EXHIBIT 10.1
SHARE EXCHANGE AGREEMENT
THIS SHARE EXCHANGE AGREEMENT (this "Agreement"), effective as of September 17,
2009 (the "Effective Date"), is entered into by and between InoLife
Technologies, Inc., a corporation formed under the laws of the State of New York
("Buyer"), InoVet, Ltd., a corporation formed under the laws of Delaware (the
"Company"), and the shareholders of the Company, Xxxx Xxxxxxxx and Xxxxxx
Xxxxxxxx (collectively, the "Shareholders").
WHEREAS the Shareholders are the registered and beneficial owners of all of the
issued and outstanding shares of common stock of the Company (the "Shares");
WHEREAS Buyer is a publicly trading company, whose stock currently trades on the
on the Over-the-Counter Bulletin Board under the symbol "NXXN.OB";
WHEREAS subject to approval by the respective Board of Directors, Buyer desires
to acquire one hundred percent (100%) of the total issued and outstanding Shares
in exchange for 10,000,000 shares of the common stock, par value $0.01, of Buyer
representing 100% of the total issued and outstanding shares of Buyer (the
"Buyer Shares");
WHEREAS Buyer desires to acquire the Company in exchange for all of the issued
and outstanding shares of the Company resulting in the Company becoming a
wholly-owned subsidiary of Buyer in a tax-free exchange;
WHEREAS, the parties to this Agreement have agreed to the share exchange subject
to the terms and conditions set forth below.
NOW THEREFORE THIS AGREEMENT WITNESSES that for and in consideration of the
mutual premises and the mutual covenants and agreements contained herein, the
parties covenant and agree each with the other as follows:
ARTICLE I
EXCHANGE OF STOCK
Section 1.01. EXCHANGE. Upon the terms and subject to the conditions of this
Agreement, the Shareholders agree to exchange the Shares for the Buyer Shares
and Buyer agrees to issue to the Shareholders 10,000,000 Buyer Shares. The
parties intend that the share exchange shall qualify as a tax free
reorganization under Section 368 of the Internal Revenue Code. However, Buyer
makes no representations or warranties regarding the qualification of the share
exchange as "tax free". Buyer shall cooperate with the Company in executing any
reasonably necessary documents to qualify the share exchange as tax free.
Section 1.02. DELIVERY OF STOCK. (a) Upon the execution hereof, the Shareholders
shall deliver to Buyer all of the stock certificates representing the total
issued and outstanding Shares, duly endorsed in blank;
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(b) Upon execution hereof, Buyer shall deliver to the Shareholders stock
certificates representing the Buyer Shares in the names and denominations as set
forth on Exhibit A hereto.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SHAREHOLDERS
Section 2.01. ORGANIZATION, STANDING AND AUTHORITY; FOREIGN QUALIFICATION. (a)
The Company is a corporation duly organized, validly existing and in good
standing under the laws of Delaware with all requisite power and authority to
enter into, and perform the obligations under this Agreement. The Company has
all requisite power and authority to own, lease and operate its assets,
properties and business and to carry on its business as now being and as
heretofore conducted.
(b) The Company is duly qualified or otherwise authorized as a
corporation to transact business and is in good standing in each jurisdiction as
necessary to conduct business as required by law. The Company does not file any
franchise, income or other tax returns in any other jurisdiction other than the
State of Delaware, based upon the ownership or use of property therein or the
derivation of income there from.
Section 2.02. CAPITALIZATION. The authorized capital of the Company consists of
75,000,000 shares of common stock, par value $.0001 per share, A total of
50,000,000 shares of common stock are issued and outstanding. There are also
1,000,000 shares of preferred stock with a par value of $0.0001 per share. The
Shares are the only class of the Company's capital stock that is outstanding.
All of the outstanding Shares are duly authorized, validly issued, fully paid
and non-assessable and free of preemptive rights.
Section 2.03. CERTIFICATE OF INCORPORATION AND BY-LAWS. The Company has
heretofore delivered to Buyer true, correct and complete copies of its
Certificate of Incorporation or other documentation evidencing a corporation and
By-laws. The minute books of the Company accurately reflect all actions taken at
all meetings and consents in lieu of meetings of its stockholders, and all
actions taken at all meetings and consents in lieu of meetings of its boards of
directors and all committees.
Section 2.04. EXECUTION AND DELIVERY. This Agreement has been duly executed and
delivered by each Shareholder and each constitutes the valid and binding
agreement of each Shareholder enforceable against such Shareholder in accordance
with its terms.
Section 2.05. CONSENTS AND APPROVALS. The execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated hereby and
thereby in accordance with the terms and conditions hereof and thereof do not
require any Shareholder to obtain any consent, approval or action of, or make
any filing with or give any notice to, any person or entity.
Section 2.06. NO CONFLICT. The execution, delivery and performance of each of
this Agreement and the consummation of the transactions contemplated hereby and
thereby in accordance with the terms and conditions hereof and thereof will not
(a) violate any provisions of the Certificate of Incorporation, By-laws or
organizational document of the Company; (b) violate, conflict with or result in
any modification of the effect of, otherwise give any other contracting party
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the right to terminate, or constitute (or with notice or lapse of time or both,
constitute) a default under, and contract to which any Shareholder or the
Company is a party to by or to which any of them or any of their respective
assets or properties may be bound or subject; (c) violate any order, judgment,
injunction, award or decree of any court, arbitrator or governmental or
regulatory body against, or binding upon or any agreement with, or condition
imposed by, any governmental or regulatory body, foreign or domestic, binding
upon any Shareholder or the Company or upon the Shares or the properties or
business of the Company; (d) violate any statute, law or regulation of any
jurisdiction as such statute, law or regulation relates to any Shareholder or
the Company; or (e) result in the breach of any of the terms or conditions of,
constitute a default under, or otherwise cause an impairment of, any permit.
Section 2.07. TITLE TO STOCK. Each Shareholder has valid title to their
respective portion of the Shares free and clear of all liens or encumbrances,
including, without limitation, any community property claim. Upon delivery of
the Shares to be made on the Closing, Buyer shall acquire good and marketable
title thereto, free and clear of any lien, including, without limitation, any
community property claim.
Section 2.08. OPTIONS OR OTHER RIGHTS. (a) There are no outstanding rights,
subscriptions, warrants, calls, preemptive rights, options, contracts or other
agreements of any kind to purchase or otherwise to receive from any Shareholder
or from the Company any of the outstanding, unauthorized or treasury shares of
the Shares; and (b) there is no outstanding security of any kind convertible
into any security of the Company, and, there is no outstanding contract or other
agreement to purchase, redeem or otherwise acquire any of the Shares.
Section 2.09. MATERIAL INFORMATION. This Agreement, the financial statements of
the Company and all other information provided in writing by the Shareholders or
the Company or representatives thereof to Buyer, taken as a whole, do not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make any statement contained herein or therein not misleading.
There are no facts or conditions, which have not been disclosed to Buyer in
writing which, individually or in the aggregate, could have a material adverse
effect on Buyer or a material adverse effect on the ability of any Shareholder
to perform any of his or her obligations pursuant to this Agreement.
Section 2.10. FINANCIAL STATEMENTS. The Company has or will have prior to the
Closing furnished to Buyer certain financial statements of the Company as set
forth in Section 4.11 hereof (the "Financial Statements"). The Financial
Statements shall be true, correct and complete in all material respects and
fairly present the financial condition of the Company and the results of its
operations for the period then ended and shall be prepared in conformity with
U.S. generally accepted accounting principles applied on a consistent basis.
Section 2.11. ABSENCE OF CERTAIN CHANGES. Since the date of the Financial
Statements, there has been no event, change or development which could have a
material adverse effect on the Company.
Section 2.12. UNDISCLOSED LIABILITIES. Except as reflected or reserved against
in the Financial Statements, as of and for the period reflected therein, the
Company was not on that date subject to, and since that date the Company has not
incurred, any direct or indirect indebtedness, liability, claim, loss, damage,
deficiency, obligation or responsibility, fixed or unfixed, xxxxxx or inchoate,
liquidated or un liquidated, secured or unsecured, accrued, absolute, contingent
or otherwise, of a kind required by generally accepted accounting principles to
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be reflected or reserved against on a financial statement ("Liabilities"), which
individually or in the aggregate exceeds $10,000.
Section 2.13. OPERATIONS OF THE COMPANY. Except as contemplated by this
Agreement, since the date of the Financial Statements, the Company has not: (a)
amended its Certificate of Incorporation or By-laws or merged with or into or
consolidated with any other person or entity, subdivided or in any way
reclassified any shares of its capital stock or changed or agreed to change in
any manner the rights of its outstanding capital stock or the character of its
business; (b) issued, reserved for issuance, sold or redeemed, repurchased or
otherwise acquired, or issued options or rights to subscribe to, or entered into
any contract or commitment to issue, sell or redeem, repurchase or otherwise
acquire, any shares of its capital stock or any bonds, notes, debentures or
other evidence or indebtedness; (c) incurred any indebtedness for borrowed money
or incurred or assumed any other liability in excess of $10,000 in any one case
(or, in the aggregate, in the case of any related series of occurrences) or
$25,000 in the aggregate; (d) declared or paid any dividends or declared or made
any other distributions of any kind to its stockholders; (e) made any change in
its accounting methods or practices or made any change in depreciation or
amortization policies, except as required by law or generally accepted
accounting principles; (f) made any loan or advance to any of its stockholders
or to any of its directors, officers or employees, consultants, agents or other
representatives, or made any other loan or advance, otherwise than in the
ordinary course of business; (g) entered into any lease (as lessor or lessee)
under which the Company is obligated to make or would receive payments in any
one year of $10,000 or more; sold, abandoned or made any other disposition of
any of its assets or properties; granted or suffered any lien on any of its
assets or properties; entered into or amended any contracts to which it is a
party, or by or to which it or its assets or properties are bound or subject;
(h) made any acquisition of all or a substantial part of the assets, properties,
securities or business of any other person or entity; (i) paid, directly or
indirectly, any of its material liabilities before the same became due in
accordance with its terms or otherwise than in the ordinary course of business;
(j) terminated or failed to renew, or received any written threat (that was no
subsequently withdrawn) to terminate or fail to renew, any contract that is or
was material to the assets, liabilities, business, property, operations,
prospects, results of operations or condition (financial or otherwise of the
Company); or (k) entered into any other contract or other transaction that
materially increases the Liabilities of the Company.
Section 2.14 COMPLIANCE WITH LAWS. The Company is not in violation of any
applicable order, judgment, injunction, award or decree nor is it in violation
of any Federal, provincial, state, local or foreign law, ordinance or regulation
or any other requirement of any governmental or regulatory body, court or
arbitrator, other than those violations which, in the aggregate, would not have
a material adverse effect on the Company, neither the Company nor any
Shareholder has received written notice that any violation is being alleged.
Section 2.15. ACTIONS AND PROCEEDINGS. There are no outstanding orders,
judgments, injunctions, awards or decrees of any court, governmental or
regulatory body or arbitration tribunal against or involving the Company, or
against or involving any of the Shares. There are no actions, suits or claims or
legal, regulatory, administrative or arbitration proceedings pending or, to the
knowledge of any of the Shareholders threatened against or involving the
Company.
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Section 2.16. CONTRACTS. (a) Schedule 2.16 sets forth all of the contracts
hereinafter in this Section 2.16 referred to, to which the Company is a party or
by or to which the Company or its assets or properties are bound or subject:
(i) Contracts with any current or former officer, director,
employee, consultant, agent or other representative having more
than three months to run from the date hereof or providing for
an obligation to pay and/or accrue compensation of $10,000 or
more per annum, or providing for the payment of fees or other
consideration in excess of $10,000 in the aggregate to any
officer or director of the Company, or to any other entity in
which the Company has an interest;
(ii) Contracts for the purchase or sale of equipment or services that
contain an escalation, renegotiation or predetermination clause
or that can be cancelled without liability, premium or penalty
only on ninety days' or more notice;
(iii) Contract for the sale of any of its assets or properties or for
the grant to any person of any preferential rights to purchase
any of its or their assets or properties;
(iv) Contracts (including with limitation, leases of real property)
calling for an aggregate purchase price or payments in any one
year of more than $10,000 in any one case (or in the aggregate,
in the case of any related series of contracts);
(v) Contracts relating to the acquisition by the Company of any
operating business of, or the disposition of any operating
business by, any other person;
(vi) executor Contracts relating to the disposition or acquisition of
any investment or of any interest in any person; (vii) Contracts
under which it agrees to indemnify any party, other than in the
ordinary course of business or in amounts not in excess of
$10,000, or to share tax liability of any party;
(viii) Contracts containing covenants of the Company not to compete in
any line of business or with any person in any geographical area
or covenants of any other person not to compete with in any line
of business or in any geographical area;
(ix) Contracts relating to the making of any loan by the Company;
(x) Contracts relating to the borrowing of money by the Company or
the direct or indirect guaranty by the Company of any obligation
for, or an agreement by the Company to service, the repayment of
borrowed money, or any other contingent obligations in respect
of indebtedness of any other person, including, without
limitation, (a) any contract relating to the maintenance of
balances, (b) any contract with respect to lines of credit, (c)
any contract to advance or supply funds to any other person
other than in the ordinary course of business, (d) any contract
to pay for property, products or services of any other person
even if such property, products or services are not conveyed,
delivered or rendered, (e) any keep-well, make-whole or
maintenance of working capital or earnings or similar contract,
or (f) any guaranty with respect to any lease or other similar
periodic payments to be made by any other person;
(xi) Contracts for or relating to computers, computer equipment,
computer software or computer services; and (xii) any other
material contract whether or not made in the ordinary course of
business.
(b) There have been delivered or made available to Buyer true, correct
and complete copies of each of the contracts. Each such contract is valid,
subsisting, in full force and effect and binding upon the parties thereto in
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accordance with its terms, and neither the Company nor any of the Company's
other affiliates, as the case may be, is in default in any respect under any of
them.
Section 2.17 INTELLECTUAL PROPERTY. All patents and other intellectual property,
including all inventions, designs, models, processes, and applications for
patents owned or used by the Company or in which or to which it has any rights,
licenses or immunities are described and set forth with particularity in
Schedule 2.17 along with information as to the Company's ownership thereof or
licenses, rights or immunities therein and registrations thereof. The Company
has not infringed on, misappropriated or otherwise conflicted with and is not
now infringing on, misappropriating or otherwise conflicting with any patent or
other intellectual property right belonging to any person. The Company is not a
party to any license agreement or arrangement, whether or licensee, licensor or
otherwise, with respect to any patent, application for patent, invention,
design, model, process, trade secret or formula not set forth in Schedule 2.17.
To the Shareholders' knowledge, the Company has the right and authority to use
all patents, applications for patents, inventions, trade secrets, processes,
models, designs, formulas and other intellectual property rights as are
necessary to enable it to conduct and to continue to conduct all phases of the
Company's business in the manner presently conducted and such use does not and
will not conflict with, infringe on or misappropriate any patent or other rights
of any person.
Section 2.18. LIENS. The Company has marketable title to all of its assets and
properties free and clear of any lien.
Section 2.19. OFFICERS, DIRECTORS AND KEY EMPLOYEES. The Company does not have
any contract or agreement with any of its officers, directors, employees or
consultants whose annual salary equals or exceeds $25,000 or who received or has
accrued in respect of such period a bonus equal to or in excess of $5,000; and
the Company does not have any commitments or contracts to increase the wages or
to modify the condition or terms of employment or consultancy of any of the
employees or consultants of the Company, including the aggregate cost to the
Company of all such commitments or contracts.
Section 2.20. BROKERAGE. No brokerage fees are to be paid in relation to this
transaction.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to the Shareholders as follows:
Section 3.01. ORGANIZATION, STANDING AND AUTHORITY OF BUYER. Buyer is a
corporation duly organized, validly existing and in good standing under the laws
of the State of New York and has all requisite corporate power and authority to
own or lease its assets as now owned or leased by it and to otherwise conduct
its business. All corporate proceedings required by law or by the provisions of
this Agreement to be taken by Buyer on or before the Closing in connection with
the execution and delivery of this Agreement and the consummation of the
transactions contemplated by this Agreement have been or will be duly and
validly taken.
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Section 3.02. EXECUTION AND DELIVERY. This Agreement has been duly authorized,
executed and delivered by Buyer and constitutes the valid and binding agreement
of Buyer enforceable against Buyer in accordance with its terms.
Section 3.03. CONSENTS AND APPROVALS. The execution, delivery and performance by
Buyer of this Agreement and the consummation by Buyer of the transactions
contemplated hereby do not require Buyer to obtain any consent, approval or
action of, or make any filing with or give any notice to, any person.
Section 3.04. NO CONFLICT. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby in
accordance with the terms and conditions hereof will not: (a) violate any
provision of the Certificate of Incorporation, By-laws or other organizational
document of Buyer; (b) violate, conflict with or result in the breach of any of
the terms of, result in any modification of the effect of, otherwise give any
other contracting party the right to terminate, or constitute (or with notice or
lapse of time or both constitute) a default under, any contract to which Buyer
is a party or by or to which its assets or properties may be bound or subject;
(c) violate any order, judgment, injunction, award or decree of any court,
arbitrator or governmental or regulatory body against, or binding upon, or any
agreement with, or condition imposed by, any governmental or regulatory body,
foreign or domestic, binding upon Buyer or upon the securities, assets or
business of Buyer; or (d) violate any statute, law or regulation of any
jurisdiction as such statute, law or regulation relates to Buyer or to the
securities, properties or business of Buyer.
Section 3.05. CAPITALIZATION. The capital of Buyer is as set forth in Buyer's
public securities laws filings.
Section 3.06. BROKERAGE. No broker or finder has acted, directly or indirectly,
for Buyer, nor has Buyer incurred any obligation to pay any brokerage, finder's
fee or other commission in connection with the transactions contemplated by this
Agreement.
Section 3.07. CERTIFICATE OF INCORPORATION AND BY-LAWS. Buyer has heretofore
delivered to the Company and the Shareholders true, correct and complete copies
of the Certificate of Incorporation and By-laws or comparable instruments of
Buyer.
Section 3.08. STATUS OF BUYER SHARES. Upon consummation of the transactions
contemplated by this Agreement, the Buyer Shares to be issued to the
Shareholders, when issued and delivered, will be free of any and all liens,
claims or encumbrances.
Section 3.09 NO BANKRUPTCY. Neither Buyer nor its assets are the subject of any
proceeding involving either a voluntary or an involuntary bankruptcy, insolvency
or receivership.
Section 3.10 CONTRACTS AND COMMITMENTS. All agreements which materially affect
Buyer to which Buyer is a party or by which Buyer or any of its property is
bound which exist as of the date of execution of this Agreement have been
reviewed by the parties and Buyer is not in default with respect to any material
term or condition of any such contract, nor has any event occurred which through
the passage of time or the giving of notice, or both, would constitute a default
hereunder.
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Section 3.11 COMPLIANCE WITH LAWS. To its knowledge, Buyer is not in violation
of any applicable order, judgment, injunction, award or decree nor is it in
violation of any Federal, state, local or foreign law, ordinance or regulation
or any other requirement of any governmental or regulatory body, court or
arbitrator, other than those violations which, in the aggregate, would not have
a material adverse effect on Buyer and Buyer has not received written notice
that any violation is being alleged.
Section 3.12 STOP TRADE ORDERS. To Buyer's knowledge, there are no pending, and
there have never been any, stop trade orders issued against Buyer or any of its
directors or officers or those of any affiliates of Buyer by any securities
regulatory authority in the United States.
Section 3.13 REGULATORY INVESTIGATIONS. To Buyer's knowledge, there are no
investigations or inquiries pending against Buyer or its directors or officers
by any stock exchange, securities regulatory authority, taxing authority or any
other governmental department or agency.
Section 3.14 CORPORATE RECORDS. All of the minute books and corporate and
financial records of Buyer are, or prior to the Closing will be made available
for review. In the event of the absence of a complete minute book,
representation and warranty by the board of directors shall take precedence over
the minute book and shall be incorporated to the minute book.
ARTICLE IV
COVENANTS AND AGREEMENTS
The Shareholders, the Company and Buyer covenant and agree as follows:
Section 4.01. CORPORATE EXAMINATIONS AND INVESTIGATIONS. Prior to the Closing,
Buyer shall be entitled, through its employees and representatives, to make such
investigation of the assets, liabilities, properties, business and operations of
the Company, and such examination of the books, records, tax returns, results of
operations and financial condition of the Company, as Buyer wishes. Any such
investigation and examination shall be conducted at reasonable times and under
reasonable circumstances and the Shareholders and the Company and the employees
and representatives of Buyer, including without limitation, their counsel and
independent public accountants, shall cooperate fully with such representatives
in connection with such review and examination.
Section 4.02. FURTHER ASSURANCES. Each of the parties shall execute such
documents and other papers and take such further actions as may be reasonably
required or desirable to carry out the provisions hereof and the transactions
contemplated hereby. Each such party shall use its best efforts to fulfill or
obtain the fulfillment of the conditions to the Closing as promptly as
practicable.
Section 4.03. DELIVERY OF FINANCIAL STATEMENTS. (a) On or before the Closing,
the Shareholders shall cause the Company to provide the following financial
statements to Buyer, which shall collectively be referred to as the "Financial
Statements".
(i) Unaudited balance sheets as of the end of each of the two most
recent fiscal years or such shorter period as the Company (including
its predecessors) has been in existence;
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(ii) Unaudited statements of income and cash flow for each of the three
fiscal years preceding the date of the unaudited balance sheet referred
to in (1) above or such shorter period as the Company (including its
predecessors) has been in existence;
(b) The unaudited financial statements referred to in (a)(i) and (a)(ii) above
shall be prepared by an independent certified public accountants or independent
chartered accountants that have been duly registered and in good standing. The
interim financial statements referred to in (a)(iii) and (a)(vi) above may be
unaudited.
Section 4.04 PUBLIC ANNOUNCEMENTS. Except as required by any applicable law,
rule or regulation, prior to the Closing, the Company shall not issue nor permit
to be issued any press release or otherwise make or permit to be made any public
statement with respect to the transactions contemplated by this Agreement
without the prior written consent of Buyer.
ARTICLE V
CONDITIONS PRECEDENT TO THE OBLIGATION OF BUYER TO CLOSE
The obligation of Buyer to enter into and complete the Closing is subject, at
Buyer's option acting in accordance with the provisions of this Agreement with
respect to the termination hereof, to the fulfillment on or prior to the Closing
of the following conditions, any one or more of which may be waived by it, to
the extent permitted by law.
Section 5.01. REPRESENTATIONS AND COVENANTS. The representations and warranties
of the Shareholders contained in this Agreement shall be true and correct on and
as of the Closing with the same force and effect as though made on and as of the
Closing, except that any of such representations and warranties that are give as
of a particular date and relate solely to a particular date or period shall be
true as of such date or period. The Shareholders shall have performed and
complied with all covenants and agreements required by this Agreement to be
performed or complied with by them on or prior to the Closing. The Shareholders
shall have delivered to Buyer a certificate dated the Closing, and signed by
each Shareholder to the foregoing effect.
Section 5.02. GOVERNMENTAL PERMITS AND APPROVALS. All approvals, authorizations,
consents, permits and licenses from governmental and regulatory bodies required
for the transactions contemplated by this Agreement and to permit the business
currently carried on by the Company to continue to be carried on by the Company
substantially in the same manner immediately following the Closing shall have
been obtained and shall be in full force and effect and without conditions or
limitations reasonably unacceptable to Buyer, and Buyer shall have been
furnished with appropriate evidence, reasonably satisfactory to it and its
counsel, of the granting of such approvals, authorizations, consents, permits
and licenses. There shall not have been any action taken by any court,
governmental or regulatory body then prohibiting or making illegal on the
Closing the transactions contemplated by this Agreement.
Section 5.03. THIRD PARTY CONSENTS. All consents, permits and approvals from
parties to contracts with the Company that may be required in connections with
the performance by the Shareholders of their obligations under this Agreement or
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the continuance of such contracts with the Company in full force and effect
after the Closing shall have been obtained.
Section 5.04. LITIGATION. No action, suit or proceeding shall have been
instituted and be continuing or be threatened by any person to restrain, modify
or prevent the carrying out of the transactions contemplated hereby, or to seek
damages in connection with such transactions, or that has or could have a
material adverse effect on the Company.
Section 5.05 NO CHANGE IN CAPITALIZATION. On the Closing, the capitalization of
the Company shall be as represented in Section 2.02.
Section 5.06. BOARD AND SHAREHOLDER APPROVAL. Prior to the Closing, the Company
will obtain from its Board of Directors and the Shareholders approval of this
Agreement and the transactions contemplated hereby.
ARTICLE VI
CONDITIONS PRECEDENT TO THE OBLIGATION OF
THE SHAREHOLDERS TO CLOSE
The obligation of the Shareholders to enter into and complete the Closing is
subject, at the Shareholder's option acting in accordance with the provisions of
this Agreement with respect to the termination hereof, to the fulfillment on or
prior to the Closing of the following conditions, any one or more of which may
be waived by it, to the extent permitted by law.
Section 6.01. REPRESENTATIONS AND COVENANTS. The representations and warranties
of Buyer contained in this Agreement shall be true and correct on and as of the
Closing with the same force and effect as though made on and as of the Closing,
except that any of such representations and warranties that are give as of a
particular date and relate solely to a particular date or period shall be true
as of such date or period. Buyer shall have performed and complied with all
covenants and agreements required by this Agreement to be performed or complied
with by them on or prior to the Closing. Buyer shall have delivered to the
Shareholders a certificate dated the Closing, and signed by an appropriate
officer of Buyer to the foregoing effect.
Section 6.02. NO CHANGE IN CAPITALIZATION. On the Closing, the capitalization of
Buyer shall be as represented in Section 3.05 hereof.
Section 6.03. FILING OF PERIODIC REPORTS. Buyer is current with respect to the
filings required to be made by Buyer pursuant to the Securities Exchange Act of
1934 and the rules and regulations of promulgated thereunder and the rules and
regulations of the Securities and Exchange Commission.
Section 6.04. QUOTATION ON OVER-THE-COUNTER BULLETIN BOARD. Buyer is trading on
the Over-the-Counter Bulletin Board under the ticker symbol NXXN.OB.
Section 6.05. BOARD APPROVAL. Prior to the Closing, Buyer shall obtain the
approval of its Board of Directors of this Agreement and the transactions
contemplated hereby.
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ARTICLE VII
SURVIVAL AND INDEMNIFICATION
Section 7.01 INDEMNIFICATION BY SHAREHOLDERS. The Shareholders, jointly and
severally, will indemnify Buyer, its affiliates and each of their respective
officers, directors, employees, stockholders, agents and representatives
against, and hold them harmless from, any loss, liability, claim, damage or
expense (including reasonable legal fees and expenses) suffered or incurred by
any such indemnified party to the extent arising from (i) any breach of any
representation or warranty of the Company or any of the Shareholders which
survives the Closing, and (ii) any breach of any covenant of the Company and/or
the Shareholders contained in this Agreement which requires performance after
the Closing Date.
Section 7.02 INDEMNIFICATION BY BUYER. Buyer will indemnify the Shareholders,
and each of their agents and representatives against, and hold them harmless
from, any loss, liability, claim, damage or expense (including reasonable legal
fees and expenses) suffered or incurred by any such indemnified party to the
extent arising from (i) any breach of any representation or warranty of Buyer
which survives the Closing, and (ii) any breach of any covenant of Buyer
contained in this Agreement which requires performance after the Closing Date;
provided, however, that Buyer shall not have any liability under clause (i)
above unless the aggregate of all losses, liabilities, costs and expenses
relating thereto for which Buyer would but for this proviso be liable exceeds on
a cumulative basis an amount equal to $5,000, and provided further, however,
that Buyer's liability shall in no event exceed the Purchase Price.
Section 7.03 LIMITATIONS OF LIABILITY; COOPERATION. (a) Notwithstanding any
provision herein, none of the parties hereto shall in any event be liable to the
other parties to this Agreement or to such other parties' affiliates, officers,
directors, employees, stockholders, agents or representatives on account of any
indemnity obligation set forth in this Article VII for any indirect,
consequential, special, incidental or punitive damages (including, but not
limited to, lost profits, loss of use, damage to goodwill or loss of business).
(b) The parties hereto acknowledge and agree that their sole and
exclusive remedy with respect to any and all claims relating to this Agreement,
the transactions contemplated hereby, and the Assets (other than claims of, or
causes of action arising from, fraud) shall be pursuant to the indemnification
provisions set forth in this Article VII. In furtherance of the foregoing, the
parties hereto hereby waive, from and after the Closing, to the fullest extend
permitted under applicable Law, any and all rights, claims and causes of action
(other than claims of, or causes of action arising from, fraud) which it may
have against any of the other parties hereto and such parties' affiliates
arising under or based upon any federal, state, local or foreign statute, law,
ordinance, rule or regulation or otherwise (except pursuant to the
indemnification provisions set forth in this Article VII).
(c) The parties shall cooperate with each other with respect to
resolving any claim or liability with respect to which one party is obligated to
indemnify the other party hereunder including by making commercially reasonable
efforts to mitigate or resolve any such claim or liability.
11
Section 7.04 TERMINATION OF INDEMNIFICATION. The obligations to indemnify and
hold harmless a party hereto (a) pursuant to Sections 7.01(i) or 7.02(ii) (i.e.
on account of a breach of a representation or warranty), shall terminate
eighteen (18) months after the date hereof; provided, however that those
pursuant to Section 2.07 and 3.08 shall survive indefinitely, and (b) pursuant
to any other clause(s) of Section 7.01 or 7.02 shall not terminate; provided,
however, that as to clause (a) of this Section 7.04, such obligation to
indemnify and hold harmless shall not terminate with respect to any item as to
which the person to be indemnified or the related party thereto shall have,
before the expiration of the applicable period, previously made a claim by
delivering a notice of such claim (stating in reasonable detail the basis of
such claim to the indemnifying party).
ARTICLE VIII
MISCELLANEOUS
Section 8.01 TIMING. Time is of the essence of this Agreement and each party
hereto agrees and covenants to use their reasonably best efforts to complete the
transactions contemplated hereby in a timely manner.
Section 8.02 ADDITIONAL DOCUMENTATION. The parties will execute and deliver such
further documents and instruments and do all such acts and things as may be
reasonably necessary or requisite to carry out the full intent and meaning of
this Agreement and to effect the transactions contemplated by this Agreement.
Section 8.03 MERGER; ASSIGNMENT. This Agreement (a) constitutes the entire
agreement and supersedes all prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter hereof; (b) is
not intended to confer upon any other persons any rights or remedies hereunder,
except as hereinafter provided; (c) shall be binding on the parties hereto and
their respective permitted heirs, executors, personal representatives,
successors and assigns, provided that this Agreement may not be assigned by any
party hereto without the prior written consent of all parties to this Agreement.
Section 8.04 EXECUTION IN COUNTERPARTS. This Agreement may be executed in
several counterparts, each of which will be deemed to be an original and all of
which will together constitute one and the same instrument, and may be executed
via facsimile transmission or electronic signature, and facsimile transmissions
and of signed Agreements or electronic signatures shall be regarded and accepted
as if they bore original signatures.
Section 8.05 EXPENSES. Each party will pay its legal expenses incurred in
connection with the transactions contemplated hereby, whether or not such
transactions are consummated.
Section 8.06 GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware, without regard to
principles of conflicts of law.
[signature page follows]
12
IN WITNESS WHEREOF the parties hereto have set their hand and seal as of the day
and year first above written.
INOVET, LTD
Date: September 17, 2009 By: /s/ XXXX BETHOLD
_____________________________________
Title: PRESIDENT
_____________________________________
Date: September 17, 2009 /s/ XXXX BETHOLD
_____________________________________
Xxxx Xxxxxxxx
Date: September 17, 2009 /s/ XXXXXX XXXXXXXX
_____________________________________
Xxxxxx Xxxxxxxx
INOLIFE TECHNOLOGIES, INC.
Date: September 17, 2009 By: /s/ XXXX XXXXXXXX
_____________________________________
Title: PRESIDENT/CEO
_____________________________________
