Attached files
EXHIBIT 10.1
AGREEMENT TO EXCHANGE STOCK
BETWEEN
UNLTD VENTURES INCORPORATED
AND
ACTIVEIN LTD.
INDEX
Page
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ARTICLE I - EXCHANGE OF SECURITIES .................................... 5
ARTICLE II - REPRESENTATIONS AND WARRANTIES ........................... 5
2.0l - Organization ............................................ 5
2.02 - Capital ................................................. 5
2.03 - Directors and Officers' Compensation; Banks ............. 5
2.04 - Financial Statements .................................... 5
2.05 - Absence of Changes ...................................... 6
2.06 - Absence of Undisclosed Liabilities ...................... 6
2.07 - Tax Returns ............................................. 6
2.08 - Corporate Matters........................................ 6
2.09 - Trade Names and Rights .................................. 6
2.l0 - Contracts and Leases .................................... 6
2.ll - Insurance Policies ...................................... 6
2.l2 - Compliance with Laws .................................... 6
2.l3 - Litigation .............................................. 6
2.l4 - Ability to Carry Out Obligations ........................ 7
2.l5 - Full Disclosure ......................................... 7
2.l6 - Assets .................................................. 7
2A - Organization ................................................ 6
2B - Directors and Officers' Compensation; Banks ................. 7
2C - Capital ..................................................... 8
2D - Financial Statements ........................................ 8
2E - Absence of Changes .......................................... 8
2F - Absence of Undisclosed Liabilities .......................... 8
2G - Tax Returns ................................................. 8
2H - Corporate Matters ........................................... 8
2I - Trade Names and Rights ...................................... 8
2J - Contracts and Leases ........................................ 8
2K - Insurance Policies .......................................... 9
2L - Compliance with Laws ........................................ 9
2M - Litigation .................................................. 9
2N - Ability to Carry Out Obligations ............................ 9
2O - Full Disclosure ............................................. 9
2P - Assets ...................................................... 9
2Q - Risk Assessment............................................... 9
2R - No Public Market.............................................. 10
ARTICLE III - SHAREHOLDER REPRESENTATIONS ............................. 10
ARTICLE IV - OBLIGATIONS BEFORE CLOSING ............................... 11
4.0l - Investigative Rights ....................................... 11
4.02 - Conduct of Business ........................................ 11
ARTICLE V - CONDITIONS PRECEDENT TO PERFORMANCE BY UNLTD 11
5.0l - Conditions ................................................. 11
5.02 - Accuracy of Representations ................................ 11
5.03 - Performance................................................. 11
2
Page
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5.04 - Absence of Litigation ...................................... 12
5.05 - Other ...................................................... 12
ARTICLE VI - CONDITIONS PRECEDENT TO PERFORMANCE ...................... 12
BY ACTI ............................................ 12
6.0l - Conditions ................................................. 12
6.02 - Accuracy of Representations ................................ 12
6.03 - Performance ................................................ 12
6.04 - Absence of Litigation ...................................... 12
6.05 - Other ...................................................... 12
ARTICLE VII - CLOSING ................................................. 13
7.0l - Closing .................................................... 13
7.02 - Exchange of Shares ......................................... 14
7.03 - No Fractional Shares ....................................... 14
7.04 - Officers and Directors ..................................... 14
ARTICLE VIII - REMEDIES ............................................... 14
8.0l - Arbitration ................................................ 14
8.02 - Costs ...................................................... 14
8.03 - Termination ................................................ 15
ARTICLE IX - MISCELLANEOUS ............................................ 15
9.0l - Captions and Headings ...................................... 15
9.02 - No Oral Change ............................................. 15
9.03 - Non-Waiver ................................................. 15
9.04 - Time of Essence ............................................ 15
9.05 - Entire Agreement ........................................... 16
9.06 - Governing Law .............................................. 16
9.07 - Counterparts ............................................... 16
9.08 - Notices .................................................... 16
9.09 - Binding Effect ............................................. 16
9.l0 - Effect of Closing .......................................... 16
9.ll - Mutual Cooperation ......................................... 17
9.12 - Expenses.................................................... 17
Schedule 1- Allocation of Shares................................... 19
Exhibit A - Options, Warrants and Covertible Securities (ACTI).....
Exhibit B - Officers and Directors (ACTI) .........................
Exhibit C - Financial Statements - Changes in Financial Condition (ACTI)
Exhibit D - Trademarks, Trade Names and Copyrights (ACTI)..........
Exhibit E - Material Contracts (ACTI)..............................
Exhibit F - Insurance Policies (ACTI)..............................
Exhibit G - Officers, Directors, Bank Accounts, Safe Deposit
Boxes, Powers of Attorney (UNLTD)......................
Exhibit H - Options, Warrants and Convertible Securities (UNLTD) ..
Exhibit I - Financial Statements - Changes in Financial
Condition (UNLTD)...................................
Exhibit J - Trademarks, Trade Names and Copyrights (UNLTD) ........
Exhibit K - Material Contracts (UNLTD) ............................
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Page
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Exhibit L- Insurance Policies (UNLTD).............................
Exhibit M - Litigation (UNLTD).....................................
Exhibit N - Shareholders' Agreement................................
Exhibit O - Form of UNLTD Share Certificate .......................
Exhibit P - Shareholders' Resolution and New AOA of ACTI ..........
Exhibit Q - UNTLD Resolution - Designation of Preferred Shares/
Issuance of Shares .................................
Exhibit R - Form of UNTLD Share Certificate to Be Issued to
ACTI Shareholders ..................................
Exhibit S - Shareholder Register ..................................
Exhibit T - Amendment to Certificate of Incorporation..............
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AGREEMENT TO EXCHANGE COMMON STOCK
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This SHARE EXCHANGE AGREEMENT ("this Agreement"), made this ___ day of ___,
2008, by and between UNLTD Ventures Incorporated ("UNLTD") and ActiVein Ltd.
("ACTI"), and the shareholders of ACTI is made for the purpose of setting forth
the terms and conditions upon which UNLTD will acquire all of the issued and
outstanding common stock of ACTI in exchange for shares of UNLTD's common stock.
In consideration of the mutual promises, covenants, and representations
contained herein, THE PARTIES HERETO AGREE AS FOLLOWS:
ARTICLE I
EXCHANGE OF SECURITIES
1.01 Subject to the terms and conditions of this Agreement, UNLTD agrees
to issue, and the shareholders of ACTI agree to accept 5,800,297 shares of
UNLTD's common stock and 3,770,935 shares of UNLTD's Series A Preferred stock
(the "UNLTD Stock") in consideration for all of the issued and outstanding
common and preferred stock of ACTI (the "ACTI Shares"). The shares of the UNLTD
will be allocated to the shareholders of ACTI in accordance with Schedule 1 to
this Agreement.
1.02 The distribution and use of funds shall be pursuant to the
Shareholders Agreement attached hereto.
ARTICLE IIREPRESENTATIONS AND WARRANTIES
ACTI represents and warrants to UNLTD that:
2.0l Organization. ACTI is a company duly organized, validly existing, and
in good standing under the laws of Israel.
2.02 Capital. The authorized capital stock of ACTI consists of 992,076
ordinary shares and 7,924 Preferred A shares, of which 10,944 ordinary shares
and 7,115 Preferred A shares and will be issued and outstanding at closing. At
closing, there will be no outstanding subscriptions, options, rights, warrants,
convertible securities, or other agreements or commitments obligating ACTI to
issue or to transfer from treasury any additional shares of its capital stock of
any class other than as set forth on Exhibit A. The Shareholder List of ACTI
immediately prior to the execution of this Agreement is attached hereto in
Exhibit A.
2.03 Directors and Officers' Compensation; Banks. Exhibit B to this
Agreement contains the names and titles of all directors and officers of ACTI.
2.04 Financial Statements. Exhibit C to this Agreement contains the
audited financial statements of ACTI as of March 31, 2008. The financial
statements have been prepared in U.S. $ and in accordance with Israeli generally
accepted accounting principles consistently followed by ACTI throughout the
periods indicated, and fairly present the financial position of ACTI as of
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the dates of the balance sheets included in the financial statements, and the
results of its operations for the periods indicated.
2.05 Absence of Changes. Since March 31, 2008 there has not been any
change in the financial condition or operations of ACTI, other than changes
reflected on Exhibit C or changes in the ordinary course of business, which
changes have not in the aggregate been materially adverse.
2.06 Absence of Undisclosed Liabilities. ACTI did not as of March 31, 2008
have any debt, liability, or obligation of any nature, whether accrued,
absolute, contingent, or otherwise, and whether due or to become due, that is
not reflected on Exhibit C.
2.07 Tax Returns. Within the times and in the manner prescribed by law,
ACTI has filed all Israeli tax returns required by law and has paid all taxes,
assessments, and penalties due and payable. The provision for taxes, if any,
reflected in ACTI's balance sheet as of March 31, 2008, is adequate for any and
all Israeli taxes for the period ending on the date of that balance sheet and
for all prior periods, whether or not disputed. There are no present disputes as
to taxes of any nature payable by ACTI.
2.08 Corporate Matters. The minutes of ACTI as supplied to UNLTD are a
complete and accurate record of all meetings of the shareholders and directors
of ACTI and accurately reflect all resolutions taken at such meetings. The
signatures of the directors and/or officers on such minutes are the valid
signatures of ACTI's directors and/or officers who were duly elected or
appointed. The share register of ACTI contains an accurate record of all
transactions with respect to the capital stock of ACTI.
2.09 Trade Names and Rights. Exhibit D attached hereto and made a part
hereof lists all trademarks, trademark registrations or applications, trade
names, service marks, copyrights, copyright registrations or applications which
are owned by ACTI. No person other than ACTI owns any trademark, trademark
registration or application, service mark, trade name, copyright, or copyright
registration or application the use of which is necessary or contemplated in
connection with the operation of ACTI's business.
2.10 Contracts and Leases. Exhibit E attached hereto and made a part
hereof contains a summary of the provisions of all material contracts, leases,
and other agreements of ACTI presently in existence or which have been agreed to
by ACTI (whether written or oral). Except as disclosed on Exhibit E, ACTI is not
in default under of these agreements or leases. For the purposes of this
Agreement, "Material" shall be any amounts over US$10,000.
2.11 Insurance Policies. Exhibit F to this Agreement is a description of
all insurance policies held by ACTI concerning its business and properties. All
these policies are in the respective principal amounts set forth in Exhibit F
and are in full force and effect.
2.12 Compliance with Laws. ACTI has complied with, and is not in violation
of, applicable Israeli laws, and regulations affecting its properties or the
operation of its business.
2.13 Litigation. ACTI is not a party to any suit, action, arbitration, or
legal, administrative, or other proceeding, or governmental investigation
pending or, to the best knowledge of ACTI threatened, against or affecting ACTI
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or its business, assets, or financial condition. ACTI is not in default with
respect to any order, writ, injunction, or decree of any federal, state, local,
or foreign court, department, agency, or instrumentality. ACTI is not engaged in
any legal action to recover moneys due to ACTI or damages sustained by ACTI.
2.14 Ability to Carry Out Obligations. Subject to the approval of its
shareholders, ACTI has the right, power, and authority to enter into, and
perform its obligations under, this Agreement. The execution and delivery of
this Agreement by ACTI and the performance by ACTI of its obligations hereunder
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,
mortgage, articles of association of ACTI (the "AOA"), or other agreement to
which ACTI is a party, or by which it may be bound, nor will any consents or
authorizations of any party other than those hereto be required other than
consents or authorizations by the Office of the Israeli Chief Scientist and the
Israeli Tax Authorities; (b) an event that would permit any party to any
agreement to terminate it or to accelerate the maturity of any indebtedness or
other obligation of ACTI; or (c) an event that would result in the creation or
imposition or any lien, charge, or encumbrance on any asset of ACTI or would
create any obligation for which ACTI would be liable, except as contemplated by
this Agreement. For the avoidance of doubt, the Parties agree that the shares of
UNLTD which are issued to Xenia may be subject to a lien granted in favor of
certain Israeli regulatory authorities including the Office of the Chief
Scientist.
2.15 Full Disclosure. None of the representations and warranties made by
ACTI, contains any untrue statement of material fact.
2.16 Assets. ACTI has good and marketable title to all of its property.
------
UNLTD represents and warrants to ACTI and its Shareholders that:
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2A. Organization. UNLTD is a corporation duly organized, validly existing,
and in good standing under the laws of Delaware, has all necessary corporate
powers to own its properties and to carry on its business as now owned and
operated by it, and is duly qualified to do business and is in good standing in
each of the states where its business requires qualification. UNLTD has no
subsidiaries. There are no voting trusts or other agreements or understandings
to which UNLTD is a party with respect to the holding, voting or disposing of
capital stock of UNLTD.
2B. Directors and Officers' Compensation; Banks. Exhibit G to this
Agreement contains: (i) the names and titles of all directors and officers of
UNLTD and all persons, together with their titles whose compensation, and the
tasks for which they receive such compensation, from UNLTD as of the date of
this Agreement will equal or its expected to equal or exceed, at an annual rate,
the sum of $1,000; (ii) the name and address of each bank with which UNLTD has
an account or safety deposit box, and the names of all persons who are
authorized to draw thereon or have access thereto; and (iii) the names of all
persons who have a power of attorney from UNLTD and a summary of the terms
thereof.
2C. Capital. The authorized capital stock of UNLTD consists of 50,000,000
shares of common stock, and 1,000,000 shares of preferred stock. Immediately
prior to closing 9,112,733 shares of common stock are issued and outstanding.
All of the shares are validly issued, fully paid, and non-assessable. UNLTD has
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not issued any shares, warrants or other convertible securities of preferred
stock. At closing, there will be no outstanding subscriptions, options, rights,
warrants, convertible securities, or other agreements or commitments obligating
UNLTD to issue or to transfer from treasury any additional shares of its capital
stock of any class except as reflected on Exhibit H. The Shareholder List of
UNLTD immediately prior to the execution of this Agreement is attached hereto as
Exhibit H.
2D. Financial Statements. Exhibit I to this Agreement sets forth balance
sheets of UNLTD as of March 31, 2008, and the related statements of income and
retained earnings for the period then ended. The financial statements have been
prepared in accordance with U.S. generally accepted accounting principles as
consistently followed by UNLTD throughout the periods indicated, and fairly
present the financial position of UNLTD as of the dates of the balance sheets
included in the financial statements, and the results of its operations for the
periods indicated.
2E. Absence of Changes. Since March 31, 2008, there has not been any
change in the financial condition or operations of UNLTD, except (i) changes in
the ordinary course of business, which changes have not in the aggregate been
materially adverse, and (ii) changes disclosed on Exhibit I, which changes have
not in the aggregate been materially adverse.
2F. Absence of Undisclosed Liabilities. UNLTD did not as of March 31, 2008
have any debt, liability, or obligation of any nature, whether accrued,
absolute, contingent, or otherwise, and whether due or to become due, that is
not reflected on Exhibit I.
2G. Tax Returns. Within the times and in the manner prescribed by law,
UNLTD has filed all federal, state, and local tax returns required by law and
has paid all taxes, assessments, and penalties due and payable. No federal
income tax returns of UNLTD have been audited by the Internal Revenue Service.
The provision for taxes, if any, reflected in UNLTD's balance sheet as of March
31, 2008, is adequate for any and all federal, state, county, and local taxes
for the period ending on the date of that balance sheet and for all prior
periods, whether or not disputed. There are no present disputes as to taxes of
any nature payable by UNLTD.
2H. Corporate Matters. The minutes of UNLTD are a complete and accurate
record of all meetings of the shareholders and directors of UNLTD and accurately
reflect all actions taken at such meetings. The signatures of the directors
and/or officers on such minutes are the valid signatures of UNLTD's directors
and/or officers who were duly elected or appointed.
2I. Trade Names and Rights. Exhibit J attached hereto and made a part
hereof lists all trademarks, trademark registrations or applications, trade
names, service marks, copyrights, copyright registrations or applications which
are owned by UNLTD. No person, other than UNLTD, will own any trademark,
trademark registration or application, service mark, trade name, copyright, or
copyright registration or application the use of which is necessary or
contemplated in connection with the operation of the business of UNLTD, as such
business is to be conducted after the closing of this transaction.
2J. Contracts and Leases. Exhibit K attached hereto and made a part hereof
contains a summary of the provisions of all material contracts, leases, and
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other agreements of UNLTD presently in existence or which have been agreed to by
UNLTD (whether written or oral).
2K. Insurance Policies. Exhibit L to this Agreement is a description of
all insurance policies held by UNLTD concerning its business and properties. All
these policies are in the respective principal amounts set forth in Exhibit L
and are in full force and effect.
2L. Compliance with Laws. UNLTD has complied with, and is not in violation
of, applicable federal, state, or local statutes, laws, and regulations
affecting its properties or the operation of its business, including but not
limited to federal and state securities laws. UNLTD does not have any employee
benefit plan which is subject to the provisions of the Employee Retirement
Income Security Act of 1974.
2M. Litigation. UNLTD is not a party to any suit, action, arbitration, or
legal, administrative, or other proceeding, or governmental investigation
pending or, to the best knowledge of UNLTD threatened, against or affecting
UNLTD or its business, assets, or financial condition. UNLTD is not in default
with respect to any order, writ, injunction, or decree of any federal, state,
local, or foreign court, department, agency, or instrumentality. UNLTD is not
engaged in any legal action to recover moneys due to it or damages sustained by
it.
2N. Ability to Carry Out Obligations. UNLTD has the right, power, and
authority to enter into, and perform its obligations under, this Agreement. The
execution and delivery of this Agreement by UNLTD and the performance by UNLTD
of its obligations hereunder 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, by-law, or other agreement or instrument to which UNLTD is a
party, or by which it may be bound, nor will any consents or authorizations of
any party other than those hereto be required, (b) an event that would permit
any party to any agreement or instrument to terminate it or to accelerate the
maturity of any indebtedness or other obligation of UNLTD, or (c) an event that
would result in the creation or imposition or any lien, charge, or encumbrance
on any asset of UNLTD or would create any obligations for which UNLTD would be
liable, except as contemplated by this Agreement.
2O. Full Disclosure. None of representations and warranties made by UNLTD,
or in any certificate or memorandum furnished or to be furnished by UNLTD, or on
its behalf, contains or will contain any untrue statement of material fact, or
omit any material fact the omission of which would be misleading. UNLTD has
disclosed to ACTI all reasonably foreseeable contingencies which, if such
contingencies transpired, would have a material adverse effect on UNLTD.
2P. Assets. UNLTD has good and marketable title to all of its property.
2Q. Risk Assessment. UNLTD, its shareholders, officers, and directors
represent that they are sophisticated investors and have the requisite knowledge
and experience in financial and business matters to be capable of evaluating the
merits and risks of an investment in ACTI. In making the decision to invest in
ACTI and signing this Agreement, they have relied on their own knowledge and
upon independent investigations made by it. In addition, they represent that
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they have been given the full opportunity and time in which to carry out a "due
diligence" investigation of ACTI, and the business conducted and proposed to be
conducted by ACTI and anything else related to them, have received in the
framework of such "due diligence" investigation all materials, information,
documentation and answers which they requested and obtained information
necessary to verify the accuracy of the information contained in this Agreement,
and were satisfied with the results of the investigation, and it appears to them
suitable for their objectives and therefore caused UNLTD to sign this Agreement.
2R. No Public Market. UNLTD its shareholders, officers, and directors
further represent that they are aware that there is no public market for ACTI's
shares and there is no assurance that a market will ever develop. The shares of
ACTI to be exchanged in this offering have not been registered with any state
securities commission or with the United States Securities and Exchange
Commission and ACTI has no plans and is under no obligation to register the
shares. UNLTD, its shareholders, officers and directors are prepared to accept
the fact that their investment is of a long-term nature and may not be readily
liquidated. ACTI is a hi-tech company and as such a "high risk" investment. The
acquisition of ACTI shares consequently involves certain risks, which could
adversely affect the value of ACTI's shares. ACTI does not make, nor has it
authorized any other person to make, any representation about the future market
value of ACTI's shares.
ARTICLE III
SHAREHOLDER REPRESENTATIONS
Each shareholder of ACTI severally and not jointly, represents to UNLTD
that he she or it has the right, power, and authority to enter into, and perform
his or her obligations under this Agreement, and that all necessary corporate
actions needed to transfer shares to UNLTD have been taken. The execution and
delivery of this Agreement by such shareholder and the delivery by such
shareholder of his or her shares in ACTI pursuant to Article I will not cause,
constitute, or conflict with or result in any breach or violation or any of the
provisions of or constitute a default under any license, mortgage, or agreement
to which he or she is a party, or by which he or she may be bound, and any
consents or authorizations of any party which are required, have been duly
obtained or will be obtained at or prior to the Closing. Each shareholder of
ACTI severally and not jointly, represents and warrants to UNLTD that the shares
of ACTI that such shareholder will deliver at closing will be free of any liens
or encumbrances. Each shareholder of ACTI severally and not jointly, hereby
declares that it has waived its rights under Article 44.7 of the AOA in
connection with the transaction.
Xenia Venture Capital Ltd. hereby waives any rights it may have under Articles
16 and 72 of the AOA.
Each shareholder of ACTI understands that the shares being acquired from UNLTD
represent restricted securities as that term is defined in Rule l44 of the
Securities and Exchange Commission.
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ARTICLE IV
OBLIGATIONS BEFORE CLOSING
4.0l Investigative Rights. From the date of this Agreement until the date
of closing, each party shall provide to the other party, and such other party's
counsel, accountants, auditors, and other authorized representatives, full
access during normal business hours to all of each party's properties, books,
contracts, commitments, records and correspondence and communications with
regulatory agencies for the purpose of examining the same. Each party shall
furnish the other party with all information concerning each party's affairs as
the other party may reasonably request.
4.02 Conduct of Business. Prior to the closing, and except as contemplated
by this Agreement, each party shall conduct its business in the normal course,
and shall not sell, pledge, or assign any assets, without the prior written
approval of the other party, except in the regular course of business. Except as
contemplated by this Agreement, (and subject to Section 4.03 below), neither
party to this Agreement shall issue or sell any shares, stock, options or other
securities, amend its Articles of Association, Incorporation or By-laws, declare
dividends, redeem or sell stock or other securities, incur additional or
newly-funded material liabilities, acquire or dispose of fixed assets, change
senior management, change employment terms, enter into any material or long-term
contract, guarantee obligations of any third party, settle or discharge any
balance sheet receivable for less than its stated amount, pay more on any
liability than its stated amount, or enter into any other transaction other than
in the regular course of business, or enter into any agreement or take any
action that is likely to cause any of the representations and warranties of such
party under this Agreement not to be true and correct as of the Closing, or that
is likely to affect the Closing. However and notwithstanding, any provision in
this Agreement to the contrary, UNLTD hereby assents and permits ACTI to raise
further financing in any manner including by way of a bridge loan provided in
exchange for the issuance of shares by ACTI.
ARTICLE V
CONDITIONS PRECEDENT TO PERFORMANCE BY UNLTD
5.01 Conditions. UNLTD's obligations hereunder shall be subject to the
satisfaction, at or before the Closing, of all the conditions set forth in this
Article V. UNLTD may waive any or all of these conditions in whole or in part
without prior notice; provided, however, that no such waiver of a condition
shall constitute a waiver by UNLTD of any other condition of or any of UNLTD's
other rights or remedies, at law or in equity, if ACTI shall be in default of
any of its representations, warranties, or covenants under this agreement.
5.02 Accuracy of Representations. Except as otherwise permitted by this
Agreement, all representations and warranties by ACTI in this Agreement or in
any written statement that shall be delivered to UNLTD by ACTI under this
Agreement shall be true on and as of the Closing Date as though made at those
times.
5.03 Performance. ACTI shall have performed, satisfied, and complied with
all covenants, agreements, and conditions required by this Agreement to be
performed or complied with by it, on or before the closing. ACTI shall have
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obtained all necessary consents and approvals necessary to consummate the
transactions contemplated hereby including those required by Section 4.02.
5.04 Absence of Litigation. No action, suit, or proceeding before any
court or any governmental body or authority, pertaining to the transaction
contemplated by this agreement or to its consummation, shall have been
instituted or threatened on or before the Closing.
5.05 Other. In addition to the other provisions of this Article V, UNLTD's
obligations hereunder shall be subject to the satisfaction, at or before the
Closing, of the following:
o A shareholders agreement executed by the parties hereto in the form
attached as Exhibit N (the "Shareholders Agreement").
o The liabilities of ACTI will not exceed $50,000.
o The shareholders holding preferred shares of ACTI have waived their
rights under Article 16.1 of the AOA.
ARTICLE VI
CONDITIONS PRECEDENT TO PERFORMANCE BY ACTI
6.01 Conditions. ACTI's and its Shareholder's obligations hereunder shall
be subject to the satisfaction, at or before the Closing, of the conditions set
forth in this Article VI. ACTI may waive any or all of these conditions in whole
or in part without prior notice; provided, however, that no such waiver of a
condition shall constitute a waiver by ACTI of any other condition of or any of
ACTI's other rights or remedies, at law or in equity, if UNLTD shall be in
default of any of its representations, warranties, or covenants under this
agreement.
6.02 Accuracy of Representations. Except as otherwise permitted by this
Agreement, all representations and warranties by UNLTD in this Agreement or in
any written statement that shall be delivered to ACTI by UNLTD under this
Agreement shall be true on and as of the Closing Date as though made at those
times.
6.03 Performance. UNLTD shall have performed, satisfied, and complied with
all covenants, agreements, and conditions required by this Agreement to be
performed or complied with by it, on or before the closing. UNLTD shall have
obtained all necessary consents and approvals necessary to consummate the
transactions contemplated hereby, including those required by Section 4.02.
6.04 Absence of Litigation. No action, suit, or proceeding before any
court or any governmental body or authority, pertaining to the transaction
contemplated by this agreement or to its consummation, shall have been
instituted or threatened on or before the closing.
6.05 Other. In addition to the other provisions of this Article VI, ACTI's
and its Shareholders obligations hereunder shall be subject to the satisfaction,
at or before the Closing, of the following:
o The Shareholders Agreement shall be duly executed.
o The liabilities of UNLTD will not exceed $5,000.
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o The shareholders holding preferred shares of ACTI have waived their
rights under Article 16.1 of the AOA.
o The shareholders of UNLTD, at a special meeting, shall have approved
the Certificate of Amendment attached as Exhibit T and the acquisition
of ACTI.
o UNLTD issue to Xenia Venture Capital Ltd. the warrant attached as
Exhibit B to Exhibit Q hereto
ARTICLE VII
CLOSING
7.0l Closing. The closing of this transaction shall be held at the offices
of M. Firon and Co. Law Offices, 16 Abba Hillel Silver St., Ramat Gan, or such
other location as the parties may agree. Unless the execution of the agreements
which form the whole of this transaction takes place before January 31, 2009,
then either party may terminate this Agreement without liability to the other
party, except as otherwise provided in Section 9.12, excluding claims for
breaches of obligations by any party hereto prior to such termination. Closing
of the transaction shall follow within seven days of the receipt of approval of
the transaction from the Israeli Office of the Chief Scientist and the Israeli
Income Tax Authorities. At the closing, the following documents, in form
reasonably acceptable to counsel to the parties or as set forth herein, shall be
delivered:
By ACTI:
A. An officer's certificate, dated the Closing Date, that all
representations, warranties, covenants, and conditions set forth in this
Agreement on behalf of ACTI are true and correct as of, or have been fully
performed and complied with by, the Closing Date.
B. A validly executed share certificate in respect of 100% of the
ordinary shares of ACTI, issued in the name of UNLTD in the form attached hereto
as Exhibit O;
C. A copy of the revised shareholders register of ACTI reflecting
the share sale of the ACTI shares at the Closing; and
D. A written opinion of M. Firon & Co. Advocates & Notaries, in a
form acceptable to UNLTD, dated the date of the Closing.
E. A resolution of ACTI's shareholders in the form attached hereto
as Exhibit P replacing the existing AOA with the new AOA also attached as
Exhibit P.
By UNLTD:
A. An officer's certificate, dated the Closing Date, that all
representations, warranties, covenants, and conditions set forth in this
Agreement on behalf of UNLTD are true and correct as of, or have been fully
performed and complied with by, the Closing Date.
B. A resolution of the board of UNLTD issuing and allotting the
UNLTD Stock to be allotted at the Closing to the subscribing shareholders as
13
well as designating the rights, preferences and limitations of UNLTD's Series A
preferred stock, also in the form attached hereto as Exhibit Q;
C. Validly executed share certificates in respect of the UNLTD
Shares to be issued at the Closing, issued in the name of each subscribing
shareholder in the form attached hereto as Exhibit R;
D. A copy of the revised shareholders register of UNLTD reflecting
the issuance of the UNLTD Stock to be issued at the Closing; and
E. A written opinion of Hart & Trinen, in a form acceptable to ACTI,
dated the date of the Closing.
F. A resolution of UNLTD's shareholders in the form attached hereto
as Exhibit S amending the Articles of Incorporation and By-Laws of UNLTD; and
G. to the extent required by law or by any such third-party, a
signed undertaking to be submitted to the office of the Israeli Chief Scientist
or any other signed undertaking to any such third-party, as reasonably required
by each such third-party.
7.02 Exchange of Shares. On the Closing Date, each share of common stock
of ACTI then issued and outstanding will be exchanged for fully paid and
non-assessable shares of UNLTD and each share of preferred A stock of ACTI then
issued and outstanding will be exchanged for fully paid and non-assessable
Preferred A shares of UNLTD in accordance with Schedule 1 to this Agreement.
7.03 No Fractional Shares. No certificates for fractional share interests
of common stock of ACTI will be issued, but, in lieu thereof, UNLTD will issue
one share of common stock for each fractional share held in ACTI.
7.04 Officer and Directors. At the closing of this Agreement the parties
will cause Mr. Boaz Dor, Ms. Anat Segal, Mr. Eitan Kyiet, Mr. Ilan Shalev and
Mr. Avi Lior, to be appointed as directors of UNLTD. Simultaneously with such
appointment, all present officers and directors of UNLTD will resign.
7.05 At the Closing, UNLTD and ACTI and the shareholders of ACTI shall
sign the Shareholders Agreement.
ARTICLE VIII
REMEDIES
8.01 Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Israel. The parties hereto hereby
submit to the exclusive jurisdiction of the courts of Tel-Aviv-Jaffa.
8.02 Costs. If any legal action or any arbitration or other proceeding is
brought for the enforcement of this Agreement, or because of an alleged dispute,
breach, default, or misrepresentation in connection with any of the provisions
of this Agreement, the successful or prevailing party or parties shall be
14
entitled to recover reasonable attorney's fees and other costs incurred in that
action or proceeding, in addition to any other relief to which it or they may be
entitled.
8.03 Termination. In addition to the other remedies, UNLTD or ACTI may on
or prior to the Closing Date terminate this Agreement, without liability to the
other party:
(i) If any bona fide action or proceeding shall be pending against
UNLTD or ACTI on the Closing Date that could result in an unfavorable judgment,
decree, or order that would prevent or make unlawful the carrying out of this
Agreement or if any agency of the federal or of any state or national government
shall have objected at or before the Closing Date to this acquisition or to any
other action required by or in connection with this Agreement;
(ii) If the legality and sufficiency of all steps taken and to be taken
by each party in carrying out this Agreement shall not have been approved by the
respective party's counsel, which approval shall not be unreasonably withheld.
(iii) If a party breaches any representation, warranty, covenant or
obligation of such party set forth herein and such breach is not corrected
within ten days of receiving written notice from the other party of such breach.
ARTICLE IX
MISCELLANEOUS
9.01 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.
9.02 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 all parties hereto.
9.03 Non-Waiver. Except as otherwise expressly 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, convenants, or conditions, (ii) the acceptance of performance of
anything required by this Agreement to be performed with knowledge of the breach
or failure of a covenant, condition, or provision hereof shall not be deemed a
waiver of such breach or failure, and (iii) no waiver by any party of one breach
by another party shall be construed as a waiver with respect to any other or
subsequent breach.
9.04 Time of Essence. Time is of the essence of this Agreement and of each
and every provision hereof.
15
9.05 Entire Agreement. This Agreement contains the entire Agreement and
understanding between the parties hereto, and supersedes all prior agreements,
understandings and the letters of intent between the parties.
9.06 Governing Law. This Agreement and its application shall be governed by
the laws of Delaware.
9.07 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.
9.08 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 the party to whom
notice is to be given, by first class mail, registered or certified, postage
prepaid, and properly addressed as follows:
UNLTD Ventures Incorporated
---------------------------
2171 Avenue Rd.
Suite 103
Toronto, Ontario
Canada M5M 4B4
ActiVein Ltd.
-------------
1 Leshem Street
Kiryat Gat
82000
Israel
9.09 Binding Effect. This Agreement shall inure to and be binding upon and
be enforceable against the respective successors of each of the parties to this
Agreement. No party may assign or transfer any of its rights or obligations
hereunder, without the prior written consent of the other parties hereto.
Nothing in this Agreement, express or implied, shall give to any person other
than the parties hereto any benefit or any legal or equitable right, remedy or
claim under this Agreement.
9.10 Effect of Closing. All representations, warranties, covenants, and
agreements of the parties contained in this Agreement, or in any instrument,
certificate, opinion, or other writing provided for in it, shall survive the
closing of this Agreement and shall remain in effect for a period of twelve
months thereafter. In the event there is any material misrepresentation or
warranty of any party to this Agreement, then UNLTD (if such misrepresentation
is made by ACTI or the ACTI shareholders) or the shareholders of ACTI ( if such
misrepresentation is made by UNLTD) may recind this Agreement during the 90 day
period following the closing of this Agreement.
16
9.11 Mutual Cooperation. The parties hereto shall cooperate with each
other to achieve the purpose of this Agreement, and shall execute such other and
further documents and take such other and further actions as may be necessary or
convenient to effect the transaction described herein. Neither party will
intentionally take any action, or omit to take any action, which will cause a
breach of such party's obligations pursuant to this Agreement.
9.12 Expenses. Each of the parties hereto agrees to pay all of its own
expenses (including without limitation, attorneys' and accountants' fees)
incurred in connection with this Agreement, the transactions contemplated herein
and negotiations leading to the same and the preparations made for carrying the
same into effect. Each of the parties expressly represents and warrants that no
finder or broker has been involved in this transaction and each party agrees to
indemnify and hold the other party harmless from any commission, fee or claim of
any person, firm or corporation employed or retained by such party (or claiming
to be employed or retained by such party) to bring about or represent such party
in the transactions contemplated by this Agreement.
AGREED TO AND ACCEPTED as of the date first above written.
UNLTD Ventures Incorporated
By /s/ Sheldon Kales
----------------------------------------
Sheldon Kales, President
ActiVein Ltd.
By /s/ Adi Plaschkes
----------------------------------------
Adi Plaschkes, President
SHAREHOLDERS OF ACTIVEIN
/s/ Illan Shalev
------------------------------------
Ilan Shalev
/s/ Yoav Paz
------------------------------------
Yoav Paz
/s/ Adi Plaschkes
------------------------------------
Adi Plaschkes
17
/s/ Yifat Gurion
------------------------------------
Yifat Gurion
/s/ Ronen Finegold
------------------------------------
Ronen Finegold
Eftan Investment Consulting Ltd.
By: /s/
-------------------------------
Authorized Officer
/s/ Chaim Halperin
Chaim Halperin
/s/ Ami Sheinfeld
------------------------------------
Ami Sheinfeld
/s/ Ronen Shafir
------------------------------------
Ronen Shafir
M.M.T.K. Real Estate Ltd.
By: /s/
--------------------------------
Authorized Officer
XENIA VENTURE CAPITAL LTD.
By: /s/
--------------------------------
Authorized Officer
18
Schedule 1
Allocation of Shares of Common Stock
Shares of UNLTD
ACTI Common Stock to be
Shareholder Shareholdings in ACTI received by ACTI Shareholder
----------- --------------------- ----------------------------
Ilan Shalev 1,783 944,986
Yoav Paz 1,783 944,986
Adi Plaschkes 840 445,198
Yifat Gurion 1,070 567,098
Ronen Finegold 984 521,518
Eftan Investment Consulting Ltd. 713 377,888
Chaim Halperin 542 287,259
Ami Sheinfeld 542 287,259
Ronen Shafir 400 211,999
M.M.T.K. Real Estate Ltd. 400 211,999
ActiVein Employee Stock
Ownership Plan 1,887 1,000,106
--------- ------------
Total 10,944 5,800,297
======== ============
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Schedule 1
Allocation of Shares of Preferred Stock
Shares of UNLTD
ACTI Series A Preferred Stock to be
Shareholder Shareholdings in ACTI received by ACTI Shareholder
----------- --------------------- ------------------------------
Xenia Venture Capital Ltd. 7,115 3,770,935
2
