PLAN OF EXCHANGE BY WHICH Hairmax International, Inc. (a Nevada corporation) SHALL ACQUIRE Arcotect Digital Technology Ltd. (a corporation organized under the laws of hong kong)
Exhibit
99.1
PLAN
OF EXCHANGE
BY
WHICH
Hairmax
International, Inc.
(a
Nevada corporation)
SHALL
ACQUIRE
Arcotect
Digital Technology Ltd.
(a
corporation organized under the laws of hong kong)
1
|
I.
RECITALS | |
|
1.
The Parties to this Agreement: |
1 |
|
(1.1)
Hairmax International, Inc. |
1 |
|
(1.2)
Arcotect Digital Technology Ltd. |
1 |
|
(1.3)
Xxxxxx X. Xxxx |
1
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(1.4)
Arcotect Shareholders |
1 |
|
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|
|
2.
The Capital of the Parties: |
1 |
|
(2.1)
The Capital of HRMX |
1 |
|
(2.2)
The Capital of Arcotect |
1 |
|
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|
3.
Transaction Descriptive Summary: |
1 |
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4.
SEC compliance. |
2 |
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5.
Nevada compliance. |
2 |
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6.
Audited Financial Statements. |
2 |
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II.
PLAN OF EXCHANGE |
3 |
|
1.
Conditions Precedent to Closing. |
3 |
|
(1.1)
Shareholder Approval. |
3 |
|
(1.2)
Board of Directors. |
3 |
|
(1.3)
Due Diligence Investigation. |
3 |
|
(1.4)
The rights of dissenting shareholders, |
3 |
|
(1.5)
All of the terms, covenants and conditions |
3 |
|
(1.6)
The representations and warranties |
3 |
|
(1.7)
Certificate of The Majority Shareholders |
4
|
|
(1.8)
Transfer of Outstanding Stock |
4 |
|
(1.9)
Board Control |
5 |
|
(1.10)
Regulatory Filings |
5 |
|
2.
Conditions Concurrent and Subsequent to Closing. |
5 |
|
(2.1)
Stock Transfer and new issuance. |
5 |
|
3.
Plan of Exchange |
5 |
|
(3.1)
Exchange of Shares: |
6 |
|
(3.2)
Conversion of Outstanding Stock: |
6 |
|
(3.3)
Closing/Effective Date: |
6 |
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(3.4)
Surviving Corporations |
6 |
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(3.5)
Rights of Dissenting Shareholders: |
6 |
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(3.6)
Service of Process: |
6 |
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(3.7)
Surviving Articles of Incorporation: |
6 |
|
(3.8)
Surviving By-Laws: |
6 |
|
(3.9)
Further Assurance, Good Faith and Fair Dealing: |
10 |
|
(3.10)
General Mutual Representations and Warranties. |
10 |
|
(3.10.1)
Organization and Qualification. |
10 |
|
(3.10.2)
Corporate Authority. |
10 |
|
(3.10.3)
Ownership of Assets and Property. |
11 |
|
(3.10.4)
Absence of Certain Changes or Events. |
11 |
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(3.10.5)
Absence of Undisclosed Liabilities. |
11 |
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(3.10.6)
Legal Compliance. |
11 |
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| |
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| |
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4.
Termination. |
11 |
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6.
Execution in Counterparts |
11 |
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Signatures |
12 |
2
PLAN
OF EXCHANGE
BY
WHICH
Hairmax
International, Inc.
(a
Nevada corporation)
SHALL
ACQUIRE
Arcotect
Digital Technology Ltd.
(a
corporation organized under the laws of hong kong)
ADJUSTMENTS:
lead This
Plan of Exchange is made
and dated this 28th day of
December, 2004 and shall be construed and enforced together with the Letter of
Intent signed between the parties on December 14, 2004 (the “LOI”) and the
Escrow Agreement signed on December 14, 2004 (the “Escrow Agreement”). To the
extent that there may be any inconsistency or conflict among this Agreement, the
LOI and/or the Escrow Agreement, the Escrow Agreement shall prevail. This
Agreement anticipates extensive due diligence by both parties, and may be
terminated by written notice, at any time (i) by mutual consent; (ii) by any
party during the due diligence phase.
THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK
3
I.
RECITALS
1.
The Parties to this Agreement:
(1.1)
Hairmax International, Inc. ("HRMX"), a Nevada
corporation.
(1.2)
Arcotect Digital Technology Ltd (“ADT”), a
corporation organized under the laws of Hong Kong.
(1.3)
Xxxxxx X Xxxx, President
of HRMX, and, together with his wife, Xxxxxx Xxxx, being the majority
shareholders of HRMX (the “Majority Shareholders of HRMX”).
(1.4)
The Individual Shareholders of ADT whose
names are set forth on the signature page hereof (the “ADT
Shareholders”).
2.
The Capital of the Parties:
(2.1)
The Capital of HRMX consists
of 500,000,000 shares of common voting stock of $0.001 par value authorized, of
which 206,921,001 shares are issued and outstanding. HRMX intends to undertake a
100 for 1 reverse stock split which would result in the total number of
outstanding shares being reduced to 2,069,210. HRMX also has 40,000,000 shares
of Series A convertible preferred stock of $.001 par value authorized, of which
2,850,000 shares are issued and outstanding, and 1,000 shares of Series B
convertible preferred stock, of which none are issued and
outstanding.
After
consummation of the transactions contemplated herein, the parties intend that
ADT Shareholders will own 90.62% of the issued and outstanding shares of common
stock of HRMX.
(2.2)
The Capital of ADT consists
of HK$10,000 in registered capital, which for the purposes of this Agreement, is
referred to as “common stock” or “capital stock”.
3.
Transaction Descriptive Summary: HRMX
desires to acquire ADT and the ADT Shareholders wish ADT to be acquired by a
public company. The ADT Shareholders will exchange 100% of the capital stock of
ADT for (i) 2,850,000 outstanding shares of HRMX Series A convertible preferred
stock such transfer to be made on the date of execution of this Agreement and
(ii) 20,000,000 (post-reverse stock split) new shares of HRMX common stock to be
transferred to the ADT Shareholders on the Closing Date which shall in no event
be later than January 7, 2005. In addition, the ADT Shareholders will make the
second of two payments to the Majority Shareholders of HRMX of $400,000 in the
aggregate, the first payment having already been paid in escrow pursuant to the
Escrow Agreement. The parties intend that the transactions qualify and meet the
Hong Kong Inland Revenue Department and US Internal Revenue Code requirements
for a tax free reorganization, in which there is no corporate gain or loss
recognized for the parties, with reference to Internal Revenue Code (IRC)
sections 354 and 368.
4.
SEC compliance. HRMX
shall cause the filing and the mailing to its stockholders of an Information
Statement pursuant to Section 14(f) of the Securities Exchange Act of 1934,
before Closing.
5.
Nevada compliance. Articles
of Exchange are required to be filed by Nevada law as the last act to make the
acquisition final and effective under Nevada law.
6.
Audited Financial Statements. Certain
filings under the Securities Exchange Act of 1934, such as a Current Report on
Form 8-K, require audited financial statements of ADT to be filed with the SEC
within 71 calendar days after Closing. In connection with HRMX’s (or as its name
may be changed by agreement of the parties) filing of a Current Report on Form
8-K after Closing, as it relates to this transaction, audited financial
statements of ADT will be prepared and filed with the SEC.
4
II.
PLAN OF EXCHANGE
1.
Conditions Precedent to Closing.
(1.1)
Shareholder Approval. Each
corporate party shall have secured shareholder approval for this transaction, if
required, in accordance with the laws of its place of incorporation and its
constituent documents.
(1.2)
Board of Directors. The
Boards of Directors of each corporate party shall have approved the transaction
and this agreement, in accordance with the laws of its place of incorporation
and its constituent documents.
(1.3)
Due Diligence Investigation. Each
party shall have furnished to the other party certain corporate and financial
information to conduct its respective due diligence. If any party determines
that there is a reason not to complete this Agreement as a result of their due
diligence examination, then they must give written notice to the other party
prior to the expiration of the due diligence examination period. The Due
Diligence period, for purposes of this paragraph, shall expire on the Closing
Date. The Closing Date shall occur on the date mutually agreed upon by the
parties, subject to the meeting of various regulatory requirements and the
fulfillment of all the conditions precedent.
(1.4)
The rights of dissenting shareholders, if any,
of each party shall have been satisfied and the Board of Directors of each party
shall have determined to proceed with this Agreement.
(1.5)
All of the terms, covenants and conditions of this
Agreement to be complied with or performed by each party for Closing shall have
been complied with, performed or waived in writing; and
(1.6)
The representations and warranties of the
parties, contained in this Agreement , except as amended, altered or waived by
the parties in writing, shall be true and correct in all material respects at
Closing with the same force and effect as if such representations and warranties
are made at and as of such time; and each corporate party hereto shall provide
the other with a certificate, certified either individually or by an officer,
dated the Closing Date, to the effect, that all conditions precedent have been
met, and that all representations and warranties of such party are true and
correct as of that date. The form and substance of each party's certification
shall be in a form reasonably satisfactory to the other. In addition, it shall
be a condition precedent of ADT’s obligation to consummate the transactions
contemplated herein that a certificate of good standing on HRMX shall have been
delivered to it by the Secretary of State of Nevada.
5
| (1.7) |
Certificate
of the Majority Shareholders of HRMX. It
shall be a condition precedent to the obligation of ADT and the ADT
Shareholders to consummate the transactions contemplated herein that a
certificate of the Majority Shareholders of HRMX in substantially the
following form be delivered to them on the date of
execution: |
| (i) |
HRMX
is a corporation duly organized, validly existing and in good standing
underthe laws of the State of Nevada and has all requisite corporate power
to own, operate and lease its properties and assets and to carry on its
business. |
| (ii) |
The
authorized capitalization and the number of issued and outstanding capital
shares of HRMX are accurately and completely set forth in this
Agreement. |
| (iii) |
The
issued and outstanding shares of HRMX (including the 20,000,000
(post-reverse stock split) new shares of HRMX common stock to be issued to
the ADT Shareholders at Closing) have been or (as the case may be) will be
duly authorized and validly issued and are fully paid and
non-assessable. |
| (iv) |
HRMX
currently has the full right, power and authority to sell, transfer and
deliver 2,850,000 shares of its series A convertible preferred stock and,
pending its de-registration as a US Business Development Corporation, will
have the full right, power and authority to sell, transfer and deliver
20,000,000 (post-reverse stock split) shares of its common stock to the
ADT Shareholders, and, upon delivery of the certificates representing such
shares as contemplated in this Agreement , will transfer to the ADT
Shareholders good, valid and marketable title thereto, free and clear of
all liens. |
| (v) |
The
holders of HRMX’s series A convertible preferred shares shall (a) be
entitled to receive common stock dividends or other distributions when,
as, and if declared by the directors of HRMX, with the holders of the
common stock on an as converted basis; (b) be convertible, at the option
of the holder thereof, at any time after the date of issuance into 200
shares of fully paid and nonassessable shares of HRMX common
stock
and upon conversion; and (c) shall entitle holders
of such converted common stock to notice of any shareholders’ meeting and
to vote as a single class upon any matter submitted to the shareholders
for a vote on the basis that the holders of each series of Preferred Stock
shall have one vote for each full share of common stock into which share
of such series would be convertible on the date for the vote relative to
the single vote per share of Common Stock held as of such
date. |
| (vi) |
To
the best of his knowledge, there is no litigation, proceeding or
governmental investigation pending or threatened against or relating to
HRMX. |
| (vii) |
HRMX
has taken all steps in connection with this Agreement and the issuance of
shares thereunder which are necessary to effect and validly complete the
transactions contemplated in this Agreement and to comply in all material
respects with the Securities Act of 1933, as amended, and the Securities
Exchange Act of 1934, as well as the rules and regulations promulgated
pursuant thereto. |
(1.8) Transfer
of Outstanding Stock. On the
execution date of this Agreement, the Majority Shareholders of HRMX shall have
transferred to the ADT Shareholders 2,850,000 shares of its Series A convertible
preferred stock.
6
(1.9)
Board Control. HRMX
and the Majority Shareholders of HRMX shall effect the resignations of all of
then current directors of HRMX prior to the Closing Date and
the ADT
Shareholders shall
have effected a change of control over HRMX with the appointment of all of the
new directors.
(1.10) Regulatory
Filings. HRMX and
the Majority Shareholders of HRMX having procured all necessary regulatory
filings, consents and approvals to complete, validate and give effect to all of
the transactions contemplated in this Agreement up to the Closing
Date.
2.
Conditions Concurrent and Subsequent to Closing.
(2.1)
Regulatory Filings. HRMX and
the Majority Shareholders of HRMX shall procure all necessary regulatory
filings, consents and approvals to complete, validate and give effect to all of
the post-Closing transactions contemplated in this Agreement.
(2.2)
Reverse Stock Split.
Following the date of execution of the Agreement and in no event later than
January 7, 2005, the 100:1 reverse stock split authorized by HRMX and the
Majority Shareholders of HRMX on November 22, 2004 having become
effective.
(2.3) Transfer of New Stock. Within
twelve days to the Closing Date, HRMX shall have transferred the issued
20,000,000 (post-reverse stock split) new shares of HRMX common stock to the ADT
Shareholders.
3.
Plan of Exchange
(3.1)
Effective and Closing Dates. This
Agreement shall become effective immediately upon approval and execution by the
parties hereto, in the manner provided by the law of the places of incorporation
and constituent corporate documents, and upon compliance with governmental
filing requirements, such as, without limitation, compliance with Section 14 of
the Securities Exchange Act of 1934, and the filing of Articles of Exchange, if
applicable under State Law. Closing shall occur when all such requirements have
been met and when all of the conditions precedent have been fulfilled.
The
Closing deliveries shall be made pursuant to the terms of the Escrow Agreement
and the LOI. The
parties anticipate the filing of a Schedule 14-F Information Statement within 10
days after Closing.
7
(3.2)
Surviving Corporations. Both
corporate parties hereto shall survive the exchange and reorganization herein
contemplated and shall continue to be governed by the laws of its place of
incorporation and its constituent documents.
(3.3)
Rights of Dissenting Shareholders. Each
corporate party is the entity responsible for the rights of its own dissenting
shareholders, if any.
(3.4)
Service of Process and Address. Each of
the corporate parties hereto shall continue to be amenable to service of process
in its own place of incorporation, exactly as before this acquisition. The
address of HRMX is 0000 Xxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxx Xxxxxxx, Xxxxxxx
00000. The address of ADT is Suite B, 27/F K. Wah Center, 000 Xxxx Xxxx, Xxxxx
Xxxxx, Xxxx Xxxx. The address of the ADT Shareholders is in care of ADT at Suite
B, 27/F K. Wah Center, 000 Xxxx Xxxx, Xxxxx Xxxxx, Xxxx Xxxx.
(3.5)
Surviving Articles of Incorporation. the
Articles of Incorporation and Memoranda of Assocation of each of the corporate
parties hereto shall remain in full force and effect, unchanged.
(3.6)
Surviving By-Laws. the
By-Laws and Articles of Association of each of the corporate parties hereto
shall remain in full force and effect, unchanged.
(3.7)
Further Assurance, Good Faith and Fair Dealing. the
Directors of each corporate party hereto shall and will execute and deliver any
and all necessary documents, acknowledgments and assurances and do all things
proper to confirm or acknowledge any and all rights, titles and interests
created or confirmed herein; and both of the corporate partieshereto covenant
expressly hereby to deal fairly and in good faith with each other and each
other’s shareholders. In furtherance of the parties desire, as so expressed, and
to encourage timely, effective and businesslike resolution the parties agree
that any dispute arising between them, capable of resolution by arbitration,
shall be submitted to binding arbitration. As a further incentive to private
resolution of any dispute, the parties agree that each party shall bear its own
costs of dispute resolution and shall not recover such costs from any other
party.
(3.8)
General Mutual Representations and Warranties. Each of
the parties hereto severally warrant and represent to the others that unless
otherwise provided all of the following representations and warranties are or
will be true immediately before Closing:
(3.8.1)
Organization and Qualification. Each
corporate party hereto is duly organized and in good standing, and is duly
qualified to conduct any business it may be conducting, as required by law or
local ordinance.
(3.8.2)
Corporate Authority. Each
corporate party hereto has corporate authority, under the laws of its
jurisdiction and its constituent documents, to do each and every element of
performance to which it has agreed, and which is reasonably necessary,
appropriate and lawful, to carry out this Agreement in good faith.
8
(3.8.3)
Ownership of Assets and Property. Each
corporate party hereto has lawful title and ownership of its property as
reported to the other, and as disclosed in its financial
statements.
(3.8.4)
Majority Shareholding. After
consummation of the transactions provided for herein, the ADT Shareholders will
own 90.62% of the issued and outstanding shares of common stock of
HRMX.
(3.8.5)
Status of Public Company. HRMX
will retain its status as a public company during and after all of the
transactions provided for herein are completed.
(3.8.6)
Discharge of Assets and Liabilities. All of
the assets and liabilities of HRMX as at the date of execution have been
disposed of or discharged (as the case may be).
(3.8.7)
Absence of Certain Changes or Events. Neither
of the corporate parties hereto has had any material changes of circumstances or
events which have not been fully disclosed to the other party, and which, if
different than previously disclosed in writing, have been disclosed in writing
as currently as is reasonably practicable. Specifically, and without
limitation:
|
(3.8.7-a)
the
business of each corporate
party hereto shall
be conducted only in the ordinary and usual course and consistent with its
past practice, and neither party shall purchase or sell (or enter into any
agreement to so purchase or sell) any properties or assets or make any
other changes in its operations, respectively, taken as a whole, or
provide for the issuance of, agreement to issue or grant of options to
acquire any shares, whether common, redeemable common or convertible
preferred, in connection therewith; |
|
(3.8.7-b)
Neither
of
the corporate parties hereto
shall (i) amend its Articles of Incorporation or By-Laws (except in the
case of HRMX’s proposed amendment to its Articles of Incorporation to
effect the corporate name change), (ii) change the number of authorized or
outstanding shares of its capital stock, except as set forth in the
preceding clauses, or (iii) declare, set aside or pay any dividend or
other distribution or payment in cash, stock or
property; |
|
(3.8.7-c)
Neither
of
the corporate parties hereto
shall (i) issue, grant or pledge or agree or propose to issue, grant, sell
or pledge any shares of, or rights of any kind to acquire any shares of,
its capital stock, (ii) incur any indebtedness other than in the ordinary
course of business, (iii) acquire directly or indirectly by redemption or
otherwise any shares of its capital stock of any class (except for the
intended transfer of shares of common stock and series A preferred stock)
or (iv) enter into or modify any contact, agreement, commitment or
arrangement with respect to any of the
foregoing; |
9
|
(3.8.7-d)
Except
in the ordinary course of business, none of the parties hereto shall (i)
increase the compensation payable or to become payable by it to any of its
officers or directors; (ii) make any payment or provision with respect to
any bonus, profit sharing, stock option, stock purchase, employee stock
ownership, pension, retirement, deferred compensation, employment or other
payment plan, agreement or arrangement for the benefit of its employees
(iii) grant any stock options or stock appreciation rights or permit the
exercise of any stock appreciation right where the exercise of such right
is subject to its discretion (iv) make any change in the compensation to
be received by any of its officers; or adopt, or amend to increase
compensation or benefits payable under, any collective bargaining, bonus,
profit sharing, compensation, stock option, pension, retirement, deferred
compensation, employment, termination or severance or other plan,
agreement, trust, fund or arrangement for the benefit of employees, (v)
enter into any agreement with respect to termination or severance pay, or
any employment agreement or other contract or arrangement with any officer
or director or employee, respectively, with respect to the performance or
personal services that is not terminable without liability by it on thirty
days notice or less, (vi) increase benefits payable under its current
severance or termination, pay agreements or policies or (vii) make any
loan or advance to, or enter into any written contract, lease or
commitment with, any of its officers or
directors; |
|
(3.8.7-e)
None
of the parties hereto shall assume, guarantee, endorse or otherwise become
responsible for the obligations of any other individual, firm or
corporation or make any loans or advances to any individual, firm or
corporation, other than obligations and liabilities expressly assumed by
the other that party; |
|
(3.8.7-f)
None
of the parties hereto shall make any investment of a capital nature either
by purchase of stock or securities, contributions to capital, property
transfers or otherwise, or by the purchase of any property or assets of
any other individual, firm or corporation. |
10
(3.8.8)
Absence of Undisclosed Liabilities. Each
of the
corporate parties hereto has, and
has no reason to anticipate having, any material liabilities which have not been
disclosed to the other, in the financial statements or otherwise in
writing.
(3.8.9)
Legal Compliance. Each
of the
corporate parties hereto shall
comply in all material respects with all Federal, state, local and other
governmental (domestic or foreign) laws, statutes, ordinances, rules,
regulations (including all applicable securities laws), orders, writs,
injunctions, decrees, awards or other requirements of any court or other
governmental or other authority applicable to each of them or their respective
assets or to the conduct of their respective businesses, and use their best
efforts to perform all obligations under all contracts, agreements, licenses,
permits and undertaking without default.
(3.8.10)
Legal Proceedings. Each
of the
corporate parties hereto has no
legal proceedings, administrative or regulatory proceeding, pending or
suspected, which have not been fully disclosed in writing to the
other.
(3.8.11)
No Breach of Other Agreements. This
Agreement, and the faithful performance of this Agreement, will not cause any
breach of any other existing agreement, or any covenant, consent decree, or
undertaking by any party, which has not been disclosed to the other
parties.
(3.8.12)
Capital Stock. The
issued and outstanding shares of each of the
corporate parties hereto is as
detailed herein, that all such shares are in fact issued and outstanding, duly
and validly issued, were issued as and are fully paid and non-assessable shares,
and that, other than as represented in writing, there are no other securities,
options, warrants or rights outstanding, to acquire further shares of such
corporation.
(3.8.13) SEC Reports,
Liabilities and Taxes. (i) HRMX has
filed all required registration
statements, prospectuses, reports, schedules, forms, statements and other
documents required to be filed by it with the SEC since the date of its
registration under the Securities Exchange Act of 1934 (collectively, including
all exhibits thereto, the "HRMX SEC Reports"). None of the HRMX SEC Reports, as
of their respective dates, contained any untrue statements of material fact or
failed to contain any statements which were necessary to make the statements
made therein, in light of the circumstances, not misleading. All of the HRMX SEC
Reports, as of their respective dates (and as of the date of any amendment to
the respective HRMX SEC Reports), complied as to form in all material respects
with the applicable requirements of the Securities Act and the Exchange Act and
the rules and regulations promulgated thereunder.
(ii)
Except as disclosed in the HRMX SEC Reports filed prior to the date hereof, HRMX
and its Subsidiaries have not incurred any liabilities or obligations (whether
or not accrued, contingent or otherwise) that are of a nature that would be
required to be disclosed on a balance sheet of HRMX and its Subsidiaries or the
footnotes thereto prepared in conformity with GAAP, other than (A) liabilities
incurred in the ordinary course of business or (B) liabilities that would not,
in the aggregate, reasonably be expected to have a material adverse effect on
HRMX.
(iii)
Except as disclosed in the HRMX SEC Reports filed prior to the date hereof, HRMX
and each of its Subsidiaries (i) have prepared in good faith and duly and timely
filed (taking into account any extension of time within which to file) all
material tax returns required to be filed by any of them and all such filed tax
returns are complete and accurate in all material respects; (ii) have paid all
taxes that are shown as due and payable on such filed tax returns or that HRMX
or any of its Subsidiaries are obligated to pay without the filing of a tax
return; (iii) have paid all other assessments received to date in respect of
taxes other than those being contested in good faith for which provision has
been made in accordance with GAAP on the most recent balance sheet included in
HRMX’s financial statements; (iv) have withheld from amounts owing to any
employee, creditor or other person all taxes required by law to be withheld and
have paid over to the proper governmental authority in a timely manner all such
withheld amounts to the extent due and payable; and (v) have not waived any
applicable statute of limitations with respect to United States federal or state
income or franchise taxes and have not otherwise agreed to any extension of time
with respect to a United States federal or state income or franchise tax
assessment or deficiency.
11
(3.8.14)
Brokers' or Finder's Fees. Neither
of the
corporate parties hereto is aware
of any claims for brokers' fees, or finders' fees, or other commissions or fees,
by any person not disclosed to the other, which would become, if valid, an
obligation of either company.
(3.9)
Additional Post-Closing Covenant
The ADT
Shareholders shall at the sole expense of the Majority Shareholders of HRMX
cause HRMX to dispose of any of remaining assets and liabilities of HRMX as
promptly as practicable after Closing . In connection with such disposal, the
Majority Shareholders of HRMX, jointly and severally, agree to indemnify and
hold harmless both HRMX and the ADT Shareholders against any and all losses,
claims, liabilities or expenses that may be associated with disposing of any
assets and liabilities of HRMX that exist after the Closing.
(3.10)
Miscellaneous Provisions
|
|
(3.10.1)
. Except
as required by law, no party shall provide any information concerning any aspect
of the transactions contemplated by this Agreement to anyone other than their
respective officers, employees and representatives without the prior written
consent of the other parties hereto. The aforesaid obligations shall terminate
on the earlier to occur of (a) the Closing, or (b) the date by which any party
is required under its articles or bylaws or as required by law, to provide
specific disclosure of such transactions to its shareholders, governmental
agencies or other third parties. In the event that the transaction does not
close, each party will return all confidential information furnished in
confidence to the other. In addition, all parties shall consult with each other
concerning the timing and content of any press release or news release to be
issued by any of them.
(3.10.2)
This
Agreement may be executed simultaneously in two or more counterpart originals.
The parties can and may rely upon facsimile signatures as binding under this
Agreement, however, the parties agree to forward original signatures to the
other parties as soon as practicable after the facsimile signatures have been
delivered.
(3.10.3)
The
Parties to this agreement have no wish to engage in costly or lengthy litigation
with each other. Accordingly, any and all disputes which the parties cannot
resolve by agreement or mediation, shall be submitted to binding arbitration
under the rules and auspices of the American Arbitration Association. As a
further incentive to avoid disputes, each party shall bear its own costs, with
respect thereto, and with respect to any proceedings in any court brought to
enforce or overturn any arbitration award. This provision is expressly intended
to discourage litigation and to encourage orderly, timely and economical
resolution of any disputes which may occur.
12
(3.10.4)
If any
provision of this Agreement or the application thereof to any person or
situation shall be held invalid or unenforceable, the remainder of the Agreement
and the application of such provision to other persons or situations shall not
be effected thereby but shall continue valid and enforceable to the fullest
extent permitted by law.
(3.10.5)
No waiver
by any party of any occurrence or provision hereof shall be deemed a waiver of
any other occurrence or provision.
(3.10.6)
The
parties acknowledge that both they and their counsel have been provided ample
opportunity to review and revise this agreement and that the normal rule of
construction shall not be applied to cause the resolution of any ambiguities
against any party presumptively. The Agreement shall be governed by and
construed in accordance with the laws of the State of Nevada.
4.
Termination. This
Agreement may be terminated by written notice, at any time prior to Closing, by
any of the Parties whether before or after approval by the shareholders of
either or both HRMX or ADT; (i) by mutual consent; (ii) by any party hereto
during the due diligence phase, or (iii) by any of the Parties, in the event
that any of the transactions provided for by this Agreement has not been
implemented and approved by the proper governmental authorities within 120 days
from the of this Agreement. In the event that termination of this Agreement by
any party hereto, as provided above, this Agreement shall forthwith become void
and there shall be no liability on the part of any party or its respective
officers and directors, except as may exist pursuant to the Escrow Agreement
..
Execution
in Counterparts. This
Agreement may be executed in any number of counterparts, and when all of the
counterparts are put together as one document it shall be a binding
contract.
The
Remainder of this Page is Intentionally left Blank
13
THIS
AGREEMENT is
executed on behalf of each of the parties as of the date first above written.
| HAIRMAX INTERNATIONAL, INC. | ARCOTECT DIGITAL TECHNOLOGY, LTD | ||
| /s/ Xxxxxx X Xxxx | /s/ Xxxxxx Xx | ||
|
Xxxxxx X Xxxx
President
|
Xxxxxx Xx
President |
|
ADT
Shareholders: |
|
|
______________________________________ |
______________________________________ |
|
(Individually) |
(Individually) |
|
______________________________________ |
______________________________________ |
|
(Individually) |
(Individually) |
|
______________________________________ |
______________________________________ |
|
(Individually) |
(Individually) |
|
______________________________________ |
______________________________________ |
|
(Individually) |
(Individually) |
|
______________________________________ |
______________________________________ |
|
(Individually) |
(Individually) |
|
______________________________________ |
______________________________________ |
|
(Individually) |
(Individually) |
|
The
Majority Shareholders of HRMX: |
|
|
______________________________________ |
|
|
(Individually) |
|
|
______________________________________ |
|
|
(Individually) |
14
