UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or
15(d)
of the Securities Exchange
Act of 1934
Date of Report (Date of
earliest event reported): August 21, 2015
VANTAGE mHEALTHCARE, Inc.
(Exact name of registrant
as specified in its charter)
Delaware |
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000-55155 |
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93-0659770 |
(State
or other jurisdiction
of incorporation) |
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(Commission
File Number) |
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(IRS
Employer
Identification No.) |
3 Columbus Circle, 15th
Floor
New York, NY 10019
(Address of principal executive
offices and zip code)
Registrant’s telephone
number, including area code: (917) 745-7202
|
(Former
Name or Former Address, if Changed Since Last Report) |
Check the appropriate box
below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
[ ] |
Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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[ ] |
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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[ ] |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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[ ] |
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01 Entry into a
Material Definitive Agreement
On August 25, 2015, Vantage
mHealthcare, Inc. (the “Company”) entered into an exchange agreement (the “Exchange Agreement”)
with its majority shareholder, Nanobeak, LLC (“Nanobeak”), pursuant to which Nanobeak exchanged 117,366,840
shares of the Company’s common stock, par value $0.001 (the “Common Stock”), in exchange for 23,473,368
shares of the Company’s Series A Convertible Preferred Stock, par value $0.001(the “Series A Convertible Preferred”).
The Exchange Agreement contained certain customary representations and warranties of the Company, including due organization and
qualification, requisite corporate power and authority, governmental consents and non-contravention and certain representations
and warranties of Nanobeak, including title to the Common Stock, authority to execute and perform, accredited investor status
and purchase for investment.
The 117,366,840 shares
of the Company’s common stock have been returned to Treasury.
The description above
is only a summary of the material terms of the Exchange Agreement, does not purport to be a complete description of the rights
and obligations of the parties thereunder and is qualified in its entirety by the Exchange Agreement filed as Exhibit 10.1 to
this Current Report on Form 8-K, which is incorporated by reference herein.
Item 3.02. Unregistered
Sales of Equity Securities.
The disclosures set forth
in Item 1.01 above are hereby incorporated by reference into this Item 3.02.
Item 3.03 Material Modifications
to Rights of Securities Holders.
On August 24, 2015, the
Company filed with the Secretary of State of the State of Delaware a Certificate of Designations of Rights, Preferences, Privileges
and Restrictions of Series A Convertible Preferred Stock (the “Certificate of Designation”). The disclosures
set forth in Item 5.03 of this Current Report on Form 8-K in relation thereto is hereby incorporated by reference into this Item
3.03.
Item 5.03 Amendments to
Articles of Incorporation or Bylaws; Change in Fiscal Year.
On August 24, 2015 the
Company filed with the Secretary of State of the State of Delaware the Certificate of Designation.
Under the terms of the
Certificate of Designation, 24,000,000 shares of the Company’s preferred stock will be designated as Series A Convertible
Preferred. Each share of the Series A Convertible Preferred shall be convertible into five (5) shares of Common Stock without
the payment of additional consideration by the holder thereof, subject to certain terms, conditions and adjustments as described
in the Certificate of Designation. The holders of Series A Convertible Preferred shall be entitled to receive any dividends before
the holders of the Common Stock, in an amount at least equal to the product of (x) the dividend payable on each share of Common
Stock and (y) the number of shares of Common Stock issuable upon conversion of a share of Series A Convertible Preferred, in each
case calculated on the record date for determination of holders entitled to receive such dividend. Each holder of outstanding
Series A Convertible Preferred shall be entitled to vote with the holders of the Common Stock, as a single class, on all matters
presented to the holders of Common Stock an as-converted basis calculated as of the record date for such vote.
Each holder of Series
A Convertible Preferred shall have the right, at such holder’s option at any time starting on August 24, 2015 to convert
each share of Series A Convertible Preferred into five (5) shares of fully paid and non-assessable shares of Common Stock (the
“Series A Conversion Ratio”). The initial Series A Conversion Ratio shall be subject to adjustment for stock
splits, business combinations and certain dividends and distributions as described more fully therein.
Additionally, at any time
when shares of Series A Convertible Preferred are outstanding, the Company shall not, without the written consent or affirmative
vote of the holders of the majority of the then outstanding shares of Series A Convertible Preferred, voting as a separate class,
(i) amend, alter or repeal any provision of the Certificate of Incorporation or Bylaws of the Company in a manner that adversely
affects the powers, preferences or rights of the holders of Series A Convertible Preferred; (ii) reclassify, alter or amend any
existing security of the Company that is pari passu with the Series A Convertible Preferred in respect of the distribution
of assets on the liquidation, dissolution or winding up of the Company, if such reclassification, alteration or amendment would
render such other security senior to the Series A Convertible Preferred in respect of any such right, preference or privilege;
or (iii) reclassify, alter or amend any existing security of the Company that is junior to the Series A Convertible Preferred
in respect of the distribution of assets on the liquidation, dissolution or winding up of the Company, if such reclassification,
alteration or amendment would render such other security senior to or pari passu with the Series A Convertible Preferred
in respect of any such right, preference or privilege.
The
description above is a summary and qualified in its entirety by the Certificate of Designations
filed as Exhibit 3.1 to this Current Report on Form 8-K, which is incorporated by reference herein.
Item 9.01 Financial Statements
and Exhibits.
(d) Exhibits
Exhibit Number |
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Description |
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3.1 |
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Certificate
of Designations of Rights, Preferences, Privileges and Restrictions of Series A Convertible Preferred Stock, dated August
18, 2015. |
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10.1 |
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Exchange
Agreement, dated August 25, 2015, between the Company and Nanobeak, LLC. |
SIGNATURES
Pursuant to the requirements
of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned
thereunto duly authorized.
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VANTAGE
mHEALTHCARE, INC. |
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By: |
/s/
Joseph C. Peters |
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Name: |
Joseph C. Peters |
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Title: |
Chief
Executive Officer |
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Date: August
25, 2015 |
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CERTIFICATE
OF DESIGNATION
OF
RIGHTS,
PREFERENCES, PRIVILEGES AND RESTRICTIONS
OF
SERIES
A CONVERTIBLE PREFERRED STOCK
OF
VANTAGE
mHEALTHCARE, INC.
The
undersigned officer of Vantage mHealthcare, Inc., a corporation organized and existing under the General Corporation Law of Delaware
(the “Company”), does hereby certify:
That,
pursuant to the authority conferred upon the Board of Directors of the Company by its Certificate of Incorporation, and pursuant
to the provisions of Section 151 of the General Corporation Law of Delaware (the “DGCL”), the Board of Directors,
by unanimous written consent, duly adopted the following recitals and resolution, which resolution remains in full force and effect
on the date hereof:
WHEREAS,
the Certificate of Incorporation of the Company provides for a class of stock designated “Preferred Stock;”
WHEREAS,
the Certificate of Incorporation of the Company provides that such Preferred Stock may be issued from time to time in one or more
series and authorizes the Board of Directors of the Company to fix and determine or alter the powers, designations, preferences
and relative, participating, optional and other rights, if any, or the qualifications, limitations or restrictions granted to
or imposed upon any wholly unissued series of Preferred Stock and to fix the number of shares constituting any such series and
the designation thereof; and
WHEREAS,
it is the desire of the Board of Directors, pursuant to its authority as aforesaid, to fix and determine the powers, designations,
preferences and relative, participating, optional and other rights, if any, or the qualifications, limitations or restrictions
thereof and other matters relating to a Series A Convertible Preferred Stock, par value 0.001 (the “Series A Convertible
Preferred Stock”).
NOW,
THEREFORE, BE IT RESOLVED, that the Board of Directors does hereby provide for a series of Preferred Stock of the Company consisting
of TWENTY FOUR MILLION (24,000,000) shares designated as “Series A Convertible Preferred Stock” and does hereby fix
and determine the powers, designations, preferences and relative, participating, optional and other rights, if any, or the qualifications,
limitations or restrictions thereof and other matters relating to the Series A Convertible Preferred Stock as follows:
1. Dividends.
The Company shall not declare, pay or set aside any dividends on shares of Common Stock, par value $0.001 (the “Common
Stock”), of the Company unless the holders of the Series A Convertible Preferred Stock then outstanding shall first
receive, or simultaneously receive, a dividend on each outstanding share of Series A Preferred Stock in an amount at least equal
to that dividend per share of Series A Preferred Stock, whether in cash or shares of capital stock of the Company, as would equal
the product of (x) the dividend payable on each share of Common Stock and (y) the number of shares of Common Stock, issuable upon
conversion of a share of Series A Preferred Stock, in each case calculated on the record date for determination of holders entitled
to receive such dividend.
2. Voting
Rights.
2.1 General.
Each holder of outstanding shares of the Series A Convertible Preferred Stock shall be entitled to vote with holders of outstanding
shares of Common Stock, voting together as a single class, with respect to any and all matters presented to the stockholders of
the Company for their action or consideration (whether at a meeting of stockholders of the Company, by written action of stockholders
in lieu of a meeting or otherwise), except as provided by law. In any such vote, each share of the Series A Convertible Preferred
Stock shall be entitled to a number of votes equal to the number of shares of Common Stock into which such share of Series A Convertible
Preferred Stock is convertible pursuant to Section 3.1, as of the record date for such vote or written consent or, if there
is no specified record date, as of the date of such vote or written consent. Each holder of outstanding shares of the Series A
Convertible Preferred Stock shall be entitled to notice of all stockholder meetings (or requests for written consent) in accordance
with the Company’s bylaws.
2.2 Series
A Protective Provisions. At any time when shares of Series A Convertible Preferred Stock are outstanding, the Company shall
not, either directly or indirectly, by amendment, merger, consolidation or otherwise, do any of the following (in addition to
any other vote required by law or the Certificate of Incorporation) without the written consent or affirmative vote of the holders
of the majority of the then outstanding shares of Series A Convertible Preferred Stock, given in writing or by vote at a meeting,
consenting or voting (as the case may be) separately as a class, and any such act or transaction entered into without such consent
or vote shall be null and void ab initio, and of no force or effect:
2.2.1. amend,
alter or repeal any provision of the Certificate of Incorporation or Bylaws of the Company in a manner that adversely affects
the powers, preferences or rights of the holders of Series A Convertible Preferred Stock; or
2.2.2.
(i) reclassify, alter or amend any existing security of the Company that is pari passu with the Series A Convertible Stock
in respect of the distribution of assets on the liquidation, dissolution or winding up of the Company, if such reclassification,
alteration or amendment would render such other security senior to the Series A Convertible Preferred Stock in respect of any
such right, preference or privilege, or (ii) reclassify, alter or amend any existing security of the Company that is junior to
the Series A Convertible Preferred Stock in respect of the distribution of assets on the liquidation, dissolution or winding up
of the Company, if such reclassification, alteration or amendment would render such other security senior to or pari passu
with the Series A Convertible Preferred Stock in respect of any such right, preference or privilege.
3. Conversions.
The holders of shares of Series A Convertible Preferred Stock shall have the following conversion rights and obligations:
3.1 Right
to Convert. Subject to the terms and conditions of this Section, the holder of any share or shares of Series A Convertible
Preferred Stock shall have the right, at the holder’s option, at any time starting on August 24, 2015 (the “Optional
Conversion Date”), to convert each such share of Series A Convertible Preferred Stock, without the payment of additional
consideration by the holder thereof, into FIVE (5) shares of fully paid and non-assessable shares of Common Stock (such ratio,
the “Series A Conversion Ratio”). Such initial Series A Conversion Ratio shall be subject to adjustment as
provided below.
3.2 Such
rights of conversion shall be exercised by the holder of Series A Convertible Preferred Stock by giving written notice that the
holder elects to convert a stated number of shares of Series A Convertible Preferred Stock into Common Stock and by surrender
of a certificate or certificates for the shares to be converted, to the extent certificated (or, if such certificate or certificates
have been lost, stolen or mutilated, an executed affidavit of loss with respect thereto), to the Company at its principal office
(or such other office or agency of the Company as the Company may designate by notice in writing to the holders of the Series
A Convertible Preferred Stock) at any time during its usual business hours on the date set forth in such notice, together with
a statement of the name or names (with address) in which the certificate or certificates for shares of Common Stock shall be issued.
3.3 Issuance
of Certificates; Time Conversion Effected. Promptly, and in any event, within five (5) business days, after the receipt of
the written notice referred to in Section 3.1 and the surrender of the certificate or certificates for the share or shares
of Series A Convertible Preferred Stock to be converted, to the extent certificated (or, if applicable, an affidavit of loss),
the Company shall issue and deliver, or cause to be issued and delivered, to the holder, registered in such name or names as such
holder may direct, a certificate or certificates for the number of whole shares of Common Stock issuable upon the conversion of
such share or shares of Series A Convertible Preferred Stock. To the extent permitted by law, such conversion shall be deemed
to have been effected and the Conversion Price shall be determined as of the close of business on the date on which such written
notice shall have been received by the Company and the certificate or certificates for such share or shares shall have been surrendered
(or affidavit of loss has been received by the Company, if applicable) as aforesaid, and, at such time, the rights of the holder
of such share or shares of Series A Convertible Preferred Stock shall cease, and the person or persons in whose name or names
any certificate or certificates for shares of Common Stock shall be issuable upon such conversion shall be deemed to have become
the holder or holders of record of the shares represented thereby.
3.4 Adjustments
for Stock Splits and Combinations. If the Company shall at any time or from time to time after the date the Series A Convertible
Preferred Stock is issued (the “Original Issue Date”) effect a subdivision of the outstanding Common Stock,
the Series A Conversion Ratio in effect immediately before that subdivision shall be proportionately decreased so that the number
of shares of Common Stock issuable on conversion of each share of such series shall be increased in proportion to such increase
in the aggregate number of shares of Common Stock outstanding. If the Company shall at any time or from time to time after the
Series A Original Issue Date combine the outstanding shares of Common Stock, the Series A Conversion Ratio in effect immediately
before the combination shall be proportionately increased so that the number of shares of Common Stock issuable on conversion
of each share of such series shall be decreased in proportion to such decrease in the aggregate number of shares of Common Stock
outstanding. Any adjustment under this subsection shall become effective at the close of business on the date the subdivision
or combination becomes effective.
3.5 Adjustment
for Certain Dividends and Distributions. In the event the Company at any time or from time to time after the Original Issue
Date shall make or issue, or fix a record date for the determination of holders of Common Stock entitled to receive, a dividend
or other distribution payable on the Common Stock in additional shares of Common Stock, then and in each such event the Series
A Conversion Ratio in effect immediately before such event shall be decreased as of the time of such issuance or, in the event
such a record date shall have been fixed, as of the close of business on such record date, by multiplying the Series A Conversion
Ratio then in effect by a fraction:
(1) the
numerator of which shall be the total number of shares of Common Stock issued and outstanding immediately prior to the time of
such issuance or the close of business on such record date, and
(2) the
denominator of which shall be the total number of shares of Common Stock issued and outstanding immediately prior to the time
of such issuance or the close of business on such record date plus the number of shares of Common Stock issuable in payment of
such dividend or distribution.
Notwithstanding
the foregoing (a) if such record date shall have been fixed and such dividend is not fully paid or if such distribution is not
fully made on the date fixed therefor, the Series A Conversion Ratio shall be recomputed accordingly as of the close of business
on such record date and thereafter the Series A Conversion Ratio shall be adjusted pursuant to this subsection as of the time
of actual payment of such dividends or distributions; and (b) that no such adjustment shall be made if the holders of Series A
Convertible Preferred Stock simultaneously receive a dividend or other distribution of shares of Common Stock in a number equal
to the number of shares of Common Stock as they would have received if all outstanding shares of Series A Convertible Preferred
Stock had been converted into Common Stock on the date of such event.
3.6 Adjustments
for Other Dividends and Distributions. In the event the Company at any time or from time to time after the Series A Original
Issue Date shall make or issue, or fix a record date for the determination of holders of Common Stock entitled to receive, a dividend
or other distribution payable in securities of the Company (other than a distribution of shares of Common Stock in respect of
outstanding shares of Common Stock) or in other property and the provisions of Section 1 do not apply to such dividend
or distribution, then and in each such event the holders of Series A Convertible Preferred Stock shall receive, simultaneously
with the distribution to the holders of Common Stock, a dividend or other distribution of such securities or other property in
an amount equal to the amount of such securities or other property as they would have received if all outstanding shares of Series
A Convertible Preferred Stock had been converted into Common Stock on the date of such event.
3.7 Adjustment
for Merger or Reorganization, etc. If there shall occur any reorganization, recapitalization, reclassification, consolidation
or merger involving the Company in which the Common Stock (but not the Series A Convertible Preferred Stock) is converted into
or exchanged for securities, cash or other property (other than a transaction covered by Sections 3.3, 3.4 or 3.5),
then, following any such reorganization, recapitalization, reclassification, consolidation or merger, each share of Series A Convertible
Preferred Stock shall thereafter be convertible in lieu of the Common Stock into which it was convertible prior to such event
into the kind and amount of securities, cash or other property which a holder of the number of shares of Common Stock of the Company
issuable upon conversion of one share of Series A Convertible Preferred Stock immediately prior to such reorganization, recapitalization,
reclassification, consolidation or merger would have been entitled to receive pursuant to such transaction; and, in such case,
appropriate adjustment (as determined in good faith by the Board of Directors of the Company) shall be made in the application
of the provisions in this Section 3 with respect to the rights and interests thereafter of the holders of the Series A
Preferred Stock, to the end that the provisions set forth in this Section 3 (including provisions with respect to changes
in and other adjustments of the Series A Conversion Ratio) shall thereafter be applicable, as nearly as reasonably may be, in
relation to any securities or other property thereafter deliverable upon the conversion of the Series A Preferred Stock.
3.8 Certificate
as to Adjustments. Upon the occurrence of each adjustment or readjustment of the Series A Conversion Ratio pursuant to this
Section 3, the Company at its expense shall, as promptly as reasonably practicable but in any event not later than ten
(10) days thereafter, compute such adjustment or readjustment in accordance with the terms hereof and furnish to each holder of
Series A Convertible Preferred Stock a certificate setting forth such adjustment or readjustment (including the kind and amount
of securities, cash or other property into which the Series A Convertible Preferred Stock is convertible) and showing in detail
the facts upon which such adjustment or readjustment is based. The Company shall, as promptly as reasonably practicable after
the written request at any time of any holder of Series A Convertible Preferred Stock (but in any event not later than ten (10)
days thereafter), furnish or cause to be furnished to such holder a certificate setting forth (i) the Series A Conversion Ratio
then in effect, and (ii) the number of shares of Common Stock and the amount, if any, of other securities, cash or property which
then would be received upon the conversion of Series A Preferred Stock.
3.9 Notice
of Record Date. In the event:
(a) the
Company shall take a record of the holders of its Common Stock (or other capital stock or securities at the time issuable upon
conversion of the Series A Preferred Stock) for the purpose of entitling or enabling them to receive any dividend or other distribution,
or to receive any right to subscribe for or purchase any shares of capital stock of any class or any other securities, or to receive
any other security; or
(b) of
any capital reorganization of the Company, any reclassification of the Common Stock of the Company; or
(c) of
the voluntary or involuntary dissolution, liquidation or winding-up of the Company, then, and in each such case, the Company will
send or cause to be sent to the holders of the Series A Convertible Preferred Stock a notice specifying, as the case may be, (i)
the record date for such dividend, distribution or right, and the amount and character of such dividend, distribution or right,
or (ii) the effective date on which such reorganization, reclassification, consolidation, merger, transfer, dissolution, liquidation
or winding-up is proposed to take place, and the time, if any is to be fixed, as of which the holders of record of Common Stock
(or such other capital stock or securities at the time issuable upon the conversion of the Series A Preferred Stock) shall be
entitled to exchange their shares of Common Stock (or such other capital stock or securities) for securities or other property
deliverable upon such reorganization, reclassification, consolidation, merger, transfer, dissolution, liquidation or winding-up,
and the amount per share and character of such exchange applicable to the Series A Convertible Preferred Stock and the Common
Stock. Such notice shall be sent at least ten (10) days prior to the record date or effective date for the event specified in
such notice.
3.10 Stock
to be Reserved. The Company will, at all times commencing as of the Optional Conversion Date, reserve and keep available out
of its authorized Common Stock, solely for the purpose of issuance upon the conversion of Series A Convertible Preferred Stock
as herein provided, such number of shares of Common Stock as shall then be issuable upon the conversion of all then outstanding
shares of Series A Convertible Preferred Stock. The Company covenants that all shares of Common Stock which shall be so issued
shall be duly and validly issued and fully paid and non-assessable and free from all taxes, liens and charges with respect to
the issue thereof.
3.11 Issue
Tax. The issuance of certificates for shares of Common Stock upon conversion of Series A Convertible Preferred Stock
shall be made without charge to the holders thereof for any issuance tax in respect thereof, provided that the Company shall not
be required to pay any tax which may be payable in respect of any transfer involved in the issuance and delivery of any certificate
in a name other than that of the holder of the Series A Convertible Preferred Stock which is being converted.
4. Liquidation,
Dissolution or Winding Up; Certain Mergers, Consolidations and Asset Sales. Except as provided in Section 1, the Series
A Convertible Preferred Stock shall have no preferential rights with respect to the Common Stock.
5. Waiver.
Any of the rights, powers, preferences and other terms of the Series A Convertible Preferred Stock set forth herein may be waived
on behalf of all holders of Series A Convertible Preferred Stock by the affirmative written consent or vote of the holders of
all of the shares of Series A Convertible Preferred Stock then outstanding.
6. Notices.
Any notice required or permitted by the provisions of this Certificate of Designation to be given to a holder of Series A Convertible
Preferred Stock shall be mailed, postage prepaid, to the post office address last shown on the records of the Company, or given
by electronic communication in compliance with the provisions of the DGCL, and shall be deemed sent upon such mailing or electronic
transmission.
* * *
IN
WITNESS WHEREOF, Vantage mHealthcare, Inc. has caused this Certificate of Designation to be executed by its duly authorized
officer this 18th day of August, 2015.
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VANTAGE mHEALTHCARE, INC. |
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By: |
/s/
Joseph C. Peters |
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Joseph C. Peters, President |
EXCHANGE
AGREEMENT
This
Exchange Agreement is dated and effective as of August 25, 2015 (this “Agreement”) and is entered into by and
between Vantage mHealthcare, Inc., a Delaware corporation (the “Company”), on the one hand, and Nanobeak, LLC,
a limited liability company organized under the laws of Delaware (the “Stockholder”), on the other hand.
WHEREAS,
the Stockholder owns shares of the outstanding common stock of the Company, par value $0.001 (the “Common Stock”);
WHEREAS,
the Stockholder desires to exchange 117,366,840 shares of Common Stock that it owns (the “Shares”) and
all rights, title and interest therein or associated therewith in exchange for 23,473,368 shares of the Company’s Series
A Convertible Preferred Stock, par value $0.001 (the “Preferred Stock”), in accordance with the terms of this
Agreement (collectively, the “Exchange”); and
WHEREAS,
the parties intend that this transaction shall constitute a tax-free transfer pursuant to Section 721 of the Internal Revenue
Code of 1986, as amended.
NOW,
THEREFORE, in consideration of the covenants and agreements set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby mutually acknowledged, the parties hereto covenant and agree as follows:
1.
EXCHANGE OF SECURITIES
1.1.
Authorization of Preferred Stock. The Company has authorized the issuance of the Preferred Stock.
1.2.
Exchange of Securities. The Stockholder hereby agrees to transfer, contribute, assign and deliver to the Company,
free and clear of any and all liens, charges, pledges or other encumbrances of any kind or nature (“Encumbrances”),
and, in exchange and as consideration therefor, the Company hereby issues and delivers to the Stockholder, the Preferred Stock
on the terms and conditions set forth in this Agreement.
1.3.
Further Assurances. At any time and from time to time after the date hereof, at the expense of the requesting party
and without further consideration, each of the parties hereto will execute and deliver such other instruments of sale, transfer,
conveyance, assignment and confirmation as may be reasonably requested in order to more effectively transfer, convey and assign
to such other party and to confirm such party’s title to the Preferred Stock.
2.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The
Company hereby represents and warrants, as of date hereof, to the Stockholder as follows (which representations and warranties
shall survive the date hereof):
2.1.
Organization and Qualification. The Company is a corporation duly incorporated, validly existing and in good standing
under the laws of the State of Delaware and has full power and authority to transact business as a foreign corporation in each
jurisdiction in which the failure to so qualify would have a material adverse effect on its business as currently conducted.
2.2.
Corporate Power and Authority. The Company has all requisite legal and corporate power to execute, deliver and perform
this Agreement and the transactions contemplated hereby. The execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby have been duly authorized and approved by the Company.
2.3.
Governmental Consents. Except for the filing of the Certificate of Designation of Rights, Preferences, Privileges
and Restrictions of Series A Convertible Preferred Stock of Vantage mHealthcare, Inc. with the Secretary of State of the State
of Delaware, no other consent, approval, order or authorization of, or registration, qualification, designation, declaration or
filing with, any United States or other governmental authority on the part of the Company is or will be required in connection
with the consummation of the transactions contemplated hereby.
2.4.
Non-Contravention. Neither the execution nor delivery by the Company of this Agreement nor the consummation by the
Company of the transactions contemplated hereby will violate, conflict with or result in any breach of the Certificate of Incorporation
or Bylaws of the Company, or any judgment, decree, order, law, rule or regulation applicable to the Company.
3.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE STOCKHOLDER
The
Stockholder hereby represents and warrants to and agrees with the Company as of date hereof (which representations and warranties
shall survive the date hereof):
3.1.
Title to Securities. The Stockholder owns beneficially and of record, free and clear of all Encumbrances, the Shares.
There is no restriction affecting the ability of the Stockholder to transfer the legal and beneficial title and ownership of the
Shares to the Company and, upon delivery thereof to the Company pursuant to the terms of this Agreement, the Company will acquire
record and beneficial title to the Shares, free and clear of all Encumbrances.
3.2.
Stockholder’s Authority to Execute and Perform Agreement. The Stockholder is a company duly formed, validly
existing and in good standing under the laws of the State of Delaware and has full power, authority and all approvals required
by law to enter into this Agreement and to perform its obligations hereunder. The Stockholder has duly executed and delivered
this Agreement, and this Agreement is the legal, valid and binding obligation of the Stockholder, enforceable against the Stockholder
in accordance with its terms. The execution, delivery and performance of this Agreement by the Stockholder does not and will not
result in any violation of or conflict with, or constitute a default under (i) any contract, agreement, document or instrument
to which the Stockholder is party or by which the Stockholder or any of the Stockholder’s properties are bound, or (ii)
any law, rule, regulation, judgment or order to which the Stockholder is subject.
3.3. Accredited
Investor. The Stockholder is an “accredited investor” as such term is defined in Regulation D under the Securities
Act of 1933, as amended (“Securities Act”).
3.4.
Purchase for Investment; Residence. The Stockholder is acquiring the Preferred Stock for investment for its account
and not with a view to the distribution or public offering thereof within the meaning of the Securities Act. The Stockholder understands
that the Preferred Stock has not been registered under the Securities Act and may not be sold or transferred without such registration
or an exemption therefrom. The Stockholder is sufficiently experienced in financial and business matters to be capable of evaluating
the risk of investment in the Company and to make an informed decision relating thereto or has engaged and used an experienced
investment advisor to assist the Stockholder to evaluate the risk of investment in the Company. The Stockholder has the financial
capability for making the investment, can afford a complete loss of the investment, and the investment is a suitable one for the
Stockholder. Prior to the execution and delivery of this Agreement, the Stockholder has had the opportunity to ask questions of
and receive answers from representatives of the Company and the Company concerning the finances, operations, business and prospects
of the Company.
4.
REPRESENTATIONS AND WARRANTIES OF BOTH PARTIES
4.1.
Exemption from Registration. The Exchange and, assuming the representations and warranties set forth in this Section
4.1 are true and correct as of the date of conversion of the Preferred Stock, the conversion of the Preferred Stock into shares
of Common Stock (the “Conversion”), is and will be exempt from the registration requirements of the Securities
Act of 1933, as amended (the “Securities Act”), pursuant to, inter alia, the provisions of Section 3(a)(9)
thereof. The Company has complied with respect to the Exchange, and will comply, with respect to the Conversion, in all material
respects with such provisions and, without limiting the generality thereof, has not paid, with respect to the Exchange, and will
not pay, with respect to the Conversion, to any person, directly or indirectly, any commission or other remuneration for soliciting
the Exchange or the Conversion. Neither the Company nor any of its affiliates, nor any person acting on its or their behalf: (i)
has engaged or will engage in any form of general solicitation or general advertising (within the meaning of Regulation D promulgated
under the Securities Act) in connection with the Exchange or the Conversion; (ii) in the three months prior to the date of this
Agreement, has, other than the transactions contemplated with respect to the Preferred Stock as set forth in this Agreement or
the Conversion, directly or indirectly, made any offers or sales of any security or solicited any offers to buy or exchange any
security, under any circumstances that would require registration of the Preferred Stock or the shares of Common Stock issuable
upon Conversion thereof under the Securities Act; or (iii) has issued or will issue any shares of securities or other securities
or instruments convertible into, exchangeable for or otherwise entitling the holder thereof to acquire shares of Common Stock
which would be integrated with the Exchange or the Conversion for purposes of the Securities Act or of any applicable stockholder
approval provisions, nor will the Company or any of its affiliates take any action or steps that would require registration of
the Preferred Stock or shares of Common Stock issuable upon Conversion under the Securities Act. The covenants set forth in this
Section 4.1 shall terminate at such time as all of the shares of Preferred Stock have been converted into shares of Common Stock.
5.
MISCELLANEOUS
5.1.
Notices. All notices, requests, consents and other communications hereunder shall be in writing, shall be addressed
to the receiving party’s address set forth below or to such other address as a party may designate by notice hereunder,
and shall be either (i) delivered by hand, (ii) made by e-mail or facsimile transmission, (iii) sent by recognized overnight courier,
or (iv) sent by registered or certified mail, return receipt requested, postage prepaid.
If
to the Company:
Address
of Principal Executive Offices: |
3
Columbus Circle, 15th Floor |
|
New
York, NY 10019 |
|
|
Telephone
Number: |
(917)
745-7202 |
Email: |
[_________________] |
If
to the Stockholder, at its as set forth on the signature page hereto.
5.2.
Entire Agreement. This Agreement embodies the entire agreement and understanding among the parties hereto with respect
to the subject matter hereof and supersedes all prior oral or written agreements and understandings relating to the subject matter
hereof. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in this Agreement shall
affect, or be used to interpret, change or restrict, the express terms and provisions of this Agreement.
5.3.
Modifications, Amendments and Waivers. The terms and conditions of this Agreement may be modified, amended or waived
only by written agreement executed by all parties hereto. No such waiver or consent shall be deemed to be or shall constitute
a waiver or consent with respect to any other terms or provisions of this Agreement, whether or not similar. Each such waiver
or consent shall be effective only in the specific instance and for the purpose for which it was given, and shall not constitute
a continuing waiver or consent.
5.4.
Assignment. Neither this Agreement, nor any right hereunder, may be assigned by any of the parties hereto without
the prior written consent of the other parties.
5.5.
Parties in Interest. This Agreement shall be binding upon and inure solely to the benefit of each party hereto and
its respective successors and permitted assigns, and nothing in this Agreement, express or implied, is intended to confer upon
any other person any rights or remedies of any nature whatsoever under or by reason of this Agreement. Nothing in this Agreement
shall be construed to create any rights or obligations except among the parties hereto, and no person or entity shall be regarded
as a third party beneficiary of this Agreement.
5.6.
Governing Law. This Agreement and the rights and obligations of the parties hereunder shall be construed in accordance
with and governed by the internal laws of the State of Delaware, without giving effect to the conflict of law principles thereof.
5.7.
Severability. In the event that any court of competent jurisdiction shall finally determine that any provision,
or any portion thereof, contained in this Agreement shall be void or unenforceable in any respect, then such provision shall be
deemed limited to the extent that such court determines it enforceable and, as so limited, shall remain in full force and effect.
In the event that such court shall determine any such provision, or portion thereof, wholly unenforceable, the remaining provisions
of this Agreement shall nevertheless remain in full force and effect.
5.8.
Headings and Captions. The headings and captions of the various subdivisions of this Agreement are for convenience
of reference only and shall in no way modify, or affect, or be considered in construing or interpreting the meaning or construction
of any of the terms or provisions hereof.
5.9.
Enforcement. Each of the parties hereto acknowledges and agrees that the rights acquired by each party hereunder
are unique and that irreparable damage would occur in the event that any of the provisions of this Agreement to be performed by
the other party were not performed in accordance with their specific terms or were otherwise breached. Accordingly, in addition
to any other remedy to which the parties hereto are entitled at law or in equity, each party hereto shall be entitled to an injunction
or injunctions to prevent breaches of this Agreement by the other party and to enforce specifically the terms and provisions hereof
in any federal or state court to which the parties have agreed hereunder to submit to jurisdiction.
5.10.
Reliance. The parties hereto agree that, notwithstanding any right of any party to this Agreement to investigate
the affairs of any other party to this Agreement, the party having such right to investigate shall have the right to rely fully
upon the representations and warranties of the other party expressly contained in this Agreement and on the accuracy of any schedule
or other document attached hereto or referred to herein or delivered by such other party or pursuant to this Agreement.
5.11.
Counterparts. This Agreement may be executed in one or more counterparts, and by different parties hereto on separate
counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(Remainder
of page intentionally left blank. Signature page(s) to follow.)
IN
WITNESS WHEREOF, the parties have executed and delivered this Exchange Agreement as of the date first written above.
|
VANTAGE
mHEALTHCARE, INC. |
|
|
|
|
By:
|
/s/ Joseph
C. Peters |
|
|
Joseph
C. Peters, President |
|
|
|
|
|
|
|
NANOBEAK
LLC |
|
|
|
|
By:
|
/s/
Jeremy Barbera |
|
Name: |
Jeremy
Barbera |
|
Title: |
President |
Signature
page to Exchange Agreement
s
Nano Mobile Healthcare (PK) (USOTC:VNTH)
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