not
subject to, or a party to, any mortgage, lien, lease, agreement, contract,
instrument, order, judgment or decree or any other material restriction of
any kind or character which would prevent, hinder, restrict or impair the
continued operation of the business of Parent (or to the Knowledge of
Parent, the continued operation of the business of the Company) after the
Closing.
(y) Xxxxx Xxxxxxxx is the sole director and sole executive officer of
each of Parent and Merger Sub. Except for Xxxxxxxx, Parent currently has no
employees, consultants or independent contractors other than its attorneys
and accountants, and there are no labor disputes, grievances or requests
for arbitration. Parent has no pension, retirement, savings, profit
sharing, stock-based, incentive compensation or other similar employee
benefit plan.
(z) Except as filed as exhibits to the Parent SEC Documents, Parent
has no "material contracts" (as defined in Item 601(b)(10) of Regulation
S-B of the SEC) to which it is a party. Parent is not a party to or bound
by any contract which would prohibit or materially delay the consummation
of the transactions contemplated by this Agreement. All of the Parent's
"material contracts" are in good standing, valid and effective in
accordance with their respective terms, and neitherParent nor any other
party to a "material contract" of Parent has violated any provision of, or
committed or failed to perform any act which, with or without notice, lapse
of time or both, would constitute a default under the provisions of, any
such "material contract."
(aa) Except as set forth in (i) the Parent SEC Documents, there are no
liabilities (including, but not limited to, tax liabilities) or claims
against PArent (whether such liabilities or claims are contingent or
absolute, direct or indirect, and matured or unmatured), and there is no
existing condition, situation or set of circumstances which could
reasonably be expected to result in such a liability or claim.
(bb) Parent is in compliance with the requirements of the
Xxxxxxxx-Xxxxx Act of 2002 applicable to it as of the date of this
Agreement. Parent maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific
authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to maintain
asset accountability, (iii) access to assets is permitted only in
accordance with management's general or specific authorization, and (iv)
the recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to any
differences. Parent has established disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for Parent and
designed such disclosures controls and procedures to ensure that material
information relating to Parent, is made known to the certifying officers by
others within Parent, particularly during the period in which Parent's Form
10-KSB or 10-QSB, as the case may be, is being prepared. Parent's
certifying officers have evaluated the effectiveness of Parent's controls
and procedures as of the date of its most recently filed periodic report
(such date, the "Evaluation Date"). Parent presented in its most recently
15
filed periodic report the conclusions of the certifying officers about the
effectiveness of the disclosure controls and procedures based on their
evaluations as of the Evaluation Date. Since the Evaluation Date, there
have been no significant changes in Parent's internal control over
financial reporting (as such term is defined in Exchange Act Rules
13a-15(f) and 15d-15(f)) or in other factors that could significantly
affect Parent's internal control over financial reporting. Parent's
auditors, at all relevant times, have been duly registered in good standing
with the Public Company Accounting Oversight Board.
(cc) There are no legal, administrative, arbitral or other
proceedings, claims, suits, actions or governmental investigations of any
nature pending, or to Parent's knowledge threatened, directly or indirectly
involving Parent or its officers, directors or affiliates, including, but
not limited to any stockholder claims or derivative actions, or challenging
the validity or propriety of the transactions contemplated by this
Agreement. Parent is not subject to any order, judgment, injunction, rule
or decree of any Governmental Authority or arbitrator.
(dd) Parent has all Permits required to own, lease and operate its
properties and to carry on its business as currently conducted. Parent: (i)
is not in default under or in violation of (and no event has occurred that
has not been waived that, with notice or lapse of time or both, would
result in a default by Parent under), nor has Parent received notice of a
claim that it is in default under or that it is in violation of, any
indenture, mortgage, deed of trust or other agreement, instrument or
contract to which Parent is a party or by which it or any of its assets or
properties are bound (whether or not such default or violation has been
waived), (ii) is not in violation of any order of any court, arbitrator or
governmental body, (iii) is not and has not been in violation of any law,
order, rule, regulation, writ, injunction, judgment or decree of any
Governmental Authority having jurisdiction over Parent or any of its
business or properties, including federal and state securities laws and
regulations and (iv) is not in violation of any of its Permits.
(ee) No sale of Parent's securities or Parent's use of the proceeds
from such sale has violated the Trading with the Enemy Act, as amended, or
any of the foreign assets control regulations of the United States Treasury
Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling
legislation or executive order relating thereto. Without limiting the
foregoing, Parent (i) is not a person whose property or interests in
property are blocked pursuant to Section 1 of Executive Order 13224 of
September 23, 2001 Blocking Property and Prohibiting Transactions with
Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg.
49079 (2001)) and (ii) does not engage in any dealings or transactions, or
be otherwise associated, with any such person. Parent is in compliance with
the USA Patriot Act of 2001.
(ff) There are no disagreements of any kind presently existing, or
reasonably anticipated by Parent to arise, between the accountants and
lawyers formerly or presently employed by Parent and Parent is current with
respect to any fees owed to its accountants and lawyers.
(gg) Parent has complied with all applicable environmental laws. There
is no pending or threatened civil or criminal litigation, written notice of
16
violation, formal administrative proceeding or investigation, inquiry or
information request by any Governmental Authority or other entity relating
to any environmental law involving Parent
(hh) The Parent Common Stock has been approved for listing on the
Over-The-Counter Bulletin Board (the "OTCBB") and Parent has and continues
to satisfy all of the requirements of the OTCBB for such listing and for
the trading of Parent Common Stock thereunder.
(ii) Parent confirms that neither it nor any other Person acting on
its behalf has provided Voxpath or its agents or counsel with any
information that constitutes or might constitute material, nonpublic
information concerning Parent. Parent understands and confirms thatVoxpath
will rely on the foregoing representations in effecting transactions in
securities of Parent. All disclosure provided to Voxpath regarding Parent,
its business and the transactions contemplated hereby furnished by or on
behalf of Parent with respect to the representations and warranties made
herein are true and correct with respect to such representations and
warranties and do not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
made therein not misleading. Parent acknowledges and agrees that Voxpath
has not made, nor is Voxpath making, any representations or warranties with
respect to the transactions contemplated hereby other than those
specifically set forth herein.
7. Closing. The Closing of the transactions contemplated herein shall take
place at the offices of Xxxxxxx Xxxxx LLP, 000 Xxxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxx 00000 on such date (the "Closing") as mutually determined by the
parties hereto when all conditions precedent have been met and all required
documents have been delivered, which Closing shall occur on or before September
17, 2005. The "Effective Date" of the Merger shall be that date and time
specified in the Certificate of Merger as the date on which the Merger shall
become effective.
8. Actions Prior to Closing.
(a) Prior to the Closing, the Company on the one hand, and Parent and
Merger Sub on the other hand, shall be entitled to make such investigations
of the assets, properties, business and operations of the other party, and
to examine the books, records, tax returns, financial statements and other
materials of the other party as such investigating party deems necessary in
connection with this Agreement and the transactions contemplated hereby.
Any such investigation and examination shall be conducted at reasonable
times and under reasonable circumstances, and the parties hereto shall
cooperate fully therein. Until the Closing, and if the Closing shall not
occur, thereafter, each party shall keep confidential and shall not use in
any manner inconsistent with the transactions contemplated by this
Agreement, and shall not disclose, nor use for their own benefit, any
information or documents obtained from the other party concerning the
assets, properties, business and operations of such party, unless such
information (i) is readily ascertainable from public or published
information, (ii) is received from a third party not under any obligation
to keep such information confidential, or (iii) is required to be disclosed
by any law or order (in which case the disclosing party shall promptly
provide notice thereof to the other party in order to enable the other
party to seek a protective order or to otherwise prevent such disclosure).
If this transaction is not consummated for any reason, each party shall
return to the other all such confidential information, including notes and
17
compilations thereof, promptly after the date of such termination. The
representations and warranties contained in this Agreement shall not be
affected or deemed waived by reason of the fact that either party hereto
discovered or should have discovered any representation or warranty is or
might be inaccurate in any respect.
(b) Prior to the Closing, the Company, Parent, Merger Sub, and each
Major Shareholder agree not to issue any statement or communications to the
public or the press regarding the transactions contemplated by this
Agreement without the prior written consent of the other parties. In the
event that Parent is required under federal securities law to either (i)
file any document with the SEC that discloses this Agreement or the
transactions contemplated hereby, or (ii) to make a public announcement
regarding this Agreement or the transactions contemplated hereby, Parent
shall provide the Company with a copy of the proposed disclosure no less
than 48 hours before such disclosure is made and shall incorporate into
such disclosure any reasonable comments or changes that the Company may
request.
(c) Prior to the Closing, except as contemplated by this Agreement,
there shall be no stock dividend, stock split, recapitalization, or
exchange of shares with respect to or rights, options or warrants issued in
respect of Parent Common Stock after the date hereof and there shall be no
dividends or other distributions paid on Parent Common Stock after the date
hereof, in each case through and including the Closing. Parent and Merger
Sub shall conduct no business, prior to the Closing, other than in the
ordinary course of business or as may be necessary in order to consummate
the transactions contemplated hereby. Prior to the Closing, Parent and
Merger Sub shall not take any action or enter into any agreement to issue
or sell any shares of capital stock of Parent or Merger Sub or any
securities convertible into or exchangeable for any shares of capital stock
of Parent or Merger Sub or to repurchase, redeem or otherwise acquire any
of the issued and outstanding capital stock of Parent or Merger Sub without
the prior written consent of the Company.
(d) Prior to the Closing, Parent and Merger Sub shall conduct their
business only in the usual and ordinary course and the character of such
business shall not be changed nor shall any different business be
undertaken. Prior to the Closing, except as contemplated hereby, Parent and
Merger Sub shall not incur any liabilities or obligations without the prior
written consent of the Company.
(e) Prior to the Closing, Parent will timely file all required Parent
SEC Documents and comply in all material respects with the requirements of
the Securities Act, the Exchange Act, the NASD rules and regulations and
state and regional securities laws and regulations.
(f) Prior to the Closing, if requested by the Company, Parent shall
adopt a new stock option plan in the manner requested by the Company.
(g) Prior to the Closing, Parent and each Major Shareholder shall take
such actions as shall be necessary to cancel any liabilities of Parent so
that Parent shall have no liabilities at the Effective Time.
18
(h) Prior to the Closing, Parent and each Major Shareholder shall take
such actions as shall be necessary to effect a reverse split of Parent
Common Stock such that the capital stock of Parent issued and outstanding
at the Effective Time (without giving effect to the issuance of Parent
Common Stock pursuant to the Merger) shall be approximately 700,000 shares
of Parent Common Stock (the "Reverse Split").
(i) Prior to the Closing, Parent shall take such action as shall be
necessary to change the name of Parent to "Voxpath Holdings, Inc." If this
Agreement is terminated in accordance with Section 16(c), Parent agrees to
change its name back to "Uintah Mountain Copper Company" or to such other
name as authorized by the Company promptly following such termination.
9. Conditions Precedent to the Obligations of the Company. All obligations
of the Company under this Agreement are subject to the fulfillment, prior to or
as of the Closing, of each of the following conditions:
(a) The representations and warranties by or on behalf of Parent,
Merger Sub and each Major Shareholder contained in this Agreement or in any
certificate or document delivered pursuant to the provisions hereof or in
connection herewith shall be true and correct in all material respects at
and as of the Closing as though such representations and warranties were
made at and as of such time.
(b) Parent and Merger Sub shall have performed and complied with all
covenants, agreements, and conditions set forth or otherwise contemplated
in, and shall have executed and delivered all documents required by, this
Agreement to be performed or complied with or executed and delivered by
them prior to or at the Closing.
(c) The directors of Parent and the directors and sole stockholder of
Merger Sub shall have approved in accordance with applicable state
corporation law the execution and delivery of this Agreement and the
consummation of the transactions contemplated herein.
(d) On or before the Closing Date, Parent and Merger Sub shall have
delivered to the Company certified copies of resolutions of the
stockholders and the directors of Merger Sub and Parent approving and
authorizing the execution, delivery and performance of this Agreement and
authorizing all of the necessary and proper action to enable Parent and
Merger Sub to comply with the terms of this Agreement, including the
election of the Company's nominees to the Board of Directors of Parent and
all matters outlined or contemplated herein.
(e) The Merger shall be permitted by applicable state law and
otherwise and Parent shall have sufficient shares of its capital stock
authorized to complete the Merger and the transactions contemplated hereby.
(f) At Closing, all of the directors and officers of Parent shall have
resigned in writing from their positions as directors and officers of
Parent effective upon the election and appointment of the Company nominees,
and the directors of Parent shall take such action as may be necessary or
desirable regarding such election and appointment of the Company nominees.
19
(g) At the Closing, all instruments and documents delivered by Parent
or Merger Sub, including to the Company Stockholders pursuant to the
provisions hereof shall be reasonably satisfactory to legal counsel for the
Company.
(h) The shares of Parent capital stock to be issued to the Company
Stockholders at Closing will be validly issued, nonassessable and fully
paid under Nevada corporation law.
(i) The Company shall have received all necessary and required
approvals and consents from required parties and from its stockholders.
(j) Parent shall have effected the Reverse Split such that the capital
stock of Parent issued and outstanding immediately at the Effective Time
(without giving effect to the issuance of Parent Common Stock pursuant to
the Merger) shall be approximately 700,000 shares of Parent Common Stock.
Parent and Merger Sub shall have no liabilities, whether or not accrued,
and there shall be no pending actions, proceedings or claims made or, to
the Knowledge of Parent or any Major Shareholder, threatened against Parent
at the Effective Time.
(k) At the Closing, Parent and Merger Sub shall have delivered to the
Company an opinion of Parent's legal counsel dated as of the Closing to the
effect that:
(i) Each of Parent and Merger Sub is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation;
(ii) This Agreement has been duly authorized, executed and
delivered by Parent and Merger Sub and is a valid and binding
obligation of Parent and Merger Sub enforceable in accordance with its
terms;
(iii) Parent and Merger Sub each through its Board of Directors
and stockholders have taken all corporate action necessary for
performance under this Agreement;
(iv) The documents executed and delivered to the Company and the
Company Stockholders hereunder are valid and binding in accordance
with their terms and vest in the Company Stockholders all right, title
and interest in and to the shares of Parent's capital stock to be
issued pursuant to Section 2 hereof, and the shares of Parent capital
stock when issued will be duly and validly issued, fully paid and
nonassessable;
(v) Parent and Merger Sub each has the corporate power to
execute, deliver and perform under this Agreement; and
(vi) Legal counsel for Parent and Merger Sub is not aware of any
liabilities, claims or lawsuits involving Parent or Merger Sub.
20
10. Conditions Precedent to the Obligations of Parent and Merger Sub. All
obligations of Parent and Merger Sub under this Agreement are subject to the
fulfillment, prior to or at the Closing, of each of the following conditions:
(a) The representations and warranties by the Company contained in
this Agreement or in any certificate or document delivered pursuant to the
provisions hereof shall be true and correct in all material respects at and
as of the Closing as though such representations and warranties were made
at and as of such times.
(b) The Company shall have performed and complied with, in all
material respects, all covenants, agreements, and conditions required by
this Agreement to be performed or complied with by it prior to or at the
Closing;
(c) The Company shall deliver an opinion of its legal counsel to the
effect that:
(i) The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the state of its
incorporation;
(ii) This Agreement has been duly authorized, executed and
delivered by the Company;
(iii) The Board of Directors and stockholders of the Company have
taken all corporate action necessary for performance under this
Agreement; and
(iv) The Company has the corporate power to execute, deliver and
perform under this Agreement.
11. Survival and Indemnification. All representations, warranties,
covenants and agreements contained in this Agreement, or in any schedule,
certificate, document or statement delivered pursuant hereto, shall survive (and
not be affected in any respect by) the Closing, any investigation conducted by
any party hereto and any information which any party may receive.
Notwithstanding the foregoing, the representations and warranties contained in
or made pursuant to this Agreement shall terminate on, and no claim or action
with respect thereto may be brought after, the third anniversary of the
Effective Date, except that the representations and warranties contained in
Section 6(h) of this Agreement shall survive indefinitely. The representations
and warranties which terminate on the third anniversary of the Effective Date,
and the liability of any party with respect thereto pursuant to this Section 11,
shall not terminate with respect to any claim, whether or not fixed as to
liability or liquidated as to amount, with respect to which the appropriate
party has been given written notice setting forth the facts upon which the claim
for indemnification is based prior to the third anniversary of the Effective
Date, as the case may be.
(a) The parties shall indemnify each other as set forth below:
(b) Subject to the provisions of this Section 11, each of the Major
Shareholder, Parent and Merger Sub (individually and collectively, the
"Parent Group") shall jointly and severally indemnify and hold harmless the
Company and the Company's past, present and future officers, directors,
stockholders, employees, attorneys, and agents (and after the Closing, the
Major Shareholder shall also indemnify Parent) (collectively, the "Company
Indemnified Parties") from and against any Losses (as defined below)
21
including, without limitation, any reasonable legal expenses to the extent
arising from, relating to or otherwise in respect of (i) any inaccuracy or
breach of any representation or warranty of the Parent Group contained in
Sections 6 or 14 of this Agreement (as of the date hereof, or as of the
Closing) or of any representation, warranty or statement made in any
schedule, certificate, document or instrument delivered by the Parent Group
or any officer or any of them at or in connection with the Closing, in each
case without giving effect to any materiality qualification (including
qualifications indicating accuracy in all material respects), or (ii) the
breach by the Parent Group, of or failure by the Parent Group to perform
any of its covenants or agreements contained in this Agreement; provided,
however, that (A) no member of the Parent Group shall be responsible for
any Losses with respect to the matters referred to in clauses (i) or (ii)
of this Section 11(a), until the cumulative aggregate amount of all such
Losses exceeds $10,000, in which event the Parent Group shall then be
liable for all such cumulative aggregate Losses, including the first
$10,000. Each member of the Parent Group specifically acknowledges and
agrees that any member of the Company Indemnified Party may proceed against
any member of the Parent Group under this Section 11 without
contemporaneously, or at any time, proceeding against any other member of
the Parent Group. As used herein, "Losses" shall mean any and all demands,
claims, complaints, actions or causes of action, suits, proceedings,
investigations, arbitrations, assessments, losses, damages, payments,
liabilities or obligations (including those arising out of any action, such
as any settlement or compromise thereof or judgment or award therein) and
any fees, costs and expenses related thereto, and the term "legal expenses"
shall mean the fees, costs and expenses of any kind incurred by any party
indemnified herein and its counsel in investigating, preparing for,
defending against or providing evidence, producing documents or taking
other action with respect to any threatened or asserted claim.
(c) Subject to the provisions of this Section 11, the Company shall
indemnify and hold harmless each member of the Parent Group (collectively,
the "Parent Group Indemnified Parties") from and against any Losses
(including, without limitation, any reasonable legal expenses) to the
extent arising from, relating to or otherwise in respect of (i) the
inaccuracy or breach of any representation or warranty of the Company
contained in Sections 5 or 14 of this Agreement (as of the date hereof, or
as of the Closing) or of any representation, warranty or statement made in
any schedule, certificate document or instrument delivered by the Company
or an officer of the Company at or in connection with the Closing, in each
case without giving effect to any materiality qualification (including
qualifications indicating accuracy in all material respects), or (ii) the
breach by the Company of or failure by the Company to perform any of its
covenants or agreements contained in this Agreement; provided, however,
that the Company shall not be responsible for any Losses with respect to
the matters until the cumulative aggregate amount of such Losses exceeds
$10,000, in which event the Company shall then be liable for all such
cumulative aggregate Losses, including the first $10,000.
(d) The procedure for satisfaction of claims from the Escrow Shares is
set forth in the Escrow Agreement; and in the event that the Escrow Shares
have been exhausted, the procedure for satisfaction of claims is as
follows: In order for a Company Indemnified Party or Parent Group
Indemnified Party (an "Indemnified Party") to be entitled to any
indemnification provided for under this Agreement, the Indemnified Party
shall deliver notice of its claim for indemnification with reasonable
promptness after determining to make such claim, to the Parent Group or any
member thereof (in the case of any indemnification claim under Section
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11(a)(1)) or to Parent (in the case of any indemnification claim under
Section 11(a)(2)). The failure by any Indemnified Party so to notify the
Parent Group (or any member thereof) or Parent, as the case may be, shall
not relieve any relevant indemnifying party (each relevant member of the
Parent Group, or the Company, as the case may be, being referred to herein
as an "Indemnifying Party") from any liability which he or it may have to
such Indemnified Party under this Agreement, except to the extent that such
claim for indemnification involves the claim of a third party against the
Indemnified Party and the Indemnifying Party shall have been actually
prejudiced by such failure. If an Indemnifying Party does not notify the
Indemnified Party within 30 calendar days following receipt by it of such
notice that such Indemnifying Party disputes its liability to the
Indemnified Party under this Agreement, such claim specified by the
Indemnified Party in such notice shall be conclusively deemed a liability
of such Indemnifying Party under this Agreement and such Indemnifying Party
shall pay the amount of such liability to the Indemnified Party on demand
or, in the case of any notice in which the amount of the claim (or any
portion thereof) is estimated, on such later date when the amount of such
claim (or such portion thereof) becomes finally determined. If an
Indemnifying Party has timely disputed its liability with respect to such
claim, as provided above, such Indemnifying Party and the Indemnified Party
shall proceed in good faith to negotiate a resolution of such dispute and,
if not resolved through negotiations, such dispute shall be resolved by
litigation in accordance with the terms of this Agreement.
(e) (i) If the claim involves a third party claim (a "Third Party
Claim"), then the Indemnifying Party shall have the right, at its sole
cost, expense and ultimate liability regardless of the outcome, and through
counsel of its choice (which counsel shall be reasonably satisfactory to
the Indemnified Party), to litigate, defend, settle or otherwise attempt to
resolve such Third Party Claim; provided, however, that if in the
Indemnified Party's reasonable judgment a conflict of interest may exist
between the Indemnified Party and the Indemnifying Party with respect to
such Third Party Claim, then the Indemnified Party shall be entitled to
select counsel of its own choosing, reasonably satisfactory to the
Indemnifying Party, in which event the Indemnifying Party shall be
obligated to pay the fees and expenses of such counsel.
(i) Notwithstanding the preceding paragraph, if in the
Indemnified Party's reasonable judgment no such conflict exists, the
Indemnified Party may, but will not be obligated to, participate at
its own expense in a defense of such Third Party Claim by counsel of
its own choosing, but the Indemnifying Party shall be entitled to
control the defense unless (A) in the case where only money damages
are sought, the Indemnified Party has relieved the Indemnifying Party
from liability with respect to the particular matter or (B) in the
case where equitable relief is sought, the Indemnified Party elects to
participate in and jointly control the defense thereof.
(ii) Whenever the Indemnifying Party controls the defense of a
Third Party Claim, the Indemnifying Party may only settle or
compromise the matter subject to indemnification without the consent
of the Indemnified Party if such settlement includes a complete
release of all Indemnified Parties as to the matters in dispute and
relates solely to money damages. The Indemnified Party will not
23
unreasonably withhold consent to any settlement or compromise that
requires its consent.
(iii) In the event the Indemnifying Party fails to timely defend,
contest, or otherwise protect the Indemnified Party against any such
claim or suit, the Indemnified Party may, but will not be obligated
to, defend, contest, or otherwise protect against the same, and make
any compromise or settlement thereof, and in such event, or in the
case where the Indemnified Party jointly controls such claim or suit,
the Indemnified Party shall be entitled to recover its costs thereof
from the Indemnifying Party, including attorneys' fees, disbursements
and all amounts paid as a result of such claim or suit or the
compromise or settlement thereof.
(iv) The Indemnified Party shall cooperate and provide such
assistance as the Indemnifying Party may reasonably request in
connection with the defense of the matter subject to indemnification
and in connection with recovering from any third parties amounts that
the Indemnifying Party may pay or be required to pay by way of
indemnification hereunder.
(f) The amount of Losses for which indemnification is provided
hereunder shall be computed without regard to any insurance recovery
related to such losses.
12. Nature of Representations. All of the parties hereto are executing and
carrying out the provisions of this Agreement in reliance solely on the
representations, warranties and covenants and agreements contained in this
Agreement and the other documents delivered at the Closing and not upon any
representation warranty, agreement, promise or information, written or oral,
made by the other party or any other person other than as specifically set forth
herein.
13. Documents at Closing. At the Closing, the following documents shall be
delivered:
(a) The Company will deliver, or will cause to be delivered, to Parent
the following:
(i) a certificate executed by the President of the Company to the
effect that all representations and warranties made by the Company
under this Agreement are true and correct as of the Closing, the same
as though originally given to Parent or Merger Sub on said date;
(ii) a certificate from the State of Delaware dated within five
business days of the Closing to the effect that the Company is in good
standing under the laws of Delaware;
(iii) such other instruments, documents and certificates, if any,
as are required to be delivered pursuant to the provisions of this
Agreement;
(iv) executed copy of the Certificate of Merger for filing in
Delaware;
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(v) certified copies of resolutions adopted by the stockholders
and directors of the Company authorizing the Merger;
(vi) all other items, the delivery of which is a condition
precedent to the obligations of Parent and Merger Sub, as set forth
herein; and
(vii) the legal opinion required by Section 9(l) hereof.
(b) Parent and Merger Sub will deliver or cause to be delivered to the
Company:
(i) stock certificates representing those securities of Parent to
be issued as a part of the Merger as described in Section 2 hereof;
(ii) a certificate of the President of Parent and Merger Sub,
respectively, to the effect that all representations and warranties of
Parent and Merger Sub made under this Agreement are true and correct
as of the Closing, the same as though originally given to the Company
on said date;
(iii) certified copies of resolutions adopted by the stockholders
and the Board of Directors of Merger Sub and the Board of Directors of
Parent authorizing the Merger and all related matters;
(iv) certificates from the jurisdiction of incorporation of
Parent and Merger Sub dated within five business days of the Closing
Date that each of said corporations is in good standing under the laws
of said state;
(v) executed copy of the Certificate of Merger for filing in
Delaware;
(vi) opinion of Parent's counsel as described in Section 9(l)
above;
(vii) such other instruments and documents as are required to be
delivered pursuant to the provisions of this Agreement;
(viii) written resignation of all of the officers and directors
of Parent and Merger Sub and the written appointment of the Company's
nominees as directors and officers of Parent; and
(ix) all other items, the delivery of which is a condition
precedent to the obligations of the Company, as set forth in Section 9
hereof.
14. Finder's Fees. Each Major Shareholder, Parent and Merger Sub, jointly
and severally, represent and warrant to the Company, and the Company represents
and warrants to each of the Major Shareholders, Parent and Merger Sub, that none
of them, or any party acting on their behalf, has incurred any liabilities,
either express or implied, to any "broker" or "finder" or similar person in
connection with this Agreement or any of the transactions contemplated hereby.
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15. Post-Closing Covenants.
(a) Financial Statements. After the Closing, Parent shall timely file
a current report on Form 8-K to report the Merger. In addition, for a
period of 12 months following the Closing, Parent shall use its
commercially reasonable efforts to timely file all reports and other
documents required to be filed by Parent under the Securities Exchange Act
of 1934.
(b) Standard and Poor's. If required, Parent shall use its
commercially reasonable efforts to apply for listing with Standard and
Poor's Information Service and Blue Sky filings.
(c) Confidentiality. Each Major Shareholder hereby agrees that, after
the Closing, he or she shall not publicly disclose any confidential
information of either Parent, Merger Sub or the Company, and that he or she
shall not make any public statement or announcement regarding the Merger or
the business, financial condition, prospects or operations of Parent or the
Company, without the prior written consent of the Company (or, after the
Effective Date, Parent).
(d) Limitation of Subsequent Corporate Actions. It is expressly
understood and agreed that the Company, and its affiliates and
stockholders, will take all steps necessary to ensure that with respect to
the operations of Parent for a period of twelve months following the
Effective Date, (i) Parent shall not cause a reverse split of the Parent
Common Stock, (ii) no shares of Parent Common Stock shall be issued for
less than $5.00 per share other than pursuant to options or warrants to
purchase Company Common Stock that are converted into options or warrants
to purchase Parent Common Stock in connection with the Merger, and (iii)
the assets of the Surviving Corporation as of the Effective Time shall not
be sold, transferred or assigned for less than fair market value to any
person that is not a direct or indirect wholly-owned subsidiary of Parent.
16. Miscellaneous.
(a) Further Assurances. At any time, and from time to time, after the
Effective Date, each party will execute such additional instruments and
take such action as may be reasonably requested by the other party to
confirm or perfect title to any property transferred hereunder or otherwise
to carry out the intent and purposes of this Agreement.
(b) Waiver. Any failure on the part of any party hereto to comply with
any of its obligations, agreements or conditions hereunder may be waived in
writing by the party (in its sole discretion) to whom such compliance is
owed.
(c) Termination. This Agreement and all obligations hereunder (other
than those under Section 16(l)) may be terminated (i) after October 15,
2005 at the discretion of either party if the Closing has not occurred by
October 15, 2005 (unless the Closing date is extended with the consent of
both the Company and Parent) for any reason other than the default
hereunder by the terminating party, (ii) at any time by the non-breaching
party if any of the representations and warranties or other agreements made
herein by the other party have been materially breached, (iii) by mutual
written consent of Parent and the Company or (iv) by the Company if the
Company Stockholders do not approve the Merger.
26
(d) Amendment. This Agreement may be amended only in writing as agreed
to by all parties hereto.
(e) Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been given if delivered in person or
sent by prepaid first class registered or certified mail, return receipt
requested to the last known address of the noticed party.
(f) Headings. The section and subsection headings in this Agreement
are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
(g) Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(h) Binding Effect. This Agreement shall be binding upon the parties
hereto and inure to the benefit of the parties, their respective heirs,
administrators, executors, successors and assigns.
(i) Entire Agreement. This Agreement and the attached Exhibits,
including the Certificate of Merger, which is attached hereto as Exhibit A,
is the entire agreement of the parties covering everything agreed upon or
understood in the transaction. There are no oral promises, conditions,
representations, understandings, interpretations or terms of any kind as
conditions or inducements to the execution hereof.
(j) Time. Time is of the essence.
(k) Severability. If any part of this Agreement is deemed to be
unenforceable, the balance of the Agreement shall remain in full force and
effect.
(l) Responsibility and Costs. Whether the Merger is consummated or
not, all fees, expenses and out-of-pocket costs, including, without
limitation, fees and disbursements of counsel, financial advisors and
accountants, incurred by the parties hereto shall be borne solely and
entirely by the party that has incurred such costs and expenses, unless the
failure to consummate the Merger constitutes a breach of the terms hereof,
in which event the breaching party shall be responsible for all costs of
all parties hereto. Notwithstanding the foregoing, however, the Major
Shareholder shall be responsible for all such costs and expenses incurred
by Parent and Merger Sub. The indemnification provisions of Section 10
shall not apply in the event of the termination of this Agreement prior to
the Closing as a result of a breach hereof by either party.
(m) Inapplicability of Indemnification Provisions. The provisions
contained in Parent's Articles of Incorporation and/or By-laws for
indemnifying officers and directors of that company shall not apply to the
representations and warranties made herein by each Major Shareholder or the
officers of Parent.
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(n) Applicable Law. This Agreement shall be construed and governed by
the internal laws of the State of Delaware.
(o) Jurisdiction and Venue. Each party hereto irrevocably consents to
the jurisdiction and venue of the state or federal courts located in Xxxxxx
County, State of Texas, in connection with any action, suit, proceeding or
claim to enforce the provisions of this Agreement, to recover damages for
breach of or default under this Agreement, or otherwise arising under or by
reason of this Agreement.
[Signature Pages Follow]
28
IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above written.
UINTAH MOUNTAIN COPPER COMPANY
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: President
VOXPATH ACQUISITION CORP.
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: President
VOXPATH NETWORKS, INC.
By: /s/ Kalvirayan S. Mani
Name: Kalvirayan S. Mani
Title: President
MAJOR SHAREHOLDERS:
By: /s/ Xxxxx Xxxxxxxx
Name:
Title:
By:
Name:
Title:
By:
Name:
Title:
29
SCHEDULE A
MAJOR SHAREHOLDERS
Xxxxx X. Xxxxxxxx
000 X. Xxxx Xx., Xxxxx 000
Xxxxxx, Xxxx 00000
30
EXHIBIT A
Certificate of Merger
Merging
VOXPATH ACQUISITION CORP.
(a Delaware corporation)
With and Into
VOXPATH NETWORKS, INC.
(a Delaware corporation)
The undersigned corporation DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of the constituent
corporations of the merger are as follows:
Name State of Incorporation
Voxpath Networks, Inc. Delaware
Voxpath Acquisition Corp. Delaware
SECOND: That an Agreement and Plan of Reorganization, dated August 19, 2005 (the
"Merger Agreement") between the parties to the merger has been approved,
adopted, certified, executed and acknowledged by each of the constituent
corporations in accordance with the requirements of 251(c) of the Delaware
General Corporation Law.
THIRD: That the name of the surviving corporation is Voxpath Networks, Inc.
FOURTH: That the Fifth Amended and Restated Certificate of Incorporation of
Voxpath Networks, Inc., as amended and in effect immediately prior to the
effective time of the merger, shall be the Certificate of Incorporation of the
Surviving Corporation until further amended as provided therein and under
Delaware law.
FIFTH: That the executed Merger Agreement is on file at the principal place of
business of the surviving corporation, the address of which is 0000-X Xxxxx
Xxxxxxx xx Xxxxx Xxx., Xxxxxx, Xxxxx 00000.
SIXTH: That a copy of the Merger Agreement will be furnished by the surviving
corporation, on request and without cost, to any stockholder of any constituent
corporation.
Dated: _____________, 2005
VOXPATH NETWORKS, INC.
By:
----------------------------------------------
Name: Kalvirayan S. Mani
Title: President
31
EXHIBIT B
Escrow Agreement
32