SHARE EXCHANGE AGREEMENT
This SHARE EXCHANGE AGREEMENT, dated as of May 24, 2005 (this
"Agreement"), is by and between iPoint U.S.A. Corp., a Delaware corporation
("IPoint"), iPoint-Media Ltd., a company chartered under the laws of the State
of Israel ("IPoint-Israel"), and the Shareholders set forth on Schedule I (the
"Shareholders").
WITNESSETH:
WHEREAS, the Shareholders are the owners of 406,900 ordinary shares (the
"Shares"), NIS .01 nominal value each per share, of IPoint-Israel, which
represent all of the issued and outstanding ordinary shares of IPoint-Israel;
WHEREAS, there is an outstanding warrant, issued by IPoint Israel, to
purchase 1,500 ordinary shares of IPoint-Israel (the "Warrant"), beside of which
there are no other issued and outstanding warrants, options and other
convertible securities of IPoint-Israel;
WHEREAS, the Shareholders desire to exchange the Shares for proportional
amount of shares of common stock, $.0001 par value per share, of IPoint ("IPoint
Common Stock");
WHEREAS, the respective Boards of Directors of IPoint-Israel and IPoint
deem it advisable and in the best interests of IPoint-Israel and IPoint,
respectively, and their respective shareholders, to consummate the transactions
contemplated by this Agreement upon the terms and conditions set forth herein;
WHEREAS, it is the parties' mutual intent that the exchange of the Shares
and the Warrant contemplated by this Agreement be part of plan of reorganization
under Section 368 of the Internal Revenue Code of 1986, as amended, and shall
comply with the provisions of the pre ruling obtained from the Israeli tax
authorities on March 10, 2005 in connection with such transaction (the "Tax
Ruling");
WHEREAS, IPoint-Israel has entered into (i) a financing arrangement with
Cornell Capital Partners LP ("Cornell") dated October 12, 2004 (the "Cornell
Investment"), (ii) a financing arrangement with Neomedia Technologies, Inc.
("Neomedia") dated September 7, 2004 (the "Neomedia Investment") and (iii) an
equity line with Cornell dated October 12, 2004 (the "SEDA");
WHEREAS, IPoint-Israel, Cornell and Neomedia have agreed to assign certain
rights, obligations and benefits set forth under the documents pertaining to the
Cornell Investment, the Neomedia Investment and the SEDA to IPoint, which IPoint
has agreed to assume;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements set forth herein and in reliance upon the undertakings,
representations, warranties and indemnities contained herein, IPoint,
IPoint-Israel and the Shareholders hereby agree as follows:
ARTICLE 1
EXCHANGE OF SHARES AND WARRANTS; CLOSING
Section 1.1 Exchange of Shares. Subject to the terms and conditions herein
stated, the Shareholders agree at the Closing to exchange with full title,
guarantee, transfer, assign and deliver to IPoint, and IPoint agrees to accept
and receive from the Shareholders, the Shares, free and clear of any and all
liens.
Section 1.2 Consideration. In exchange for the Shares, IPoint agrees at
the Closing to issue and deliver an aggregate of 40,690,000 shares of IPoint
Common Stock (the "New Shares") to the Shareholders, to be allocated among the
Shareholders in accordance with Schedule I attached hereto and to issue and
deliver a warrant exercisable into an aggregate of 15,000 shares of IPoint
Common Stock, as specified in Schedule II attached hereto, in the form attached
hereto as Schedule III (the "New Warrant") to the warrant holder specified in
Schedule II (the "Warrant Holder"). Following the issuance and the delivery of
the New Warrant to the Warrant Holder, the Warrant Holder shall transfer the
Warrant to IPoint and the Warrant shall be cancelled and revoked and shall have
no effect or validity.
Section 1.3 Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place simultaneously with the execution and
delivery hereof at the offices of IPoint or such other place as the parties may
agree.
Section 1.4 Deliveries at Closing. At the Closing:
(a) IPoint shall deliver to the Shareholders certificates
registered in their individual names in accordance with the
allocation set forth on Schedule I, representing the New
Shares;
(b) IPoint shall deliver to the Warrant Holder the New Warrant;
(c) IPoint shall deliver to each Shareholder a copy of the
resolutions of IPoint's board of directors, certified by the
Secretary of IPoint, authorizing this Agreement and the
transactions contemplated hereby;
(d) the Shareholders and IPoint-Israel shall deliver to IPoint:
(i) certificates evidencing all of the Shares; and
(ii) a copy of the resolutions of IPoint-Israel's board of
directors and shareholders, certified by the Secretary
of IPoint-Israel, authorizing this Agreement and the
transactions contemplated hereby.
(e) The Warrant Holder shall deliver to IPoint the Warrant.
(f) IPoint, IPoint-Israel, Cornell and Neomedia shall enter into
an assignment agreement to IPoint in the form attached hereto
as Schedule IV (the "Assignment Agreement") in respect of
certain obligations and benefits set forth under the documents
pertaining to the Cornell Investment, the Neomeida Investment
and the SEDA, which shall be consented to by IPoint. Cornell
and Neomedia hereby agree to modify the documents pertaining
to the Cornell Investment, the Neomedia Investment and the
SEDA to be assigned under the Assignment Agreement (mainly the
various Registration Rights Agreements) in order to change and
extend the various timing for filing the Forms S-1 or SB-2 and
making them effective.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF IPOINT-ISRAEL
IPoint-Israel represents and warrants to IPoint as of the date hereof as
follows:
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Section 2.1 Organization.
IPoint-Israel is a corporation duly organized, validly existing under the
laws of the State of Israel, and has all requisite corporate power and authority
to own its properties and carry on its business as now being conducted. Unless
the context otherwise requires, IPoint-Israel and its subsidiaries are
collectively referred to as "IPoint-Israel".
Section 2.2 Capitalization. As of the date of this Agreement, the
authorized capital stock of IPoint-Israel consists of 20,000,000 ordinary
shares, NIS 0.01 nominal value each, 406,900 shares of which are validly issued
and outstanding and constitute the Shares.
Section 2.3 Authority; Enforceability. IPoint-Israel has full legal right,
power and authority, to execute, deliver and perform this Agreement and to
consummate the transactions contemplated hereby. This Agreement has been duly
authorized, executed and delivered by IPoint-Israel and constitutes, and each
other agreement, instrument or documents executed or to be executed by
IPoint-Israel in connection with the transactions contemplated hereby has been
duly authorized, executed and delivered by IPoint-Israel and constitutes a valid
and legally binding obligation of IPoint-Israel enforceable against
IPoint-Israel in accordance with their respective terms, except as (a)
enforceability may be limited by applicable bankruptcy, insolvency, fraudulent
transfer, moratorium or similar laws from time to time in effect affecting
creditors' rights generally and (b) the availability of equitable remedies may
be limited by equitable principles of general applicability.
Section 2.4 Third Party Consents. No consent, authorization, order or
approval of, or filing or registration with, any governmental authority or other
person is required for the execution and delivery of this Agreement or the
consummation by IPoint-Israel of any of the transactions contemplated hereby.
Section 2.5 Accuracy; Survival. The representations, warranties and
statements of IPoint-Israel contained in this Agreement or any Exhibit or
Schedule hereto, or in any certificate delivered by IPoint-Israel pursuant to
this Agreement, are true and correct in all material respects and do not omit to
state a material fact necessary in order to make the representations, warranties
or statements contained herein or therein not misleading. All such
representations, warranties and statements shall survive the Closing (and none
shall merge into any instrument of conveyance), regardless of any investigation
or lack of investigation by either of the parries to this Agreement.
Section 2.6 No Other Representations or Warranties. Except as set forth
above in this Section 2, no other representations or warranties of any kind,
express or implied, are made in this Agreement by IPoint-Israel to IPoint.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
Each Shareholder represents and warrants to IPoint, severally and not
jointly with others, as of the date hereof as follows:
Section 3.1 Ownership. Such Shareholder is the sole record and beneficial
owner of the Shares in the amounts set forth in Schedule I attached hereto. Such
Shareholder has good and marketable title to such Shares and the absolute right
to deliver such Shares in accordance with the terms of this Agreement, free and
clear of all liens, restrictions, rights, options and claims of every kind. The
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transfer of the Shares owned by such Shareholder to IPoint in accordance with
the terms of this Agreement transfers good and marketable title to such Shares
to IPoint free and clear of all liens, restrictions, rights, options and claims
of every kind.
Section 3.2 Authority; Enforceability. Such Shareholder has full legal
capacity to execute, deliver and perform this Agreement and to consummate the
transactions contemplated hereby. Where such Shareholder is an incorporated
legal entity, this Agreement has been duly authorized, executed and delivered by
such Shareholder and constitutes, and each other agreement, instrument or
documents executed or to be executed by such Shareholders in connection with the
transactions contemplated hereby has been duly authorized, executed and
delivered by the same Shareholder. This Agreement constitutes a valid and
legally binding obligation of such Shareholder enforceable against such
Shareholder in accordance with its terms, except as (a) enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent transfer, moratorium or
similar laws from time to time in effect affecting creditors' rights generally
and (b) the availability of equitable remedies may be limited by equitable
principles of general applicability.
Section 3.3 Third Party Consents. No consent, authorization, order or
approval of, or filing or registration with, any governmental authority or other
person is required for the execution and delivery of this Agreement or the
consummation by such Shareholder of any of the transactions contemplated hereby.
Section 3.4 No Conflict. Neither the execution and the delivery of this
Agreement by such Shareholder, nor the consummation of the transactions
contemplated hereby (a) violate, conflict with, or result in a breach of any
provisions of, (b) constitute a default (or an event which, with notice or lapse
of time or both, would constitute a default) under, (c) result in the
termination of or accelerate the performance required by, (d) result in the
creation of any lien, restriction, rights, options or claims of any kind upon
the Shares, under any of the terms, conditions or provisions of the Articles of
Incorporation of IPoint-Israel or, to any material extent, under the terms and
conditions of any note, bond, mortgage, indenture, deed of trust, lease,
license, loan agreement or other instrument or obligation to or by which such
Shareholder or any of its assets are bound, or (e) to any material extent,
violate any applicable law binding upon either IPoint-Israel or the Shareholders
or any of their assets.
Section 3.5 Adherence with Applicable Securities Laws. The Shareholders
understand that the New Shares are being offered to them in reliance upon
specific exemptions from the registration requirements of United States federal
and state securities laws under Regulation D and/or Regulation S as promulgated
under the Securities Act of 1933, as amended, and that IPoint is relying upon
the truth and accuracy of, and the Shareholders' compliance with, the
representations, warranties, agreements, acknowledgments and understandings of
the Shareholders set forth herein in order to determine the availability of such
exemptions and the eligibility of the Shareholders to acquire the New Shares.
Accordingly, each Shareholder hereby represents either:
(a) it is an "accredited investor" within the meaning of Rule
501(a) of Regulation D promulgated under the Securities Act of
1933, as amended, and is familiar with the type of risks
inherent in the acquisition of securities of IPoint, and each
Shareholder's financial position is such that the Shareholder
can afford to retain its New Shares for an indefinite period
of time without realizing any direct or indirect cash return
on its investment; or
(b) it is acquiring the New Shares in an offshore transaction and
further represents:
(i) the Shareholder is outside the United States when
receiving and executing this Agreement;
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(ii) the Shareholder is not aware of any advertisement of any
of the New Shares;
(iii) the Shareholder has not acquired the New Shares as a
result of, and will not itself engage in, any "directed
selling efforts" (as defined in Regulation S under the
Securities Act of 1933, as amended) in the United States
in respect of the New Shares which would include any
activities undertaken for the purpose of, or that could
reasonably be expected to have the effect of,
conditioning the market in the United States for the
resale of the New Shares; provided, however, that
Shareholder may sell or otherwise dispose of the New
Shares pursuant to registration of the New Shares
pursuant to the Securities Act of 1933, as amended, and
any applicable state and provincial securities laws or
under an exemption from such registration requirements
and as otherwise provided herein;
(iv) the Shareholder agrees that IPoint will refuse to
register any transfer of the New Shares not made in
accordance with the provision of Regulation S, pursuant
to an effective registration statement under the
Securities Act of 1933, as amended, or pursuant to an
available exemption from the registration requirements
of the Securities Act of 1933 and in accordance with
applicable state and provincial securities laws;
(v) the Shareholder understands and agrees that offers and
sales of any of the New Shares, prior to the expiration
of a period of one year after the date of transfer of
the New Shares (the "Distribution Compliance Period"),
shall only be made in compliance with the safe harbor
provisions set forth in Regulation S, pursuant to the
registration provisions of the Securities Act of 1933,
as amended, or an exemption therefrom, and that all
offers and sales after the Distribution Compliance
Period shall be made only in compliance with the
registration provisions of the Securities Act of 1933,
as amended, or an exemption therefrom, and in each case
only in accordance with all applicable securities laws;
and
(vi) the Shareholder understands and agrees not to engage in
any hedging transactions involving the New Shares, prior
to the end of the Distribution Compliance Period unless
such transactions are in compliance with the Securities
Act of 1933, as amended.
Section 3.6 Legends. Such Shareholder hereby acknowledges that upon the
issuance of the New Shares, and until such time as the same is no longer
required under the applicable securities laws and regulations, the certificates
representing any of the New Shares will bear a legend substantially in one of
the following forms:
NO SALE, OFFER TO SELL, OR TRANSFER OF THE SHARES REPRESENTED BY
THIS CERTIFICATE SHALL BE MADE UNLESS A REGISTRATION STATEMENT
UNDER THE FEDERAL SECURITIES ACT OF 1933, AS AMENDED (THE "1933
ACT"), IN RESPECT OF SUCH SHARES IS THEN IN EFFECT OR AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT IS
THEN IN FACT APPLICABLE TO SAID SHARES;
OR
THESE SECURITIES WERE ISSUED IN AN OFFSHORE TRANSACTION TO
PERSONS WHO ARE NOT U.S. PERSONS (AS DEFINED HEREIN) PURSUANT TO
REGULATION S UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
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AMENDED (THE "1933 ACT"). ACCORDINGLY, NONE OF THE SECURITIES TO
WHICH THIS CERTIFICATE RELATES HAVE BEEN REGISTERED UNDER THE
1933 ACT, OR ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO
REGISTERED, NONE MAY BE OFFERED OR SOLD IN THE UNITED STATES OR,
DIRECTLY OR INDIRECTLY, TO U.S. PERSONS (AS DEFINED HEREIN)
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN EACH
CASE ONLY IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS.
IN ADDITION, HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY
NOT BE CONDUCTED UNLESS IN ACCORDANCE WITH THE 1933 ACT.
Section 3.7 Investment Purpose. Such Shareholder agrees that it is
acquiring the New Shares for investment purposes and will not offer, sell or
otherwise transfer, pledge or hypothecate any of the New Shares issued to it
(other than pursuant to an effective Registration Statement under the Securities
Act of 1933, as amended) directly or indirectly unless:
(a) the sale is to IPoint;
(b) the sale is made pursuant to the exemption from registration under
the Securities Act of 1933, as amended, provided by Rule 144
thereunder; or
(c) the New Shares are sold in a transaction that does not require
registration under the Securities Act of 1933, as amended, or any
applicable United States state laws and regulations governing the
offer and sale of securities, and the vendor has furnished to IPoint
an opinion of counsel to that effect or such other written opinion
as may be reasonably required by IPoint.
Section 3.8 No Other Representations or Warranties. Except as set forth
above in this Section 3, no other representations or warranties of any kind,
express or implied, are made in this Agreement by such Shareholder to IPoint.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF IPOINT
IPoint represents and warrants to IPoint-Israel and the Shareholders as of
the date hereof as follows:
Section 4.1 Organization. IPoint is a corporation duly organized, validly
existing and in good standing under the laws of Delaware and has all requisite
corporate power and authority to own its properties and carry on its business as
now being conducted.
Section 4.2 Capitalization. As of the date of this Agreement, the
authorized capital stock of IPoint consists of 300,000,000 shares of common
stock, $.0001 par value per share, of which no shares of common stock are
validly issued and outstanding, and 10,000,000 shares of preferred stock, $.0001
par value per share, of which no shares of preferred stock are validly issued
and outstanding.
Section 4.3 Authority; Enforceability. IPoint has the requisite corporate
power and authority to execute and deliver this Agreement and to carry out its
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obligations hereunder. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of IPoint and no other
corporate proceedings on the part of IPoint are necessary to authorize this
Agreement or to consummate the transactions so contemplated. This Agreement has
been duly executed and delivered by IPoint and constitutes a valid and binding
obligation of IPoint, enforceable against IPoint in accordance with its terms,
except as (a) enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent transfer, moratorium or similar laws from time to time in
effect affecting creditors' rights generally and (b) the availability of
equitable remedies may be limited by equitable principles of general
applicability.
Section 4.4 Third Party Consents. No consent, authorization, order or
approval of, or filing or registration with, any governmental authority or other
person is required for the execution and delivery of this Agreement or the
consummation by IPoint of any of the transactions contemplated hereby.
Section 4.5 Accuracy; Survival. The representations, warranties and
statements of IPoint contained in this Agreement or any Exhibit or Schedule
hereto, or in any certificate delivered by IPoint pursuant to this Agreement,
are true and correct in all material respects and do not omit to state a
material fact necessary in order to make the representations, warranties or
statements contained herein or therein not misleading. All such representations,
warranties and statements shall survive the Closing (and none shall merge into
any instrument of conveyance), regardless of any investigation or lack of
investigation by either of the parries to this Agreement.
Section 4.6 No Conflict. Neither the execution and delivery of this
Agreement by IPoint, nor the consummation of the transactions contemplated
hereby, do or will (a) violate, conflict with, or result in a breach of any
provisions of, (b) constitute a default (or an event which, with notice or lapse
of time or both, would constitute a default) under, (c) result in the
termination of or accelerate the performance required by, (d) result in the
creation of a lien upon the New Shares under any of the terms, conditions or
provisions of the Certificate of Incorporation or Bylaws of IPoint or any note,
bond, mortgage, indenture, deed of trust, lease, license, loan agreement or
other instrument or obligation to or by which IPoint or any of its assets are
bound, or (e) violate any applicable law binding upon IPoint and on any of its
assets.
Section 4.7 IPoint Common Stock. When issued: (i) each New Share will be
duly authorized and validly issued and, subject to the transfer of the Shares,
will be fully paid and nonassessable, and shall be free from and clear of any
claims, liens, pledges, security interests, or encumbrances, other than
restrictions on transfer under applicable state and federal laws, and under
IPoint's Certificate of Incorporation, or any agreement, note, bond etc.
Section 4.8 IPoint Warrant. All shares of IPoint to be issued pursuant to
the New Warrant will be, when issued, duly authorized, validly issued, and
non-assessable.
Section 4.9 Investment Representation. IPoint acknowledges that the Shares
are restricted securities, that IPoint is acquiring the Shares for its own
account with the present intention of holding the Shares for purposes of
investment and not with a view to their distribution within the meaning of the
Securities Act of 1933, as amended. IPoint has relied solely on its independent
investigation in making the decision to purchase the Shares. IPoint's
determination to purchase the Shares was made independent of, and was not
affected by, any statements or opinions (or the lack thereof) regarding the
advisibility of the purchase or as to the properties, business, prospects or
condition (financial or other) of IPoint-Israel which may have been made or
given by IPoint-Israel or the Shareholders.
Section 4.10 No Other Representations or Warranties. Except as set forth
above in this Section 4, no other representations or warranties, express or
implied, are made in this Agreement by IPoint to IPoint-Israel and the
Shareholders.
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ARTICLE 5
MISCELLANEOUS
Section 5.1 Survival of Representations, Warranties and Agreements. The
representations, warranties, covenants and agreements in this Agreement or in
any instrument delivered pursuant to this Agreement shall survive the Closing
and shall not be limited or affected by any investigation by or on behalf of any
party hereto.
Section 5.1A Compliance with Tax Ruling. Each of IPoint, IPoint-Israel and
the Shareholders acknowledges that the transactions contemplated hereby are
subject to the provisions of the Tax Ruling, and hereby undertakes to comply
(and the Shareholders further undertake to procure the compliance of IPoint)
with the provisions of the Tax Ruling.
Section 5.2. Further Assurances. Each of IPoint, IPoint-Israel and the
Shareholders will use its, his or her, as the case may be, best efforts to take
all action and to do all things necessary, proper or advisable on order to
consummate and make effective the transactions contemplated by this Agreement.
Section 5.3 Waivers. Each Shareholder hereby irrevocably waives any and
all rights or claims that such Shareholder has or may have against IPoint-Israel
and/or IPoint, and any of their respective officers, agents, directors,
advisors, attorneys, heirs, successors, or assigns (collectively, the "Released
Parties") under the Articles of Association, any agreement by and between any
one or more of the Released Parties and such Shareholder (including, but not
limited to, share purchase agreements, and registration rights agreements), any
provision of applicable law or otherwise that become exercisable, accelerated or
triggered as a result of, or are otherwise implicated by, the transactions
contemplated hereby, including, without limitation, all rights relating to the
following: (a) preemptive rights; (b) rights of first offer; (c) rights to
receive notice and provide consent; (d) document delivery rights; and (e)
rights, preferences, privileges and obligations incident or related to the
Shares and the ownership thereof.
Section 5.4 Notices. All notices hereunder must be in writing and shall be
deemed to have been given upon receipt of delivery by: (a) personal delivery to
the designated individual, (b) certified or registered mail, postage prepaid,
return receipt requested, (c) a nationally recognized overnight courier service
(against a receipt therefor) or (d) facsimile transmission with confirmation of
receipt. All such notices must be addressed as follows or such other address as
to which any party hereto may have notified the other in writing:
If to IPoint, to:
iPoint U.S.A. Corp.
2a Habarzel Street
Tel-Aviv 61132
Attention: Muki Geller
Facsimile No.: 972-3-7657368
If to IPoint-Israel or the Shareholders, to:
2a Habarzel Street
Tel-Aviv 61132
Attention: Muki Geller
Facsimile No.: 972-3-7657368
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Section 5.5 Headings; Gender. When a reference is made in this Agreement
to a section, exhibit or schedule, such reference shall be to a section, exhibit
or schedule of this Agreement unless otherwise indicated. The headings contained
in this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement. All personal pronouns used
in this Agreement shall include the other genders, whether used in the
masculine, feminine or neuter gender, and the singular shall include the plural
and vice versa, whenever and as often as may be appropriate.
Section 5.6 Entire Agreement; No Third Party Beneficiaries. This Agreement
(including the documents, exhibits and instruments referred to herein) (a)
constitutes the entire agreement and supersedes all prior agreements, and
understandings and communications, both written and oral, among the parties with
respect to the subject matter hereof, and (b) is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder.
Section 5.7 Governing Law. This Agreement shall be governed and construed
in accordance with the laws of the State of New Jersey without regard to any
applicable principles of conflicts of law.
Section 5.8 Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other party.
Section 5.9 Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by reason of any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any adverse
manner to either party.
Section 5.10 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which taken
together shall constitute one and the same document.
Section 5.11 Amendment and Modification. This Agreement may not be amended
or modified except by an instrument in writing signed by each of the parties
hereto.
Section 5.12 Brokers. IPoint and IPoint-Israel agree to indemnify, defend
and hold harmless each other from and against any liability or expense arising
out of any claim asserted by any third party for brokerage or finder's fees or
agent's commissions, based on an allegation that the other impliedly or
expressly engaged such claimant as a finder, broker or agent, or brought such
claimant into the negotiations between IPoint-Israel and IPoint.
Section 5.13 Fees and Expenses. Except as otherwise expressly provided in
this Agreement or assumed by IPoint in writing; attorneys' fees, accounting fees
and all other fees for professional services incurred by each party in
effectuating the transactions contemplated by this Agreement shall be paid by
the party which incurred such fees. Except as otherwise expressly provided in
this Agreement, IPoint and IPoint-Israel shall each bear its own expenses
incurred in connection with this Agreement and the transactions contemplated by
this Agreement whether or not such transactions shall be consummated.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by themselves or by their respective duly authorized officers as of the
date first written above.
IPOINT: IPOINT-ISRAEL:
IPOINT U.S.A. CORP. IPOINT-MEDIA, LTD.
By: /s/Muki Geller By: /s/Muki Geller
Name: Muki Geller Name: Muki Geller
Title: CEO Title: CEO
SHAREHOLDERS:
/s/ Muki Geller
- -----------------------------
Muki Geller
/s/ Avi Sless
- -----------------------------
Avi Sless
/s/ Avi Kanetti
- -----------------------------
Avi Kanetti
Nisko Project Electronics & Communications (1990) Ltd.
/s/
- -----------------------------
Name:
Title:
Japan FA Systems Corp.
/s/
- -----------------------------
Name:
Title:
Neomedia Technologies, Inc.
/s/
- -----------------------------
Name:
Title:
Cornell Capital Partners, LP
/s/Mark Angelo
- -----------------------------
Name: Mark Angelo
Title: Portfolio Manager
[SIGNATURE PAGE TO THE SHARE EXCHANGE AGREEMENT DATED
AS OF MAY 24, 2005]
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SCHEDULE I
Shareholder Shares Owned Allocation Percentage New Shares to be Issued
- ----------- ------------- --------------------- -----------------------
Muki Geller 60,000 14.7% 6,000,000
Avi Sless 12,000 2.9% 1,200,000
Avi Kanetti 12,000 2.9% 1,200,000
Nisko Project 210,000 51.6% 21,000,000
Electronics &
Communications (1990) Ltd.
Japan FA Systems Corp. 3,000 0.7% 300,000
Neomedia 69,196 17.0% 6,919,600
Technologies, Inc.
Cornell Capital 40,704 10.0% 4,070,400
Partners, LP
Total 406,900 100.0% 40,690,000
SCHEDULE II
Warrant Holder Warrants Owned Allocation Percentage New Shares to be Issued
- -------------- --------------- --------------------- -----------------------
Godela Sievers 1,500 100.0% 15,000
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