EXHIBIT 24.5
AGREEMENT AND PLAN OF ACQUISITION
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MADE AND ENTERED INTO THIS 28TH DAY OF DECEMBER, 2001
BY AND BETWEEN: XXXXXXXX ACQUISITIONS, INC., a Delaware corporation
incorporated and existing under the laws of the State of Delaware, USA,
with an address of 00 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000, c/o
Schonfeld & Xxxxxxxxx L.L.P. (hereinafter: "BAI");
AND: BARTECH MEDITERRANEAN LTD., a private, limited liability company,
incorporated and existing under the laws of the State of Israel, Company
Number 512482787, whose principal place of business is at 00 XxXxxxx
Xxxxxx, Xxx-Xxxx, Xxxxxx (hereinafter: "BARTECH");
AND: Each of the entities set forth in Column A of SCHEDULE A hereto (each
---------- hereinafter, a "SELLER" and collectively, the "SELLERS") (each
of BAI, Bartech and each Seller, hereinafter a "PARTY" and collectively,
the "PARTIES");
WHEREAS: The Sellers collectively own 100% of the issued and outstanding shares,
of all classes, on a fully diluted basis, of Bartech; and
WHEREAS: The respective Boards of Directors and shareholders of each of BAI and
Bartech deem it advisable and for the mutual benefit of BAI and Bartech,
and their respective shareholders, that Bartech be acquired by BAI by means
of the Sellers selling and transferring to BAI 100% of the issued and
outstanding shares, of all classes, on a fully diluted basis, of Bartech
(hereinafter: the "BARTECH SHARES"), subject to and in accordance with the
terms set forth herein, and have unanimously approved this Agreement and
Plan of Acquisition (hereinafter: the "AGREEMENT"); and
WHEREAS: The Sellers are interested in selling 100% of the Bartech Shares to
BAI, and BAI is interested in purchasing 100% of the Bartech Shares from
the Sellers, all subject to and in accordance with the terms set forth in
this Agreement;
NOW THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained herein, and for the purpose of setting
forth certain terms and conditions of the Acquisition (as defined below), and
the mode of carrying the same into effect, the Parties hereby agree as follows:
1. PREAMBLE AND HEADINGS
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1.1 INTEGRAL PARTS OF THE AGREEMENT
The Preamble, and any Appendices, Exhibits or Schedules to this Agreement,
constitute an integral part hereof.
1.2 SECTION HEADINGS
Section headings are for convenience purposes only, and may not be used in the
construction or interpretation of this Agreement.
2. ACQUISITION AND ORGANIZATION
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2.1 THE ACQUISITION
At the Closing (as defined below), subject to the terms hereof, Bartech shall be
acquired by BAI, through BAI's acquisition of 100% of the Bartech Shares from
the Sellers and, in return, BAI shall issue a total of 12,000,000 BAI Shares (as
defined below) to the Sellers, in the same proportion as the Sellers hold shares
of Bartech, as set forth in Column D of Schedule A, representing, at Closing,
54.545% of BAI's issued and outstanding share capital (hereinafter: the
"ACQUISITION"). BAI and Bartech are herein sometimes referred to as the
"CONSTITUENT CORPORATIONS".
2.2 EFFECT OF THE ACQUISITION
The parties agree to the following provisions with respect to the Acquisition.
A. NAMES OF CONSTITUENT CORPORATIONS. Following the Acquisition, and in the
manner prescribed by BAI's By-Laws and applicable law, the name of BAI shall be
changed, whereas Bartech shall retain its existing name, subject to any
post-Acquisition resolution to the contrary, in accordance with Bartech's
Articles of Association and applicable law.
B. ARTICLES OF INCORPORATION AND BY-LAWS OF BAI. The Articles of
Incorporation and By-Laws of BAI as in effect immediately prior to Closing shall
from and after Closing be and continue to be the Articles of Incorporation and
By-Laws of BAI until amended, if at all, in accordance with the applicable
provisions thereof and applicable law. A complete and accurate set of BAI's
Articles of Incorporation and By-Laws, as at Closing, is attached hereto, as
EXHIBIT2.2B.
C. MEMORANDUM AND ARTICLES OF ASSOCIATION OF BARTECH. The Memorandum and
Articles of Association of Bartech as in effect immediately prior to Closing
shall from and after Closing be and continue to be the Memorandum and Articles
of Association of Bartech until amended, if at all, in accordance with the
applicable provisions thereof and applicable law. A complete and accurate set of
Bartech's Memorandum and Articles of Association, as at Closing, is attached
hereto, as EXHIBIT2.2C.
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D. CORPORATE ORGANIZATION. As of Closing, all of the issued and
outstanding shares of Bartech, of all classes, on a fully diluted basis, will be
held by BAI. Bartech shall remain a separate corporate entity, being a wholly
owned subsidiary of BAI, which will therefore be Bartech's parent company.
E. FURTHER ASSURANCES. If at any time after Closing, BAI shall consider or
be advised that any documents or any other acts or things are necessary,
desirable or proper to carry out the purposes of this Agreement, the Constituent
Corporations agree that BAI and its officers and directors shall be authorized
to execute and deliver, in the name and on behalf of the Constituent
Corporations, all such documents and do, in the name and on behalf of the
Constituent Corporations, all such other acts and things.
F. DIRECTORS AND OFFICERS OF BAI.
(I) As at Closing, Xx Xxxxxx Xxxxxxxx holds the interim position of
sole Director and Officer of BAI. Following Closing, a new Board
of Directors will be elected (hereinafter: "BAI'S BOARD").
(II) BAI's Board, as constituted in accordance with Sub-Section (i)
above, shall then nominate additional officers of BAI, in
accordance with BAI's Articles of Incorporation, and applicable
law.
3. PROCEDURE FOR ACQUISITION
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3.1 CLOSING
At a closing, which will take place simultaneously with the execution and
delivery of this Agreement, at 12.00 (IST) on the date of this Agreement, at the
offices of Bartech, at 00 XxXxxxx Xxxxxx, Tel-Aviv (hereinafter: the "CLOSING
DATE"), the Sellers shall sell and transfer 100% of the Bartech Shares to BAI
and BAI shall acquire 100% of the Bartech Shares from the Sellers and, in
return, BAI shall issue a total of 12,000,000 BAI Shares to the Sellers, in the
same proportion as the Sellers hold shares of Bartech, as set forth in Column D
of Schedule A, representing, at Closing, 54.545% of BAI's issued and outstanding
share capital, in the manner set forth in this Section 3 below (hereinafter:
the "CLOSING").
3.2 DELIVERIES AT CLOSING
At Closing, the Parties will make the following deliveries to each other, which
deliveries shall be a condition to Closing, unless waived by the receiving
Party, in writing, prior to, or at, Closing, and which deliveries shall be
performed simultaneously.
A. DELIVERIES BY SELLERS. Each Seller shall deliver ALL of the following
documents to BAI, in each case in such form as is reasonably satisfactory to
BAI:
(I) a Share Transfer Deed, substantially in the form attached as
EXHIBIT3.2A(I) hereto, pursuant to which that Seller transfers
and sells to BAI all of the Bartech Shares held by that Seller,
duly executed by that Seller;
(II) all other documents that the Sellers are obliged to deliver, as
set forth in this Agreement below.
B. DELIVERIES BY BARTECH. Bartech shall deliver ALL of the following
documents to BAI, in each case in such form as is reasonably satisfactory to
BAI:
(I) a single share certificate, duly executed by the requisite
Director(s) and/or officer(s) of Bartech, representing all of the
Bartech Shares, made out in the name of BAI;
(II) a resolution of Bartech's Board, approving the transfer and sale
of all of the Bartech Shares, from the Sellers to BAI, certified
by Bartech's legal counsel as having been duly passed in
accordance with Bartech's Articles of Association and in
accordance with applicable law;
(III) a copy of Bartech's Shareholder Register, as of immediately
after Closing, showing BAI as the registered holder of all of
Bartech's issued and outstanding shares, of all classes, duly
certified by a Director of Bartech as being a true and accurate
copy of Bartech's Shareholder Register;
(IV) a certificate by Bartech's CEO confirming that Bartech has met
all the Closing Conditions set forth in Section 5 below;
(V) an opinion dated as of the Closing Date, executed by legal
counsel to Bartech, confirming the truth and accuracy, in respect
of Bartech, of the representations and warranties made in
Sections 4.1 and 4.2d below,
(VI) all other documents that Bartech is obliged to deliver, as set
forth in this Agreement below.
C. DELIVERIES BY BAI. BAI shall deliver ALL of the following documents to
Bartech, in each case in such form as is reasonably satisfactory to Bartech:
(I) one stock certificate per Seller, representing the quantity of
shares of common stock of BAI (hereinafter: "BAI SHARES") as is
prescribed beside the name of the Seller, in Column D of Schedule
A, which shares shall, in relation to the 12,000,000 BAI Shares
being issued to the Sellers, be in direct proportion to the
percentage of Bartech Shares held by the respective Sellers as
set forth in Column C of Schedule A, and Bartech hereby
undertakes to deliver each such stock certificate to the
appropriate Seller and the Sellers hereby agree that said stock
certificates be delivered to Bartech, for distribution among the
Sellers as set forth above;
(II) a certificate by BAI's sole Director confirming that BAI has met
all the Closing Conditions set forth in Section 5 below;
(III) an opinion dated as of the Closing Date, executed by Xxxxxxxxx &
Xxxxxxxxx, 00 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000,
legal counsel to BAI, confirming the truth and accuracy, in
respect of BAI, of the representations and warranties made in
Section 4.1 below;
(IV) all other documents that BAI is obliged to deliver, as set forth
in this Agreement below.
3.3 FURTHER TRANSFER OF STOCK
The existing BAI shareholders and the Sellers have acquired their respective BAI
Shares for their own accounts, for investment purposes only and not with a view
of resale or other distribution thereof, nor with the intention of selling,
transferring or otherwise disposing of all or any part of such BAI Shares for
any particular price, or at any particular time, or upon happening of any
particular event or circumstance, except selling, transferring, or disposing of
said BAI Shares made in full compliance with all applicable provisions of the
Securities Act of 1933 and the Securities Exchange Act of 1934, and the Rules
and Regulations promulgated by the Securities and Exchange Commission
thereunder. Such BAI Shares must be held indefinitely unless they are
subsequently registered under the Securities Act of 1933 or an exemption from
such registration is available. Any sales of securities made in reliance upon
Rule 144 can be made only in limited amounts in accordance with the terms and
conditions of that Rule.
4. REPRESENTATIONS AND WARRANTIES OF THE PARTIES
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4.1 MUTUAL REPRESENTATIONS AND WARRANTIES
Each of BAI and Bartech represents and warrants to the other, and each Seller
represents and warrants to each of Bartech and BAI as follows, in recognition of
the fact that the Parties to whom said representations and warranties are being
made are entering into this Agreement inter alia in reliance upon these
representations and warranties:
A. ORGANIZATION AND GOOD STANDING. It is a duly incorporated and validly
existing corporation in good standing under the laws of the country or State of
its incorporation, with all requisite power and authority (corporate and other)
to own its properties and conduct its business.
B. AUTHORIZATION; BINDING AGREEMENT. It has the corporate power and
authority to execute and deliver this Agreement and to carry out the
transactions contemplated hereby. This Agreement has been duly and validly duly
authorized by all necessary action, corporate or otherwise, on its part, and
this Agreement constitutes a legal, valid and binding obligation, enforceable
against it in accordance with its terms. Resolutions of the Board of Directors
of each of the Parties which is a corporate entity, approving this Agreement and
all the transactions referenced and/or contemplated hereby and designating the
signatory authorized to execute this Agreement on their behalf, shall be
included among the documents to be delivered at Closing, pursuant to Section
3.2 above.
C. ABSENCE OF BREACH. Delivery and performance by it of this Agreement,
and the performance by it of its obligations hereunder, will not:
(I) conflict with or result in a breach of any of the provisions of
its Articles of Incorporation or By-Laws, or corresponding
documents according to applicable law;
(II) subject to the relevant Party's obtaining the governmental and
other consents referred to in Section 4.1d hereof, contravene any
law, rule or regulation of any state or country to which it is
subject, or any political subdivision thereof or therein, or any
order, writ, judgment, injunction, decree, determination or award
currently in effect, which, singly or in the aggregate, would
have a material adverse effect on it;
(III) conflict in any respect with or result in a breach of or default
under any indenture, loan or credit agreement relating to money
borrowed, or conflict in any respect with or result in a breach
of or default under any other indenture, mortgage, lien, lease,
agreement, contract or instrument to which it is a party or by
which it or any of its properties may be affected or bound,
which, singly or in the aggregate, would have a material adverse
effect on it.
D. GOVERNMENTAL AND OTHER CONSENTS. Subject to any required filings with
the Securities and Exchange Commission, no consent, waiver, approval, license or
authorization of or designation, declaration or filing with any governmental
agency or authority or other public persons or entities in the United States or
any state or country to which it is subject, is required on its part in
connection with the execution or delivery by it of this Agreement or the
consummation by it of the transactions contemplated hereby other than, in the
case of BAI: (i) filings in the State of Delaware in accordance with state law
thereof, (ii) filings under state securities "Blue Sky" or anti-takeover laws
and (iii) filings with the SEC and any applicable national securities exchange.
4.2 REPRESENTATIONS AND WARRANTIES OF BARTECH
Bartech further represents and warrants to BAI as follows, in recognition of the
fact that BAI is entering into this Agreement inter alia in reliance upon these
representations and warranties:
A. SHAREHOLDER RESOLUTION. A Resolution of the shareholders of Bartech,
passed unanimously by all of the Sellers, approving this Agreement and all the
transactions referenced and/or contemplated hereby, duly certified by Bartech's
legal counsel as having been duly passed in accordance with Bartech's Articles
of Association and in accordance with applicable law, shall be included among
the documents to be delivered at Closing, pursuant to Section 3.2 above.
B. LOANS FROM BAI. Bartech has received three (3) loans from BAI as
follows:
(I) a loan of $200,000.- which Bartech received on August 31, 2001,
and against which Bartech duly executed and delivered to BAI the
Convertible Promissory Note attached as Exhibit4.2B(I) hereto;
(II) a loan of $146,250.- which Bartech received on August 31, 2001,
and against which Bartech duly executed and delivered to BAI the
Convertible Promissory Note attached as EXHIBIT4.2B(II) hereto;
and
(III) a loan of $48,750.- which Bartech received on November 14, 2001,
and against which Bartech duly executed and delivered to BAI the
Convertible Promissory Note attached as EXHIBIT4.2B(III) hereto.
C. CAPITALIZATION. The Sellers constitute, as of the date hereof, all the
shareholders of Bartech, and the Bartech Shares, as shown in Column B of
Schedule A, represent 100% of Bartech's issued and outstanding shares, of all
classes, on a fully diluted basis. All of the Bartech Shares are duly
authorized, validly issued, fully paid and non-assessable and have been issued
in compliance with all applicable securities laws. There is no bar or
restriction, of any kind whatsoever, to the transfer and sale of 100% of the
Bartech Shares, by the Sellers to BAI, in accordance with this Agreement.
D. LITIGATION. Except as disclosed in SCHEDULE4.2D hereto, as of the date
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hereof there are no claims, actions, proceedings, or investigations pending or,
to the best knowledge of Bartech, threatened against Bartech or to the best of
Bartech's knowledge, pending or threatened against any employee, consultant,
director, officer or shareholder, in his, her or its capacity as such, before
any court or governmental or regulatory authority or body which, if decided
adversely, could materially and adversely affect the financial condition,
business, prospects or operations of Bartech. As of the date hereof, neither
Bartech nor any of its property is subject to any order, judgment, injunction or
decree, which materially and adversely affects the financial condition,
business, prospects or operations of Bartech.
E. ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as disclosed in
SCHEDULE4.2E hereto, between July 25, 2001 and the date hereof and except in
respect of the transactions contemplated by this Agreement:
(I) there has not been any change or any development involving a
prospective change, which has affected or may affect materially
and adversely the business, assets or prospects or the financial
position or the results of operations of Bartech and its
subsidiaries taken as whole;
(II) Bartech has not incurred any indebtedness for money borrowed, or
purchased or sold any material amount of assets, other than in
the ordinary course of business, or entered into any other
transaction other than in the ordinary course of business;
(III) Bartech has not (a) increased the compensation payable or to
become payable by it to any of its officers or directors, (b)
made any payment or provision with respect to any bonus, profit
sharing, stock option, stock purchase, employee stock ownership,
pension, retirement, deferred compensation, employment or other
payment plan, agreement or arrangement for the benefit of its
employees, (c) entered into any agreement with respect to
termination or severance pay, or any employment agreement or
other contract or arrangement with any officer or director of
Bartech, with respect to the performance of personal services
that is not terminable without liability by it on thirty days'
notice or less, (d) increased benefits payable under its current
severance or termination, pay agreements or policies or (e) made
any loan or advance to, or entered into any written contract,
lease or commitment with, any of its officers or directors;
(IV) Bartech has not, except as has not had and will not have a
material adverse effect on Bartech's financial and/or commercial
situation: (a) assumed, guaranteed, endorsed or otherwise become
responsible for the obligations of any other individual, firm or
corporation or make any loans or advances to any individual, firm
or corporation; (b) made any investment of a capital nature
either by purchase of stock or securities, contributions to
capital, property transfers or otherwise, or by the purchase of
any property or assets of any other individual, firm or
corporation; or (c) reduced its cash or short term investments or
their equivalent, other than to meet cash needs arising in the
ordinary course of business, consistent with past practices, or
in performing its obligations under this Agreement;
(V) Bartech has not entered into an agreement to do any of the things
described in Sub-Sections clauses (i) to (iv) above;
(VI) No circumstances have arisen which have given rise to, or which
could give rise to any material adverse change in the financial
condition, properties, businesses or results or operations of
Bartech.
F. FINANCIAL STATEMENTS. Bartech has furnished to BAI the audited annual
balance sheets of Bartech as of December 31, 2000 and the related audited
statement of profit and loss for the period then ended, together with notes
thereto, a copy of all of which is attached as EXHIBIT4.2F hereto (the
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"FINANCIAL STATEMENTS"). The Financial Statements have been prepared in good
faith with due diligence in accordance with United States Generally Accepted
Accounting Principles ("US GAAP"), consistently applied, except as otherwise
stated therein, and offer a true and fair reflection of the overall financial
condition of Bartech as of the dates indicated and of the results of Bartech's
operations for the periods indicated.
G. ABSENCE OF UNDISCLOSED LIABILITIES. Except as and to the extent (a)
reflected in the Financial Statements or (b) reserved against in the Financial
Statements or (c) incurred in the ordinary course of business after the date of
the Financial Statements, Bartech does not have any debts, liabilities or
obligations (whether absolute, accrued, contingent or otherwise) of any material
nature whatsoever, including without limitation any foreign or domestic tax
liabilities or deferred tax liabilities incurred in respect of or measured by
the Company's income for any period prior to the close of business on the date
of the Financial Statements, or any other material debts, liabilities or
obligations relating to or arising out of any act, omission, transaction,
circumstance, sale of goods or services, or other condition which occurred or
existed on or before the date of the Financial Statements, whether or not then
due or payable.
H. PROPRIETARY RIGHTS. Bartech owns or holds irrevocable licenses to all
patents, designs, inventions, know-how, trade secrets, confidential information,
trade marks, service marks and copyrights necessary to conduct its business as
currently conducted and as proposed to be conducted. There is no claim, action
or judicial or administrative decision pending or outstanding or, to Bartech's
best knowledge, threatened, that Bartech is infringing or has infringed the
Proprietary Rights of any third party.
I. CERTAIN PREPARATIONS. Bartech has completed and met all of the
requirements relating inter alia to reporting procedures, accounting methods (US
GAAP), provision of details of Bartech's activity and other requirements in
accordance with applicable US Law and SEC regulations, such as have to date been
deemed necessary or advisable by BAI's lawyers and consultants in connection
with the Registration of Shares and Bartech undertakes to continue to meet any
further requirements deemed necessary or advisable by BAI's lawyers and
consultants, after Closing, in connection with the Registration of Shares.
J. DISCLOSURE. To Bartech's best knowledge, no representation, warranty,
statement or certificate furnished by Bartech to BAI contains or will contain
any untrue statement of a material fact, or omits or will omit to state any
material fact required to make the statements herein or therein contained not
misleading.
4.3 REPRESENTATIONS AND WARRANTIES OF BAI
BAI further represents and warrants to Bartech as follows, in recognition of the
fact that Bartech is entering into this Agreement inter alia in reliance upon
these representations and warranties:
A. STOCKHOLDER CONSENT. A Stockholder Consent of at least two-thirds of
its shareholders, to ratify this Agreement and authorize the consummation of the
Acquisition contemplated herein, including the issuance of a total of 12,000,000
BAI Shares to the Sellers, as set forth above, shall be included among the
documents to be delivered at Closing, pursuant to Section 3.2 above.
B. CAPITALIZATION. The authorized capital stock of BAI consists of
30,000,000 shares of common stock, par value $.001 per share and 5,000,000
shares of preferred stock, par value $.001 per share. 10,000,000 BAI Shares are
issued and outstanding, in accordance with the fully diluted Capitalization
Table attached as EXHIBIT4.3B hereto. Other than as set forth in Exhibit 4.3b
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and as contemplated by this Agreement, there are no outstanding or authorized
subscriptions, options, warrants, calls, rights, commitments, convertible
securities, or any other agreements of any character directly or indirectly
obligating BAI to issue any shares, or any securities convertible into, or
exchangeable for, or evidencing the right to subscribe for, any shares. All of
the outstanding shares of capital stock of BAI have been duly authorized and
validly issued and are fully paid and non-assessable.
C. BENEFITS PLANS. BAI does not have any employment agreement with any
executive officer of BAI or any incentive compensation, deferred compensation,
profit sharing, stock option, stock bonus, stock purchase, savings, consultant,
retirement, pension or other "fringe benefit" plan or arrangement with or for
the benefit of any officer, employee, former employee or consultant.
D. ERISA. BAI has no employee benefit plans, as defined in Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended.
E. TRANSACTIONS WITH MANAGEMENT. Except as disclosed to Bartech in writing
on or before the date hereof, if at all, BAI is not a party to any material
contract, lease, loan or commitment with or to any officer or director, or
person owning more than 5% of the outstanding Common Stock of BAI or any
subsidiary of BAI or any affiliate or associate of such officer, director or
person.
4.4 REPRESENTATIONS AND WARRANTIES OF THE SELLERS
Each of the Sellers further represents and warrants to BAI as follows, in
recognition of the fact that BAI is entering into this Agreement inter alia in
reliance upon these representations and warranties:
A. RIGHTS TO THE BARTECH SHARES. It is the registered and beneficial owner
of the Bartech Shares shown next to its name in Column B of Schedule A and it
does not own any other shares in Bartech, of any kind, and has not received from
Bartech any authorized, issued or outstanding options, warrants, conversion
privileges, preemptive rights or other rights or agreements (whether or not
presently exercisable) to purchase or otherwise to acquire from Bartech any
shares of Bartech, or other securities convertible into or evidencing the right
to purchase or otherwise to acquire from Bartech any such shares. All of the
Bartech Shares listed in its name are, and will at Closing be transferred and
sold to BAI, free and clear of any and all liens, encumbrances, pledges or other
third party rights of any kind whatsoever.
B. DISCLOSURE. To the Seller's best knowledge, no representation,
warranty, statement or certificate furnished by the Seller herein contains or
will contain any untrue statement of a material fact, or omits or will omit to
state any material fact required to make the statements herein or therein
contained not misleading.
5. CONDITIONS TO CLOSING
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5.1 CONDITIONS
The respective obligations of BAI and Bartech to effect the Acquisition shall be
subject to the fulfillment at or prior to Closing of the following conditions
(each a "CLOSING CONDITION" and, collectively, "CLOSING CONDITIONS"):
A. APPROVALS. This Agreement and the transactions contemplated hereby
having been approved and adopted at or prior to Closing by the requisite vote of
the Directors and shareholders of each Party as required by applicable law.
B. NO INJUNCTION. No preliminary or permanent injunction or other order
issued by any Federal or State court of competent jurisdiction in the United
States or any other jurisdiction preventing the consummation of the Acquisition
shall be in effect. No action or preceding before any court or governmental or
regulatory authority or body, United States, Federal or State or foreign, shall
have been instituted (and be pending) or threatened by any government or
governmental authority, which seeks to prevent or delay the consummation of the
Acquisition or which challenges any of the terms or provisions of this
Agreement.
C. PERFORMANCE. Each other Party shall have performed in all material
respects its agreements contained in this Agreement required to be performed at
or prior to Closing.
D. REPRESENTATIONS AND WARRANTIES. The representations and warranties of
the other Parties as set forth in this Agreement shall be true and correct in
all material respects on and as of the Closing Date.
E. DELIVERIES. Each of the other Parties shall have delivered all of the
documents which it is obliged to deliver, in the manner set forth in Section
3.2 above and/or in any other provision of this Agreement.
5.2 WAIVER OF CONDITION; RIGHT TO PROCEED
Unless stated otherwise herein, if any of the Closing Conditions has not been
satisfied at or prior to Closing, then Bartech or BAI, as the case may be, in
addition to any other rights which may be available to them or it, shall have
the right, by means of written notice to the other, to waive such Closing
Conditions and to proceed with the Acquisition (subject to satisfaction of the
other Closing Conditions contained herein, unless also waived in the manner set
forth in this Section 5.2).
6. REGISTRATION OF SHARES
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6.1 REGISTRATION
Immediately following Closing, BAI will, with the assistance of its lawyers and
consultants and with the full cooperation of all the Parties, take the necessary
steps: (i) to register all 22,000,000 BAI Shares issued and outstanding
following the Acquisition (hereinafter: the "REGISTRATION SHARES") with the SEC,
resulting in the SEC declaring effective a registration statement in relation to
all of the Registration Shares; and (ii) to file the necessary documents to
permit the trade of the Registration Shares on one of the New York Stock
Exchanges or electronic quotation systems no less senior than the NASD's OTC
Bulletin Board, resulting in the provision of requisite clearance and the
absence of further bar to the public trade of the Registration Shares, subject
only to applicable restrictions in accordance with applicable US Law and SEC
regulations, all the above actions and results to be achieved as soon as
possible.
6.2 CERTAIN STATUTORY RESTRICTIONS
The Sellers acknowledge and understand that, pursuant to applicable provisions
of the Securities Act of 1933 and the Securities Exchange Act of 1934, and the
Rules and Regulations promulgated by the SEC thereunder, certain of the Sellers
will, in view of the size of their respective holdings in BAI following the
Acquisition, be subject to certain restrictions in respect of the trade of BAI
Shares which they shall hold, after Registration of the Shares.
7. MISCELLANEOUS
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7.1 COOPERATION
Each of the Parties shall cooperate with the others in every reasonable way in
carrying out the transactions contemplated herein, and in delivering all
documents and instruments deemed reasonably necessary or useful by counsel for
any party hereto.
7.2 EXPENSES; TAXES
Each Party shall incur all its own costs and expenses in connection with this
Agreement and the transactions contemplated hereby. Any and all tax that may
apply to any Party, if at all, in connection with this Agreement, and/or any of
the transactions contemplated herein, will be the exclusive responsibility of
said Party and will be borne solely by said Party and paid by that Party alone,
in a timely fashion.
7.3 SURVIVAL OF REPRESENTATIONS AND WARRANTIES
All representations and warranties in this Agreement or in any instrument or
certificate delivered pursuant to this Agreement delivered on or prior to the
Closing shall survive the consummation of the Acquisition.
7.4 NOTICES
All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if delivered by messenger, transmitted by
facsimile or mailed by registered or certified mail, postage prepaid, as
follows, and will be deemed to have reached their destination within 5 business
days of being deposited with the Post Office for dispatch as registered mail (10
business days in the case of air mail), upon actual delivery when delivered by
hand, and upon receipt of the recipient's confirmation of receipt when sent by
facsimile:
A. If to BAI, to:
Xxxxxx Xxxxxxxx, Esq.
c/o Schonfeld & Xxxxxxxxx, L.L.P.
00 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Fax: 0-000-000-0000
With a copy to:
Xxxxxx X. Xxxxxxxxx, Esq.
Xxxxxxxxx & Xxxxxxxxx, L.L.P.
00 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Fax: 0-000-000-0000
B. If to Bartech, to:
Bartech Mediterranean Ltd.
00 XxXxxxx Xxxxxx
Xxx-Xxxx, Xxxxxx
Fax: 000-0-000-0000
If to the Sellers, or any Seller, to:
Xxxxx Xxxxxx
00 XxXxxxx Xxxxxx
Xxx-Xxxx, Xxxxxx
Fax: 000-0-000-0000
7.5 ENTIRE AGREEMENT; AMENDMENT
This Agreement (including the documents and instruments referred to herein or
therein) (a) constitutes the entire agreement and supersedes all other prior
agreements and understandings, both written and oral, between the Parties with
respect to the subject matter hereof, (b) is not intended to confer upon any
other person any rights or remedies hereunder, and (c) shall not be assigned by
operation of law or otherwise. This Agreement may be amended or modified in
whole or in part at any time, by an agreement in writing executed in the same
manner as this Agreement after authorization to do so by each of BAI's Board and
Bartech's Board.
7.6 WAIVER
At any time prior to Closing, the Parties may (a) extend the time for the
performance of any of the obligations or other acts of the other Parties, (b)
waive any inaccuracies in the representation and warranties contained herein or
in any document delivered pursuant hereto, and (c) waive compliance with any of
the agreements or conditions contained herein. Any agreement on the part of a
Party hereto to any such extension or waiver shall be valid only if set forth in
an instrument in writing signed on behalf of such Party.
7.7 PUBLICITY
So long as this Agreement is in effect, the Parties shall not issue or cause the
publication of any press release or other announcement with respect to the
Acquisition or this Agreement without the consent of the other Parties, which
consent shall not be unreasonably withheld or delayed where such release or
announcement is required by applicable law.
7.8 SUCCESSORS
This Agreement shall be binding upon and insure to the benefit of and
enforceable by the respective successors of the Parties.
7.9 INTERPRETATION
As used in this Agreement, the term "including" shall mean "including, without
limitation". Use of the masculine gender in this Agreement is for convenience
alone, and shall be construed as incorporating the feminine gender.
7.10 FAILURE OR DELAY
No failure or delay on the part of any Party in exercising any right and/or
remedy to which it may be entitled hereunder and/or by law shall operate as a
waiver by that Party of any right whatsoever. No waiver of any right under this
Agreement shall be deemed as a waiver of any further or future right hereunder,
whether or not such right is the same kind of right as was waived in a previous
instance.
7.11 INVALID PROVISIONS
In case any provision of the Agreement shall be declared invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby and shall
continue in full force and effect and the Parties will cooperate in order to
implement an arrangement which is as close as possible to the arrangement as set
forth in any provision so declared invalid, illegal or unenforceable.
7.12 GOVERNING LAW; JURISDICTION
This Agreement shall be governed by and construed in accordance with the laws of
the State of Israel, without regard to its rules of conflict of laws. The
Parties hereby agree and submit to the exclusive jurisdiction of the competent
courts in the district of Tel-Aviv, Israel, with respect to any claim or dispute
arising out of and/or in connection with this Agreement, to the exclusion of all
other jurisdictions.
* REMAINDER OF PAGE LEFT INTENTIONALLY BLANK *
7.13
COUNTERPARTS
This Agreement may be executed in any number of counterparts, in original or by
facsimile, and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute one and the same
agreement.
IN WITNESS WHEREOF THE PARTIES HAVE EXECUTED THIS
-------------------------------------------------
AGREEMENT ON THE DATE FIRST ABOVE WRITTEN:
------------------------------------------
SIGNED for and on behalf of )
XXXXXXXX ACQUISITIONS, INC. )
By )
SIGNED for and on behalf of )
BARTECH MEDITERRANEAN LTD. )
By )
SIGNED by: )
XXXXX XXXXX )
SIGNED by: )
XXXXX XXXXXX )
SIGNED for and on behalf of )
BLACKBORN FINANCIAL CONSULTING (1999) LTD. )
By )
SIGNED for and on behalf of )
PROGRESS HOLDING S.A. )
By )
SIGNED by: )
XXX XXXXXX )
SIGNED by: )
XXXXXXX XXXXX )
SIGNED for and on behalf of )
ICE MAIDEN )
By )
SIGNED for and on behalf of )
REGAL TRUST )
By )
SIGNED for and on behalf of )
BRASMILL LTD. )
By )
LIST OF SCHEDULES TO ACQUISITION AGREEMENT DATED 28-DEC-01
BAI - BARTECH - BARTECH SHAREHOLDERS
LIST OF SCHEDULES TO AGREEMENT
------------------------------
SCHEDULE NUMBER BRIEF DESCRIPTION
A List of Sellers
4.2d Bartech Litigation
4.2e Certain Changes in Bartech
SCHEDULES TO ACQUISITION AGREEMENT DATED 00-XXX-00
XXX - XXXXXXX - XXXXXXX XXXXXXXXXXXX
XXXXXXXX A
----------
Column A Column B Column C Column D
------------------- --------- ---------- -------------------------------
Qty/Shares % Holding
Name of Held in in
Shareholder Bartech Bartech Qty/BAI Shares in Consideration
------------------- --------- ---------- -------------------------------
Row A Xxxxx Xxxxx 1,048,825 27.724 3,326,917
-------------------- ------------------- --------- ---------- -------------------------------
Row B Xxxxx Xxxxxx 1,048,825 27.724 3,326,917
-------------------- ------------------- --------- ---------- -------------------------------
Blackborn
Financial
Consulting (1999)
Row C Ltd. 1,048,824 27.724 3,326,917
-------------------- ------------------- --------- ---------- -------------------------------
Progress Holding
Row D S.A. 324,150 8.568 1,028,217
-------------------- ------------------- --------- ---------- -------------------------------
Row E Xxx Xxxxxx 108,000 2.855 342,581
-------------------- ------------------- --------- ---------- -------------------------------
Row F Xxxxxxx Xxxxx 94,576 2.500 299,999
-------------------- ------------------- --------- ---------- -------------------------------
Ice Maiden
Row G International Ltd. 63,051 1.667 200,000
-------------------- ------------------- --------- ---------- -------------------------------
Row H Regal Trustees Ltd. 36,000 0.952 114,194
-------------------- ------------------- --------- ---------- -------------------------------
Row I Brasmill Ltd. 10,800 0.285 34,258
-------------------- ------------------- --------- ---------- -------------------------------
Total: 3,783,051 100.00 12,000,000
-------------------- ------------------- --------- ---------- -------------------------------
SCHEDULE4.2D
------------
NONE.
SCHEDULE4.2E
------------
NONE.
-----
------
LIST OF EXHIBITS TO ACQUISITION AGREEMENT DATED 28-DEC-01
BAI - BARTECH - BARTECH SHAREHOLDERS
LIST OF EXHIBITS TO AGREEMENT
-----------------------------
EXHIBIT BRIEF DESCRIPTION
NUMBER
---------- ---------------------------------------------------
2.2b BAI Articles of Incorporation and By-Laws
----- ---------------------------------------------------
2.2c Bartech Memorandum and Articles of Association
----- ---------------------------------------------------
3.2a(i) Form of Share Transfer Deed
-------- ---------------------------------------------------
4.2b(i) Bartech Promissory Note for $200,000.-
-------- ---------------------------------------------------
4.2b(ii) Bartech Promissory Note for $146,250.-
--------- ---------------------------------------------------
4.2b(iii) Bartech Promissory Note for $48,750.-
---------- ---------------------------------------------------
4.2f Bartech Annual Financial Statements
----- ---------------------------------------------------
4.3b BAI Capitalization Table
----- ---------------------------------------------------
EXHIBIT2.2B
-----------
TO ACQUISITION AGREEMENT DATED 28TH DECEMBER 2001
-------------------------------------------------
BAI ARTICLES OF INCORPORATION AND BY-LAWS
-----------------------------------------
[ OVERLEAF ]
------------
EXHIBIT2.2C
-----------
TO ACQUISITION AGREEMENT DATED 28TH DECEMBER 2001
-------------------------------------------------
BARTECH MEMORANDUM AND ARTICLES OF ASSOCIATION, AS AMENDED
----------------------------------------------------------
[ OVERLEAF ]
------------
------
EXHIBIT3.2A(I)
--------------
TO ACQUISITION AGREEMENT DATED 28TH DECEMBER 2001
-------------------------------------------------
FORM OF SHARE TRANSFER DEED
---------------------------
[ OVERLEAF ]
------------
EXHIBIT4.2B(I)
--------------
TO ACQUISITION AGREEMENT DATED 28TH DECEMBER 2001
-------------------------------------------------
BARTECH PROMISSORY NOTE FOR $200,000.-
--------------------------------------
[ OVERLEAF ]
------------
EXHIBIT4.2B(II)
---------------
TO ACQUISITION AGREEMENT DATED 28TH DECEMBER 2001
-------------------------------------------------
BARTECH PROMISSORY NOTE FOR $146,250.-
--------------------------------------
[ OVERLEAF ]
------------
EXHIBIT4.2B(III)
----------------
TO ACQUISITION AGREEMENT DATED 28TH DECEMBER 2001
-------------------------------------------------
BARTECH PROMISSORY NOTE FOR $48,750.-
-------------------------------------
[ OVERLEAF ]
------------
EXHIBIT4.2F
-----------
TO ACQUISITION AGREEMENT DATED 28TH DECEMBER 2001
-------------------------------------------------
BARTECH ANNUAL FINANCIAL STATEMENTS FOR 2000
--------------------------------------------
[ OVERLEAF ]
------------
EXHIBIT4.3B
-----------
TO ACQUISITION AGREEMENT DATED 28TH DECEMBER 2001
-------------------------------------------------
BAI CAPITALISATION TABLE
------------------------
[ OVERLEAF ]
------------
