EXHIBIT 6.1
AGREEMENT FOR THE PURCHASE OF ASSETS WITH THE
INTEREST HOLDERS OF THE HEARTSTAT TECHNOLOGY
THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "1933 ACT"), NOR REGISTERED UNDER ANY
STATE SECURITIES LAW. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE 1933 ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933
ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF THE
COMPANY.
AGREEMENT FOR THE PURCHASE OF ASSETS
AGREEMENT made this 6th day of February, 2004, by and between Tec Factory, Inc.,
a Delaware corporation (hereinafter, called "ISSUER") and the individuals listed
in Exhibit A attached hereto and made an integral part hereof (hereinafter,
called "INTERESTHOLDERS"), which INTERESTHOLDERS own 100% of the HEARTSTAT
TECHNOLOGY AND RELATED ASSETS which is a medical technology for the non invasive
monitoring of blood pressure and blood flow. (hereinafter, called "HEARTSTAT").
In consideration of the mutual promises, covenants, and representations
contained herein, and other good and valuable consideration,
THE PARTIES HERETO AGREE AS FOLLOWS:
1. PURCHASE FOR SECURITIES. Subject to the terms and conditions of this
Agreement, the ISSUER agrees to issue to the INTERESTHOLDERS, 38,000,000
shares of common stock of the ISSUER, $0.001 par value (hereinafter, called
the "SHARES") and certain debt assumption on the technology and
transaction, in exchange for 100% ownership of HEARTSTAT, such that
HEARTSTAT shall become the only asset and operations of the Tec Factory,
Inc. and Tec Factory will change its name to HeartSTAT Technology, Inc.
prior to closing of this transaction anticipated by March 31, 2004.
2. REPRESENTATIONS AND WARRANTIES. ISSUER represents and warrants to
INTERESTHOLDERS and HEARTSTAT the following:
i ORGANIZATION. ISSUER is a corporation duly organized under the laws of
Delaware and has all the necessary corporate powers to own properties
and carry on a business, and is duly qualified to do business in
Delaware. All actions taken by the incorporators, directors and
INTERESTHOLDERS of the ISSUER have been valid and in accordance with
the laws of the State of Delaware.
ii CAPITAL. The authorized capital stock of the ISSUER is currently
25,000,000 shares of common stock, $0.001 par value, of which
10,402,887 are issued and outstanding and 5,000,000 shares of preferred
stock, $0.001 per value, of which there are no issued and outstanding.
The authorized common stock will be increased to 80,000,000 shares of
common stock before closing of this agreement. All outstanding shares
are fully paid and non-assessable, free of liens, encumbrances,
options, restrictions, and legal or equitable rights of others not a
party to this Agreement. At closing, there will be no outstanding
subscriptions, options, rights, warrants, convertible securities, or
other agreements or commitments obligating ISSUER to issue or to
transfer from the treasury any additional shares of its capital stock.
Prior to the closing, none of the outstanding shares of the ISSUER are
subject to any stock restriction agreements. All of the INTERESTHOLDERS
of the ISSUER have valid title to such shares and acquired their shares
in a lawful transaction and in accordance with the laws of the State of
Delaware.
iii. CLOSING DOCUMENTATION - Exhibit C hereof is to include ISSUER'S
corporate documents in subsection 2.xii below, as well as its Articles
of Incorporation since inception of entity; and ISSUER financial
statements representing the financial obligations and assets at the
time of the Agreement. Exhibit D hereof is to include copies
INTERESTHOLDER stock certificates and Restricted Transferability
Agreements, which, as part of this Agreement must be executed by
September 30, 2004, and which will specify that INTERESTHOLDERS shall
not be allowed to begin selling common stock holdings of Exhibit A
until the day after ISSUER'S CEO publicly reports via press release the
attainment of cumulative product revenues of $500k or greater, but
where this may become subject to a lock-up extension of up to a year
that ISSUER may agree to pursuant to terms for a future secondary
public underwriting or private placement.
iv. ABSENCE OF CHANGE. Since the date of the balance sheet, there has not
been any change in the financial condition or operations of the ISSUER,
except changes in the ordinary course of business, which changes have
not, in the aggregate, been materially adverse.
v LIABILITIES. ISSUER does not have any debt, liability, or obligation of
any nature, whether accrued, absolute, contingent, or otherwise, and
whether due or to become due, that is not reflected on the ISSUER'S
financial statement. ISSUER is not aware of any pending, threatened or
asserted claims, lawsuits or contingencies involving the ISSUER or its
common stock. There is no dispute of any kind between the ISSUER and
any third party, and no such dispute will exist at the closing of this
Agreement. At the closing, ISSUER will be free from any and all
liabilities, liens, claims and/or commitments.
vi AUTHORITY TO CARRY OUT TRANSACTION. ISSUER warrants it has the right,
power, and authority to enter into this Agreement pursuant to Delaware
Law which specifies a 51% majority of the common voting stock is
required to complete this Transaction. The execution and delivery of
this Agreement by ISSUER and the performance by ISSUER of its
obligations hereunder will not cause, constitute, or conflict with or
result in (a) any breach or violation or the provisions of, or
constitute a default under any license, indenture, mortgage, charter,
instrument, articles of incorporation, bylaw, or other agreement or
instrument to which the ISSUER or its INTERESTHOLDERS are a party, or
by which they may be bound, nor will any consents or authorizations of
any party other than those hereto be required, (b) any event that would
cause the ISSUER to be liable to any party, or (c) any event that would
result in the creation or imposition or any lien, charge or encumbrance
on any assets of the ISSUER or upon the securities of the ISSUER to be
acquired by the INTERESTHOLDERS.
vii.FULL DISCLOSURE. None of the representations and warranties made by the
ISSUER, or any certificate or memorandum furnished or to be furnished
by the ISSUER, contains or will contain any untrue statement of a
material fact, or omit any material fact the omission of which would be
misleading.
viii.CONTRACTS AND LEASES. ISSUER is not currently carrying on any business
and is not a party to any contract, agreement, or lease. No person
holds a power of attorney from ISSUER.
ix. COMPLIANCE WITH THE LAWS. ISSUER has complied with, and is not in
violation of any federal, state or local statue, law, and/or regulation
pertaining to ISSUER. ISSUER has complied with all federal and state
securities laws in connection with the issuance, sale and distribution
of its securities.
x. LITIGATION. ISSUER is not (and has not been) a party to any suit,
action, arbitration, or legal, administrative, or other proceeding, or
pending governmental investigation. To the best of the knowledge of the
ISSUER, there is no basis for any such action or proceeding and no such
action or proceeding is threatened against the ISSUER and ISSUER is not
subject to or in default with
respect to any order, writ, injunction, or decree of any federal,
state, local, or foreign court, department, agency, or instrumentality.
xi. CONDUCT OF BUSINESS. Prior to the closing, the ISSUER shall conduct
business in the normal course, and shall not (a) sell, pledge, or
assign any assets, (b) amend its article of incorporation or By-laws,
(c) declare dividends, redeem or sell stock or other securities, (d)
incur any liabilities, (e) acquire or dispose of any assets, enter into
any contract, guarantee obligations of any third party, or (f) enter
into any other transaction.
xii.CORPORATE DOCUMENTS. Copies of each of the following documents, which
are true, complete and correct in all material respects, will be
attached hereto and made an integral part hereof to this Agreement:
(1) Articles of Incorporation;
(2) By-laws;
(3) Minutes of INTERESTHOLDERS Meetings;
(4) Minutes of Directors Meetings;
(5) List of Officers and Directors;
(6) Balance Sheet as described in Section 2(iii); and
(7) Stock register and stock records of the ISSUER and a current,
accurate list of the ISSUER's INTERESTHOLDERS.
xiii.Documents. All minutes, consents or other documents pertaining to the
ISSUER to be delivered at the closing shall be valid and in accordance
with the laws of the State of Delaware.
xiv Title. The Shares to be issued to the INTERESTHOLDERS will be, at the
closing, free and clear of all liens, security interests, pledges,
charges, claims, encumbrances and restrictions of any kind. None of
such Shares are or will be subject to any voting trust or agreement. No
person holds or has any right to receive any proxy or similar
instrument with respect to such shares, except as provided for in this
Agreement, the ISSUER is not a party to any agreement which offers or
grants to any person the right to purchase or acquire any of the
securities to be issued to the INTERESTHOLDERS. There is no applicable
local, state or federal law, rule or regulation, or decree which would,
as a result of the issuance of the Shares to INTERESTHOLDERS, impair,
restrict, or delay INTERESTHOLDERS' voting rights with respect to the
Shares.
3. INTERESTHOLDERS AND HEARTSTAT REPRESENT AND WARRANT TO THE ISSUER THE
FOLLOWING:
i. ORGANIZATION. HEARTSTAT a medical technology for the non invasive
monitoring of blood pressure and blood flow. All actions taken by the
owners and INTERESTHOLDERS of the HEARTSTAT have been valid and in
accordance with all laws.
ii. INTERESTHOLDERS AND ISSUED STOCK. Exhibit A attached hereto and made an
integral part hereof, sets forth the names and ownership shareholdings
of 100% of HEARTSTAT.
4. INVESTMENT INTENT. INTERESTHOLDERS agree that the Shares being issued
pursuant to this Agreement may be sold, pledged, assigned, hypothecated or
otherwise transferred, with or without consideration (hereinafter called a
"TRANSFER"), only pursuant to an effective registration statement under the
1933 ACT, or pursuant to an exemption from registration under the 1933 ACT,
the availability of which is to be established to the satisfaction of the
ISSUER. INTERESTHOLDERS agree prior to any TRANSFER, to give written notice
to the ISSUER expressing SHAREHOLDER'S desire to affect such TRANSFER and
describing the proposed Transfer.
5. CLOSING. The closing of this transaction shall take place at the offices of
Tec Factory, Inc. 0000 Xxxx Xxxxxxx, #000, Xxxxxxxxx, XX. 00000, upon
receipt or exchange, as the case may be of the items referenced in Section
6, below. Unless the closing of this transaction takes place on or before
March 31, 2004, then either party may terminate this Agreement.
6. CLOSING REQUIREMENTS.
i. FOR THE ISSUER
(1) Share Certificates of HeartSTAT Technology, Inc. after name change
from Tec Factory, Inc. for 38,000,000 common shares restricted
under rule 144 in the names of the INTERESTHOLDERS on Exhibit A
hereto, equal to their pro-rata holdings in HEARTSTAT.
(2) The resignation of all current officers and directors of ISSUER.
(3) A Board of Directors resolution appointing the new board of
Directors will consist of Xx. Xxx Xxxxxxx, Xx. Xxxxx Xxxxxx, two
representatives to be designated by Xxx Xxxxxxx and up to two
representatives to be designated by SolutionMed Ventures with
these final two to be approved and discussed by both Xxx Xxxxxxx
and SolutionMed Ventures.
(4) All the business and corporate records of ISSUER DEFINED IN
SECTION 2.III AND 2.XII, including but not limited to and as well
as, correspondence files, bank statements, checkbooks, savings
account books, minutes of shareholder and directors meetings,
financial statements, shareholder listings, stock transfer
records, agreements and contracts.
(5) Such other minutes of ISSUER's as may reasonably be required by
INTERESTHOLDERS.
(6) Royalty Agreements and technology protection agreements for CNBP,
Inc. and SolutionMed Ventures
i) 2.2% gross royalty to CNBP, Inc.
ii) 1.2% gross royalty to SolutionMed Ventures
(7) Employment agreement for Xxx Xxxxxxx including a non-compete
agreement.
(8) Exhibit B Commercialization Partnership Agreement (Please see
attached Exhibit B for terms and conditions)
(9) Board of Directors resolution agreement to incorporate an Stock
Option Plan that will allow the new company to issue a maximum of
5,000,000 share options to be used key employees and approved by
the newly appointed compensation committee.
ii. FOR INTERESTHOLDERS AND HEARTSTAT:
(1) Delivery to the ISSUER, all documents and assignments representing
100% of the ownership of the HEARTSTAT TECHNOLOGY including all
rights to patents, algorithms and other necessary technology
developed over the past 25 years for the monitoring of Blood
pressure and most recently blood flow.
(2) Consents signed by a majority of INTERESTHOLDERS of HEARTSTAT
consenting to the terms of this Agreement.
7. REMEDIES.
i. ARBITRATION. Any controversy or claim arising out of, or relating to,
this Agreement, or the making, performance, or interpretation thereof,
shall be settled by arbitration in the State of Delaware in accordance
with the Rules of the American Arbitration Association then existing,
and judgment on the arbitration award may be entered in any court
having jurisdiction over the subject matter of the controversy.
8. MISCELLANEOUS.
i. CAPTIONS AND HEADINGS. The Article and paragraph headings throughout
this Agreement are for convenience and reference only, and shall in no
way be deemed to define, limit, or add to the meaning of any provision
of this Agreement.
ii. No ORAL CHANGE. The Agreement and any provision hereof, may not be
waived, changes, modified, or discharged orally, but only by agreement
in writing signed by the party against whom enforcement of any waiver,
change, modification, or discharge is sought.
iii.NON WAIVER. Except as otherwise expressly provided herein, no waiver of
any covenant, condition, or provision of this Agreement shall be deemed
to have been made unless expressly in writing and signed by the party
against whom such waiver is charged; and (i) the failure of any party
to insist in any one or more cases upon the performance of any of the
provisions, covenants, or conditions of this Agreement or to exercise
any option herein contained shall not be construed as a waiver or
relinquishment for the future of any such provisions, covenants, or
conditions, (ii) the acceptance of performance of anything required by
this Agreement to be performed with knowledge of the breach or failure
of a covenant, condition or provision hereof shall not be deemed a
waiver of such breach or failure, and (iii) no waiver by any party of
one breach by another party shall be construed as a waiver with respect
to any other or subsequent breach.
iv. TIME OF ESSENCE. Time is of the essence of the Agreement and of each
and every provision hereof.
v. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding between the parties hereto, and supersedes all prior
agreements and understandings.
vi. COUNTERPARTS. This Agreement may be executed simultaneously in one or
more counterparts, each of which shall be deemed as original, but all
of which together shall constitute one and the same instrument.
vii.NOTICES. All notices, requests, demands, and other communications under
this Agreement shall be in writing and shall be deemed to have been
duly given on the date of service if served personally on the party to
whom the notice is to be given, or the third day after mailing if
mailed to the party to whom notice is to be given, by first class mail,
registered or certified, postage prepaid, and properly address, and by
fax, as follows:
HEARTSTAT: ISSUER:
HeartStat, Inc. Tec Factory, Inc.
00 Xxxxxx Xxxxx Xx Xxxx 0000 Xxxxxx Xxxxxx Xxxx, #000
Xxxxxxx, XX 00000 Xxx Xxxxx, Xxxxxx 00000
IN WITNESS WHEREOF, the undersigned has executed this Agreement this 6th day of
February, 2004
HEARTSTAT TEC FACTORY, INC.
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Xxx Xxxxxxx as per INTERESTHOLDERS X.X. Xxxxxx as per the SHAREHOLDERS
of HeartStat and Directors Tec Factory, Inc.
EXHIBIT A
INTERESTHOLDERS OF HEARTSTAT
Xxx Xxxxxxx: 19,599,997 common shares
Hull Family: 400,003 common shares
Xxxxx Xxxxxx: 1,000,000 common shares
Diamond Ventures 4,000,000 common shares
SolutionMed Ventures 4,000,000 common shares
FutureVest MicroCap Fund, Inc. 4,000,000 common shares
FutureVest Corporation 2,000,000 common shares
eAngels Technology Fund, Inc. 3,000,000 common shares
Total Common Shares to Issue: 38,000,000 common shares
IN WITNESS WHEREOF, the undersigned Exhibit A has executed this Agreement this
6th day of February, 2004
HEARTSTAT TEC FACTORY, INC.
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Xxx Xxxxxxx as per INTERESTHOLDERS X.X. Xxxxxx as per the SHAREHOLDERS
of HeartStat and Directors Tec Factory, Inc.
EXHIBIT B
COMMERCIALIZATION PARTNERSHIP AGREEMENT
This agreement contains terms and conditions by which Xxx X. Xxxxxxx ("Xxxxxxx")
can exclusively license on a worldwide basis in perpetuity the blood flow and
pressure technology and related intellectual property (all of which comprising
the "Technology") of HeartSTAT Technology, Inc. ("HSTA").
The HSTA budget is in excess of $2,500,000 for developing and introducing its
first product. Xxxxxxx may license, take and use the Technology for the purpose
of financing and concluding product commercialization if HSTA fails to raise for
use in product development, including executive salaries to Xxxxxxx and other
product development executives, of at least $2,000,000 USD of net proceeds of
convertible debenture or equity financing(s) by September 6, 2005. In the event
of such financing inadequacy and pursuant to the prior written request of the
HST Board of Directors, Xxxxxxx shall allow HSTA a 90-day period to cure this
inadequacy to prevent this license under Exhibit B from being effected.
The terms of such license include that Xxxxxxx shall repay investors (e.g., the
convertible debenture and common stock holders) for any actual investment
capital received by HSTA, to be paid at a rate of 20% of any net income of the
commercial operations of producing derivative products that use the Technology,
which are instituted by Xxxxxxx. Also, Xxxxxxx and/or his new company will pay
to HSTA a royalty on net revenues of such derivative products that use the HSTA
Technology. Such royalty will be 3% of revenues if at least $1.3 million of
investment capital was received; 2% of revenues if at least $650,000 and less
than $1.3 million of investment capital was received; or 1% of revenues if less
than $650,000 of investment capital was received.
In the event such license is effected, the parties hereto also agree that Xx.
Xxxxxxx shall be afforded access to all documentation, components, prototypes of
the then-existing HSTA Technology and that Xxxxxxx shall be free of any
non-compete and non-disclosure obligations to or in relation to HSTA
IN WITNESS WHEREOF, the undersigned have executed this Exhibit B Agreement on
the 6th day of February 2004.
IN WITNESS WHEREOF, the undersigned Exhibit B has executed this Agreement this
6th day of February, 2004
HEARTSTAT TEC FACTORY, INC.
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Xxx Xxxxxxx as per INTERESTHOLDERS X.X. Xxxxxx as per the SHAREHOLDERS
of HeartStat and Directors Tec Factory, Inc.
EXHIBIT C
1. See Audit Statements Provided.
2. See Attached Articles of Incorporation
EXHIBIT D
1. See Copies of Stock Certificates attached once issued on closing.
