CONTRIBUTION AGREEMENT Dated as of November 14, 2006 by and among and JUMA TECHNOLOGY, LLC and MEMBERS OF JUMA TECHNOLOGY, LLC Listed on Schedules 1.1 and 1.2 and the following INVESTORS Rubin Family Irrevocable Stock Trust, Breckenridge Associates,...
Dated
as
of November 14, 2006 by and among
X
AND O COSMETICS, INC.
and
JUMA
TECHNOLOGY, LLC
and
MEMBERS
OF JUMA TECHNOLOGY, LLC
Listed
on Schedules 1.1 and 1.2
and
the
following
INVESTORS
Xxxxx
Family Irrevocable Stock Trust, Breckenridge Associates, Inc, and Harbor View
Fund, Inc.
1
CONTRIBUTION
AGREEMENT
dated as
of November 14, 2006 (this “Agreement”),
by and
among X AND O COSMETICS, INC. formerly known as Elite Cosmetics, Inc., a
Delaware company having an office at 000 Xx. Xxxxxxx'x Xxxxxx Xxxxxxxxxxxxxx,
Xxxxxxxxx 00000 (the “Company”),
JUMA
TECHNOLOGY, LLC a New York limited liability company having an office at 000
Xxxxxx Xxxxxx, Xxxxxxxxxxx, Xxx Xxxx 00000 (“Juma”), Xxxxxxxxxxx Xxxxxxxxx,
Xxxxxx Xxxxxxxxx, Xxxx Xxxxx and Ed St. Amour (collectively the “Principal
Stockholders”), the members of Juma listed on Schedule 1.1 hereto (collectively
referred to as the “Inside
Members”),
the
members of Juma listed on Schedule 1.2 hereto (collectively referred to as
the
“Investor
Members”) (the
Inside Members and the Investor Members collectively referred to as the
“Members”),
and the
Investors
(as
defined above).
WHEREAS,
Juma,
the Company, the Principal Stockholders, the Members and the Investors have
determined that a business combination between Juma and the Company, to be
effected by a contribution described in Section 1.1 below (the “Exchange”)
by the
Members of all of their respective membership interests (the “Interests”) in
Juma, and by the Investors of property, to the Company in exchange for shares
of
common stock in the Company (as further described in Section 1.1 below, the
“Shares”),
upon
the terms and subject to the conditions set forth herein, is advisable and
in
the best interests of their respective companies, members and stockholders,
and
the Investors and presents an opportunity for the companies to achieve long-term
strategic and financial benefits;
WHEREAS,
the
Company (i) has determined that the Exchange is fair to, and in the best
interests of, the Company and its shareholders and (ii) has approved and
declared the advisability of entering into this Agreement;
WHEREAS,
the
Members
collectively own 100%
of the
membership interests in Juma and have consented in writing to the approval
and
adoption of this Agreement and the Exchange.
WHEREAS,
the
Investors,
have
consented in the approval and adoption of this Agreement and the
Exchange.
WHEREAS,
at
Closing (as defined herein) the Shares issuable at the Effective Time (as
defined herein) of the exchange with Juma to the Members and the Investors
will
represent 33,250,731 shares of the common stock equal to more than
80% ownership
of the outstanding common stock of the Company, on a fully diluted basis, and
at
the Effective Time, the Members will transfer 100% of their Interests to the
Company and the Investors will transfer property described in Schedule 1.3
(the
“Property”)
to the
Company.
WHEREAS,
the
parties hereto intend that the Exchange qualify for income tax purposes as
a
tax-free exchange pursuant to Section 351 of the Internal Revenue Code of 1986,
as amended (the “Code).
2
NOW,
THEREFORE,
in
consideration of the premises and the mutual covenants, representations and
warranties contained herein, the parties hereto, intending to be legally bound,
hereby agree as follows:
ARTICLE
1
THE
EXCHANGE
Section
1.1 Exchange.
(a) Exchange
Consideration.
At the
effective time of the Closing (the “Effective
Time”),
automatically and without any action on the part of any party, or other
person:
(i) Outstanding
Company Membership Interests.
Subject
to the terms and conditions set forth in this Agreement, all Interests that
are
outstanding and owned by the Members,
and
the
Property owned by the
Investors,
immediately prior to the date hereof shall be exchanged
for and converted
into the Company’s Shares as set forth on Schedule
2.1
hereto
(hereinafter, the “Exchange
Consideration”).
(ii) Rights
as Members.
At the
Effective Time, the Members shall have no rights as Members of Juma or otherwise
with respect to their ownership therein other than the right to receive their
allocated share of the Exchange Consideration provided for in this Article
1.
(iii)
Exchange.
The
Interests held by the Members,
and the
Property owned by the Investors,
shall be
delivered to the Company, and such Interests and
Property shall
be
transferred and assigned to the Company. Promptly following the Effective Time,
the Company shall issue the Shares to the Members and to the
Investors.
(b) Exemption
from Registration.
The
Parties intend that the Shares to be issued by the Company to the Members and
the Investors shall be exempt from the registration requirements of the
Securities Act pursuant to Regulation D of the Securities Act and the rules
and
regulations promulgated thereunder.
(c) Form
15(c)(2)(11). X
and O
Cosmetics, Inc., is a company with no operations and substantially no assets
or
liabilities as set forth in Financial Statements filed with the Securities
and
Exchange Commission. Following the Exchange, the Company, intends to file a
Form
15(c)(2)(11) with the NASD to enable its Common Stock to be quoted on the NASDQ
Over-the-Counter Bulletin Board (the”OTC”).
Section
1.2 Exchange
Procedures.
(a) At
or
prior to the Closing, the Members shall transfer
all right, title and interest in and to their
Interests, which will be contributed to the Company in exchange for
the
number of Shares set forth on Schedule
2.1(a).
3
(b)
At
or
prior to Closing, the Investors will transfer all
right, title and interest in and to the Property
for
the
number of Shares set forth on Schedule
2.1(b).
(c) Full
Satisfaction of Rights.
All
Shares for which the Interests and
Property shall
have been exchanged pursuant to this Article 1 shall be deemed to have been
issued in full satisfaction of all rights pertaining to the
Interests
and
Property.
(d) Exchange
of Certificates.
All
records evidencing ownership of Interests converted into Shares pursuant to
this
Article 1 shall be furnished to the Company.
Section
1.3
Membership Approval.
The
Members are the holders of 100% of the membership interests of Juma and will
at
or before Closing approve this Agreement.
Section
1.4 Closing.
The
closing of the Exchange and the other transactions contemplated by this
Agreement (the “Closing”)
shall
take place on or before November 10, 2006, which shall be the date of
satisfaction (or waiver in accordance with this Agreement) of all of the
conditions set forth herein.
Section
1.5 Further
Actions. If,
at
any time after the Effective Time, the Company considers or is advised that
any
deeds, bills of sale, assignments, assurances or any other actions or things
are
necessary or desirable to vest, perfect or confirm (of record or otherwise)
in
the Company its right, title or interest in, to or under any of the rights,
properties, or assets of Juma, or otherwise to carry out the intent and purposes
of this Agreement, the officers and directors of the Company will be authorized
to execute and deliver, in the name and on behalf of each of Juma and the
Members, all such deeds, bills of sale, assignments and assurances and to take
and do, in the name and on behalf of each of Juma and
the
Members, all such other actions and things as the Company may determine to
be
necessary or desirable to vest, perfect or confirm any and all right, title
and
interest in, to and under such rights, properties or assets in the Company
or
otherwise to carry out the intent and purposes of this Agreement.
Section
1.6 Restrictions
on Resale.
None of
the Shares issuable in connection herewith will be registered under the
Securities Act, or the securities laws of any state, and cannot be transferred,
hypothecated, sold or otherwise disposed of until: (i) a registration statement
with respect to such securities is declared effective under the Securities
Act,
or (ii) the Company receives an opinion of counsel for the interest holders,
reasonably satisfactory to counsel for the Company, that an exemption from
the
registration requirements of the Securities Act is available.
Section
1.7. Restrictions
on Transfers. Notwithstanding
any other provision of this Agreement, for a period of one year following the
Effective Time no Member or Investor shall sell, assign or otherwise transfer
any Shares, or any interest therein, received pursuant to this Agreement unless
the Member or
Investor has
received an opinion of counsel from the Company’s counsel (said opinion not to
be unreasonably withheld) that such sale, assignment or transfer will not cause
the Exchange to fail to meet the requirements of Code section 351 for the
tax-free organization of a company; provided, however, that in the case of
a
sale, assignment or
4
transfer
of Shares which is to be made in satisfaction of an obligation, or in connection
with a binding commitment, of the transferring Member
or
Investor
that
existed at or prior to the Effective Time, this clause shall read as though
the
words “For a period of one year” were not contained in it.
ARTICLE
2
REPRESENTATIONS
AND WARRANTIES OF XXXX
Xxxx
represents and warrants to the Company that:
Section
2.1 Existence
and Power.
Juma is
a limited liability company duly formed, validly existing and in good standing
under the laws of the State of New York and has all limited liability company
powers and all governmental licenses, authorizations, permits, consents and
approvals required to carry on its business as now conducted, except for those
licenses, authorizations, permits, consents and approvals the absence of which
would not, individually or in the aggregate, have an effect or change that
is or
would be materially adverse to the business, operations, assets, prospects,
condition (financial or otherwise) or results of operations (“Material Adverse
Effect”) of Juma. Juma has heretofore delivered to the Company true and complete
copies of the Certificate of Formation and Operating Agreement of Juma as
currently in effect.
Section
2.2 Authorization.
The
execution, delivery and performance by Juma of this Agreement, the performance
of its obligations hereunder, and the consummation of the transactions
contemplated hereby are within Juma’s limited liability company powers and have
been duly authorized by all necessary action. The affirmative vote of the
holders of the outstanding membership interests of Juma is the only action
of
Juma necessary in connection with its execution and delivery of this Agreement,
the performance of its obligations hereunder and the consummation of the
Exchange. This Agreement has been duly and validly executed and delivered by
Juma and is a legal, valid and binding obligation of Juma, enforceable against
it in accordance with its terms, except as enforceability thereof may be limited
by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium,
or
other similar laws now or hereafter in effect relating to creditors’ rights
generally or by general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity).
Juma’s
Members have (i) determined that this Agreement and the transactions
contemplated hereby, including the Exchange, are fair to and in the best
interests of the Members, (ii) approved and adopted this Agreement and the
transactions contemplated hereby, including the Exchange, which approval
satisfies in full any applicable requirements of applicable law, and (iii)
resolved to recommend, and recommended, approval and adoption of this Agreement
by the holders of the Interests.
Section
2.3 Governmental
Authorization.
The
execution and delivery of this Agreement and the performance by Juma of its
obligations under this Agreement relating to the Closing and the transactions
contemplated hereby require no action by or in respect of, or filing with,
any
governmental body, agency, official or authority other than (a) state corporate
and securities laws or regulations of various states or takeover laws, and
(b)
any other filings,
5
approvals
or authorizations which, if not obtained, would not, individually or in the
aggregate, have a Material Adverse Effect on Juma, or materially impair the
ability of Juma to consummate the Exchange and the transactions contemplated
by
this Agreement.
Section
2.4 Non-contravention.
The
execution and delivery by Juma of this Agreement and the consummation by Juma
of
the transactions contemplated hereby and performance of its obligations under
this Agreement do not and will not (i) violate Juma’s Certificates of Formation
or Operating Agreement, (ii) violate any applicable law, rule, regulation,
judgment, injunction, order or decree, (iii) require any consent or other action
by any person under, constitute a default under, result in a violation of,
conflict with, or give rise to any right of termination, cancellation or
acceleration of any right or obligation of Juma, or to a loss of any benefit
to
which Juma is entitled under any provision of any agreement or other instrument
binding upon Juma, or any license, franchise, permit, certificate, approval
or
other similar authorization affecting, or relating in any way to, the assets
or
business of Juma, or (iv) result in the creation or imposition of any Lien
(as
defined herein) on any asset of Juma. “Lien”
means,
with respect to any property or asset, any mortgage, lien, pledge, charge,
security interest, encumbrance or other adverse claim of any kind in respect
of
such property or asset.
Section
2.5 Capitalization.
(a) As
of the
date of this Agreement, the Members of Juma are as set forth in Schedule
1.1
hereto.
The membership interests in Juma have been duly authorized and validly issued
and are fully paid and non-assessable and were not issued in violation of any
preemptive rights or other preferential rights of subscription or purchase
other
than those that have been waived or otherwise cured or satisfied. Except as
set
forth herein, as of the date hereof there are no outstanding options, warrants,
subscriptions, conversion or other rights, agreements or other commitments
obligating Juma to issue any interests or any securities convertible into,
exchangeable for or evidencing the right to subscribe for any interests in
Juma.
(b) There
are
no outstanding obligations, contingent or otherwise, of Juma to redeem, purchase
or otherwise acquire any interests or other securities of Juma.
(c) Juma
is
not in violation of and has not violated any federal or state securities laws
in
connection with any transaction relating to Juma and/or an Affiliate, including
without limitation, the acquisition of any stock, business or assets of any
third party or the issuance of any interest of Juma.
Section
2.6 Compliance
with Laws and Court Orders.
Juma
holds all permits, licenses, variances, exemptions, orders, franchises and
approvals of all governmental entities necessary for the lawful conduct of
its
business (the “LLC
Permits”),
except
where the failure so to hold would not have a Material Adverse Effect on Juma.
Juma is in compliance with the terms of the LLC Permits, except where the
failure so to comply would not have a Material Adverse Effect on Juma. Juma
is
and has been in compliance with, and to the best knowledge of Juma, is not
under
investigation with respect to and has not been threatened to be charged with
or
6
given
notice of any violation of, any applicable law, rule, regulation, judgment,
injunction, order or decree, except for such matters as would not, individually
or in the aggregate, have a Material Adverse Effect on Juma.
Section
2.7 Litigation.
There is
no action, suit, investigation, audit or proceeding pending against, or to
the
best knowledge of Juma threatened against or affecting, Juma or any of its
assets or properties before any court or arbitrator or any governmental body,
agency or official.
Section
2.8 Full
Disclosure. Neither
this Agreement nor any exhibit or schedule hereto nor any statement, list or
certificate delivered to Juma pursuant hereto or pursuant to any written request
therefor, contains an untrue statement of a material fact or omits to state
a
material fact necessary in order to make the statements contained herein and
therein, in light of the circumstances in which they were made, not misleading.
Section
2.9 Financial
Statements.
Prior
to the Closing, Juma will prepare audited financial statements and furnish
them
to the Company. The audited consolidated balance sheets of Juma and the
financial statements shall present fairly, in all-material respects, the
consolidated financial position and results of operations of Juma.
ARTICLE
3
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY AND THE PRINCIPAL
STOCKHOLDERS
The
Company and the Principal Stockholders represent and warrants to the Members
and
Juma that:
Section
3.1 Corporate
Existence and Power.
The
Company is a corporation duly incorporated and in good standing under the laws
of the State of Delaware. The Company is a company with no operations and
substantially no assets and no liabilities as set forth in financial statements
filed with the SEC. The Company is not conducting any business. At the Closing,
the Company will be duly qualified to do business as a foreign corporation
and
will be in good standing in each jurisdiction where such qualification is
necessary, except for those jurisdictions where failure to be so qualified
would
not, individually or in the aggregate, have a Material Adverse Effect on the
Company.
Section
3.2 Authorization.
The
execution, delivery and performance by the Company of this Agreement, the
performance of its obligations hereunder, and the consummation of the
transactions contemplated hereby are within the Company’s corporate powers and
have been duly authorized by all necessary corporate action. This Agreement
has
been duly and validly executed and delivered by the Company and is a legal,
valid and binding obligation of the Company, enforceable against it in
accordance with its terms, except as enforceability thereof may be limited
by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium,
or
other similar laws now or hereafter in effect relating to creditors’ rights
generally or by general principles of equity (regardless of whether
enforceability is
7
considered
in a proceeding at law or in equity). The Company’s Boards of Directors, at a
meeting duly called and held, has (i) determined that this Agreement and
the transactions contemplated hereby, including the Exchange, are fair to and
in
the best interests of its stockholders, (ii) approved and adopted this
Agreement and the transactions contemplated hereby, including the Exchange,
which approval satisfies in full any applicable requirements of Delaware
Law.
Section
3.3 Governmental
Authorization.
The
execution and delivery of this Agreement and the performance by the Company
of
its obligations under this Agreement relating to the Closing and the
transactions contemplated hereby require no action by or in respect of, or
filing with, any governmental body, agency, official or authority other than
(a)
compliance with any applicable requirements of the Securities Act of 1933,
as
amended (the “Securities Act”), the Securities Exchange Act of 1934 (“Exchange
Act”), foreign or state securities laws or regulations of various states (“Blue
Sky Laws”) or takeover laws, and (b) any other filings, approvals or
authorizations which, if not obtained, would not, individually or in the
aggregate, have a Material Adverse Effect on the Company , or materially impair
the ability of the Company to consummate the Exchange and the transactions
contemplated by this Agreement.
Section
3.4 Non-contravention.
The
execution and delivery by the Company of this Agreement and the consummation
by
the Company of the transactions contemplated hereby and performance of its
obligations under this Agreement do not and will not (i) violate the Company’s
Certificate of Incorporation, (ii) assuming compliance with the matters referred
to in Section 4, violate any applicable law, rule, regulation, judgment,
injunction, order or decree, (iii) require any consent or other action by any
person under, constitute a default under, result in a violation of, conflict
with, or give rise to any right of termination, cancellation or acceleration
of
any right or obligation of the Company, or to a loss of any benefit to which
the
Company, is entitled under any provision of any agreement or other instrument
binding upon the Company, or any license, franchise, permit, certificate,
approval or other similar authorization affecting, or relating in any way to,
the assets or business of the Company or (iv) result in the creation or
imposition of any Lien on any asset of the Company, except, in the case of
clauses (ii), (iii) and (iv), for such matters as would not, individually or
in
the aggregate, have a Material Adverse Effect on the Company or materially
impair the ability of the Company to consummate the transactions contemplated
by
this Agreement.
Section
3.5 Capitalization.
(a) The
authorized Common stock of the Company consists of 900,000,000 shares and
259,830,000 shares of Common stock are issued and outstanding of which the
Company’s principal shareholder and CEO, Xx. Xxxx Xxxxxx (“Xxxxxx”) holds
256,500,000. As of the date of this Agreement, the Shareholders of the Company
are set forth in the certified transfer agent shareholder list on the day prior
to closing. This shareholder list is attached as Schedule
3.1.
The
Shares have been duly authorized and validly issued and are fully paid and
non-assessable and were not issued in violation of any preemptive rights or
other preferential rights of subscription or purchase other than those that
have
been waived or otherwise cured or satisfied. Except as set forth in Schedule
3.1,
as of
the date hereof there are no outstanding options, warrants, subscriptions,
conversion or other rights, agreements or other commitments obligating the
Company to issue any shares of its capital stock or any securities convertible
into, exchangeable for or evidencing the right to subscribe for any
8
shares
of
its capital stock. As part of this transaction, Xxxxxx will cancel 251,475,731of
his common stock by instruction to the Company’s transfer agent. In addition, at
the time of Closing the remaining shares of the Company not held by Xxxxxx
shall
not exceed 3,250,000.
(b) The
Company is not in violation of and has not violated any federal or state
securities laws in connection with any transaction relating to the Company
and/or an Affiliate, including without limitation, the acquisition of any stock,
business or assets of any third party or the issuance of any capital stock
of
the Company.
(c)
There
are
not as of the date hereof, and there will not be at the Closing, any stockholder
agreements, voting trusts or other agreements or understandings to which the
Company is a party or by which it is bound relating to the voting of any shares
of the capital stock of the Company.
(d) The
shares of Common Stock to be issued as part of this Agreement will be duly
authorized for issuance and when issued and delivered in accordance with the
terms of this Agreement, will be validly issued, fully paid and non-assessable
and the issuance thereof will not be subject to any preemptive or other similar
right.
Section
3.6 Financial Statements.
Prior
to the Closing, the Representatives have furnished to Juma the consolidated
audited balance sheet of the Company. The audited consolidated balance sheets
of
the Company and the financial statements present fairly, in all-material
respects, the consolidated financial position and results of operations of
the
Company. The Company and the Principal Stockholder represent that at the closing
date on or before November 10, 2006 (the “Effective Time”) the Company will have
no liabilities other than legal fees owed to Cane Xxxxx, LLP related to this
transaction.
Section
3.7 Disclosure. Neither
this Agreement nor any exhibit or schedule hereto nor any statement, list or
certificate delivered to the Company pursuant hereto or pursuant to any written
request therefor, contains an untrue statement of a material fact or omits
to
state a material fact necessary in order to make the statements contained herein
and therein, in light of the circumstances in which they were made, not
misleading.
ARTICLE
4
INDEMNIFICATION
Section
4.1 Indemnification
by the Company and the Principal Stockholders.
The
Company and the Principal Stockholder shall indemnify, defend any subsidiary
or
affiliate thereof and each person who is now, or has been at any time prior
to
the date hereof or who becomes prior to the Closing, an officer, director,
member or partner of Juma, any subsidiary or affiliate thereof or an employee
of
Juma, any subsidiary or affiliate thereof and their respective heirs, legal
representatives, successors and assigns (the “LLC
Indemnified Parties”)
against
all losses, claims, damages, costs, expenses (including attorneys’ fees),
liabilities or judgments or amounts that are paid in settlement of or in
connection with any
9
threatened
or actual claim, action, suit, proceeding or investigation based in whole or
in
part on or arising in whole or in part out of (i) any breach of this Agreement
by the Company or any subsidiary or affiliate thereof, including but not limited
to failure of any representation or warranty to be true and correct at or before
the Closing, or (ii) any act, omission or conduct of any officer, director
or
agent of the Company or any subsidiary or affiliate thereof prior to the
Closing, whether asserted or claimed prior to, at or after, the Closing, or
(iii) relating to the consummation of the transactions contemplated herein,
and
any action taken in connection therewith (the “LLC
Indemnified Liabilities”).
Any
LLC Indemnified Party wishing to claim indemnification under this Section 4.1,
upon learning of any such claim, action, suit, proceeding or investigation,
shall notify the Company, but the failure so to notify shall not relieve the
Company from any liability that it may have under this Section 4.1, except
to
the extent that such failure would materially prejudice the Company. LLC
Indemnified Parties shall permit the Company (at the expense of the Company)
to
assume the defense of any LLC Indemnified Liabilities.
Section
4.2 Indemnification
by Juma and its Inside
Members
Juma
and
the Inside
Members
shall indemnify, defend and hold harmless each of the Company, the Principal
Stockholder , any subsidiary or affiliate thereof and each person who is now,
or
has been at any time prior to the date hereof or who becomes prior to the
Closing, an officer, director or partner of the Company, any subsidiary or
affiliate thereof or an employee of the Company, any subsidiary or affiliate
thereof and their respective heirs, legal representatives, successors and
assigns (the “Company
Indemnified Parties”)
against
all losses, claims, damages, costs, expenses (including attorneys’ fees),
liabilities or judgments or amounts that are paid in settlement of or in
connection with any threatened or actual claim, action, suit, proceeding or
investigation based in whole or in part on or arising in whole or in part out
of
(i) any breach of this Agreement by Juma or any subsidiary or affiliate thereof,
including but not limited to failure of any representation or warranty to be
true and correct at or before the Closing, or (ii) any act, omission or conduct
of any officer, director or agent of Juma or any subsidiary or affiliate thereof
prior to Juma, whether asserted or claimed prior to, at or after, Juma, or
(iii)
relating to the consummation of the transactions contemplated herein, and any
action taken in connection therewith (the “Company
Indemnified Liabilities”).
Any
Company Indemnified Party wishing to claim indemnification under this Section
4.2, upon learning of any such claim, action, suit, proceeding or investigation,
shall notify Juma, but the failure so to notify shall not relieve Juma from
any
liability that it may have under this Section 4.2, except to the extent that
such failure would materially prejudice Juma.
Section
4.3 Survival
of Indemnification
All
rights to indemnification under this Article 4 shall survive the consummation
of
the Exchange and the termination of this Agreement. The provisions of this
Article 4 are intended to be for the benefit of, and shall be enforceable by,
each Company Indemnified Party, each LLC Indemnified Party, and his or her
heirs
and representatives.
10
ARTICLE
5
COVENANTS
OF THE PARTIES
The
parties hereto agree that:
Section
5.1 Reasonable
Best Efforts.
Subject
to the terms and conditions of this Agreement, each party will use its
reasonable 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 the transactions contemplated by this
Agreement.
Section
5.2 Filings;
Other Action.
Subject
to the terms and conditions herein provided, the Company and Juma shall promptly
use reasonable best efforts to cooperate with one another in (i) determining
whether any filings are required to be made with, or consents, permits,
authorizations or approvals are required to be obtained from, any third party,
the United States government or any agencies, departments or instrumentalities
thereof or other governmental or regulatory bodies or authorities of federal,
state, local and foreign jurisdictions in connection with the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby and (ii) timely making all such filings and timely seeking all such
consents, permits, authorizations or approvals, and (iii) taking or causing
to
be taken, all other actions and do, or cause to be done, all other things
necessary, proper or advisable to consummate and make effective the transactions
contemplated hereby.
Section
5.3 Notices
of Certain Events.
In
addition to any other notice required to be given by the terms of this
Agreement, each of the parties shall promptly notify the other party hereto
of:
(a) any
notice or other communication from any person alleging
that the consent of such Person is or may be required in connection with any
of
the transactions contemplated by this Agreement;
(b) any
notice or other communication from any governmental or regulatory agency or
authority in connection with the transactions contemplated by this Agreement;
and
(c) any
actions, suits, claims, investigations or proceedings commenced or, to its
knowledge threatened against, relating to or involving or otherwise affecting
such party that, if pending on the date of this Agreement, would have been
required to have been disclosed pursuant to Section 2 and Section 3 (as the
case
may be) or that relate to the consummation of the transactions contemplated
by
this Agreement.
Section
5.4 Access
to Information; Confidentiality.
(a) Following
the date hereof, until consummation of all transactions contemplated hereby,
the
Company, on the one hand, and Juma, on the other, will give to the other party,
its counsel, financial advisers, auditors and other authorized representatives
reasonable access to the offices, properties, books and records of such party,
furnish to the other party and its
11
representatives
such financial and other data and information as such party and its
representatives may reasonably request and instruct its own employees and
representatives (including, without limitation, insurance agents and
underwriters) to cooperate with the other party in its investigations. Any
investigation pursuant to this Section shall be conducted in such manner as
not
to interfere unreasonably with the conduct of the business of the other parties.
No investigation pursuant to this Section shall affect any representation or
warranty made by any party hereunder.
(b) All
information obtained by the Company or Juma in connection with the transactions
contemplated hereby shall be kept confidential and will not be used for any
purpose unrelated to the consummation of the transactions contemplated by this
Agreement. Should the Closing not occur for any reason, all such information
and
copies thereof shall promptly be returned to each respective party.
ARTICLE
6
CONDITIONS
PRECEDENT
Section
6.1 Conditions
of Obligations of the Company.
The
obligations of the Company to effect the Exchange are subject to the
satisfaction of the following conditions, any or all of which may be waived
in
whole or in part by the Company:
(a) Representations
and Warranties.
Each of
the representations and warranties of Juma set forth in this Agreement shall
be
true and correct in all material respects as of the date of this Agreement
and
(except to the extent such representations and warranties speak as of an earlier
date) as of the Closing Date as though made on and as of the Closing Date,
except where the failure to be so true and correct would not have a Material
Adverse Effect on Juma and the Company shall have received a certificate, dated
as of the Closing Date, to such effect signed on behalf of Juma by a duly
authorized officer of Juma.
(b) Performance
of Obligations of Juma.
Juma
shall have performed in all material respects all obligations required to be
performed by it under this Agreement at or prior to the Closing.
Section
6.2 Conditions
of Obligations of Juma.
The
obligations of Juma to effect the Exchange are subject to the satisfaction
of
the following conditions, any or all of which may be waived in whole or in
part
by Juma:
(a) Representations
and Warranties.
Each of
the representations and warranties of the Company set forth in this Agreement
shall be true and correct in all material respects as of the date of this
Agreement and (except to the extent such representations and warranties speak
as
of an earlier date) as of the Closing Date as though made on and as of the
Closing Date, except where the failure to be so true and correct would not
have
a Material Adverse Effect on the Company, and Juma shall have received a
certificate, dated as of the Closing Date, to such effect signed on behalf
of
the Company by a duly authorized officer of the Company.
12
(b) Performance
of Obligations of the Company.
The
Company shall have performed in all material respects all obligations required
to be performed by it under this Agreement at or prior to the Closing
Date.
ARTICLE
7
TERMINATION
Section
7.1 Termination.
This
Agreement may be terminated and the Exchange may be abandoned at any time prior
to the Closing:
(a) by
mutual
written consent of the parties hereto;
(b) by
the
Company if (i) Juma shall have failed to comply in any material respect with
any
of the covenants or agreements contained in this Agreement to be complied with
or performed by Juma; or (ii) any representations and warranties of Juma
contained in this Agreement shall not have been true when made or on and as
of
the Closing Date as if made on and as of Closing Date (except to the extent
it
relates to a particular date), except where the failure to be so true and
correct would not have a Material Adverse Effect on Juma; or
(c) by
Juma
if (i) the Company shall have failed to comply in any material respect with
any
of the covenants or agreements contained in this Agreement to be complied with
or performed by them; or (ii) any representations and warranties of the Company
contained in this Agreement shall not have been true when made or on and as
of
the Closing Date as if made on and as of the Closing Date (except to the extent
it relates to a particular date), except where the failure to be so true and
correct would not have a Material Adverse Effect on the Company.
ARTICLE
8
MISCELLANEOUS
Section
8.2 Survival
of Representations and Warranties.
The
representations and warranties and agreements contained herein and in any
certificate or other writing delivered pursuant hereto shall not survive the
Closing.
Section
8.3 Amendments;
No Waivers.
(a) Any
provision of this Agreement with respect to transactions other than the Exchange
contemplated hereby may be amended or waived if, but only if, such amendment
or
waiver is in writing and is signed, in the case of an amendment, by the Company
and Juma; or in the case of a waiver, by the party against whom the waiver
is to
be effective.
(b) No
failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights
13
and
remedies herein provided shall be cumulative and not exclusive of any rights
or
remedies provided by law.
Section
8.4 Fees
and Expenses.
Except
for all transfer taxes which shall be paid by the Company, all costs and
expenses incurred in connection with this Agreement shall be paid by the party
incurring such cost or expense.
Section
8.5 Successors
and Assigns.
The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the parties hereto and their respective successors and assigns; provided that
no
party may assign, delegate or otherwise transfer any of its rights or
obligations under this Agreement without the consent of each other party hereto,
but any such transfer or assignment will not relieve the appropriate party
of
its obligations hereunder.
Section
8.6 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York, without giving effect to the principles of conflicts of
law
thereof.
Section
8.7 Jurisdiction.
Any
suit, action or proceeding seeking to enforce any provision of, or based on
any
matter arising out of or in connection with, this Agreement or the transactions
contemplated hereby may be brought in any federal or state court located in
the
City of New York, Borough of Manhattan, and each of the parties hereby consents
to the jurisdiction of such courts (and of the appropriate appellate courts
therefrom) in any such suit, action or proceeding and irrevocably waives, to
the
fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of the venue of any such suit, action or proceeding in any
such court or that any such suit, action or proceeding which is brought in
any
such court has been brought in an inconvenient forum. Process in any such suit,
action or proceeding may be served on any party anywhere in the world, whether
within or without the jurisdiction of any such court. Without limiting the
foregoing, each party agrees that service of process on such party as provided
in Section 9.1 shall be deemed effective service of process on such
party.
Section
8.8 Counterparts;
Effectiveness.
This
Agreement may be signed in any number of counterparts, each of which shall
be an
original, with the same effect as if the signatures thereto and hereto were
upon
the same instrument. This Agreement shall become effective when each party
hereto shall have received counterparts hereof signed by all of the other
parties hereto. No provision of this Agreement is intended to confer upon any
Person other than the parties hereto any rights or remedies
hereunder.
Section
8.9 Entire
Agreement.
This
Agreement and the Exhibits and Schedules hereto constitutes the entire agreement
between the parties with respect to the subject matter of this Agreement and
supersedes all prior agreements and understandings, both oral and written,
between the parties with respect to the subject matter hereof. The Company
or
Juma make no representations or warranties, except as set forth in this
Agreement.
14
Section
8.11 Captions.
The
captions herein are included for convenience of reference only and shall be
ignored in the construction or interpretation hereof.
Section
8.12 Severability.
If any
term, provision, covenant or restriction of this Agreement is held by a court
of
competent jurisdiction or other authority to be invalid, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no way be affected,
impaired or invalidated so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner materially
adverse to any parties. Upon such a determination, the parties shall negotiate
in good faith to modify this Agreement so as to effect the original intent
of
the parties as closely as possible in an acceptable manner in order that the
transactions contemplated hereby be consummated as originally contemplated
to
the fullest extent possible.
Section
8.13 Specific
Performances.
The
parties hereto agree that irreparable damage would occur in the event any
provision of this Agreement was not performed in accordance with the terms
hereof and that the parties shall be entitled to specific performance of the
terms hereof in addition to any other remedy to which they are entitled at
law
or in equity.
[SIGNATURE
PAGE FOLLOWS]
15
IN
WITNESS WHEREOF,
each of
the following individuals has caused this Agreement to be signed, and each
party
that is not an individual has caused this Agreement to be duly executed under
seal by its respective authorized officer, all as of the day and year first
above written.
X
AND O COSMETICS, INC.
By: /s/ Xxxx Xxxxxx
Xxxx Xxxxxx
President, Chief Executive Officer,
Chief Financial Officer and
Chief Accounting Officer
Principal Stockholder
JUMA TECHNOLOGY, LLC
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: General Member
By: /s/ Xxxx Xxxxxx
Xxxx Xxxxxx
President, Chief Executive Officer,
Chief Financial Officer and
Chief Accounting Officer
Principal Stockholder
JUMA TECHNOLOGY, LLC
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: General Member
16
APPROVED
AND AGREED:
INSIDE
MEMBERS:
By: /s/ Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxx
By: /s/ Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx
By: /s/ Xxxxxxx Xxxxx
Xxxxxxx Xxxxx
By: /s/ Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx
By: /s/ Xxxx Xxxxxxx
Xxxx Xxxxxxx
By: /s/ Xxxxxxxxx X'Xxxxxxxxx
Xxxxxxxxx X’Xxxxxxxxx
By: /s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx
By: /s/ Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxxxx
By: /s/ Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx
By: /s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx
By: /s/ Xxxx X'Xxxxx
Xxxx X’Xxxxx
By: /s/ Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxx
By: /s/ Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx
By: /s/ Xxxxxxx Xxxxx
Xxxxxxx Xxxxx
By: /s/ Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx
By: /s/ Xxxx Xxxxxxx
Xxxx Xxxxxxx
By: /s/ Xxxxxxxxx X'Xxxxxxxxx
Xxxxxxxxx X’Xxxxxxxxx
By: /s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx
By: /s/ Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxxxx
By: /s/ Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx
By: /s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx
By: /s/ Xxxx X'Xxxxx
Xxxx X’Xxxxx
17
INVESTOR
MEMBERS
By: /s/ Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxxx
By: /s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
By: /s/ Xxxxxx Deutsch
Xxxxxx Deutsch
By: /s/ Xxxx XxXxxx
Xxxx XxXxxx
By: /s/ Mirus Opportunistic Fund
Mirus Opportunistic Fund
INVESTORS
By: /s/ Xxxxx Family Irrevocable Stock Trust
Xxxxx Family Irrevocable Stock Trust
By: /s/ Breckenridge Associates, Inc.
Breckenridge Associates, Inc.
By: /s/ Harbor View Fund, Inc.
Harbor View Fund, Inc
By: /s/ Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxxx
By: /s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
By: /s/ Xxxxxx Deutsch
Xxxxxx Deutsch
By: /s/ Xxxx XxXxxx
Xxxx XxXxxx
By: /s/ Mirus Opportunistic Fund
Mirus Opportunistic Fund
INVESTORS
By: /s/ Xxxxx Family Irrevocable Stock Trust
Xxxxx Family Irrevocable Stock Trust
By: /s/ Breckenridge Associates, Inc.
Breckenridge Associates, Inc.
By: /s/ Harbor View Fund, Inc.
Harbor View Fund, Inc
18
Schedule
1.1
Inside
Members of Juma Technology LLC
Xxxxx
Xxxxxxxx
Xxxxxxx
Xxxxx
Xxxxxx
Xxxxxxxx
Xxxxxx
Xxxxxxx
Xxxxxxxxx
X’Xxxxxxxxx
Xxxxxx
Xxxxxx
Xxxx
Xxxxxxx
Xxxxxxx
Xxxxxxxxx
Xxxxxx
Xxxxxxx
Xxxxxx
Xxxxx
Xxxx
X’Xxxxx
Schedule
1.2
Investor
Members of Juma Technology LLC
Xxxxx
Xxxxxxx
Xxxx
XxXxxx
Xxxxxx
Deutsch
Xxxxxx
Xxxxxxxx
Mirus
Opportunistic Fund
Schedule
1.3
All
of
the Investors’ rights in, to and under that certain Royalty Participation
Agreement, dated as of May 3, 2006, between In Veritas Medical Diagnostics,
Inc.
and The Xxxxx Family Irrevocable Stock Trust, a copy of which is attached hereto
as Exhibit 1.3
19
Schedule
2.1(a)
Shares
of
Stock to be Issued
to
Inside
Members
|
Xxxxx
Xxxxxxxx
|
6,057,300
|
|
Xxxxxxx
Xxxxx
|
4,974,000
|
|
Xxxxxx
Xxxxxxxx
|
6,057,300
|
|
Xxxxxx
Xxxxxxx
|
4,103,800
|
|
Xxxxxxxxx
X’Xxxxxxxxx
|
2,000,000
|
|
Xxxxxx
Xxxxxx
|
1,447,600
|
|
Xxxx
Xxxxxxx
|
400,000
|
|
Xxxxxxx
Xxxxxxxxx
|
1,000,000
|
|
Xxxxxx
Xxxxxxx
|
350,000
|
|
Xxxxxx
Xxxxx
|
400,000
|
|
Xxxx
X’Xxxxx
|
100,000
|
|
Xxxxx
Xxxxxxx
|
1,000,000
|
|
Xxxx
XxXxxx
|
100,000
|
|
Xxxxxx
Deutsch
|
250,000
|
|
Xxxxxx
Xxxxxxxx
|
400,000
|
|
Mirius
Opportunistic Fund
|
2,500,000
|
Schedule
2.1(b)
Shares
of Stock to be Issued to Investor Members
|
Breckenridge
Associates, Inc.
|
671,596
|
|
Xxxxx
Family Irrevocable Trust
|
690,785
|
|
Harbor
View Fund, Inc.
|
748,350
|
20
