EXCHANGE AGREEMENT
Between
Skintek Labs, Inc.
and
HUNNO TECHNOLOGIES, INC.
Dated July 22, 2002
TABLE OF CONTENTS
ARTICLE I REPRESENTATIONS, COVENANTS, AND WARRANTIES OF HUNNO TECHNOLOGIES, INC.
1.01 Organization 4
1.02 Capitalization 5
1.03 Subsidiaries and Predecessor Corporations 5
1.04 Financial Statements 5
1.05 Information 6
1.06 Options and Warrants 6
1.07 Absence of Certain Changes or Events 6
1.08 Title and Related Matters 7
1.09 Litigation and Proceedings 8
1.10 Contracts 8
1.11 Material Contract Defaults 9
1.12 No Conflict With Other Instruments 9
1.13 Governmental Authorizations 9
1.14 Compliance With Laws and Regulations 9
1.15 Insurance 10
1.16 Approval of Agreement 10
1.17 Material Transactions or Affiliations 10
1.18 Labor Relations 10
1.19 Digital Concepts Schedules 10
1.20 Bank Accounts; Power of Attorney 11
1.21 Valid Obligation 12
ARTICLE II REPRESENTATIONS, COVENANTS, AND WARRANTIES OF SKINTEK LABS, INC.
2.01 Organization 13
2.02 Capitalization 13
2.03 Subsidiaries and Predecessor Corporations 13
2.04 Securities Filings; Financial Statements 13
2.05 Information 14
2.06 Options and Warrants 15
2.07 Absence of Certain Changes or Events 15
2.08 Title and Related Matters 16
2.09 Litigation and Proceedings 16
2.10 Contracts 17
2.11 Material Contract Defaults 17
2.12 No Conflict With Other Instruments 18
2.13 Governmental Authorizations 18
2.14 Compliance With Laws and Regulations 18
2.15 Insurance 18
2.16 Approval of Agreement 18
2.17 Continuity of Business Enterprises 18
2.18 Material Transactions or Affiliations 19
2.19 Labor Relations 19
2.20 Skintek Labs Schedules 19
2.21 Bank Accounts; Power of Attorney 21
2.22 Valid Obligation 21
ARTICLE III PLAN OF EXCHANGE
3.01 The Exchange 21
3.02 Anti-Dilution 22
3.03 Closing 22
3.04 Closing Events 22
3.05 Termination ...................................................................... 23
ARTICLE IV SPECIAL COVENANTS
4.01 Access to Propertied Records 25
4.02 Delivery of Books and Records 25
4.03 Third Party Consents and Certificates 25
4.04 Name Change and State of Incorporation 25
4.05 Adatom Shareholder Meeting 25
4.06 Consent of Digital Shareholders 26
4.07 Designation of Directors and Officers 26
4.08 Exclusive Dealing Rights 26
4.09 Actions Prior to Closing 27
4.10 Sales Under Rule 144 or 145, If Applicable 28
4.11 Indemnification 29
4.12 Other reporting issues 29
ARTICLE V CONDITIONS PRECEDENT TO OBLIGATIONS OF SKINTEK LABS
5.01 Accuracy of Representations and Performance of Covenants 30
5.02 Officer's Certificates 30
5.03 No Material Adverse Change 31
5.04 Good Standing 31
5.05 Approval by Digital Shareholders 31
5.06 No Governmental Prohibitions 31
5.07 Consents 31
5.08 Other Items 31
ARTICLE VI CONDITIONS PRECEDENT TO OBLIGATIONS OF DIGITAL AND THE DIGITAL SHAREHOLDERS
6.01 Accuracy of Representations and Performance of Covenants 31
6.02 Officer's Certificate 32
6.03 No Material Adverse Change 32
6.04 Good Standing 32
6.05 No Governmental Prohibition 32
6.06 Consents 32
6.07 Other Items 33
ARTICLE VII MISCELLANEOUS
7.01 Brokers 34
7.02 Governing Law 34
7.03 Notices 34
7.04 Attorney's Fees 35
7.05 Confidentiality 35
7.06 Public Announcements and Filings 35
7.07 Schedules; Knowledge 35
12
11
..08 Third Party Beneficiaries 35
7.09 Expenses 36
7.10 Entire Agreement 36
7.11 Survival; Termination 36
7.12 Counterparts 36
7.13 Amendment or Waiver 36
7.14 Best Efforts 36
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT (hereinafter referred to as this "Agreement")
is entered into as of this day of July 2002 by and between SKINTEK LABS, INC. ,
a Colorado corporation (hereinafter referred to as "SKINTEK LABS")and HUNNO
TECHNOLOGIES, INC., a Korea corporation (hereinafter referred to as "Hunno"),
upon the following premises:
Premises
WHEREAS, Skintek Labs is a publicly held corporation organized under
the laws of the State of Delaware;
WHEREAS, Hunno is a privately held corporation organized under the
laws of Korea;
WHEREAS, management of the constituent corporations have determined
that it is in the best interest of the parties that Skintek Labs acquire 100% of
the issued and outstanding securities of Hunno in exchange for the issuance of
certain shares of Skintek Labs (the "Exchange") and Hunno agreed to use its best
efforts to cause its shareholders (the "Hunno Shareholders") to exchange their
securities of Hunno on the terms described herein; and
WHEREAS, Skintek Labs and Hunno desire to set forth the terms of the
Exchange, which is intended to constitute a tax-free reorganization pursuant to
the provisions of Section 368(a)(1)(B) of the Internal Revenue Code of 1986, as
amended.
Agreement
NOW THEREFORE, on the stated premises and for and in consideration of
the mutual covenants and agreements hereinafter set forth and the mutual
benefits to the parties to be derived here from, it is hereby agreed as follows:
ARTICLE I
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF Hunno
As an inducement to, and to obtain the reliance of Skintek Labs, except
as set forth on the Hunno Schedules (as hereinafter defined), Hunno represents
and warrants as follows:
Section 1.01 Organization. Hunno is a corporation duly organized,
validly existing, and in good standing under the laws of Korea and has the
corporate power and is duly authorized, qualified, franchised, and licensed
under all applicable laws, regulations, ordinances, and orders of public
authorities to own all of its properties and assets and to carry on its business
in all material respects as it is now being conducted, including qualification
to do business as a foreign corporation in the states or countries in which the
character and location of the assets owned by it or the nature of the business
transacted by it requires qualification, except where failure to be so qualified
would not have a material adverse effect on its business. Included in the Hunno
Schedules are complete and correct copies of the articles of incorporation, and
bylaws of Hunno as in effect on the date hereof. The execution and delivery of
this Agreement does not, and the consummation of the transactions contemplated
hereby will not, violate any provision of Hunno' articles of incorporation or
bylaws. Hunno has taken all actions required by law, its articles of
incorporation, or otherwise to authorize the execution and delivery of this
Agreement. Hunno has full power, authority, and legal right and has taken all
action required by law, its articles of incorporation, and otherwise to
consummate the transactions herein contemplated.
Section 1.02 Capitalization. The authorized capitalization of Hunno
consists of 6,000,000 shares of common stock, at 5,000KRW value, of which
912,220 shares are currently, issued and outstanding. All issued and outstanding
shares are legally issued, fully paid, and non-assessable and not issued in
violation of the preemptive or other rights of any person.
Section 1.03 Subsidiaries and Predecessor Corporations. Hunno does not
have any predecessor corporation(s) or operating subsidiaries, and does not own,
beneficially or of record, any shares of any other corporation, except as
disclosed in Schedule 1.03. For purposes hereinafter, the term "Hunno" also
includes those subsidiaries, if any, set forth on Schedule 1.03.
Section 1.04 Financial Statements.
(a) Included in the Hunno Schedules are (i)the audited balance
sheets of Hunno as of December 31, 2001, and the related statements of
operations, stockholders' equity and cash flows for the fiscal year
ended December 31, 2001.
(b) All such financial statements have been prepared in
accordance with generally accepted accounting principles. The Hunno
balance sheets present a true and fair view as of the dates of such
balance sheets of the financial condition of Hunno. Hunno did not have,
as of the dates of such balance sheets, except as and to the extent
reflected or reserved against therein, any liabilities or obligations
(absolute or contingent) which should be reflected in the balance
sheets or the notes thereto, prepared in accordance with generally
accepted accounting principles, and all assets reflected therein are
properly reported and present fairly the value of the assets of Hunno
in accordance with generally accepted accounting principles.
(c) Hunno has no liabilities with respect to the payment of
any federal, state, county, local or other taxes (including any
deficiencies, interest or penalties), except for taxes accrued but not
yet due and payable.
(d) Hunno has filed all state, federal or local income and/or
franchise tax returns required to be filed by it from inception to the
date hereof. Each of such income tax returns reflects the taxes due for
the period covered thereby, except for amounts which, in the aggregate,
are immaterial.
(e) The books and records, financial and otherwise, of Hunno
are in all material respects complete and correct and have been
maintained in accordance with good business and accounting practices.
(f) All of Hunno' assets are reflected on its financial
statements, and, except as set forth in the Hunno Schedules or the
financial statements of Hunno or the notes thereto, Hunno has no
material liabilities, direct or indirect, matured or unmatured,
contingent or otherwise.
Section 1.05 Information. The information concerning Hunno set forth in
this Agreement and in the Hunno Schedules is complete and accurate in all
material respects and does not contain any untrue statement of a material fact
or omit to state a material fact required to make the statements made, in light
of the circumstances under which they were made, not misleading. In addition,
Hunno has fully disclosed in writing to Skintek Labs (through this Agreement or
the Hunno Schedules) all information relating to matters involving Hunno or its
assets or its present or past operations or activities which (i) indicated or
may indicate, in the aggregate, the existence of a greater than $25,000
liability or diminution in value, (ii) have led or may lead to a competitive
disadvantage on the part of Hunno or (iii) either alone or in aggregation with
other information covered by this Section, otherwise have led or may lead to a
material adverse effect on the transactions contemplated herein or on Hunno, its
assets, or its operations or activities as presently conducted or as
contemplated to be conducted after the Closing Date, including, but not limited
to, information relating to governmental, employee, environmental, litigation
and securities matters and transactions with affiliates.
Section 1.06 Options or Warrants. There are no options, and no
warrants, of any character relating
to the authorized and unissued Hunno common stock.
Section 1.07 Absence of Certain Changes or Events. Except as
set forth in this Agreement or the
Hunno Schedules, since December 31, 2001:
(a) there has not been (i) any material adverse change in the
business, operations, properties, assets, or condition of Hunno or (ii)
any damage, destruction, or loss to Hunno(whether or not covered by
insurance) materially and adversely affecting the business, operations,
properties, assets, or condition of Hunno;
(b) Hunno has not (i) amended its articles of incorporation or
bylaws; (ii) declared or made, or agreed to declare or make, any
payment of dividends or distributions of any assets of any kind
whatsoever to stockholders or purchased or redeemed, or agreed to
purchase or redeem, any of its capital stock; (iii) waived any rights
of value which in the aggregate are outside of the ordinary course of
business or material considering the business of Hunno; (iv) made any
material change in its method of management, operation or accounting;
(v) entered into any other material transaction other than sales in the
ordinary course of its business; (vi) made any accrual or arrangement
for payment of bonuses or special compensation of any kind or any
severance or termination pay to any present or former officer or
employee; (vii) increased the rate of compensation payable or to become
payable by it to any of its officers or directors or any of its
salaried employees whose monthly compensation exceeds $1,000; or (viii)
made any increase in any profit sharing, bonus, deferred compensation,
insurance, pension, retirement, or other employee benefit plan,
payment, or arrangement made to, for, or with its officers, directors,
or employees;
(c) Hunno has not (i) borrowed or agreed to borrow any funds
or incurred, or become subject to, any material obligation or liability
(absolute or contingent) except as disclosed herein and except
liabilities incurred in the ordinary course of business; (ii) paid or
agreed to pay any material obligations or liability (absolute or
contingent) other than current liabilities reflected in or shown on the
most recent Hunno balance sheet, and current liabilities incurred since
that date in the ordinary course of business and professional and other
fees and expenses in connection with the preparation of this Agreement
and the consummation of the transactions contemplated hereby; (iii)
sold or transferred, or agreed to sell or transfer, any of its assets,
properties, or rights (except assets, properties, or rights not used or
useful in its business which, in the aggregate have a value of less
than $1,000), or canceled, or agreed to cancel, any debts or claims
(except debts or claims which in the aggregate are of a value of less
than $1,000); (iv) made or permitted any amendment or termination of
any contract, agreement, or license to which it is a party if such
amendment or termination is material, considering the business of
Hunno; or (v) issued, delivered, or agreed to issue or deliver any
stock, bonds or other corporate securities including debentures
(whether authorized and unissued or held as treasury stock); and
(d) to the best knowledge of Hunno, Hunno has not become
subject to any law or regulation which materially and adversely
affects, or in the future may adversely affect the business,
operations, properties, assets, or condition of Hunno.
Section 1.08 Title and Related Matters. Hunno has good and marketable
title to all of its properties, inventory, interests in properties, and assets,
real and personal, which are reflected in the most recent Hunno balance sheet or
acquired after that date (except properties, inventory, interests in properties,
and assets sold or otherwise disposed of since such date in the ordinary course
of business) free and clear of all liens, pledges, charges, or encumbrances
except (a) statutory liens or claims not yet delinquent; (b) such imperfections
of title and easements as do not and will not materially detract from or
interfere with the present or proposed use of the properties subject thereto or
affected thereby or otherwise materially impair present business operations on
such properties; and (c) as described in the Hunno Schedules. Except as set
forth in the Hunno Schedules, Hunno owns, free and clear of any liens, claims,
encumbrances, royalty interests, or other restrictions or limitations of any
nature whatsoever, any and all products it is currently manufacturing, including
the underlying technology and data, and all procedures, techniques, marketing
plans, business plans, methods of management, or other information utilized in
connection with Hunno' business. Except as set forth in the Hunno Schedules, no
third party has any right to, and Hunno has not received any notice of
infringement of or conflict with asserted rights of others with respect to any
product, technology, data, trade secrets, know-how, propriety techniques,
trademarks, service marks, trade names, or copyrights which, individually or in
the aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a materially adverse effect on the business, operations, financial
condition, income, or business prospects of Hunno or any material portion of its
properties, assets, or rights.
Section 1.09 Litigation and Proceedings. Except as set forth in the
Hunno Schedules, there are no actions, suits, proceedings, or investigations
pending or, to the knowledge of Hunno after reasonable investigation, threatened
by or against Hunno or affecting Hunno or its properties, at law or in equity,
before any court or other governmental agency or instrumentality, domestic or
foreign, or before any arbitrator of any kind. Hunno does not have any knowledge
of any material default on its part with respect to any judgment, order,
injunction, decree, award, rule, or regulation of any court, arbitrator, or
governmental agency or instrumentality or of any circumstances which, after
reasonable investigation, would result in the discovery of such a default.
Section 1.10 Contracts.
(a) Except as included or described in the Hunno Schedules,
there are no "material" contracts, agreements, franchises, license
agreements, debt instruments or other commitments to which Hunno is a
party or by which it or any of its assets, products, technology, or
properties are bound other than those incurred in the ordinary course
of business (as used in this Agreement, a "material" contract,
agreement, franchise, license agreement, debt instrument or commitment
is one which (i) will remain in effect for more than six (6) months
after the date of this Agreement or (ii) involves aggregate obligations
of at least fifty thousand dollars ($50,000));
(b) All contracts, agreements, franchises, license agreements,
and other commitments to which Hunno is a party or by which its
properties are bound and which are material to the operations of Hunno
taken as a whole are valid and enforceable by Hunno in all respects,
except as limited by bankruptcy and insolvency laws and by other laws
affecting the rights of creditors generally;
(c) Hunno is not a party to or bound by, and the properties of
Hunno are not subject to any contract, agreement, other commitment or
instrument; any charter or other corporate restriction; or any
judgment, order, writ, injunction, decree, or award which materially
and adversely affects, the business operations, properties, assets, or
condition of Hunno; and
(d) Except as included or described in the Hunno Schedules or
reflected in the most recent Hunno balance sheet, Hunno is not a party
to any oral or written (i) contract for the employment of any officer
or employee which is not terminable on 30 days, or less notice; (ii)
profit sharing, bonus, deferred compensation, stock option, severance
pay, pension benefit or retirement plan, (iii) agreement, contract, or
indenture relating to the borrowing of money, (iv) guaranty of any
obligation, other than one on which Hunno is a primary obligor, for the
borrowing of money or otherwise, excluding endorsements made for
collection and other guaranties of obligations which, in the aggregate
do not exceed more than one year or providing for payments in excess of
$25,000 in the aggregate; (vi) collective bargaining agreement; or
(vii) agreement with any present or former officer or director of
Hunno.
Section 1.11 Material Contract Defaults. Hunno is not in default in any
material respect under the terms of any outstanding contract, agreement, lease,
or other commitment which is material to the business, operations, properties,
assets or condition of Hunno and there is no event of default in any material
respect under any such contract, agreement, lease, or other commitment in
respect of which Hunno has not taken adequate steps to prevent such a default
from occurring.
Section 1.12 No Conflict With Other Instruments. The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, constitute
an event of default under, or terminate, accelerate or modify the terms of any
material indenture, mortgage, deed of trust, or other material contract,
agreement, or instrument to which Hunno is a party or to which any of its
properties or operations are subject.
Section 1.13 Governmental Authorizations. Except as set forth in the
Hunno Schedules, Hunno has all licenses, franchises, permits, and other
governmental authorizations that are legally required to enable it to conduct
its business in all material respects as conducted on the date hereof. Except
for compliance with federal and state securities and corporation laws, as
hereinafter provided, no authorization, approval, consent, or order of, or
registration, declaration, or filing with, any court or other governmental body
is required in connection with the execution and delivery by Hunno of this
Agreement and the consummation by Hunno of the transactions contemplated hereby.
Section 1.14 Compliance With Laws and Regulations. Except as set forth
in the Hunno Schedules, to the best of its knowledge Hunno has complied with all
applicable statutes and regulations of any federal, state, or other governmental
entity or agency thereof, except to the extent that noncompliance would not
materially and adversely affect the business, operations, properties, assets, or
condition of Hunno or except to the extent that noncompliance would not result
in the occurrence of any material liability for Hunno.
Section 1.15 Insurance. All of the properties of Hunno are fully
insured for their full
replacement cost.
Section 1.16 Approval of Agreement. The board of directors of Hunno has
authorized the execution and delivery of this Agreement by Hunno and has
approved this Agreement and the transactions contemplated hereby, and will
recommend to the Hunno Shareholders that the Exchange be accepted by them.
Section 1.17 Material Transactions or Affiliations. Set forth in the
Hunno Schedules is a description of every contract, agreement, or arrangement
between Hunno and any predecessor and any person who was at the time of such
contract, agreement, or arrangement an officer, director, or person owning of
record, or known by Hunno to own beneficially, 5% or more of the issued and
outstanding common stock of Hunno and which is to be performed in whole or in
part after the date hereof or which was entered into not more than three years
prior to the date hereof. Except as disclosed in the Hunno Schedules or
otherwise disclosed herein, no officer, director, or 5% shareholder of Hunno
has, or has had since inception of Hunno, any known interest, direct or
indirect, in any transaction with Hunno which was material to the business of
Hunno. There are no commitments by Hunno, whether written or oral, to lend any
funds, or to borrow any money from, or enter into any other transaction with,
any such affiliated person.
Section 1.18 Labor Relations. Hunno has not had work stoppage resulting
from labor problems. To the knowledge of Hunno, no union or other collective
bargaining organization is organizing or attempting to organize any employee of
Hunno.
Section 1.19 Hunno Schedules. Hunno has delivered to Skintek Labs the
following schedules, which are collectively referred to as the "Hunno Schedules"
and which consist of separate schedules dated as of the date of execution of
this Agreement, all certified by the chief executive officer of Hunno as
complete, true, and correct as of the date of this Agreement in all material
respects:
(a) a schedule containing complete and correct copies
of the articles of incorporation,
and bylaws of Hunno in effect as of the date of this Agreement;
(b) a schedule containing the financial statements of
Hunno identified in paragraph
1.04(a);
(c) a Schedule 1.19(c) containing a list indicating the
name and address of each
shareholder of Hunno together with the number of shares owned by him,
her or it;
(d) a schedule containing a description of all real property
owned by Hunno, together with a description of every mortgage, deed of
trust, pledge, lien, agreement, encumbrance, claim, or equity interest
of any nature whatsoever in such real property;
(e) copies of all licenses, permits, and other governmental
authorizations (or requests or applications therefor) pursuant to which
Hunno carries on or proposes to carry on its business (except those
which, in the aggregate, are immaterial to the present or proposed
business of Hunno);
(f) a schedule listing the accounts receivable and notes and
other obligations receivable of Hunno as of December 31, 2001, or
thereafter other than in the ordinary course of business of Hunno,
indicating the debtor and amount, and classifying the accounts to show
in reasonable detail the length of time, if any, overdue, and stating
the nature and amount of any refunds, set offs, reimbursements,
discounts, or other adjustments, which are in the aggregate material
and due to or claimed by such debtor;
(g) a schedule listing the accounts payable and notes and
other obligations payable of Hunno as of December 31, 2001, or that
arose thereafter other than in the ordinary course of the business of
Hunno, indicating the creditor and amount, classifying the accounts to
show in reasonable detail the length of time, if any, overdue, and
stating the nature and amount of any refunds, set offs, reimbursements,
discounts, or other adjustments, which in the aggregate are material
and due to or claimed by Hunno respecting such obligations;
(h) a schedule setting forth a description of any material
adverse change in the business, operations, property, inventory,
assets, or condition of Hunno since December 31, 2001, required to be
provided pursuant to section 1.07 hereof; and
(i) a schedule setting forth any other information, together
with any required copies of documents, required to be disclosed in the
Hunno Schedules by Sections 1.01 through 1.18.
Hunno shall cause the Hunno Schedules and the instruments and data
delivered to Skintek Labs hereunder to be promptly updated after the date hereof
up to and including the Closing Date.
It is understood and agreed that not all of the schedules referred to
above have been completed or are available to be furnished by Hunno. Hunno shall
have until July 31, 2002 to provide such schedules. If Hunno cannot or fails to
do so, or if Skintek Labs acting reasonably finds any such schedules or updates
provided after the date hereof to be unacceptable according to the criteria set
forth below, Skintek Labs may terminate this Agreement by giving written notice
to Hunno within five (5) days after the schedules or updates were due to be
produced or were provided. For purposes of the foregoing, Skintek Labs may
consider a disclosure in the Hunno Schedules to be "unacceptable" only if that
item would have a material adverse impact on the financial statements listed in
Section 1.04(a), taken as a whole.
Section 1.20 Bank Accounts; Power of Attorney. Set forth in Schedule
1.20 is a true and complete list of (a) all accounts with banks, money market
mutual funds or securities or other financial institutions maintained by Hunno
within the past twelve (12) months, the account numbers thereof, and all persons
authorized to sign or act on behalf of Hunno, (b) all safe deposit boxes and
other similar custodial arrangements maintained by Hunno within the past twelve
(12) months, and (c) the names of all persons holding powers of attorney from
Hunno or who are otherwise authorized to act on behalf of Hunno with respect to
any matter, other than its officers and directors, and a summary of the terms of
such powers or authorizations.
Section 1.21 Valid Obligation. This Agreement and all agreements and
other documents executed by Hunno in connection herewith constitute the valid
and binding obligation of Hunno, enforceable in accordance with its or their
terms, except as may be limited by bankruptcy, insolvency, moratorium or other
similar laws affecting the enforcement of creditors' rights generally and
subject to the qualification that the availability of equitable remedies is
subject to the discretion of the court before which any proceeding therefor may
be brought.
ARTICLE II
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF
Skintek Labs
As an inducement to, and to obtain the reliance of Hunno and the Hunno
Shareholders, except as set forth in the Skintek Labs Schedules (as hereinafter
defined), Skintek Labs represents and warrants as follows:
Section 2.01 Organization. Skintek Labs is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Delaware and has the corporate power and is duly authorized, qualified,
franchised, and licensed under all applicable laws, regulations, ordinances, and
orders of public authorities to own all of its properties and assets, to carry
on its business in all material respects as it is now being conducted, and
except where failure to be so qualified would not have a material adverse effect
on its business, there is no jurisdiction in which it is not qualified in which
the character and location of the assets owned by it or the nature of the
business transacted by it requires qualification. Included in the Skintek Labs
Schedules are complete and correct copies of the certificate of incorporation
and bylaws of Skintek Labs as in effect on the date hereof. The execution and
delivery of this Agreement does not, and the consummation of the transactions
contemplated hereby will not, violate any provision of Skintek Labs's
certificate of incorporation or bylaws. Skintek Labs has taken all action
required by law, its certificate of incorporation, its bylaws, or otherwise to
authorize the execution and delivery of this Agreement, and Skintek Labs has
full power, authority, and legal right and has taken all action required by law,
its certificate of incorporation, bylaws, or otherwise to consummate the
transactions herein contemplated.
Section 2.02 Capitalization. Skintek Labs's authorized capitalization
consists of 50,000,000 shares of common stock, par value $.001 of which
12,024,103 shares are issued and outstanding (the "Original Skintek Labs
Shares"). All issued and outstanding shares are legally issued, fully paid, and
non-assessable and not issued in violation of the preemptive or other rights of
any person.
Section 2.03 Subsidiaries and Predecessor Corporations. Skintek Labs
does not have any predecessor corporation(s) or subsidiaries, and does not own,
beneficially or of record, any shares of any other corporation, except as
disclosed in Schedule 2.03. For purposes hereinafter, the term "Skintek Labs"
also includes those subsidiaries, if any, set forth on Schedule 2.03.
Section 2.04 Securities Filings; Financial Statements.
(a) Skintek Labs is required to file forms or reports with the
Securities and Exchange Commission and is in compliance with all such
requirements.
(b) Included in the Skintek Labs Schedules are (i) the audited
balance sheets of Skintek Labs as of December 31, 2001, and the related
audited statements of operations, stockholders' equity and cash flows
for the fiscal year ended December 31, 2001, with respect thereto, all
as set forth in the SEC Reports.
(c) All such financial statements have been prepared in
accordance with generally accepted accounting principles consistently
applied throughout the periods involved. The Skintek Labs balance
sheets present fairly as of their respective dates the financial
condition of Skintek Labs. As of the date of such balance sheets,
except as and to the extent reflected or reserved against therein,
Skintek Labs had no liabilities or obligations (absolute or contingent)
which should be reflected in the balance sheets or the notes thereto
prepared in accordance with generally accepted accounting principles,
and all assets reflected therein are properly reported and present
fairly the value of the assets of Skintek Labs, in accordance with
generally accepted accounting principles. The statements of operations,
stockholders' equity and cash flows reflect fairly the information
required to be set forth therein by generally accepted accounting
principles.
(d) Skintek Labs has no liabilities with respect to the
payment of any federal, state, county, local or other taxes (including
any deficiencies, interest or penalties), except for taxes accrued but
not yet due and payable.
(e) Skintek Labs has timely filed all state, federal or local
income and/or franchise tax returns required to be filed by it from
inception to the date hereof. Each of such income tax returns reflects
the taxes due for the period covered thereby, except for amounts which,
in the aggregate, are immaterial.
(f) The books and records, financial and otherwise, of Skintek
Labs are in all material aspects complete and correct and have been
maintained in accordance with good business and accounting practices.
(g) All of Skintek Labs's assets are reflected on its
financial statements, and, except as set forth in the Skintek Labs
Schedules or the financial statements of Skintek Labs or the notes
thereto, Skintek Labs has no material liabilities, direct or indirect,
matured or unmatured, contingent or otherwise.
Section 2.05 Information. The information concerning Skintek Labs set
forth in this Agreement and the Skintek Labs Schedules is complete and accurate
in all material respects and does not contain any untrue statements of a
material fact or omit to state a material fact required to make the statements
made, in light of the circumstances under which they were made, not misleading.
In addition, Skintek Labs has fully disclosed in writing to Hunno(through this
Agreement or the Skintek Labs Schedules) all information relating to matters
involving Skintek Labs or its assets or its present or past operations or
activities which (i) indicated or may indicate, in the aggregate, the existence
of a greater than $25,000 liability or diminution in value, (ii) have led or may
lead to a competitive disadvantage on the part of Skintek Labs or (iii) either
alone or in aggregation with other information covered by this Section,
otherwise have led or may lead to a material adverse effect on the transactions
contemplated herein or on Skintek Labs, its assets, or its operations or
activities as presently conducted or as contemplated to be conducted after the
Closing Date, including, but not limited to, information relating to
governmental, employee, environmental, litigation and securities matters and
transactions with affiliates.
Section 2.06 Options or Warrants. There are no existing options,
warrants, calls, or commitments of any character relating to the authorized and
unissued stock of Skintek Labs.
Section 2.07 Absence of Certain Changes or Events. Except as disclosed
in Exhibit 2.07, or permitted in writing by Hunno, since the date of the most
recent Skintek Labs balance sheet:
(a) there has not been (i) any material adverse change in the
business, operations, properties, assets or condition of Skintek Labs
or (ii) any damage, destruction or loss to Skintek Labs (whether or not
covered by insurance) materially and adversely affecting the business,
operations, properties, assets or condition of Skintek Labs;
(b) Skintek Labs has not (i) amended its certificate of
incorporation or bylaws; (ii) declared or made, or agreed to declare or
make any payment of dividends or distributions of any assets of any
kind whatsoever to stockholders or purchased or redeemed, or agreed to
purchase or redeem, any of its capital stock; (iii) waived any rights
of value which in the aggregate are outside of the ordinary course of
business or material considering the business of Skintek Labs; (iv)
made any material change in its method of management, operation, or
accounting; (v) entered into any transactions or agreements other than
in the ordinary course of business; (vi) made any accrual or
arrangement for or payment of bonuses or special compensation of any
kind or any severance or termination pay to any present or former
officer or employee; (vii) increased the rate of compensation payable
or to become payable by it to any of its officers or directors or any
of its salaried employees whose monthly compensation exceed $1,000; or
(viii) made any increase in any profit sharing, bonus, deferred
compensation, insurance, pension, retirement, or other employee benefit
plan, payment, or arrangement, made to, for or with its officers,
directors, or employees;
(c) Skintek Labs has not (i) granted or agreed to grant any
options, warrants, or other rights for its stock, bonds, or other
corporate securities calling for the issuance thereof; (ii) borrowed or
agreed to borrow any funds or incurred, or become subject to, any
material obligation or liability (absolute or contingent) except
liabilities incurred in the ordinary course of business; (iii) paid or
agreed to pay any material obligations or liabilities (absolute or
contingent) other than current liabilities reflected in or shown on the
most recent Skintek Labs balance sheet and current liabilities incurred
since that date in the ordinary course of business and professional and
other fees and expenses in connection with the preparation of this
Agreement and the consummation of the transaction contemplated hereby;
(iv) sold or transferred, or agreed to sell or transfer, any of its
assets, properties, or rights (except assets, properties, or rights not
used or useful in its business which, in the aggregate have a value of
less than $1000), or canceled, or agreed to cancel, any debts or claims
(except debts or claims which in the aggregate are of a value less than
$1000); (v) made or permitted any amendment or termination of any
contract, agreement, or license to which it is a party if such
amendment or termination is material, considering the business of
Skintek Labs; or (vi) issued, delivered or agreed to issue or deliver,
any stock, bonds, or other corporate securities including debentures
(whether authorized and unissued or held as treasury stock), except in
connection with this Agreement; and
(d) to the best knowledge of Skintek Labs, it has not become
subject to any law or regulation which materially and adversely
affects, or in the future, may adversely affect, the business,
operations, properties, assets or condition of Skintek Labs.
Section 2.08 Title and Related Matters. Skintek Labs has good and
marketable title to all of its properties, inventory, interest in properties,
and assets, real and personal, which are reflected in the most recent Skintek
Labs balance sheet or acquired after that date (except properties, inventory,
interest in properties, and assets sold or otherwise disposed of since such date
in the ordinary course of business), free and clear of all liens, pledges,
charges, or encumbrances except (a) statutory liens or claims not yet
delinquent; (b) such imperfections of title and easements as do not and will not
materially detract from or interfere with the present or proposed use of the
properties subject thereto or affected thereby or otherwise materially impair
present business operations on such properties; and (c) as described in the
Skintek Labs Schedules. Except as set forth in the Skintek Labs Schedules,
Skintek Labs owns, free and clear of any liens, claims, encumbrances, royalty
interests, or other restrictions or limitations of any nature whatsoever, any
and all products it is currently manufacturing, including the underlying
technology and data, and all procedures, techniques, marketing plans, business
plans, methods of management, or other information utilized in connection with
Skintek Labs's business. Except as set forth in the Skintek Labs Schedules, no
third party has any right to, and Skintek Labs has not received any notice of
infringement of or conflict with asserted rights of others with respect to any
product, technology, data, trade secrets, know-how, propriety techniques,
trademarks, service marks, trade names, or copyrights which, individually or in
the aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a materially adverse effect on the business, operations, financial
condition, income, or business prospects of Skintek Labs or any material portion
of its properties, assets, or rights.
Section 2.09 Litigation and Proceedings. There are no actions, suits,
proceedings or investigations pending or, to the knowledge Skintek Labs after
reasonable investigation, threatened by or against Skintek Labs or affecting
Skintek Labs or its properties, at law or in equity, before any court or other
governmental agency or instrumentality, domestic or foreign, or before any
arbitrator of any kind except as disclosed in Schedule 2.09. Skintek Labs has no
knowledge of any default on its part with respect to any judgement, order, writ,
injunction, decree, award, rule or regulation of any court, arbitrator, or
governmental agency or instrumentality or any circumstance which after
reasonable investigation would result in the discovery of such default.
Section 2.10 Contracts.
(a) Skintek Labs is not a party to, and its assets, products,
technology and properties are not bound by, any material contract,
franchise, license agreement, agreement, debt instrument or other
commitments whether such agreement is in writing or oral, except as
disclosed in Schedule 2.10.
(b) All contracts, agreements, franchises, license agreements,
and other commitments to which Skintek Labs is a party or by which its
properties are bound and which are material to the operations of
Skintek Labs taken as a whole are valid and enforceable by Skintek Labs
in all respects, except as limited by bankruptcy and insolvency laws
and by other laws affecting the rights of creditors generally;
(c) Skintek Labs is not a party to or bound by, and the
properties of Skintek Labs are not subject to any contract, agreement,
other commitment or instrument; any charter or other corporate
restriction; or any judgment, order, writ, injunction, decree, or award
which materially and adversely affects, the business operations,
properties, assets, or condition of Skintek Labs; and
(d) Except as included or described in the Skintek Labs
Schedules or reflected in the most recent Skintek Labs balance sheet,
Skintek Labs is not a party to any oral or written (i) contract for the
employment of any officer or employee which is not terminable on 30
days, or less notice; (ii) profit sharing, bonus, deferred
compensation, stock option, severance pay, pension benefit or
retirement plan, (iii) agreement, contract, or indenture relating to
the borrowing of money, (iv) guaranty of any obligation, other than one
on which Skintek Labs is a primary obligor, for the borrowing of money
or otherwise, excluding endorsements made for collection and other
guaranties of obligations which, in the aggregate do not exceed more
than one year or providing for payments in excess of $25,000 in the
aggregate; (vi) collective bargaining agreement; or (vii) agreement
with any present or former officer or director of Skintek Labs.
Section 2.11 Material Contract Defaults. Skintek Labs is not in default
in any material respect under the terms of any outstanding contract, agreement,
lease, or other commitment which is material to the business, operations,
properties, assets or condition of Skintek Labs and there is no event of default
in any material respect under any such contract, agreement, lease, or other
commitment in respect of which Skintek Labs has not taken adequate steps to
prevent such a default from occurring.
Section 2.12 No Conflict With Other Instruments. The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, constitute
a default under, or terminate, accelerate or modify the terms of, any indenture,
mortgage, deed of trust, or other material agreement or instrument to which
Skintek Labs is a party or to which any of its assets or operations are subject.
Section 2.13 Governmental Authorizations. Skintek Labs has all
licenses, franchises, permits, and other governmental authorizations, that are
legally required to enable it to conduct its business operations in all material
respects as conducted on the date hereof. Except for compliance with federal and
state securities or corporation laws, as hereinafter provided, no authorization,
approval, consent or order of, of registration, declaration or filing with, any
court or other governmental body is required in connection with the execution
and delivery by Skintek Labs of this Agreement and the consummation by Skintek
Labs of the transactions contemplated hereby.
Section 2.14 Compliance With Laws and Regulations. To the best of its
knowledge, Skintek Labs has complied with all applicable statutes and
regulations of any federal, state, or other applicable governmental entity or
agency thereof, except to the extent that noncompliance would not materially and
adversely affect the business, operations, properties, assets or condition of
Skintek Labs or except to the extent that noncompliance would not result in the
occurrence of any material liability. This compliance includes, but is not
limited to, the filing of all reports to date with federal and state securities
authorities.
Section 2.15 Insurance. All of the properties of Skintek Labs
are fully insured for their full
replacement cost.
Section 2.16 Approval of Agreement. The board of directors of Skintek
Labs has authorized the execution and delivery of this Agreement by Skintek Labs
and has approved this Agreement and the transactions contemplated hereby and
will recommend to its shareholders that they approve this Agreement and the
transactions contemplated hereby.
Section 2.17 Continuity of Business Enterprises. Skintek Labs has no
commitment or present intention to liquidate Hunno or sell or otherwise dispose
of a material portion of Hunno' business or assets following the consummation of
the transactions contemplated hereby.
Section 2.18 Material Transactions or Affiliations. Except as disclosed
herein and in the Skintek Labs Schedules, there exists no contract, agreement or
arrangement between Skintek Labs and any predecessor and any person who was at
the time of such contract, agreement or arrangement an officer, director, or
person owning of record or known by Skintek Labs to own beneficially, 5% or more
of the issued and outstanding common stock of Skintek Labs and which is to be
performed in whole or in part after the date hereof or was entered into not more
than three years prior to the date hereof. Neither any officer, director, nor 5%
shareholder of Skintek Labs has, or has had since inception of Skintek Labs, any
known interest, direct or indirect, in any such transaction with Skintek Labs
which was material to the business of Skintek Labs. Skintek Labs has no
commitment, whether written or oral, to lend any funds to, borrow any money
from, or enter into any other transaction with, any such affiliated person.
Section 2.19 Labor Relations. Skintek Labs has not had work stoppage
resulting from labor problems. To the knowledge of Skintek Labs, no union or
other collective bargaining organization is organizing or attempting to organize
any employee of Skintek Labs.
Section 2.20 Skintek Labs Schedules. Skintek Labs has delivered to
Hunno the following schedules, which are collectively referred to as the
"Skintek Labs Schedules" and which consist of separate schedules, which are
dated the date of this Agreement, all certified by the chief executive officer
of Skintek Labs to be complete, true, and accurate in all material respects as
of the date of this Agreement:
(a) a schedule containing complete and accurate copies
of the certificate of incorporation
and bylaws of Skintek Labs as in effect as of the date of this Agreement;
(b) a schedule containing the financial statements of
Skintek Labs identified in paragraph
2.04(b);
(c) a Schedule 2.20(c) containing a list indicating the name
and address of each shareholder of Skintek Labs together with the
number of shares owned by him, her or it;
(d) a schedule containing a description of all real property
owned by Skintek Labs, together with a description of every mortgage,
deed of trust, pledge, lien, agreement, encumbrance, claim, or equity
interest of any nature whatsoever in such real property;
(e) copies of all licenses, permits, and other governmental
authorizations (or requests or applications therefore) pursuant to
which Skintek Labs carries on or proposes to carry on its business
(except those which, in the aggregate, are immaterial to the present or
proposed business of Skintek Labs);
(f) a schedule listing the accounts receivable and notes and
other obligations receivable of Skintek Labs as of December 31, 2001,
or thereafter other than in the ordinary course of business of Skintek
Labs, indicating the debtor and amount, and classifying the accounts to
show in reasonable detail the length of time, if any, overdue, and
stating the nature and amount of any refunds, set offs, reimbursements,
discounts, or other adjustments which are in the aggregate material and
due to or claimed by such debtor;
(g) a schedule listing the accounts payable and notes and
other obligations payable of Skintek Labs as of March 31, 2002, or that
arose thereafter other than in the ordinary course of the business of
Skintek Labs, indicating the creditor and amount, classifying the
accounts to show in reasonable detail the length of time, if any,
overdue, and stating the nature and amount of any refunds, set offs,
reimbursements, discounts, or other adjustments, which in the aggregate
are material and due to or claimed by Skintek Labs respecting such
obligations;
(h) a schedule setting forth a description of any material
adverse change in the business, operations, property, inventory,
assets, or condition of Skintek Labs since December 31, 2001 required
to be provided pursuant to section 2.07 hereof; and
(i) a schedule setting forth any other information, together
with any required copies of documents, required to be disclosed in the
Skintek Labs Schedules by Sections 2.01 through 2.19.
Skintek Labs shall cause the Skintek Labs Schedules and the instruments
and data delivered to Hunno hereunder to be promptly updated after the date
hereof up to and including the Closing Date.
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37
It is understood and agreed that not all of the schedules referred to above have
been completed or are available to be furnished by Skintek Labs. Skintek Labs
shall have until July 31, 2002 to provide such schedules. If Skintek Labs cannot
or fails to do so, or if Hunno acting reasonably finds any such schedules or
updates provided after the date hereof to be unacceptable according to the
criteria set forth below, Hunno may terminate this Agreement by giving written
notice to Skintek Labs within five (5) days after the schedules or updates were
due to be produced or were provided. For purposes of the foregoing, Hunno may
consider a disclosure in the Skintek Labs Schedules to be "unacceptable" only if
that item would have a material adverse impact on the financial statements
listed in Section 2.04(b), taken as a whole.
Section 2.21 Bank Accounts; Power of Attorney. Set forth in Schedule
2.21 is a true and complete list of (a) all accounts with banks, money market
mutual funds or securities or other financial institutions maintained by Skintek
Labs within the past twelve (12) months, the account numbers thereof, and all
persons authorized to sign or act on behalf of Skintek Labs, (b) all safe
deposit boxes and other similar custodial arrangements maintained by Skintek
Labs within the past twelve (12) months, and (c) the names of all persons
holding powers of attorney from Skintek Labs or who are otherwise authorized to
act on behalf of Skintek Labs with respect to any matter, other than its
officers and directors, and a summary of the terms of such powers or
authorizations.
Section 2.22 Valid Obligation. This Agreement and all agreements and
other documents executed by Skintek Labs in connection herewith constitute the
valid and binding obligation of Skintek Labs, enforceable in accordance with its
or their terms, except as may be limited by bankruptcy, insolvency, moratorium
or other similar laws affecting the enforcement of creditors' rights generally
and subject to the qualification that the availability of equitable remedies is
subject to the discretion of the court before which any proceeding therefor may
be brought.
ARTICLE III
PLAN OF EXCHANGE
Section 3.01 The Exchange. On the terms and subject to the conditions
set forth in this Agreement, on the Closing Date (as defined in Section 3.03),
each Hunno Shareholder who shall elect to accept the exchange offer described
herein (the "Accepting Shareholders"), shall assign, transfer and deliver, free
and clear of all liens, pledges, encumbrances, charges, restrictions or known
claims of any kind, nature, or description, the number of shares of common stock
of Hunno set forth on Schedule 1.19(c) attached hereto, in the aggregate
constituting 100% of the issued and outstanding shares of common stock of Hunno
held by each of such shareholders; the objective of such Exchange being the
acquisition by Skintek Labs of 100% of the issued and outstanding common stock
of Hunno. In exchange for the transfer of such securities by the Hunno
Shareholders, Skintek Labs shall issue to the Hunno Shareholders (1) an
aggregate of 16,500,000 shares of common stock of Skintek Labs (the "Initial
Shares").The current shareholders of Skintek Labs will retain 3,500,000 shares
of skintek Labs. At the Closing, each Hunno Shareholder shall, on surrender of
his certificate or certificates representing such Hunno shares to Skintek Labs
or its registrar or transfer agent, be entitled to receive a certificate or
certificates evidencing his proportionate interest in the Initial Shares. Upon
consummation of the transaction contemplated herein, assuming participation by
all of the Hunno Shareholders, all of the shares of capital stock of Hunno shall
be held by Skintek Labs and there will be 20,000,000 shares of Skintek Labs
common stock issued and outstanding.
Section 3.02 Anti-Dilution.
(a) The number of shares of Skintek Labs common stock issuable upon
exchange pursuant to Section 3.01 shall be appropriately adjusted to
take into account any other stock split, stock dividend, reverse
stock split, recapitalization, or similar change in the Skintek Labs
common stock which may occur (i) between the date of the execution of
this Agreement and the Closing Date, as to the Initial Shares, and
(ii) between the date of the execution of this Agreement and the
release date, as to the Additional Shares.
(b) During the first 12 months period from the closing date, the Company hereby
agrees that it will not undertake any form of equity financing without the
express written consent and agreement of Consultant and furthermore, the
controlling shareholders of the Company agree to "lock-up" their stock for a
term of 12 months from the closing date and will not sell or attempt to sell any
of their shares without Consultant's specific consent during this period. This
prohibition on the issuance or sale of any form of equity security shall
include, inter alias, offerings made under SB-2, Regulation-D, Regulation-S,
Xxxxxxxxxx-X, X-0 or stock options/warrants. Further, as the Company requires
additional capital, Consultant will have first right of refusal for any and all
free trading common stock that the Company wishes to sell, the price of which
will be determined by market conditions and the expertise of the Consultant. The
term consultant in this sub-section refers to the current majority shareholders
of Skintek Labs and certain consultants facilitating this agreement.
Section 3.03 Closing. The closing ("Closing") of the transactions
contemplated by this Agreement shall be on a date and at such time as the
parties may agree ("Closing Date") but not later than July 31, 2002, subject to
the right of Skintek Labs or Hunno to extend such Closing Date by up to an
additional sixty (60) days. Such Closing shall take place at a mutually
agreeable time and place.
Section 3.04 Closing Events. At the Closing, Skintek Labs, Hunno and
each of the Accepting Shareholders shall execute, acknowledge, and deliver (or
shall ensure to be executed, acknowledged, and delivered) any and all
certificates, opinions, financial statements, schedules, agreements,
resolutions, rulings or other instruments required by this Agreement to be so
delivered at or prior to the Closing, together with such other items as may be
reasonably requested by the parties hereto and their respective legal counsel in
order to effectuate or evidence the transactions contemplated hereby. Among
other things, Skintek Labs shall provide an opinion of counsel acceptable to
Hunno as to such matters as Hunno may reasonably request, which shall include,
but not be limited to, a statement, to the effect that (i) to such counsel's
best knowledge, after reasonable investigation, from inception until the Closing
Date, Skintek Labs has complied with all applicable statutes and regulations of
any federal, state, or other applicable governmental entity or agency thereof,
except to the extent that noncompliance would not materially and adversely
affect the business, operations, properties, assets or condition of Skintek Labs
or except to the extent that noncompliance would not result in the occurrence of
any material liability (such compliance including, but not being limited to, the
filing of all reports to date with federal and state securities authorities) and
(ii) based on a summary of the facts and applicable law, such counsel believes
that the Placement described in Section 4.08 below is not subject to
"integration" with the offering being made pursuant to the Registration
Statement (Hunno acknowledges that "integration" is a highly factual issue not
susceptible to the rendering of a legal opinion and that the statement to be
delivered hereunder shall merely constitute a summary of the reasoning which
counsel to Skintek Labs believes would apply if a third party were to assert
that such offerings should be integrated).
Section 3.05 Termination.
(a) This Agreement may be terminated by the board of directors
of either Skintek Labs or Hunno at any time prior to the Closing Date
if:
(i) there shall be any actual or threatened action or
proceeding before any court or any governmental body which
shall seek to restrain, prohibit, or invalidate the
transactions contemplated by this Agreement and which, in the
judgement of such board of directors, made in good faith and
based upon the advice of its legal counsel, makes it
inadvisable to proceed with the Exchange; or
(ii) any of the transactions contemplated hereby are
disapproved by any regulatory authority whose approval is
required to consummate such transactions (which does not
include the Securities and Exchange Commission) or in the
judgement of such board of directors, made in good faith and
based on the advice of counsel, there is substantial
likelihood that any such approval will not be obtained or will
be obtained only on a condition or conditions which would be
unduly burdensome, making it inadvisable to proceed with the
Exchange.
In the event of termination pursuant to this paragraph (a) of Section
3.05, no obligation, right or liability shall arise hereunder, and each
party shall bear all of the expenses incurred by it in connection with
the negotiation, drafting, and execution of this Agreement and the
transactions herein contemplated in accordance with the Expense Sharing
Agreement attached hereto as Exhibit "B".
(b) This Agreement may be terminated by the board of
directors of Skintek Labs at any time
prior to the Closing Date if:
(i) there shall have been any change after the date
of the latest balance sheet of Hunno in the assets,
properties, business, or financial condition of Hunno, which
could have a materially adverse effect on the financial
statements of Hunno listed in Section 1.04(a) taken as a
whole, except any changes disclosed in the Hunno Schedules;
(ii) the board of directors of Skintek Labs
determines in good faith that one or more of Skintek Labs's
conditions to Closing has not occurred, through no fault of
Skintek Labs.
(iii) Skintek Labs takes the termination action
specified in Section 1.18 as a result of Hunno Schedules or
updates thereto which Skintek Labs finds unacceptable;
(iv) on or before July 31, 2002, Skintek Labs
notifies Hunno that Skintek Labs's investigation pursuant to
Section 4.01 below has uncovered information which it finds
unacceptable by the same criteria set forth in Section 1.19;
or
(v) Hunno shall fail to comply in any material
respect with any of its covenants or agreements contained in
this Agreement or if any of the representations or warranties
of Hunno contained herein shall be inaccurate in any material
respect, where such noncompliance or inaccuracy has not been
cured within ten (10) days after written notice thereof.
If this Agreement is terminated pursuant to this paragraph (b) of
Section 3.05, this Agreement shall be of no further force or effect,
and no obligation, right or liability shall arise hereunder, except
that Hunno shall bear its own costs as well as the reasonable costs of
Skintek Labs in connection with the negotiation, preparation, and
execution of this Agreement and qualifying the offer and sale of
securities to be issued in the Exchange under the registration
requirements, or exemption from the registration requirements, of state
and federal securities laws.
(c) This Agreement may be terminated by the board of
directors of Hunno at any time prior
to the Closing Date if:
(i) there shall have been any change after the date
of the latest balance sheet of Skintek Labs in the assets,
properties, business or financial condition of Skintek Labs,
which could have a material adverse effect on the financial
statements of Skintek Labs listed in Section 2.04(b) taken as
a whole, except any changes disclosed in the Skintek Labs
Schedules;
(ii) the board of directors of Hunno determines
in good faith that one or more of
Hunno' conditions to Closing has not occurred, through no
fault of Hunno;
(iii) Hunno takes the termination action specified in
Section 2.20 as a result of Skintek Labs Schedules or updates
thereto which Hunno finds unacceptable;
(iv) on or before July 31, 2002 Hunno notifies
Skintek Labs that Hunno' investigation pursuant to Section
4.01 below has uncovered information which it finds
unacceptable by the same criteria set forth in Section 2.20;
or
(v) Skintek Labs shall fail to comply in any material
respect with any of its covenants or agreements contained in
this Agreement or if any of the representations or warranties
of Skintek Labs contained herein shall be inaccurate in any
material respect, where such noncompliance or inaccuracy has
not been cured within ten (10) days after written notice
thereof.
If this Agreement is terminated pursuant to this paragraph (c) of
Section 3.05, this Agreement shall be of no further force or effect,
and no obligation, right or liability shall arise hereunder, except
that Skintek Labs shall bear its own costs as well as the reasonable
costs of Hunno and its principal shareholders incurred in connection
with the negotiation, preparation and execution of this Agreement.
ARTICLE IV
SPECIAL COVENANTS
Section 4.01 Access to Properties and Records. Skintek Labs and Hunno
will each afford to the officers and authorized representatives of the other
full access to the properties, books and records of Skintek Labs or Hunno, as
the case may be, in order that each may have a full opportunity to make such
reasonable investigation as it shall desire to make of the affairs of the other,
and each will furnish the other with such additional financial and operating
data and other information as to the business and properties of Skintek Labs or
Hunno, as the case may be, as the other shall from time to time reasonably
request. Without limiting the foregoing, as soon as practicable after the end of
each fiscal quarter (and in any event through the last fiscal quarter prior to
the Closing Date), each party shall provide the other with quarterly internally
prepared and unaudited financial statements.
Section 4.02 Delivery of Books and Records. At the Closing, Hunno shall
deliver to Skintek Labs the originals of the corporate minute books, books of
account, contracts, records, and all other books or documents of Hunno now in
the possession of Hunno or its representatives.
Section 4.03 Third Party Consents and Certificates. Skintek Labs and
Hunno agree to cooperate with each other in order to obtain any required third
party consents to this Agreement and the transactions herein contemplated.
Section 4.04 Name Change & State of Incorporation. At or prior to the
Closing Date, Skintek Labs's Board of Directors shall have approved an amendment
to the certificate of incorporation to change the name of Skintek Labs to "Hunno
Technologies, Inc." and to change the state of incorporation from Delaware to
Nevada. Such amendment shall be carried out promptly upon approval of the same
by the Board of Directors of Skintek Labs.
Section 4.05 Skintek Labs Shareholder Meeting. Skintek Labs shall not
necessarily call a special shareholders meeting to be held on or prior to the
Closing Date at which meeting the shareholders of Skintek Labs shall be
requested to approve, and Skintek Labs's Board of Directors shall recommend
approval of, the terms of this Agreement, including the name change and the
change in the state of incorporation described in Section 4.04 and such other
matters as shall require shareholder approval hereunder.
Section 4.06 Consent of Hunno Shareholders. Hunno shall use its
best efforts to obtain the consent
of all Hunno Shareholders to participate in the Exchange.
Section 4.07 Designation of Directors and Officers. On or before
the Closing Date, Skintek Labs
shall increase its board of directors to four (4) persons. Xx. Xxx Xxxx-Gyun
shall be designated as Chairman of
the Board of Skintek Labs and Xx. Xxxxxxxx Xxxxxxx, Xx. Xxx Seo, and Xx. Xxxxx
Xxxx-Bo shall be designated as
additional board members.
Section 4.08 Exclusive Dealing Rights. Until 5:00 P.M. Pacific
Daylight Time on July 31, 2002.
(a) In recognition of the substantial time and effort which
Skintek Labs has spent and will continue to spend in investigating
Hunno and its business and in addressing the matters related to the
transactions contemplated herein, each of which may preempt or delay
other management activities, neither Hunno, nor any of its officers,
employees, representatives or agents will directly or indirectly
solicit or initiate any discussions or negotiations with, or, except
where required by fiduciary obligations under applicable law as advised
by counsel, participate in any negotiations with or provide any
information to or otherwise cooperate in any other way with, or
facilitate or encourage any effort or attempt by, any corporation,
partnership, person or other entity or group (other than Skintek Labs
and its directors, officers, employees, representatives and agents)
concerning any merger, sale of substantial assets, sale of shares of
capital stock, (including without limitation, any public or private
offering of the common stock of Hunno) or similar transactions
involving Hunno(all such transactions being referred to as "Hunno
Acquisition Transactions"). If Hunno receives any proposal with respect
to a Hunno Acquisition Transaction, it will immediately communicate to
Skintek Labs the fact that it has received such proposal and the
principal terms thereof.
(b) In recognition of the substantial time and effort which
Hunno has spent and will continue to spend in investigating Skintek
Labs and its business and in addressing the matters related to the
transactions contemplated herein, each of which may preempt or delay
other management activities, neither Skintek Labs, nor any of its
officers, employees, representatives or agents will directly or
indirectly solicit or initiate any discussions or negotiations with,
or, except where required by fiduciary obligations under applicable law
as advised by counsel, participate in any negotiations with or provide
any information to or otherwise cooperate in any other way with, or
facilitate or encourage any effort or attempt by, any corporation,
partnership, person or other entity or group (other than Hunno and its
directors, officers, employees, representatives and agents) concerning
any merger, sale of substantial assets, sale of shares of capital
stock, (including without limitation, any public or private offering of
the common stock of Skintek Labs or similar transactions involving
Skintek Labs (all such transactions being referred to as "Skintek Labs
Acquisition Transactions"). If Skintek Labs receives any proposal with
respect to a Skintek Labs Acquisition Transaction, it will immediately
communicate to Hunno the fact that it has received such proposal and
the principal terms thereof.
Section 4.09 Actions Prior to Closing.
(a) From and after the date of this Agreement until the
Closing Date and except as set forth in the Skintek Labs Schedules or
Hunno Schedules or as permitted or contemplated by this Agreement,
Skintek Labs (subject to paragraph (d) below) and Hunno respectively,
will each:
(i) carry on its business in substantially the
same manner as it has heretofore;
(ii) maintain and keep its properties in states
of good repair and condition as at
present, except for depreciation due to ordinary wear and
tear and damage due to casualty;
(iii) maintain in full force and effect insurance
comparable in amount and in scope
of coverage to that now maintained by it;
(iv) perform in all material respects all of its
obligations under material
contracts, leases, and instruments relating to or affecting
its assets, properties, and
business;
(v) use its best efforts to maintain and
preserve its business organization
intact, to retain its key employees, and to maintain its
relationship with its material
suppliers and customers; and
(vi) fully comply with and perform in all material
respects all obligations and duties imposed on it by all
federal and state laws and all rules, regulations, and orders
imposed by federal or state governmental authorities.
(b) From and after the date of this Agreement until the
Closing Date, neither Skintek Labs nor Hunno will:
(i) make any changes in their articles or
certificate of incorporation or bylaws;
(ii) take any action described in Section 1.07 in the
case of Hunno, or in Section 2.07, in the case of Skintek Labs
(all except as permitted therein or as disclosed in the
applicable party's schedules);
(iii) enter into or amend any contract, agreement, or
other instrument of any of the types described in such party's
schedules, except that a party may enter into or amend any
contract, agreement, or other instrument in the ordinary
course of business involving the sale of goods or services; or
(iv) sell any assets or discontinue any operations
(other than the Divestiture), sell any shares of capital stock
(other than as contemplated in Sections 4.07 and 4.08 hereof
and the sale of securities underlying existing warrants or
options of Skintek Labs) or conduct any similar transactions
other than in the ordinary course of business.
(C) In light of the fact that Hunno shareholders will control
Skintek Labs as a result of the Exchange, from and after the date of
this Agreement until the Closing Date, Skintek Labs shall take no
action which is material to its business without the prior written
approval of Hunno, which Hunno may give or withhold in its sole
discretion after consultation with Skintek Labs.
Section 4.10 Sales Under Rule 144 or 145, If Applicable.
-------------------------------------------
(a) Skintek Labs will use its best efforts to at all times
comply with the reporting requirements of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), including timely filing of
all periodic reports required under the provisions of the Exchange Act
and the rules and regulations promulgated thereunder.
(b) Upon being informed in writing by any such person holding
restricted stock of Skintek Labs that such person intends to sell any
shares under Rule 144, Rule 145 or Regulation S promulgated under the
Securities Act (including any rule adopted in substitution or
replacement thereof), Skintek Labs will certify in writing to such
person that it has filed all of the reports required to be filed by it
under the Exchange Act to enable such person to sell such person's
restricted stock under Rule 144, 145 or Regulation S, as may be
applicable in the circumstances, or will inform such person in writing
that it has not filed any such report or reports.
(c) If any certificate representing any such restricted stock
is presented to Skintek Labs's transfer agent for registration of
transfer in connection with any sale theretofore made under Rule 144,
145 or Regulation S, provided such certificate is duly endorsed for
transfer by the appropriate person(s) or accompanied by a separate
stock power duly executed by the appropriate person(s) in each case
with reasonable assurances that such endorsements are genuine and
effective, and is accompanied by an opinion of counsel satisfactory to
Skintek Labs and its counsel that the stock transfer has complied with
the requirements of Rule 144, 145 or Regulation S, as the case may be,
Skintek Labs will promptly instruct its transfer agent to register such
shares and to issue one or more new certificates representing such
shares to the transferee and, if appropriate under the provisions of
Rule 144, 145 or Regulation S, as the case may be, free of any stop
transfer order or restrictive legend. The provisions of this Section
4.11 shall survive the Closing and the consummation of the transactions
contemplated by this Agreement.
Section 4.11 Indemnification.
(a) Hunno hereby agrees to indemnify Skintek Labs and each of
the officers, agents and directors of Skintek Labs as of the date of
execution of this Agreement against any loss, liability, claim, damage,
or expense (including, but not limited to, any and all expense
whatsoever reasonably incurred in investigating, preparing, or
defending against any litigation, commenced or threatened, or any claim
whatsoever), to which it or they may become subject arising out of or
based on any inaccuracy appearing in or misrepresentations made under
Article I of this Agreement. The indemnification provided for in this
paragraph shall survive the Closing and consummation of the
transactions contemplated hereby and termination of this Agreement.
(b) Skintek Labs hereby agrees to indemnify Hunno and each of
the officers, agents, and directors of Hunno and each of the Hunno
Shareholders as of the date of execution of this Agreement against any
loss, liability, claim, damage, or expense (including, but not limited
to, any and all expense whatsoever reasonably incurred in
investigating, preparing, or defending against any litigation,
commenced or threatened, or any claim whatsoever), to which it or they
may become subject arising out of or based on any inaccuracy appearing
in or misrepresentation made under Article II of this Agreement. The
indemnification provided for in this paragraph shall survive the
Closing and consummation of the transactions contemplated hereby and
termination of this Agreement.
Section 4.12 Other reporting issues.
Until at least 3 years from Closing, the Company shall file all reports
required by Section 13 of the Securities Exchange Act of 1934. The
parties agree that failure to observe this covenant shall constitute a
material breach of this Agreement and that (insert name of your
consulting company) is intended as a third party beneficiary thereof.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF Skintek Labs
The obligations of Skintek Labs under this Agreement are subject to the
satisfaction, at or before the Closing Date, of the following conditions:
Section 5.01 Accuracy of Representations and Performance of Covenants.
The representations and warranties made by Hunno in this Agreement were true
when made and shall be true at the Closing Date with the same force and effect
as if such representations and warranties were made at and as of the Closing
Date (except for changes therein permitted by this Agreement). Hunno shall have
performed or complied with all covenants and conditions required by this
Agreement to be performed or complied with by Hunno prior to or at the Closing.
Skintek Labs shall be furnished with a certificate, signed by a duly authorized
executive officer of Hunno and dated the Closing Date, to the foregoing effect.
Section 5.02 Officer's Certificate. Skintek Labs shall have been
furnished with a certificate dated the Closing Date and signed by a duly
authorized officer of Hunno to the effect that no litigation, proceeding,
investigation, or inquiry is pending, or to the best knowledge of Hunno
threatened, which might result in an action to enjoin or prevent the
consummation of the transactions contemplated by this Agreement, or, to the
extent not disclosed in the Hunno Schedules, by or against Hunno, which might
result in any material adverse change in any of the assets, properties,
business, or operations of Hunno.
Section 5.03 No Material Adverse Change. Prior to the Closing Date,
there shall not have occurred any change in the financial condition, business,
or operations of Hunno nor shall any event have occurred which, with the lapse
of time or the giving of notice, is determined to be unacceptable using the
criteria set forth in Section 1.19.
Section 5.04 Good Standing. Skintek Labs shall have received a
certificate of good standing from the State of Colorado, dated as of a date
within ten days prior to the Closing Date certifying that Hunno is in good
standing as a corporation in the State of Korea.
Section 5.05 Approval by Hunno Shareholders. The Exchange shall have
been approved, and shares delivered in accordance with Section 3.01, by the
holders of not less than ninety percent (90%) of the outstanding common stock of
Hunno, unless a lesser number is agreed to by Skintek Labs.
Section 5.06 No Governmental Prohibition. No order, statute, rule,
regulation, executive order, injunction, stay, decree, judgment or restraining
order shall have been enacted, entered, promulgated or enforced by any court or
governmental or regulatory authority or instrumentality which prohibits the
consummation of the transactions contemplated hereby.
Section 5.07 Consents. All consents, approvals, waivers or amendments
pursuant to all contracts, licenses, permits, trademarks and other intangibles
in connection with the transactions contemplated herein, or for the continued
operation of Skintek Labs and Hunno after the Closing Date on the basis as
presently operated shall have been obtained.
Section 5.08 Other Items.
(a) Skintek Labs shall have received a list of Hunno'
shareholders containing the name, address, and number of shares held by
each Hunno shareholder as of the date of Closing, certified by an
executive officer of Hunno as being true, complete and accurate; and
(b) Skintek Labs shall have received such further opinions,
documents, certificates or instruments relating to the transactions
contemplated hereby as Skintek Labs may reasonably request.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF Hunno
AND THE HUNNO SHAREHOLDERS
The obligations of Hunno and the Hunno Shareholders under this
Agreement are subject to the satisfaction, at or before the Closing Date, of the
following conditions:
Section 6.01 Accuracy of Representations and Performance of Covenants.
The representations and warranties made by Skintek Labs in this Agreement were
true when made and shall be true as of the Closing Date (except for changes
therein permitted by this Agreement) with the same force and effect as if such
representations and warranties were made at and as of the Closing Date.
Additionally, Skintek Labs shall have performed and complied with all covenants
and conditions required by this Agreement to be performed or complied with by
Skintek Labs and shall have satisfied the conditions described below prior to or
at the Closing:
(a) Immediately prior to the Closing, Skintek Labs shall have
no more than an aggregate of 12,024,104 shares of common stock issued
and outstanding or issuable pursuant to outstanding warrants and
options, excluding any shares and warrants issuable pursuant to the
Exchange or the Placement.
Hunno shall have been furnished with certificates, signed by duly
authorized executive officers of Skintek Labs and dated the Closing
Date, to the foregoing effect.
Section 6.02 Officer's Certificate. Hunno shall have been furnished
with certificates dated the Closing Date and signed by duly authorized executive
officers of Skintek Labs, to the effect that no litigation, proceeding,
investigation or inquiry is pending, or to the best knowledge of Skintek Labs
threatened, which might result in an action to enjoin or prevent the
consummation of the transactions contemplated by this Agreement or, to the
extent not disclosed in the Skintek Labs Schedules, by or against Skintek Labs,
which might result in any material adverse change in any of the assets,
properties or operations of Skintek Labs.
Section 6.03 No Material Adverse Change. Prior to the Closing Date,
there shall not have occurred any change in the financial condition, business or
operations of Skintek Labs nor shall any event have occurred which, with the
lapse of time or the giving of notice, is determined to be unacceptable using
the criteria set forth in Section 2.20.
Section 6.04 Good Standing. Hunno shall have received a certificate of
good standing from the Secretary of State of the State of Delaware or other
appropriate office, dated as of a date within ten days prior to the Closing Date
certifying that Skintek Labs is in good standing as a corporation in the State
of Colorado and has filed all tax returns required to have been filed by it to
date and has paid all taxes reported as due thereon.
Section 6.05 No Governmental Prohibition. No order, statute, rule,
regulation, executive order, injunction, stay, decree, judgment or restraining
order shall have been enacted, entered, promulgated or enforced by any court or
governmental or regulatory authority or instrumentality which prohibits the
consummation of the transactions contemplated hereby.
Section 6.06 Consents. All consents, approvals, waivers or amendments
pursuant to all contracts, licenses, permits, trademarks and other intangibles
in connection with the transactions contemplated herein, or for the continued
operation of Skintek Labs and Hunno after the Closing Date on the basis as
presently operated shall have been obtained.
Section 6.07 Other Items. Hunno shall have received further opinions,
documents, certificates, or instruments relating to the transactions
contemplated hereby as Hunno may reasonably request.
ARTICLE VII
MISCELLANEOUS
Section 7.01 Brokers. Skintek Labs and Hunno agree that, except as set
out on Schedule 7.01 attached hereto, there were finders or brokers involved in
bringing the parties together or who were instrumental in the negotiation,
execution or consummation of this Agreement. Skintek Labs and Hunno each agree
to indemnify the other against any claim by any third person other than those
described above for any commission, brokerage, or finder's fee arising from the
transactions contemplated hereby based on any alleged agreement or understanding
between the indemnifying party and such third person, whether express or implied
from the actions of the indemnifying party.
Section 7.02 Governing Law. This Agreement shall be governed by,
enforced, and construed under and in accordance with the laws of the United
States of America and, with respect to the matters of state law, with the laws
of the State of Nevada without giving effect to principles of conflicts of law
thereunder. Each of the parties (a) irrevocably consents and agrees that any
legal or equitable action or proceedings arising under or in connection with
this Agreement shall be brought exclusively in the federal courts of the United
States, (b) by execution and delivery of this Agreement, irrevocably submits to
and accepts, with respect to any such action or proceeding, generally and
unconditionally, the jurisdiction of the aforesaid court, and irrevocably waives
any and all rights such party may now or hereafter have to object to such
jurisdiction.
Section 7.03 Notices. Any notice or other communications required or
permitted hereunder shall be in writing and shall be sufficiently given if
personally delivered to it or sent by telecopy, overnight courier or registered
mail or certified mail, postage prepaid, addressed as follows:
If to Skintek Labs, to: Skintek Labs, Inc.
0000 Xxxxx 00xx Xxx. XXX 000
Xxxxxxxxx, XX 00000
If to Hunno, to: HUNNO TECHNOLOGIES, INC.
0000 Xxxxx Xxxxxx XXX 000
Xxxxxxx Xxxxx, XX 00000
With copies to:
Hand $ Hand
00000 Xxxxx Xxxx, Xxxxx X
Xxxx Xxxxx, Xxxxxxxxxx 00000
or such other addresses as shall be furnished in writing by any party in the
manner for giving notices hereunder, and any such notice or communication shall
be deemed to have been given (i) upon receipt, if personally delivered, (ii) on
the day after dispatch, if sent by overnight courier, (iii) upon dispatch, if
transmitted by telecopy and receipt is confirmed by telephone and (iv) three (3)
days after mailing, if sent by registered or certified mail.
Section 7.04 Attorney's Fees. In the event that either party institutes
any action or suit to enforce this Agreement or to secure relief from any
default hereunder or breach hereof, the prevailing party shall be reimbursed by
the losing party for all costs, including reasonable attorney's fees, incurred
in connection therewith and in enforcing or collecting any judgement rendered
therein.
Section 7.05 Confidentiality. Each party hereto agrees with the other
that, unless and until the transactions contemplated by this Agreement have been
consummated, it and its representatives will hold in strict confidence all data
and information obtained with respect to another party or any subsidiary thereof
from any representative, officer, director or employee, or from any books or
records or from personal inspection, of such other party, and shall not use such
data or information or disclose the same to others, except (i) to the extent
such data or information is published, is a matter of public knowledge, or is
required by law to be published; or (ii) to the extent that such data or
information must be used or disclosed in order to consummate the transactions
contemplated by this Agreement. In the event of the termination of this
Agreement, each party shall return to the other party all documents and other
materials obtained by it or on its behalf and shall destroy all copies, digests,
work papers, abstracts or other materials relating thereto, and each party will
continue to comply with the confidentiality provisions set forth herein.
Section 7.06 Public Announcements and Filings. Unless required by
applicable law or regulatory authority, none of the parties will issue any
report, statement or press release to the general public, to the trade, to the
general trade or trade press, or to any third party (other than its advisors and
representatives in connection with the transactions contemplated hereby) or file
any document, relating to this Agreement and the transactions contemplated
hereby, except as may be mutually agreed by the parties. Copies of any such
filings, public announcements or disclosures, including any announcements or
disclosures mandated by law or regulatory authorities, shall be delivered to
each party at least one (1) business day prior to the release thereof.
Section 7.07 Schedules; Knowledge. Each party is presumed to have full
knowledge of all information set forth in the other party's schedules delivered
pursuant to this Agreement.
Section 7.08 Third Party Beneficiaries. This contract is strictly
between Skintek Labs and Hunno, and, except as specifically provided, no
director, officer, stockholder (other than the Hunno Shareholders), employee,
agent, independent contractor or any other person or entity shall be deemed to
be a third party beneficiary of this Agreement.
Section 7.09 Expenses. Subject to Sections 3.05 and 7.04 above, whether
or not the Exchange is consummated, each of Skintek Labs and Hunno will bear
their own respective expenses, including legal, accounting and professional
fees, incurred in connection with the Exchange or any of the other transactions
contemplated hereby.
Section 7.10 Entire Agreement. This Agreement represents the entire
agreement between the parties relating to the subject matter thereof and
supersedes all prior agreements, understandings and negotiations, written or
oral, with respect to such subject matter.
Section 7.11 Survival; Termination. The representations, warranties,
and covenants of the respective parties shall survive the Closing Date and the
consummation of the transactions herein contemplated for a period of two years.
Section 7.12 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which taken
together shall be but a single instrument.
Section 7.13 Amendment or Waiver. Every right and remedy provided
herein shall be cumulative with every other right and remedy, whether conferred
herein, at law, or in equity, and may be enforced concurrently herewith, and no
waiver by any party of the performance of any obligation by the other shall be
construed as a waiver of the same or any other default then, theretofore, or
thereafter occurring or existing. At any time prior to the Closing Date, this
Agreement may by amended by a writing signed by all parties hereto, with respect
to any of the terms contained herein, and any term or condition of this
Agreement may be waived or the time for performance may be extended by a writing
signed by the party or parties for whose benefit the provision is intended.
Section 7.14 Best Efforts. Subject to the terms and conditions herein
provided, each party shall use its best efforts to perform or fulfill all
conditions and obligations to be performed or fulfilled by it under this
Agreement so that the transactions contemplated hereby shall be consummated as
soon as practicable. Each party also agrees that it shall use its best efforts
to take, or cause to be taken, all actions and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
consummate and make effective this Agreement and the transactions contemplated
herein.
IN WITNESS WHEREOF, the corporate parties hereto have caused this
Agreement to be executed by their respective officers, hereunto duly authorized,
as of the date first-above written.
ATTEST: Skintek Labs, Inc.
BY:
-----------------------
Secretary or Assistant Secretary President
ATTEST: HUNNO TECHNOLOGIES, INC.
BY:
-----------------------
Secretary or Assistant Secretary President
The undersigned shareholders of HUNNO TECHNOLOGIES, INC. hereby agree
to participate in the Exchange on the terms set forth above. Subject to Section
7.11 above, each of the undersigned hereby represents and affirms that he has
read each of the representations and warranties of HUNNO TECHNOLOGIES, INC. set
out in Article I hereof and that, to the best of his knowledge, all of such
representations and warranties are true and correct.
__________________, individually
