AGREEMENT
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This AMENDED AND RESTATED AGREEMENT ("Agreement") is made as of
November 13th, 2003 by and between m-Wise, Inc. a company duly
incorporated under the laws of state of Delaware having its
registered address at 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000, XXX (the "Company"); and Hilltek
Investments Ltd, of Road Town Tortola, BVI POB 3161 ("Hilltek").
Whereas The Company is a High-Tec company, having an R&D
subsidiary in Israel and specializing in the Wireless
Application area; and
Whereas Hilltek is seeking investment opportunities in private
and public growth companies and further has the
capability to provide general business consulting
services, primarily to those companies in which it
invests; and
Whereas The Company currently operates as a private company and
wishes to become publicly traded Over the Counter
Bulleting Board market (the "OTCBB") and for that
purpose the Company required financing as well as
external consulting; and
Whereas After examining the Company's operation, Hilltek has
expressed its interest in effecting investments in the
Company to be used for facilitating the Company in
achieving and maintaining listing with the OTCBB and
becoming a reporting issuer with the US Securities and
Exchange Commission ("SEC"), and is further willing to
provide general business consulting to the Company; and
Whereas The parties wish to define the terms and condition for
executing the subject matter of this agreement as set
forth herein.
NOW THEREFORE, for good and valuable consideration passing
amongst the parties hereto, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto covenant and agree as
follows:
1. Preamble
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1.1. The preamble to this agreement, including any statement
herein and the Schedules attached hereto, form an integral
part hereof and shall be binding upon the parties.
1.2. The title headings of the Articles hereof are intended
solely for convenience and are not intended and shall not be
construed for any other purpose.
2. Subject Matter
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In consideration for Company's shares, Hilltek shall invest
in the Company such funds and provide the Company with
general business consulting services all as set forth
hereunder.
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3. Warranties
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3.1 Hilltek hereby represents and warrants that it has the
financial backing, the means, the expertise, capability,
connections and know-how to provide the Company with the
required financing and consulting services, as detailed
herein.
3.2 Hilltek undertakes to dedicate its best efforts, time,
funds, connections, experience, diligence and attention
for performing its duties herein efficiently and to the
benefit of the Company.
3.3 The Company acknowledges the importance of furthering
the listing the Company's stock on the OTCBB and
undertakes to fully cooperate with all its professional
advisors for this purpose. The Company shall provide
such advisors with all necessary information and
documentation including audited financial statements,
appropriate detailed business plans for the Company, and
all other due diligence materials which may be required
from time to time, as shall be required form time to
time.
4. Investment & Consulting
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4.1 Hilltek hereby undertakes to invest in the stock capital
of the Company an amount equal to all the costs and
expenses incurred by the Company in relation to
achieving and maintaining the Company's listing on the
OTCBB including for professional consultants and
services to be retained by the Company for such purpose
or as shall be reasonably required by the Company in
connection therewith excluding, however, Company's
accounting and auditing expenses, which shall be wholly
born by the Company (the "Investments"). The Investments
shall be made either by way of direct transfer of funds
into the Company's account or by way of payment by
Hilltek directly to the relevant service providers.
4.2 The Company undertakes to bear the costs of an
accounting firm familiar with SEC reporting requirements
in order to prepare the relevant filings with the SEC,
NASD and other agencies and that such accountant be
approved by the SEC. Any and all accounting and audited
expenses will be borne solely by the Company.
4.3 Hilltek shall provide the Company with general on-going
business consulting for a period of twelve months as of
the date hereof, primarily in business development and
specifically in assisting the Company in listing its
common stock on the OTCBB, including by ("Consulting"):
4.3.1 Assisting the Company in interviewing and
locating US corporate legal counsel and a public
accounting firm which is a part of the SEC's peer
review program for the Company's Form SB-2
filing.
4.3.2 Advising the Company in relation to the above
filing.
4.3.3 Locating, interviewing and introducing the
Company to broker dealers and market makers which
will file a form 15c211 with the NASD on behalf
of the Company.
4.3.4 Assisting the Company in coordinating the efforts
of accountants and attorneys in becoming a
reporting issuer with the SEC and in filing a
Registration Statement to qualify the Company to
trade on the OTCBB.
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4.3.5 Making available to the Company its experience
and know-how and advise in al matters relating to
achieving and maintaining listing of the Company
on the OTCBB.
4.4 In consideration for the Investments, assistance and
Consulting provided by Hilltek, and for the costs and
expenses incurred by Hilltek in doing so and for
performing its undertakings herein, Hilltek shall be
entitled to 1,000,000 (one million) shares of the common
stock of the Company, par value $0.01 each (the
"Shares"), as adjusted to any stock splits or
restructuring. By executing this Agreement Hilltek
acknowledges receiving the Shares.
4.5 Except for the consideration expressly stated herein
Hilltek shall not be entitled to reimbursement or
compensation in any way for costs and/or expenses
incurred by it, directly or indirectly, in relation to
and for the purpose of providing the above consulting
and assistance.
5. Relationship of the Parties
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In performing its obligations hereunder, Hilltek and any of
its officers, directors or employees shall operate as and
have the status of independent contractors and shall not act
as or be an agent or employee of the Company. Neither party
shall have any right or authority or assume or create any
obligations or make any representations or warranties on
behalf of the other party, whether expressed or implied, or
to bind the other party in any respect whatsoever.
Notwithstanding the above, Hilltek undertakes that in
performing its undertakings herein, neither Hilltek nor its
officers, directors or employees shall be considered as
"brokers" as defined in section 3(a)(4) of the Securities
Exchange Act or as "dealers", as defined in section 3(a)(5)
of the Act and nothing in this agreement shall be construed
as implying such definition to apply on Hilltek.
6. Governing Law
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This Agreement shall be governed by the laws of the state of
New York, U.S.A. Each party hereby agrees to the exclusive
jurisdiction and venue for disputes arising out of or in
connection with this document to be in New York and its
courts.
7. Miscellaneous
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7.1 Entire Agreement: This Agreement constitutes the entire
agreement between the parties with regard to the subject
matter hereof and supersedes any previous agreement by
the parties with respect to such subject matter, in
writing or otherwise. In entering this Agreement the
parties acknowledge that any and all previous or former
agreements between them relating to the subject matter
herein are hereby null and void.
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7.2 Enforcement: It is the desire and intent of the parties
that the provisions of this Agreement shall be enforced
to the fullest extent permissible under all relevant
laws and public policies. Accordingly, if any particular
portion of this Agreement shall be adjudicated to be
invalid or unenforceable, it shall be deemed to be
amended to delete the portion thus adjudicated to be
invalid or unenforceable.
7.3 Termination: This Agreement may be terminated by either
party by a 30-days prior written notice to the other
party
7.4. Amendment: Any term of this Agreement may not be
amended, terminated or waived unless evidenced by a
document in writing specifically referring to this
Agreement.
7.5 Assignment: This Agreement and all the provisions hereof
shall be binding upon and inure to the benefit of the
parties hereto and their respective successors. Neither
party shall be allowed to assign or delegated his right
or undertaking herein without the prior written consent
of the other party.
7.6 Notices: All notices and other communications made
pursuant to this Agreement shall be in writing and shall
be conclusively deemed to have been duly given if: (i)
delivered by hand to the address shown below, on the
next business day (as hereafter defined); or (ii) in the
case of delivery by registered mail to the address shown
below, five (5) business days after delivery; or (iii)
in the case of a notice given by facsimile transmission,
to the address and number set forth below, on the next
business day after delivery if delivered by confirmed
facsimile transmission.
If to the Company m-Wise, Inc,
0000 Xxxxxxxxxxx Xxxx, Xxxxx 000 Xxxxxxxxxx,
Xxxxxxxx 00000
If to Hilltek: Hilltek Investments Ltd,
Road Town Tortola, BVI POB 3161
IN WITNESS WHEREOF, the parties have executed this Agreement:
/s/ Xxxx Xxx-Xxxxxx /s/ Xxxxxx Xxxx
_____________________ ___________________
The Company Hilltek Investments
Limited
