AGREEMENT AND PLAN OF SHARE EXCHANGE
AGREEMENT AND PLAN OF SHARE EXCHANGE (the "Agreement") dated this 4th day of
October, 1999, by and between XXXXXXXX, INC., a Nevada corporation
("XXXXXXXX"), and LIGHTTOUCH VEIN & LASER, INC., an Ohio corporation
("LIGHTTOUCH").
WHEREAS, the Board of Directors of XXXXXXXX and the Board of Directors of
LIGHTTOUCH deem it advisable and in the best interests of XXXXXXXX and
LIGHTTOUCH that XXXXXXXX acquire LIGHTTOUCH by exchanging all of the issued
and outstanding shares of LIGHTTOUCH for shares of XXXXXXXX (the "Share
Exchange"); and
WHEREAS, the Sole Director of XXXXXXXX and the Board of Directors of
LIGHTTOUCH have approved and adopted this Agreement as a "plan of
reorganization" within the meaning of Section 368(a)(1)(B) of the Internal
Revenue Code of 1986, as amended;
NOW, THEREFORE, in consideration of the premises and the mutual agreements,
provisions and conditions contained herein, and for other goods and valuable
consideration, the adequacy and receipt of which are hereby acknowledged, the
parties hereto agree that all of the issued and outstanding capital stock of
LIGHTTOUCH shall be acquired by XXXXXXXX, upon and subject to the following
terms and conditions:
ARTICLE I
GENERAL TERMS AND PROVISIONS
SECTION 1.01. EFFECTIVENESS. XXXXXXXX shall issue new XXXXXXXX Common Stock
in exchange for the outstanding LIGHTTOUCH Stock on the terms provided
herein, and LIGHTTOUCH shall become a subsidiary of XXXXXXXX with an
Effective Date of October 1, 1999.
SECTION 1.02. TAKING OF NECESSARY ACTION. XXXXXXXX and LIGHTTOUCH shall
take all such actions as may be necessary or appropriate in order to
effectuate the transactions contemplated by this Agreement. If, at any time
after the Effective Date, any further action is necessary or desirable to
carry out the purpose of this Agreement or to vest XXXXXXXX with title to any
or all of the properties, assets, rights, approvals, immunities, of
LIGHTTOUCH, the officers and directors of XXXXXXXX and its subsidiary, at the
expense of XXXXXXXX, shall take such necessary or desirable action.
SECTION 1.03. NAME CHANGE. Immediately after the Effective Date, XXXXXXXX
shall change its name to "LightTouch Vein & Laser, Inc."
ARTICLE II
EXCHANGE OF SHARES
SECTION 2.01. EXCHANGE OF SHARES. On the Effective Date, XXXXXXXX shall
issue 2,246.25 new post-split shares of XXXXXXXX Common Stock for each share
of Common Stock of LIGHTTOUCH for a total issuance of 6,750,000 shares, as
set forth on Schedule A attached hereto.
SECTION 2.02. STOCK LEGENDS.
(a) Certificates representing shares of XXXXXXXX Common Stock issued to
LIGHTTOUCH shareholders shall bear a legend restricting transfer of the
shares of the Common Stock represented by such certificate in substantially
the form set forth below:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933 (the "Act") or
applicable state law, and are "restricted securities" as that
term is defined in Rule 144 under the Act. The securities may
not be offered for sale, sold, or otherwise transferred except
pursuant to an effective registration statement under the Act and
applicable state law, the availability of which is to be
established to the satisfaction of the Company."
(b) XXXXXXXX shall, from time to time, make stop transfer notations in its
records to ensure compliance in connection with any proposed transfer of
the shares with the Act, and all applicable state securities laws.
SECTION 2.03. RIGHT TO DISSENT. LIGHTTOUCH shall comply with the provisions
of the Ohio General Corporation Law with regard to dissenters' rights.
LIGHTTOUCH represents that holders of at least 80% of the outstanding stock
of LIGHTTOUCH will agree to the share exchange described herein.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each of XXXXXXXX and LIGHTTOUCH represents to the other as follows:
SECTION 3.01. CAPITALIZATION. It has no obligation under any agreement with
any person to register any of its securities under the 1933 Act or any
applicable state securities laws and, during the three years preceding the
date of this Agreement, it has not sold or issued any of its securities in a
transaction which was not registered under the 1933 Act or any applicable
state securities law or exempt from such registration. There are no
preemptive rights with respect to any of its securities.
(a) LIGHTTOUCH. LIGHTTOUCH represents and warrants that its authorized
capital stock consists of 7,000 shares of Common Stock, no par value, of
which 3,005 shares are issued and outstanding as of the date of this
Agreement. All of the issued and outstanding shares of LIGHTTOUCH are
validly issued, fully paid, and nonassessable.
(b) XXXXXXXX. XXXXXXXX represents and warrants that its authorized
capital stock consists of 100,000,000 shares of Common Stock, $0.001 par
value per share, of which 460,000 of the shares are issued and outstanding
as of the date of this Agreement.
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SECTION 3.02. PRINCIPAL SHAREHOLDERS. No person owns of record or, to the
best of its knowledge, owns beneficially five percent or more of any class of
the issued and outstanding shares of its voting securities, except as set
forth as follows: see attached Schedule A to this Agreement.
SECTION 3.03. NO SUBSIDIARIES. It has no subsidiaries.
SECTION 3.04. OPTIONS AND OTHER RIGHTS. There are no outstanding options,
warrants, or rights to subscribe for, purchase, or receive shares of its
common stock or any other securities convertible into common stock.
ARTICLE IV
CONDITIONS PRECEDENT TO THE SHARE EXCHANGE
The obligations of the parties under this Agreement are subject to the
satisfaction of the following express conditions precedent at or before the
Effective Date:
SECTION 4.01. COMPLIANCE WITH LAWS. All statutory requirements for the
valid consummation by it of the transactions contemplated by this Agreement
shall have been fulfilled.
SECTION 4.02. BLUE SKY FILINGS. All Blue Sky filings and permits or orders
required to carry out the transactions contemplated by this Agreement shall
have been made and received containing no term or condition reasonably
unacceptable to it.
SECTION 4.03. ADEQUATE PROCEEDINGS. All corporate and other proceedings in
connection with the transactions contemplated herein and all documents
incident thereto shall be reasonably satisfactory in form and substance to it
and its counsel.
SECTION 4.04. CERTIFICATE OF PRESIDENT AND SECRETARY. Each corporation
shall have furnished to the other a certificate of the President or Vice
President and the Secretary of the respective company, dated as of the
Effective Date, to the effect that the representations and warranties of the
respective company in this Agreement are true and correct at and as of the
Effective Date, that no error, misstatement, or omission has been discovered
or is known with respect to such representations and warranties, and that the
respective company has complied with all the agreements and has satisfied all
the covenants on its part to be performed at or prior to the Effective Date.
SECTION 4.05. NO ADVERSE CHANGE. Between the date of execution of this
Agreement and the Effective Date, XXXXXXXX and LIGHTTOUCH (a) except in the
ordinary course of its business, shall not have incurred any liabilities or
obligations (direct or contingent) or disposed of any of its assets, or
entered into any material transaction or suffered or experienced any
materially adverse change in its condition, financial or otherwise, and (b)
shall not have increased its issued and outstanding shares of common stock or
any other securities.
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SECTION 4.06 STOCK SPLIT. Prior to the Effective Date, XXXXXXXX shall have
effected a forward stock split of 1.63-for-1 on its outstanding shares of
Common Stock so that the 460,000 shares outstanding will be split to 750,000
shares.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. ASSIGNMENT. This Agreement may not be assigned nor any of the
performances hereunder delegated by operation of law or otherwise by any
party hereto, and any purported assignment or delegation shall be void.
SECTION 5.02. HEADINGS. The article and section headings of this Agreement
are inserted for convenience of reference only and do not constitute a part
of this Agreement.
SECTION 5.03. BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
successors, legal representatives, assigns, and transferors.
SECTION 5.04. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof.
There are no representations, warranties, conditions, or other obligations
except as herein specifically provided. Any waiver, amendment, or
modification hereof must be in writing. A waiver in one instance shall not
be deemed to be a continuing waiver or waiver in other instance.
SECTION 5.05. COUNTERPARTS. This Agreement may be executed in counterparts
and each counterpart hereof shall be deemed to be an original, but all such
counterparts together shall constitute but one agreement an original, but all
such counterparts together shall constitute but one agreement.
SECTION 5.06. NOTICES. All notices, requests, instructions, or other
documents to be given hereunder shall be deemed given if in writing, sent
registered mail:
to XXXXXXXX: to LIGHTTOUCH:
Attn: Xxxxxxx X. Xxxxxxx Attn: Xxxxxxx X. Xxxxxxx
00000 Xxxxxxxxxx Xxxx 00000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
XXXXXXXX, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, President
LIGHTTOUCH VEIN & LASER, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, President
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SCHEDULE A
The principal shareholders of LightTouch Vein & Laser, Inc. are as follows:
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NO. OF NO. OF
LIGHTTOUCH XXXXXXXX POST-
SHAREHOLDER SHARES SPLIT SHARES PERCENTAGE
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Xxxxxxx X. Xxxxxxx 1,380 3,099,834 41.33%
Xxxxx X. Xxxx, M.D. 1,260 2,830,283 37.74%
Xxxxxxxx Xxxxxx, M.D. 132 296,506 3.95%
Tri-State Laser Corporation 53 119,052 1.59%
Intram Investment Corporation 60 134,775 1.80%
Xxxx Xxxxxx 30 67,388 0.90%
Xxxxx Xxxxxxx 60 134,775 1.80%
Xxxxxxxx Xxxx 30 67,388 0.90%
Existing Xxxxxxxx shareholders 750,000 10.00%
Total 3,005 7,500,000 100.00%
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