EXHIBIT 2.1
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EXECUTION COPY
SHARE EXCHANGE AGREEMENT
THIS SHARE EXCHANGE AGREEMENT (this "Agreement"), dated as of December
20, 2005, is by and among XXXXXXX.XXX, INC., a Delaware corporation (the
"Parent"), ADVANCED AESTHETICS, INC., a Delaware corporation (the "Company"),
and the securityholders of the Company signatory hereto (the "Securityholders").
WHEREAS, immediately prior to the Closing (as defined in Section 1.02),
each of the Securityholders is the record and beneficial owner of (a) shares of
common stock, par value $0.01 per share, of the Company (the "Company Common
Stock"), (b) shares of Series G Preferred Stock, par value $0.01 per share, of
the Company (the "Company Series G Preferred Stock"), (c) shares of Series H
Preferred Stock, par value $0.01 per share, of the Company (the "Company Series
H Preferred Stock"), and/or (d) warrants to purchase shares of Company Common
Stock (the "Company Warrants," and together with the Company Common Stock, the
Company Series G Preferred Stock and the Company Series H Preferred Stock, the
"Company Securities"); and
WHEREAS, each of the holders of Company Common Stock has agreed to
transfer all of his, her or its (hereinafter "its") shares of Company Common
Stock in exchange for newly issued shares of Series B Preferred Stock, par value
$0.001 per share, of the Parent (the "Parent Series B Preferred Stock"); and
WHEREAS, each of the holders of shares of Company Series G Preferred
Stock and Company Series H Preferred Stock has agreed to transfer all of its
Company Securities in exchange for newly issued shares of Series C Preferred
Stock, par value $0.001 per share, of the Parent (the "Parent Series C Preferred
Stock"); and
WHEREAS, each of the holders of Company Warrants has agreed to transfer
all of its Company Warrants in exchange for newly issued warrants to purchase
Parent Series B Preferred Stock ("Parent Warrants," and together with the Parent
Series B Preferred Stock and the Parent Series C Preferred Stock, the "Parent
Securities").
NOW THEREFORE, the parties agree as follows:
ARTICLE I
Exchange of Shares
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SECTION 1.01. Exchange by Securityholders. At the Closing, each of the
Securityholders shall sell, transfer, convey, assign and deliver to the Parent
its Company Securities listed opposite such Securityholder's name on Exhibit A
free and clear of all Liens (as defined below) in exchange for the Parent
Securities listed opposite such Securityholder's name on Exhibit A. The parties
agree that the Company shall prepare Exhibit A and, subject to the Parent's
approval of same, attach same to this Agreement immediately prior to the
Closing, based on the following:
(i) the Parent shall issue to the Securityholders Parent
Securities that are to be in the amounts set forth on, and allocated
among the Securityholders pursuant to, Exhibit A;
(ii) each holder of Company Common Stock shall receive shares
of Parent Series B Preferred Stock in exchange for its shares of
Company Common Stock;
(iii) each holder of Company Series G Preferred Stock and
Company Series H Preferred Stock shall receive shares of Parent Series
C Preferred Stock in exchange for its shares of Company Series G
Preferred Stock and Company Series H Preferred Stock; and
(iv) each holder of Company Warrants shall receive Parent
Warrants in exchange for its Company Warrants.
SECTION 1.02. Closing. The closing (the "Closing") of the transactions
contemplated hereby (the "Transactions") shall take place on the date (the
"Closing Date") that is ten (10) days following the mailing by the Company and
the Parent of the notice required to be sent to the stockholders of the Parent
pursuant to Rule 14f-1 (the "14f-1 Notice") promulgated under the Securities
Exchange Act of 1934 (the "Exchange Act") in connection with this Agreement;
provided, however, that if prior to the Closing the Transactions shall be
prohibited by any federal, state, local or foreign government or any court of
competent jurisdiction, administrative agency or commission or other
governmental authority or instrumentality, domestic or foreign (a "Governmental
Entity"), then the Closing shall take place, if, and promptly after, the
Transactions become permissible.
ARTICLE II
Representations and Warranties of Securityholders
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Each of the Securityholders hereby severally (and not jointly)
represents and warrants to the Parent with respect to himself, herself or
itself, as the case may be, as follows:
SECTION 2.01. Good Title. The Securityholder is the record and
beneficial owner, and has good title to its Company Securities, with the right
and authority to sell and deliver such Company Securities. Upon delivery of any
certificate or certificates duly assigned, representing the same as herein
contemplated and/or upon registering of the Parent as the new owner of the
Company Securities in the share register of the Company, the Parent will receive
good title to its Company Securities, free and clear of all liens, security
interests, pledges, equities and claims of any kind, voting trusts, stockholder
agreement and encumbrances (collectively, "Liens").
SECTION 2.02. Organization. Each Securityholder that is an entity is
duly organized and validly existing in its jurisdiction of organization.
SECTION 2.03. Power and Authority. Each Securityholder that is an
entity has the legal power and authority to execute and deliver this Agreement
and to perform its obligations
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hereunder. All acts required to be taken by the Securityholder to enter into
this Agreement and to carry out the Transactions have been properly taken. This
Agreement constitutes a legal, valid and binding obligation of the
Securityholder, enforceable against such Securityholder in accordance with the
terms hereof.
SECTION 2.04. No Conflicts. The execution and delivery of this
Agreement by the Securityholder and the performance by the Securityholder of its
obligations hereunder in accordance with the terms hereof: (i) will not require
the consent of any third party or any Governmental Entity under any statutes,
laws, ordinances, rules, regulations, orders, writs, injunctions, judgments, or
decrees (collectively, "Laws"); (ii) will not violate any Laws applicable to
such Securityholder and (iii) will not violate or breach any contractual
obligation to which such Securityholder is a party.
SECTION 2.05. No Finder's Fee. The Securityholder has not created any
obligation for any finder's, investment banker's or broker's fee in connection
with the Transactions.
SECTION 2.06. Purchase Entirely for Own Account. The Parent Securities
proposed to be acquired by the Securityholder hereunder will be acquired for
investment for its own account, and not with a view to the resale or
distribution of any part thereof, and the Securityholder has no present
intention of selling or otherwise distributing the Parent Securities, except in
compliance with applicable securities laws.
SECTION 2.07. Available Information. The Securityholder has such
knowledge and experience in financial and business matters that it is capable of
evaluating the merits and risks of investment in the Parent.
SECTION 2.08. Non-Registration. The Securityholder understands that the
Parent Securities have not been registered under the Securities Act of 1933, as
amended (the "Securities Act") and, if issued in accordance with the provisions
of this Agreement, will be issued by reason of a specific exemption from the
registration provisions of the Securities Act which depends upon, among other
things, the bona fide nature of the investment intent and the accuracy of the
Securityholder's representations as expressed herein.
SECTION 2.09. Restricted Securities. The Securityholder understands
that the Parent Securities are characterized as "restricted securities" under
the Securities Act inasmuch as this Agreement contemplates that, if acquired by
the Securityholder pursuant hereto, the Parent Securities would be acquired in a
transaction not involving a public offering. The Securityholder further
acknowledges that if the Parent Securities are issued to the Securityholder in
accordance with the provisions of this Agreement, such Parent Securities may not
be resold without registration under the Securities Act or the existence of an
exemption therefrom. In this connection, the Securityholder represents that it
is familiar with Rule 144 promulgated under the Securities Act, as presently in
effect, and understands the resale limitations imposed thereby and by the
Securities Act.
SECTION 2.10. Legends. It is understood that the Parent Securities will
bear one or all of the following legends:
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(a) "THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (AS AMENDED, "THE ACT") OR ANY
STATE SECURITIES LAW AND MAY NOT BE TRANSFERRED OR SOLD UNLESS AN EXEMPTION FROM
SUCH REGISTRATION PROVISIONS IS AVAILABLE; THE ISSUER AND/OR ITS TRANSFER AGENT
HAVE AN OPTION TO REQUIRE (BY WRITTEN NOTICE BEFORE OR AFTER PRESENTMENT) THAT
AVAILABILITY OF AN EXEMPTION BE ESTABLISHED BY AN OPINION OF COUNSEL WHICH IS
SATISFACTORY TO THEM."
(b) Any legend required by the "blue sky" laws of any state to the
extent such laws are applicable to the securities represented by the certificate
so legended.
SECTION 2.11. Accredited Investor. The Securityholder is an "accredited
investor" (as defined in Rule 501(a) under the Securities Act).
ARTICLE III
Representations and Warranties of the Company
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The Company represents and warrants to the Parent that, except as set
forth in the letter, dated as of the date of this Agreement, from the Company to
the Parent (the "Company Disclosure Letter"):
SECTION 3.01. Organization, Standing and Power. Each of the Company and
its subsidiaries (the "Company Subsidiaries") is duly organized, validly
existing and in good standing under the laws of the jurisdiction in which it is
organized and has the corporate power and authority and possesses all
governmental franchises, licenses, permits, authorizations and approvals
necessary to enable it to own, lease or otherwise hold its properties and assets
and to conduct its businesses as presently conducted, other than such
franchises, licenses, permits, authorizations and approvals the lack of which,
individually or in the aggregate, has not had and would not reasonably be
expected to have a material adverse effect on the Company, a material adverse
effect on the ability of the Company to perform its obligations under this
Agreement or on the ability of the Company to consummate the Transactions (a
"Company Material Adverse Effect"). The Company and each Company Subsidiary is
duly qualified to do business in each jurisdiction where the nature of its
business or its ownership or leasing of its properties make such qualification
necessary except where the failure to so qualify would not reasonably be
expected to have a Company Material Adverse Effect. The Company has delivered to
the Parent true and complete copies of the certificates of incorporation of the
Company, as amended to the date of this Agreement (as so amended, the "Company
Charter"), and the Bylaws of the Company, as amended to the date of this
Agreement (as so amended, the "Company Bylaws"), and the comparable charter and
organizational documents of each Company Subsidiary, in each case as amended
through the date of this Agreement.
SECTION 3.02. Company Subsidiaries; Equity Interests.
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(a) The Company Disclosure Letter lists each Company Subsidiary and
its jurisdiction of organization. All the outstanding shares of capital stock or
equity investments of
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each Company Subsidiary have been validly issued and are fully paid and
nonassessable and are as of the date of this Agreement owned by the Company, by
another Company Subsidiary or by the Company and another Company Subsidiary,
free and clear of all Liens.
(b) Except for its interests in the Company Subsidiaries, the
Company does not as of the date of this Agreement own, directly or indirectly,
any capital stock, membership interest, partnership interest, joint venture
interest or other equity interest in any person.
SECTION 3.03. Capital Structure. The authorized capital stock of the
Company consists of 70,000,000 shares of Company Common Stock and 1,000,000
shares of preferred stock of which, 20,000 shares are designated as shares of
Company Series A Preferred Stock, 600,000 shares are designated as shares of
Company Series B Preferred Stock, 20,000 shares are designated as shares of
Company Series C Preferred Stock, 8,200 shares are designated as shares of
Company Series D Preferred Stock, 500 shares are designated as shares of Company
Series E Preferred Stock, 5,000 shares are designated as shares of Company
Series F Preferred Stock, 12,000 shares are designated as shares of Company
Series G Preferred Stock, and 5,000 shares are designated as shares of Company
Series H Preferred Stock. The number of shares of Company Common Stock issued
and outstanding immediately prior to the Closing will be set forth on Exhibit A.
Immediately prior to the Closing, no shares of Company Series A Preferred Stock,
no shares of Company Series B Preferred Stock, no shares of Company Series C
Preferred Stock, no shares of Company Series D Preferred Stock, 500 shares of
Company Series E Preferred Stock, no shares of Company Series F Preferred Stock,
10,775 shares of Company Series G Preferred Stock, and 5,000 shares of Company
Series H Preferred Stock will be issued and outstanding. Except as set forth
above and for shares of Company Common Stock that are reserved for issuance (i)
pursuant to the Company's 2003 Stock Option Plan, (ii) upon conversion of the
outstanding shares of Company Series E Preferred Stock, Company Series G
Preferred Stock and Company Series H Preferred Stock, and (iii) upon exercise of
the Company Warrants, as of the date hereof, no shares of capital stock or other
voting securities of the Company are issued, reserved for issuance or
outstanding. The Company is the sole record and beneficial owner of all of the
issued and outstanding capital stock of each Company Subsidiary. All outstanding
shares of the capital stock of the Company and each Company Subsidiary are duly
authorized, validly issued, fully paid and nonassessable and not subject to or
issued in violation of any purchase option, call option, right of first refusal,
preemptive right, subscription right or any similar right under any provision of
the Delaware General Corporate Law (the "DGCL"), the Company Charter, the
Company Bylaws or any Contract (as defined in Section 3.05) to which the Company
is a party or otherwise bound. Except as set forth in this section 3.03 and in
the Company Disclosure Letter, there are not any bonds, debentures, notes or
other indebtedness of Company or any Company Subsidiary having the right to vote
(or convertible into, or exchangeable for, securities having the right to vote)
on any matters on which holders of Company Common Stock or the common stock of
any Company Subsidiary may vote ("Voting Company Debt"). Except as set forth
above, as of the date of this Agreement, there are not any options, warrants,
rights, convertible or exchangeable securities, "phantom" stock rights, stock
appreciation rights, stock-based performance units, commitments, Contracts,
arrangements or undertakings of any kind to which the Company or any Company
Subsidiary is a party or by which any of them is bound (i) obligating the
Company or any Company Subsidiary to issue, deliver or sell, or cause to be
issued, delivered or sold, additional shares of capital stock or other equity
interests in, or any security convertible or exercisable for or exchangeable
into any capital
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stock of or other equity interest in, the Company or any Company Subsidiary or
any Voting Company Debt, (ii) obligating the Company or any Company Subsidiary
to issue, grant, extend or enter into any such option, warrant, call, right,
security, commitment, Contract, arrangement or undertaking or (iii) that give
any person the right to receive any economic benefit or right similar to or
derived from the economic benefits and rights occurring to holders of the
capital stock of the Company or of any Company Subsidiary. Except as set forth
in the Company Disclosure Letter, as of the date of this Agreement, there are
not any outstanding contractual obligations of the Company to repurchase, redeem
or otherwise acquire any shares of capital stock of Parent.
SECTION 3.04. Authority; Execution and Delivery; Enforceability. The
Company has all requisite corporate power and authority to execute and deliver
this Agreement and to consummate the Transactions. The execution and delivery by
the Company of this Agreement and the consummation by the Company of the
Transactions have been duly authorized and approved by the Board of Directors of
the Company and no other corporate proceedings on the part of the Company are
necessary to authorize this Agreement and the Transactions. When executed and
delivered, this Agreement will be enforceable against the Company in accordance
with its terms.
SECTION 3.05. No Conflicts; Consents.
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(a) Except as set forth in the Company Disclosure Letter, the
execution and delivery by the Company of this Agreement does not, and the
consummation of the Transactions and compliance with the terms hereof and
thereof will not, conflict with, or result in any violation of or default (with
or without notice or lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any obligation or to loss of a
material benefit under, or result in the creation of any Lien upon any of the
properties or assets of the Company or any Company Subsidiary under, any
provision of (i) the Company Charter, the Company Bylaws or the comparable
charter or organizational documents of any Company Subsidiary, (ii) any material
contract, lease, license, indenture, note, bond, agreement, permit, concession,
franchise or other instrument (a "Contract") to which the Company or any Company
Subsidiary is a party or by which any of their respective properties or assets
is bound or (iii) subject to the filings and other matters referred to in
Section 3.05(b), any material judgment, order or decree ("Judgment") or material
Law applicable to the Company or any Company Subsidiary or their respective
properties or assets, other than, in the case of clauses (ii) and (iii) above,
any such items that, individually or in the aggregate, have not had and would
not reasonably be expected to have a Company Material Adverse Effect.
(b) Except for required filings with the Securities and Exchange
Commission and applicable "Blue Sky" or state securities commissions, no
material consent, approval, license, permit, order or authorization ("Consent")
of, or registration, declaration or filing with, or permit from, any
Governmental Entity is required to be obtained or made by or with respect to the
Company or any Company Subsidiary in connection with the execution, delivery and
performance of this Agreement or the consummation of the Transactions.
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SECTION 3.06. Taxes.
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(a) Each of the Company and each Company Subsidiary has timely
filed, or has caused to be timely filed on its behalf, all Tax Returns required
to be filed by it, and all such Tax Returns are true, complete and accurate,
except to the extent any failure to file or any inaccuracies in any filed Tax
Returns, individually or in the aggregate, have not had and would not reasonably
be expected to have a Company Material Adverse Effect. All Taxes shown to be due
on such Tax Returns, or otherwise owed, have been timely paid, except to the
extent that any failure to pay, individually or in the aggregate, has not had
and would not reasonably be expected to have a Company Material Adverse Effect.
(b) The Company Financial Statements (as defined in Section 3.16)
reflect an adequate reserve for all Taxes payable by the Company and the Company
Subsidiaries (in addition to any reserve for deferred Taxes to reflect timing
differences between book and Tax items) for all Taxable periods and portions
thereof through the date of such financial statements. No deficiency with
respect to any Taxes has been proposed, asserted or assessed against the Company
or any Company Subsidiary, and no requests for waivers of the time to assess any
such Taxes are pending, except to the extent any such deficiency or request for
waiver, individually or in the aggregate, has not had and would not reasonably
be expected to have a Company Material Adverse Effect.
(c) For purposes of this Agreement:
"Taxes" includes all forms of taxation, whenever created or imposed,
and whether of the United States or elsewhere, and whether imposed by a local,
municipal, governmental, state, foreign, federal or other Governmental Entity,
or in connection with any agreement with respect to Taxes, including all
interest, penalties and additions imposed with respect to such amounts.
"Tax Return" means all federal, state, local, provincial and foreign
Tax returns, declarations, statements, reports, schedules, forms and information
returns and any amended Tax return relating to Taxes.
SECTION 3.07. Absence of Changes in Benefit Plans. Since September 30,
2005, there has not been any adoption or amendment in any material respect by
the Company or any Company Subsidiary of any collective bargaining agreement or
any bonus, pension, profit sharing, deferred compensation, incentive
compensation, stock ownership, stock purchase, stock option, phantom stock,
retirement, vacation, severance, disability, death benefit, hospitalization,
medical or other plan, arrangement or understanding (whether or not legally
binding) providing benefits to any current or former employee, officer or
director of the Company or any Company Subsidiary (collectively, "Company
Benefit Plans"). Except as set forth in the Company Disclosure Letter, as of the
date of this Agreement there are not any severance or termination agreements or
arrangements between the Company or any Company Subsidiary and any current or
former employee, officer or director of the Company or any Company Subsidiary,
nor does the Company or any Company Subsidiary have any general severance plan
or policy.
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SECTION 3.08. ERISA Compliance; Excess Parachute Payments.
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(a) The Company Disclosure Letter contains a list and brief
description of all "employee pension benefit plans" (as defined in Section 3(2)
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"))
("Company Pension Plans"), "employee welfare benefit plans" (as defined in
Section 3(1) of ERISA) and all other Company Benefit Plans maintained, or
contributed to, by the Company or any Company Subsidiary for the benefit of any
current or former employees, consultants, officers or directors of the Company
or any Company Subsidiary. Each Company Benefit Plan has been administered in
compliance with its terms in all material respects. Each Company Benefit Plan
complies in all material respects in form and operation with the provisions of
ERISA, the Code, and all other applicable Laws. The Company has performed all of
its obligations under the Company Benefit Plans, including but not limited to,
the full payment when due of all amounts required to be made as contributions
thereto or otherwise. The Company has delivered to Parent true, complete and
correct copies of (i) each Company Benefit Plan (or, in the case of any
unwritten Company Benefit Plan, a description thereof), (ii) the most recent
annual report on Form 5500 filed with the Internal Revenue Service with respect
to each Company Benefit Plan (if any such report was required), (iii) the most
recent summary plan description for each Company Benefit Plan for which such
summary plan description is required and (iv) each trust agreement and group
annuity contract relating to any Company Benefit Plan.
(b) No Company Pension Plan had, as of the respective last annual
valuation date for each such Company Pension Plan, an "unfunded benefit
liability" (as such term is defined in Section 4001(a)(18) of ERISA), based on
actuarial assumptions that have been furnished to Parent. None of the Company
Pension Plans has an "accumulated funding deficiency" (as such term is defined
in Section 302 of ERISA or Section 412 of the Internal Revenue Code of 1986, as
amended (the "Code"), whether or not waived. None of the Company, any Company
Subsidiary, any officer of the Company or any Company Subsidiary, or any of the
Company Benefit Plans which are subject to ERISA, including the Company Pension
Plans, any trusts created thereunder or any trustee or administrator thereof,
has engaged in a "prohibited transaction" (as such term is defined in Section
406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary
responsibility that could subject the Company, any Company Subsidiary or any
officer of the Company or any Company Subsidiary to the tax or penalty on
prohibited transactions imposed by such Section 4975 or to any liability under
Section 502(i) or 502(1) of ERISA. None of such Company Benefit Plans and trusts
has been terminated, nor has there been any "reportable event" (as that term is
defined in Section 4043 of ERISA) with respect to any Company Benefit Plan
during the last five years. Neither the Company nor any Company Subsidiary
maintains, contributes to, or has an obligation to contribute to (or has
previously maintained, contributed to, or had an obligation to contribute to),
any benefit plan subject to Section 302 of ERISA, Title IV of ERISA or Section
412 of the Code (including any multiemployer plan as defined in ERISA Section
3(37)).
(c) With respect to any Company Benefit Plan that is an employee
welfare benefit plan, (i) no such Company Benefit Plan is unfunded or funded
through a "welfare benefits fund" (as such term is defined in Section 419(e) of
the Code), (ii) each such Company Benefit Plan that is a "group health plan" (as
such term is defined in Section 5000(b)(1) of the Code), complies with the
applicable requirements of Section 4980B(f) of the Code and (iii) each
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such Company Benefit Plan (including any such Plan covering retirees or other
former employees) may be amended or terminated without material liability to the
Company and the Company Subsidiary on or at any time after the date hereof.
SECTION 3.09. Litigation. There are no suits, actions or proceedings
pending or, to the knowledge of the Company, threatened against the Company or
any Company Subsidiary that, individually or in the aggregate, would reasonably
be expected to have a Company Material Adverse Effect, nor is there any Judgment
outstanding against the Company or any Company Subsidiary.
SECTION 3.10. Compliance with Applicable Laws. The Company and the
Company Subsidiaries are in compliance with all applicable Laws, including those
relating to occupational health and safety and the environment, except for
instances of noncompliance that, individually and in the aggregate, have not had
and would not reasonably be expected to have a Company Material Adverse Effect.
Except as set forth in the Company Disclosure Letter, the Company has not
received any written communication during the past two years from a Governmental
Entity that alleges that the Company is not in compliance in any material
respect with any applicable Law. This Section 3.10 does not relate to matters
with respect to Taxes, which are the subject of Section 3.06.
SECTION 3.11. Brokers; Schedule of Fees and Expenses. No broker,
investment banker, financial advisor or other person, other than Emerging Growth
Equities, Ltd., the fees and expenses of which will be paid by the Company, is
entitled to any broker's, finder's, financial advisor's or other similar fee or
commission in connection with the Transactions based upon arrangements made by
or on behalf of the Company.
SECTION 3.12. Contracts. Except as disclosed in the Company Disclosure
Letter, there are no Contracts that are material to the business, properties,
assets, condition (financial or otherwise), results of operations or prospects
of the Company and its subsidiaries taken as a whole. Neither the Company nor
any Company Subsidiary is in violation of or in default under (nor does there
exist any condition which upon the passage of time or the giving of notice would
cause such a violation of or default under) any Contract to which it is a party
or by which it or any of its properties or assets is bound, except for
violations or defaults that would not, individually or in the aggregate,
reasonably be expected to result in a Company Material Adverse Effect.
SECTION 3.13. Title to Properties. The Company and the Company
Subsidiaries do not own any real property. Each of the Company and the Company
Subsidiaries has good title to, or valid leasehold interests in, all of its
properties and assets used in the conduct of its businesses. All such assets and
properties, other than assets and properties in which the Company or any of the
Company Subsidiaries has leasehold interests, are free and clear of all Liens
other than those set forth in the Company Disclosure Letter and except for Liens
that, in the aggregate, do not and will not materially interfere with the
ability of the Company and the Company Subsidiaries to conduct business as
currently conducted.
SECTION 3.14. Intellectual Property. The Company and the Company
Subsidiaries own, or are validly licensed or otherwise have the right to use,
all patents, patent
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rights, trademarks, trademark rights, trade names, trade name rights, service
marks, service xxxx rights, copyrights and other proprietary intellectual
property rights and computer programs (collectively, "Intellectual Property
Rights") which are material to the conduct of the business of the Company and
the Company Subsidiaries taken as a whole. The Company Disclosure Letter sets
forth a description of all Intellectual Property Rights which are material to
the conduct of the business of the Company and the Company Subsidiaries taken as
a whole. There are no claims pending or, to the knowledge of the Company,
threatened that the Company or any of the Company Subsidiaries is infringing or
otherwise adversely affecting the rights of any person with regard to any
Intellectual Property Right. To the knowledge of the Company, no person is
infringing the rights of the Company or any of the Company Subsidiaries with
respect to any Intellectual Property Right.
SECTION 3.15. Labor Matters. There are no collective bargaining or
other labor union agreements to which the Company or any of the Company
Subsidiaries is a party or by which any of them is bound.
SECTION 3.16. Financial Statements. The Company has delivered to the
Parent its audited consolidated financial statements for the fiscal years ended
June 30, 2004 and 2005 and its unaudited financial statements for the monthly
and year to date periods ending September 30, 2005 (collectively, the "Company
Financial Statements"). The Company Financial Statements have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis throughout the periods indicated; provided, however, that the unaudited
financial statements are subject to normal year-end adjustments and lack
footnotes and other presentation items. The Company Financial Statements fairly
present in all material respects the financial condition and operating results
of the Company, as of the dates, and for the periods, indicated therein. The
Company does not have any material liabilities or obligations, contingent or
otherwise, other than (i) liabilities incurred in the ordinary course of
business subsequent to September 30, 2005, and (ii) obligations under contracts
and commitments incurred in the ordinary course of business and not required
under generally accepted accounting principles to be reflected in the Company
Financial Statements, which, in both cases, individually and in the aggregate
would not be reasonably likely to have a Company Material Adverse Effect.
SECTION 3.17. Information Supplied. None of the information supplied or
to be supplied by the Company for inclusion or incorporation by reference in the
14f-1 Notice will, at the date it is first mailed to the Parent's stockholders,
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading.
SECTION 3.18. Absence of Certain Changes or Events. Except as disclosed
in the Company Financial Statements or in the Company Disclosure Letter, from
September 30, 2005 to the date of this Agreement, the Company has conducted its
business only in the ordinary course, and during such period there has not been:
(a) any change in the assets, liabilities, financial condition or
operating results of the Company or any Company Subsidiary, except changes in
the ordinary course of business that have not caused, in the aggregate, a
Company Material Adverse Effect;
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(b) any damage, destruction or loss, whether or not covered by
insurance, that would have a Company Material Adverse Effect;
(c) any waiver or compromise by the Company or any Company
Subsidiary of a valuable right or of a material debt owed to it;
(d) any satisfaction or discharge of any lien, claim, or encumbrance
or payment of any obligation by the Company or any Company Subsidiary, except in
the ordinary course of business and the satisfaction or discharge of which would
not have a Company Material Adverse Effect;
(e) any material change to a material Contract by which the Company
or any Company Subsidiary or any of its respective assets is bound or subject;
(f) any mortgage, pledge, transfer of a security interest in, or
lien, created by the Company or any Company Subsidiary, with respect to any of
its material properties or assets, except liens for taxes not yet due or payable
and liens that arise in the ordinary course of business and do not materially
impair the Company's or such Company Subsidiary's ownership or use of such
property or assets;
(g) any loans or guarantees made by the Company or any Company
Subsidiary to or for the benefit of its employees, officers or directors, or any
members of their immediate families, other than travel advances and other
advances made in the ordinary course of its business; or
(h) any arrangement or commitment by the Company or any Company
Subsidiary to do any of the things described in this Section 3.18.
SECTION 3.19. Memorandum. The Company has delivered to the Parent a
copy of that certain Confidential Private Placement Memorandum of the Company,
dated September 1, 2005, including all attachments, schedules and exhibits
thereto (the "Memorandum"). The Memorandum does not contain any untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements contained therein not misleading in light of the circumstances
under which they were made.
ARTICLE IV
Representations and Warranties of the Parent
--------------------------------------------
The Parent represents and warrants as follows to each of the
Securityholders and the Company that, except as set forth in the reports,
schedules, forms, statements and other documents filed by Parent with the SEC
and publicly available prior to the date of the Agreement (the "Filed Parent SEC
Documents") or in the letter, dated as of the date of this Agreement, from
Parent to the Company and the Securityholders (the "Parent Disclosure Letter"):
SECTION 4.01. Organization, Standing and Power. Parent is duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has full corporate power and authority and possesses all
governmental franchises, licenses, permits,
11
authorizations and approvals necessary to enable it to own, lease or otherwise
hold its properties and assets and to conduct its businesses as presently
conducted, other than such franchises, licenses, permits, authorizations and
approvals the lack of which, individually or in the aggregate, has not had and
would not reasonably be expected to have a material adverse effect on Parent, a
material adverse effect on the ability of Parent to perform its obligations
under this Agreement or on the ability of Parent to consummate the Transactions
(a "Parent Material Adverse Effect"). Parent is duly qualified to do business in
each jurisdiction where the nature of its business or their ownership or leasing
of its properties make such qualification necessary and where the failure to so
qualify would reasonably be expected to have a Parent Material Adverse Effect.
Parent has delivered to the Company true and complete copies of the certificate
of incorporation of Parent, as amended to the date of this Agreement (as so
amended, the "Parent Charter"), and the Bylaws of Parent, as amended to the date
of this Agreement (as so amended, the "Parent Bylaws").
SECTION 4.02. Subsidiaries; Equity Interests. Parent does not own,
directly or indirectly, any capital stock, membership interest, partnership
interest, joint venture interest or other equity interest in any person.
SECTION 4.03. Capital Structure. The authorized capital stock of Parent
consists of 20,000,000 shares of Parent Common Stock, par value $0.001 per
share, and 1,000,000 shares of preferred stock, par value $0.001 per share, of
which 5,000 shares are designated as shares of Parent Series A Preferred Stock,
100,000 shares are designated as shares of Parent Series B Preferred Stock, and
50,000 shares are designated as shares of Parent Series C Preferred Stock. As of
the date hereof (i) 12,970,515 shares of Parent Common Stock, 1,000 shares of
Parent Series A Preferred Stock, no shares of Parent Series B Preferred Stock,
and no shares of Parent Series C Preferred Stock are issued and outstanding, and
(ii) no shares of Parent Common Stock are held by Parent in its treasury. Except
as set forth above, no shares of capital stock or other voting securities of
Parent were issued, reserved for issuance or outstanding. All outstanding shares
of the capital stock of Parent are, and all such shares that may be issued prior
to the date hereof will be when issued, duly authorized, validly issued, fully
paid and nonassessable and not subject to or issued in violation of any purchase
option, call option, right of first refusal, preemptive right, subscription
right or any similar right under any provision of the DGCL, the Parent Charter,
the Parent Bylaws or any Contract to which Parent is a party or otherwise bound.
There are not any bonds, debentures, notes or other indebtedness of Parent
having the right to vote (or convertible into, or exchangeable for, securities
having the right to vote) on any matters on which holders of Parent Common Stock
may vote ("Voting Parent Debt"). Except as set forth above, as of the date of
this Agreement, there are not any options, warrants, rights, convertible or
exchangeable securities, "phantom" stock rights, stock appreciation rights,
stock-based performance units, commitments, Contracts, arrangements or
undertakings of any kind to which Parent is a party or by which any of them is
bound (i) obligating Parent to issue, deliver or sell, or cause to be issued,
delivered or sold, additional shares of capital stock or other equity interests
in, or any security convertible or exercisable for or exchangeable into any
capital stock of or other equity interest in, Parent or any Voting Parent Debt,
(ii) obligating Parent to issue, grant, extend or enter into any such option,
warrant, call, right, security, commitment, Contract, arrangement or undertaking
or (iii) that give any person the right to receive any economic benefit or right
similar to or derived from the economic benefits and rights occurring to holders
of the capital stock of the Parent. As of the date of this Agreement, there are
not any outstanding
12
contractual obligations of Parent to repurchase, redeem or otherwise acquire any
shares of capital stock of Parent.
SECTION 4.04. Authority; Execution and Delivery; Enforceability. The
execution and delivery by the Parent of this Agreement and the consummation by
the Parent of the Transactions have been duly authorized and approved by the
Board of Directors of the Parent and no other corporate proceedings on the part
of the Parent are necessary to authorize this Agreement and the Transactions.
This Agreement constitutes a legal, valid and binding obligation of the Parent,
enforceable against the Parent in accordance with the terms hereof.
SECTION 4.05. No Conflicts; Consents.
----------------------
(a) Except as set forth in the Parent Disclosure Letter, the
execution and delivery by Parent of this Agreement, does not, and the
consummation of Transactions and compliance with the terms hereof and thereof
will not, conflict with, or result in any violation of or default (with or
without notice or lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any obligation or to loss of a
material benefit under, or to increased, additional, accelerated or guaranteed
rights or entitlements of any person under, or result in the creation of any
Lien upon any of the properties or assets of Parent under, any provision of (i)
Parent Charter or Parent Bylaws, (ii) any material Contract to which Parent is a
party or by which any of its properties or assets is bound or (iii) subject to
the filings and other matters referred to in Section 4.05(b), any material
Judgment or material Law applicable to Parent or its properties or assets, other
than, in the case of clauses (ii) and (iii) above, any such items that,
individually or in the aggregate, have not had and would not reasonably be
expected to have a Parent Material Adverse Effect.
(b) No Consent of, or registration, declaration or filing with, or
permit from, any Governmental Entity is required to be obtained or made by or
with respect to Parent in connection with the execution, delivery and
performance of this Agreement or the consummation of the Transactions, other
than the (A) filing with the SEC of reports under Sections 13 and 16 of the
Exchange Act, and (B) filings under state "blue sky" laws, as may be required in
connection with this Agreement and the Transactions.
SECTION 4.06. SEC Documents; Undisclosed Liabilities.
--------------------------------------
(a) Parent has filed all reports, schedules, forms, statements and
other documents required to be filed by Parent with the SEC since January 1,
2005, pursuant to Sections 13(a), 14 (a) and 15(d) of the Exchange Act (the
"Parent SEC Documents").
(b) As of its respective filing date, each Parent SEC Document
complied in all material respects with the requirements of the Exchange Act and
the rules and regulations of the SEC promulgated thereunder applicable to such
Parent SEC Document, and did not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. Except to the extent that information contained
in any Parent SEC Document has been revised or superseded by a later filed
Parent SEC Document, none of the Parent SEC Documents contains any untrue
statement of a material fact or omits to state any
13
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The consolidated financial statements of Parent included in the
Parent SEC Documents comply as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC with
respect thereto, have been prepared in accordance with GAAP (except, in the case
of unaudited statements, as permitted by the rules and regulations of the SEC)
applied on a consistent basis during the periods involved (except as may be
indicated in the notes thereto) and fairly present the consolidated financial
position of Parent and its consolidated subsidiaries as of the dates thereof and
the consolidated results of their operations and cash flows for the periods
shown (subject, in the case of unaudited statements, to normal year-end audit
adjustments).
(c) Except as set forth in the Filed Parent SEC Documents, Parent
has no liabilities or obligations of any nature (whether accrued, absolute,
contingent or otherwise) required by GAAP to be set forth on a balance sheet of
Parent or in the notes thereto. The Parent Disclosure Letter sets forth all
financial and contractual obligations and liabilities (including any obligations
to issue capital stock or other securities of the parent) due after the date
hereof.
SECTION 4.07. Information Supplied. None of the information supplied or
to be supplied by Parent for inclusion or incorporation by reference in the
14f-1 Notice will, at the date it is first mailed to the Parent's stockholders,
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading.
SECTION 4.08. Absence of Certain Changes or Events. Except as disclosed
in the Filed Parent SEC Documents or in the Parent Disclosure Letter, from the
date of the most recent audited financial statements included in the Filed
Parent SEC Documents to the date of this Agreement, Parent has conducted its
business only in the ordinary course, and during such period there has not been:
(a) any change in the assets, liabilities, financial condition or
operating results of the Parent from that reflected in the Parent SEC Documents,
except changes in the ordinary course of business that have not caused, in the
aggregate, a Parent Material Adverse Effect;
(b) any damage, destruction or loss, whether or not covered by
insurance, that would have a Parent Material Adverse Effect;
(c) any waiver or compromise by the Parent of a valuable right or of
a material debt owed to it;
(d) any satisfaction or discharge of any lien, claim, or encumbrance
or payment of any obligation by the Parent, except in the ordinary course of
business and the satisfaction or discharge of which would not have a Parent
Material Adverse Effect;
(e) any material change to a material Contract by which the Parent
or any of its assets is bound or subject;
14
(f) any material change in any compensation arrangement or agreement
with any employee, officer, director or stockholder;
(g) any resignation or termination of employment of any officer of
the Parent;
(h) any mortgage, pledge, transfer of a security interest in, or
lien, created by the Parent, with respect to any of its material properties or
assets, except liens for taxes not yet due or payable and liens that arise in
the ordinary course of business and do not materially impair the Parent's
ownership or use of such property or assets;
(i) any loans or guarantees made by the Parent to or for the benefit
of its employees, officers or directors, or any members of their immediate
families, other than travel advances and other advances made in the ordinary
course of its business;
(j) any declaration, setting aside or payment or other distribution
in respect of any of the Parent's capital stock, or any direct or indirect
redemption, purchase, or other acquisition of any of such stock by the Parent;
or
(k) any arrangement or commitment by the Parent to do any of the
things described in this Section 4.08.
SECTION 4.09. Taxes.
-----
(a) Parent has timely filed, or has caused to be timely filed on its
behalf, all Tax Returns required to be filed by it, and all such Tax Returns are
true, complete and accurate, except to the extent any failure to file or any
inaccuracies in any filed Tax Returns, individually or in the aggregate, have
not had and would not reasonably be expected to have a Parent Material Adverse
Effect. All Taxes shown to be due on such Tax Returns, or otherwise owed, has
been timely paid, except to the extent that any failure to pay, individually or
in the aggregate, has not had and would not reasonably be expected to have a
Parent Material Adverse Effect.
(b) The most recent financial statements contained in the Filed
Parent SEC Documents reflect an adequate reserve for all Taxes payable by Parent
(in addition to any reserve for deferred Taxes to reflect timing differences
between book and Tax items) for all Taxable periods and portions thereof through
the date of such financial statements. No deficiency with respect to any Taxes
has been proposed, asserted or assessed against Parent, and no requests for
waivers of the time to assess any such Taxes are pending, except to the extent
any such deficiency or request for waiver, individually or in the aggregate, has
not had and would not reasonably be expected to have a Parent Material Adverse
Effect.
(c) The federal income Tax Returns of Parent have been examined by
and settled with the United States Internal Revenue Service, or have closed by
virtue of the expiration of the relevant statute of limitations, for all years
through 2004. All material assessments for Taxes due with respect to such
completed and settled examinations or any concluded litigation have been fully
paid.
(d) There are no Liens for Taxes (other than for current Taxes not
yet due and payable) on the assets of Parent. Parent is not bound by any
agreement with respect to Taxes.
15
SECTION 4.10. Absence of Changes in Benefit Plans. From the date of the
most recent audited financial statements included in the Filed Parent SEC
Documents to the date of this Agreement, there has not been any adoption or
amendment in any material respect by Parent of any collective bargaining
agreement or any bonus, pension, profit sharing, deferred compensation,
incentive compensation, stock ownership, stock purchase, stock option, phantom
stock, retirement, vacation, severance, disability, death benefit,
hospitalization, medical or other plan, arrangement or understanding (whether or
not legally binding) providing benefits to any current or former employee,
officer or director of Parent (collectively, "Parent Benefit Plans"). As of the
date of this Agreement there are not any employment, consulting,
indemnification, severance or termination agreements or arrangements between the
Parent and any current or former employee, officer or director of the Parent,
nor does the Parent have any general severance plan or policy.
SECTION 4.11. ERISA Compliance; Excess Parachute Payments. The Parent
does not, and since its inception never has, maintained, or contributed to any
"employee pension benefit plans" (as defined in Section 3(2) of ERISA),
"employee welfare benefit plans" (as defined in Section 3(1) of ERISA) or any
other Parent Benefit Plan for the benefit of any current or former employees,
consultants, officers or directors of Parent.
SECTION 4.12. Litigation. Except as disclosed in the Filed Parent SEC
Documents or in the Parent Disclosure Letter, there is no suit, action or
proceeding pending or, to the knowledge of Parent, threatened against or
affecting Parent (and Parent is not aware of any basis for any such suit, action
or proceeding) that, individually or in the aggregate, has had or would
reasonably be expected to have a Parent Material Adverse Effect, nor is there
any Judgment outstanding against Parent that has had or would reasonably be
expected to have a Parent Material Adverse Effect.
SECTION 4.13. Compliance with Applicable Laws. Except as disclosed in
the Filed Parent SEC Documents or in the Parent Disclosure Letter, Parent is in
compliance with all applicable Laws, including those relating to occupational
health and safety and the environment, except for instances of noncompliance
that, individually and in the aggregate, have not had and would not reasonably
be expected to have a Parent Material Adverse Effect. Except as set forth in the
Filed Parent SEC Documents or in the Parent Disclosure Letter, Parent has not
received any written communication during the past two years from a Governmental
Entity that alleges that Parent is not in compliance in any material respect
with any applicable Law. This Section 4.13 does not relate to matters with
respect to Taxes, which are the subject of Section 4.09.
SECTION 4.14. Contracts. Except as disclosed in the Parent Filed SEC
Documents, there are no Contracts that are material to the business, properties,
assets, condition (financial or otherwise), results of operations or prospects
of the Parent taken as a whole. Parent is not in violation of or in default
under (nor does there exist any condition which upon the passage of time or the
giving of notice would cause such a violation of or default under) any Contract
to which it is a party or by which it or any of its properties or assets is
bound, except for violations or defaults that would not, individually or in the
aggregate, reasonably be expected to result in a Parent Material Adverse Effect.
16
SECTION 4.15. Title to Properties. Parent has good title to, or valid
leasehold interests in, all of its properties and assets used in the conduct of
its businesses. All such assets and properties, other than assets and properties
in which the Parent has leasehold interests, are free and clear of all Liens
other than those set forth in the Parent Disclosure Letter and except for Liens
that, in the aggregate, do not and will not materially interfere with the
ability of the Parent to conduct business as currently conducted. Parent has
complied in all material respects with the terms of all material leases to which
it is a party and under which it is in occupancy, and all such leases are in
full force and effect. Parent enjoys peaceful and undisturbed possession under
all such material leases.
SECTION 4.16. Intellectual Property. Parent owns, or is validly
licensed or otherwise has the right to use, all Intellectual Property Rights
which are material to the conduct of the business of the Parent taken as a
whole. The Parent Disclosure Letter sets forth a description of all Intellectual
Property Rights which are material to the conduct of the business of the Parent
taken as a whole. Except as set forth in the Parent Disclosure Letter no claims
are pending or, to the knowledge of the Parent, threatened that the Parent is
infringing or otherwise adversely affecting the rights of any person with regard
to any Intellectual Property Right. To the knowledge of the Parent, no person is
infringing the rights of the Parent with respect to any Intellectual Property
Right.
SECTION 4.17. Labor Matters. There are no collective bargaining or
other labor union agreements to which the Parent is a party or by which it is
bound.
ARTICLE V
Deliveries
----------
SECTION 5.01. Deliveries of the Securityholders.
---------------------------------
(a) Concurrently herewith each Securityholder is delivering to the
Parent this Agreement executed by the Securityholder.
(b) At or prior to the Closing, each Securityholder shall deliver to
the Parent:
(i) certificates representing its Company Securities;
(ii) duly executed stock powers for transfer by the
Securityholder of its Company Securities to the Parent; and
(iii) any original Company Warrants held by such
Securityholder for cancellation.
SECTION 5.02. Deliveries of the Parent.
------------------------
(a) Concurrently herewith, the Parent is delivering:
(i) to each Securityholder and to the Company, a copy of this
Agreement executed by Parent;
17
(ii) to the Company, letters of resignation of Xxxx Xxxxxxx
and Xxxx Xxxxxx from their positions as directors of Parent and, in the
case of Xx. Xxxxxxx, from each office with the Parent that he holds,
that will become automatically effective, without further action, as of
the Closing;
(iii) to the Company, evidence of the election of the
directors of the Company as directors of the Parent as of the Closing;
and
(v) to the Company, evidence of the filing with the Secretary
of State of the State of Delaware of certificates of designation that
establish the Parent Series B Preferred Stock and the Parent Series C
Preferred Stock in accordance with the DGCL, which certificates shall
be in forms reasonably satisfactory to the Company.
(b) At or immediately after the Closing, the Parent shall deliver:
(i) to each Securityholder, certificates representing the new
shares of Parent Series B Preferred Stock, Parent Series C Preferred
Stock and/or Parent Warrants, as applicable, issued to such
Securityholder as set forth on Exhibit A;
(ii) to the Company, a certificate from the Parent, signed by
its Secretary or Assistant Secretary certifying (x) that the attached
copies of the Parent Charter, Parent Bylaws and resolutions of the
Board of Directors of the Parent approving the Agreement and the
Transactions are all true, complete and correct and remain in full
force and effect and (y) the incumbency and specimen signature of each
officer of the Parent executing this Agreement or any other document
delivered in connection herewith on behalf of the Parent;
(iii) to the Company, a legal opinion from Xxxxxx, Xxxx &
Priest, LLP, counsel to Parent; and
(iv) to the Company, consent letters of the accounting firms
of Parent confirming each such firm's respective consent to the use by
the Parent of reports prepared by such firm regarding the financial
statements of the Parent in all future registration statements filed
with the Securities and Exchange Commission in the form annexed as
Exhibit B hereto.
SECTION 5.03. Deliveries of the Company.
-------------------------
(a) Concurrently herewith, the Company is delivering to the Parent
this Agreement executed by the Company.
(b) At or prior to the Closing, the Company shall deliver to the
Parent:
(i) a legal opinion from Xxxxxxxx Xxxxxxx, LLP, counsel to the
Company; and
(ii) a certificate from the Company, signed by its Secretary
or Assistant Secretary certifying (i) that the attached copies of the
Company Charter,
18
Company Bylaws and resolutions of the Board of Directors of the Company
approving the Agreement and the Transactions are all true, complete and
correct and remain in full force and effect and (ii) the incumbency and
specimen signature of each officer of the Company executing this
Agreement or any other document delivered in connection herewith on
behalf of the Company.
ARTICLE VI
Conditions to Closing
---------------------
SECTION 6.01. Securityholder and Company Conditions Precedent. The
obligations of the Securityholders and the Company to enter into and complete
the Closing is subject, at the option of the Securityholders and the Company, to
the fulfillment on or prior to the Closing Date of the following conditions, any
one or more of which may be waived by the Company in writing.
(a) Representations and Covenants. The representations and
warranties of the Parent contained in this Agreement shall be true in all
material respects on and as of the Closing Date with the same force and effect
as though made on and as of the Closing Date. The Parent shall have performed
and complied in all material respects with all covenants and agreements required
by this Agreement to be performed or complied with by the Parent on or prior to
the Closing Date. The Parent shall have delivered to the Company, if requested,
a certificate, dated the Closing Date, to the foregoing effect.
(b) Litigation. No action, suit or proceeding shall have been
instituted before any court or governmental or regulatory body or instituted or
threatened by any governmental or regulatory body to restrain, modify or prevent
the carrying out of the Transactions or to seek damages or a discovery order in
connection with such Transactions, or which has or may have, in the reasonable
opinion of the Company, a materially adverse effect on the assets, properties,
business, operations or condition (financial or otherwise) of the Parent.
(c) Conversion of the Series A Preferred Stock. The issued and
outstanding Series A Preferred Stock of the Parent shall have been converted
into no more than 2,000,000 shares of Parent Common Stock.
(d) Post-Closing Capitalization. At, and immediately after, the
Closing, the authorized capitalization, and the number of issued and outstanding
shares of the capital stock of the Company and the Parent, on a fully-diluted
basis, shall be as specified in Schedule 6.01(e), which schedule also specifies,
for each of the Company and the Parent, all options, warrants and other
securities of the Company or the Parent that are exercisable or exchangeable
for, or convertible into, common stock of the Company or the Parent.
(e) Deliveries. The deliveries specified in Section 5.02 shall have
been made by the Parent.
SECTION 6.02. Parent Conditions Precedent. The obligations of the
Parent to enter into and complete the Closing is subject, at the option of the
Parent, to the fulfillment on or
19
prior to the Closing Date of the following conditions, any one or more of which
may be waived by the Parent in writing.
(a) Representations and Covenants. The representations and
warranties of the Securityholders and the Company contained in this Agreement
shall be true in all material respects on and as of the Closing Date with the
same force and effect as though made on and as of the Closing Date. The
Securityholders and the Company shall have performed and complied in all
material respects with all covenants and agreements required by this Agreement
to be performed or complied with by the Securityholders and the Company on or
prior to the Closing Date. The Company shall have delivered to the Parent, if
requested, a certificate, dated the Closing Date, to the foregoing effect.
(b) Litigation. No action, suit or proceeding shall have been
instituted before any court or governmental or regulatory body or instituted or
threatened by any governmental or regulatory body to restrain, modify or prevent
the carrying out of the Transactions or to seek damages or a discovery order in
connection with such Transactions, or which has or may have, in the reasonable
opinion of the Parent, a materially adverse effect on the assets, properties,
business, operations or condition (financial or otherwise) of the Parent.
(c) Deliveries. The deliveries specified in Section 5.01 and Section
5.03 shall have been made by the Securityholders and the Company, respectively.
(d) Audited Financial Statements and Form 10 Disclosure. The Company
shall have provided the Parent with reasonable assurances that the Parent will
be able to comply with its obligation to file a current report on Form 8-K
within four (4) days following the Closing containing the requisite audited
consolidated financial statements of the Company and the requisite Form 10-type
disclosure regarding the Company.
(e) Post-Closing Capitalization. At, and immediately after, the
Closing, the authorized capitalization, and the number of issued and outstanding
shares of the capital stock of the Company and the Parent, on a fully-diluted
basis, shall be as specified in Schedule 6.01(e), which schedule also specifies,
for each of the Company and the Parent, all options, warrants and other
securities of the Company or the Parent that are exercisable or exchangeable
for, or convertible into, common stock of the Company or the Parent.
ARTICLE VII
Covenants
---------
SECTION 7.01. Registration Rights. The Parent shall grant to Xxxx
Xxxxxxx and to Xxxx Xxxxxx and/or their affiliates piggyback registration rights
that will permit Messrs. Xxxxxxx and Xxxxxx to include any shares of the Parent
Common Stock held by them in the next registration statement filed by the
Company under the Securities Act following the Closing. The Parent also hereby
assumes, effective as of the Closing, all of the obligations of the Company to
register its capital stock, including, but not limited to, those obligations set
forth in the following Registration Rights Agreements of the Company:
20
(a) Registration Rights Agreement dated November 25, 2003 with
Forele LTD, Inc.;
(b) Registration Rights Agreement dated November 25, 2003 with
The Xxxxxx and Xxxxxxxxx Xxxxxxx Irrevocable Trust;
(c) Registration Rights Agreement dated November 25, 2003 with
Lord & Foursight, LLC;
(d) Registration Rights Agreement dated April 23, 2004 with
Xxxxxxxxx Xxxxxxx, Inc.;
(e) Registration Rights Agreement dated June 30, 2003 with Xxx
Xxxxx, Xxxx X'Xxxx, Xxxxx Xxxxx, Xxxx Xxxx and Xxxxxx X. Xxxx Revocable
Trust U/A/D May 20, 1997;
(f) Registration Rights Agreement dated June 30, 2003 with
Xxxxx Xxxxxxxx Living Trust Dated January 9, 2002;
(g) Registration Rights Agreement dated November 25, 2003 with
FCPR L Capital and the other parties thereto;
(h) Registration Rights Agreement dated March 31, 2004 with
Technology Investment Capital Corp.;
(j) Registration Rights Agreement dated September 1, 2005 with
the holders of Company Series G Preferred Stock and Company Series H
Preferred Stock.
SECTION 7.02. Blue Sky Laws. Parent shall take any action (other than
qualifying to do business in any jurisdiction in which it is not now so
qualified) required to be taken under any applicable state securities laws in
connection with the issuance of Parent securities in connection with this
Agreement.
SECTION 7.03. Public Announcements. Parent and the Company will consult
with each other before issuing, and provide each other the opportunity to review
and comment upon, any press release or other public statements with respect to
the Agreement and the Transactions and shall not issue any such press release or
make any such public statement prior to such consultation, except as may be
required by applicable Law, court process or by obligations pursuant to any
listing agreement with any national securities exchange.
SECTION 7.04. Fees and Expenses. All fees and expenses incurred in
connection with this Agreement shall be paid by the party incurring such fees or
expenses, whether or not this Agreement is consummated; provided, however, that
on or prior to the Closing Date, the Company shall pay the first Fifty Thousand
Dollars ($50,000) in fees and expenses incurred by Parent in connection with
this Agreement and the Transactions.
SECTION 7.05. Continued Efforts. Each party hereto shall use
commercially reasonable efforts to (a) take all action reasonably necessary to
consummate the Transactions,
21
and (b) take such steps and do such acts as may be necessary to keep all of its
representations and warranties true and correct as of the Closing Date with the
same effect as if the same had been made, and this Agreement had been dated, as
of the Closing Date
SECTION 7.06. Conduct of Business. During the period from the date
hereof through the Closing Date, Parent and the Company shall carry on the their
respective businesses in the ordinary and usual course consistent with past
practice.
SECTION 7.07. Certain SEC Filings. As soon as practicable following the
Closing Date, Parent shall, and the Securityholders shall cause the Parent to:
(a) File a Form S-1 Registration Statement with the SEC that
registers for resale, among other securities, the common stock issuable upon
conversion of the Parent Series B Preferred Stock, the Parent Series C Preferred
Stock and the common stock held or issuable to Xxxx Xxxxxxx and Xxxx Xxxxxx;
(b) File, within four days of the Closing Date, a current report on
Form 8-K with the SEC disclosing the terms of this Agreement and including the
requisite audited consolidated financial statements of the Company and the
requisite Form 10 disclosure regarding the Company; and
(c) File a preliminary Schedule 14C Information Statement with the
SEC; mail definitive copies of such Information Statement to the Parent's
stockholders; file definitive copies of such Information Statement with the SEC
and have a majority of the Parent's stockholders approve, among other things (i)
an increase in the authorized Parent Common Stock sufficient to convert all
Parent Preferred Stock into Parent Common Stock pursuant to the applicable
Certificate of Designation for such Parent Preferred Stock which will require
mandatory conversion of the Parent Series B Preferred Stock and the Parent
Series C Preferred Stock at the effective time of such increase in authorized
Parent Common Stock, (ii) a reverse split of the Parent's outstanding Common
Stock, and (iii) a change in the name of the Parent.
SECTION 7.08. Rule 144 Transfers by Xxxxxxx and Xxxxxx. The Company,
the Parent and the Securityholders each agree that they shall accept the opinion
of Xxxxxx Xxxx & Priest LLP regarding any proposed transfer by Xxxx Xxxxxxx or
Xxxx Xxxxxx of restricted securities held by either of them pursuant to Rule 144
and the Company and the Parent shall not take any action to interfere with any
such transfer and shall use commercially reasonable efforts to work with the
Parent's transfer agent and provide such instruction letters or other
documentation as may be required by the Parent's transfer agent to facilitate
any such transfer.
ARTICLE VIII
Miscellaneous
-------------
SECTION 8.01. Notices. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be deemed
given upon receipt by the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
22
If to the Parent, to:
XxxxXxx.Xxx, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx, Xxxx & Priest, LLP
000 Xxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxx X. Xxxxxxxxxx
Facsimile: (000) 000-0000
If to the Securityholders or the Company, to:
Advanced Aesthetics, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx
Facsimile: 203-661-0070
with a copy to:
Xxxxxxxx Xxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
SECTION 8.02. Interpretation; Disclosure Letters. When a reference is
made in this Agreement to a Section, such reference shall be to a Section of
this Agreement unless otherwise indicated. Whenever the words "include",
"includes" or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation".
SECTION 8.03. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule or Law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the Transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
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 to
the end that Transactions contemplated hereby are fulfilled to the extent
possible.
23
SECTION 8.04. Counterparts; Facsimile Execution. This Agreement may be
executed in one or more counterparts, all of which shall be considered one and
the same agreement and shall become effective when one or more counterparts have
been signed by each of the parties and delivered to the other parties. Facsimile
execution and delivery of this Agreement is legal, valid and binding for all
purposes.
SECTION 8.05. Entire Agreement; Third Party Beneficiaries. This
Agreement, taken together with the Company Disclosure Letter and the Parent
Disclosure Letter, (a) constitute the entire agreement, and supersede all prior
agreements and understandings, both written and oral, among the parties with
respect to the Transactions and (b) are not intended to confer upon any person
other than the parties any rights or remedies, provided, however, that with
respect to any covenants contained in Article VII relating to Xxxx Xxxxxxx and
Xxxx Xxxxxx, Messrs. Xxxxxxx and Xxxxxx are intended third party beneficiaries
and are entitled to enforce such covenants as if they were a party to this
Agreement.
SECTION 8.06. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof, except to the extent the laws of Delaware are mandatorily
applicable to the Transactions.
SECTION 8.07. Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned, in whole or in
part, by operation of law or otherwise by any of the parties without the prior
written consent of the other parties. Any purported assignment without such
consent shall be void. Subject to the preceding sentences, this Agreement will
be binding upon, inure to the benefit of, and be enforceable by, the parties and
their respective successors and assigns.
24
EXECUTION COPY
The parties hereto have executed and delivered this Share Exchange
Agreement as of the date first above written.
The Parent:
XXXXXXX.XXX, INC.
By: /s/ Xxxx Xxxxxxx
--------------------------------
Name: Xxxx Xxxxxxx
Title: CEO
The Company: ADVANCED AESTHETICS, INC.
By: Xxxx Xxxxxxx
--------------------------------
Name: Xxxx Xxxxxxx
Title: President
[Securityholder Share Exchange Agreement Signature Pages Follow]
Dated as of:
Securityholder: XXXX & COMPANY, LLC
By: /s/ Xxxx Xxxxxxx, Attorney-in-fact
------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Principal
Address:
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder: SEAPINE INVESTMENTS, LLC
By: /s/ Xxxx Xxxxxxx, Attorney-in-fact
------------------------------------
Name: Xxxxx X. Xxxx
Title: Member
Address:
c/o Kidd & Company, LLC
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder: XXXXXX FAMILY LIMITED PARTNERSHIP
By: /s/ Xxxx Xxxxxxx, Attorney-in-fact
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title:
Address:
c/o Kidd & Company, LLC
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder:
By: /s/ Xxxx Xxxxxxx, Attorney-in-fact
------------------------------------
Xxxxxx X. Xxxxxx
Address:
c/o Kidd & Company, LLC
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder:
By: /s/ Xxxx Xxxxxxx, Attorney-in-fact
------------------------------------
Xxxxxxx Xxxxxxxx
Address:
c/o Kidd & Company, LLC
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder: XXXXXXX FAMILY LIMITED PARTNERSHIP
By: /s/ Xxxx Xxxxxxx, Attorney-in-fact
------------------------------------
Name: Xxxxxx XxXxxxx
Title:
Address:
c/o Kidd & Company, LLC
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder:
By: /s/ Xxxx Xxxxxxx, Attorney-in-fact
------------------------------------
Xxxxxxx Xxxx
Address:
c/o Kidd & Company, LLC
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder: XXXXXXXXX X. XXXX GRANTOR TRUST
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Attorney-in-fact
Address:
c/o Xxxxxx X. Xxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder: XXXX X. XXXX TRUST
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Attorney-in-fact
Address:
c/o Xxxxxx X. Xxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder: XXXXXX X. XXXX TRUST
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Attorney-in-fact
Address:
c/o Xxxxxx X. Xxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder: SAND DOLLAR PARTNERS, L.P.
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Attorney-in-fact
Address:
c/o Xxxxxxx Xxxxxxx
0000 Xxxxxxx xx xxx Xxxxx
Xx Xxxxx, Xxxxxxxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder:
By: /s/ Xxxx Xxxxxxx, Attorney-in-fact
------------------------------------
Xxxxxxx Xxxxxxx
Address:
0000 Xxxxxxx xx xxx Xxxxx
Xx Xxxxx, Xxxxxxxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder:
By: /s/ Xxxx Xxxxxxx, Attorney-in-fact
------------------------------------
Xxxxxxxx Xxxxxx
Address:
c/o Kidd & Company, LLC
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder:
By: /s/ Xxxx Xxxxxxx, Attorney-in-fact
------------------------------------
Xxxxxx Xxxxxxxx
Address:
c/o Kidd & Company, LLC
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder:
By: /s/ Xxxx Xxxxxxx, Attorney-in-fact
------------------------------------
Xxxxxxx Xxxxx
Address:
c/o Kidd & Company, LLC
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder:
By: /s/ Xxxx Xxxxxxx, Attorney-in-fact
------------------------------------
Xxxxxx X. Xxxxxxx, Xx.
Address:
X.X. Xxx 000
Xxxxxxx, XX 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder:
By: /s/ Xxxx Xxxxxxx, Attorney-in-fact
------------------------------------
Xxxxxxxx Xxxxxx
Address:
c/o Kidd & Company, LLC
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder:
By: /s/ Xxxx Xxxxxxx, Attorney-in-fact
------------------------------------
Xxx Xxxxx
Address:
0000 Xxxxx Xxxxx Xxxxxxxxx, 000X
Xxxx Xxxxx, Xxxxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder:
By: /s/ Xxxx Xxxxxxx, Attorney-in-fact
------------------------------------
Xxxx Xxxxxx
Address:
0000 Xxxxxx Xxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder:
By: /s/ Xxxx Xxxxxxx, Attorney-in-fact
------------------------------------
Xxxxx Xxxxxxx
Address:
0000 Xxxxxxx XxxXxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder:
By: /s/ Xxxx Xxxxxxx, Attorney-in-fact
------------------------------------
Xxxxxx Xxxxx
Address:
c/o Credit Suisse First Boston
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder:
By: /s/ Xxxx Xxxxxxx, Attorney-in-fact
------------------------------------
Xxx Xxxxx
Address:
0000 Xxxxxx Xxxxx Xxxx
Xxxxx, Xxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder: XXXXXX X. XXXX REVOCABLE TRUST
U/A/D MAY 20, 1997
By: /s/ Xxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx
Title: Attorney-in-fact
Address:
0000 Xxxxxxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder:
By: /s/ Xxxx Xxxxxxx, Attorney-in-fact
----------------------------------
Xxxx Xxxx
Address:
00000 Xxxxx Xxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder: XXXXX XXXXXXXX LIVING TRUST
DATED JULY 9, 2002
By: /s/ Xxxxx Xxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxx
Title: President
Address:
c/o Xxxxx Xxxxxxxx
0000 Xxxxx Xxxxx Xxxxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder: L CAPITAL MANAGEMENT
By: /s/ Xxxxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Director
Address:
00 xxx Xxxxxxxx 0xx
00000 Xxxxx Xxxxxx
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder: FORELE, LTD.
By: /s/ Xxxx Xxxxxxx
--------------------------
Name: Xxxx Xxxxxxx
Title: Attorney-in-fact
Address:
0000 XXX Xxxxxxxxx
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder: LORD & FOURSIGHT, LLC
By: /s/ Xxxx Xxxxxxx
--------------------------
Name: Xxxx Xxxxxxx
Title: Attorney-in-fact
Address:
0000 XXX Xxxxxxxxx
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder:
By: /s/ Xxxx Xxxxxxx, Attorney-in-fact
----------------------------------
Xxxxxx Xxxx Xxxx
Address:
c/o The Xxxx Group
0000 Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder:
By: /s/ Xxxx Xxxxxxx, Attorney-in-fact
----------------------------------
Xxxxxx X. Xxxx
Address:
c/o The Xxxx Group
0000 Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder:
By: /s/ Xxxx Xxxxxxx, Attorney-in-fact
----------------------------------
Xxxx X'Xxxx
Address:
000 Xxxxxx Xxxxxx, Xxx. #0
Xxxxxx, Xxxxxxxxxxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder: TECHNOLOGY INVESTMENT CAPITAL CORP.
By: /s/ Xxxx Xxxxxxx
-------------------------------
Name: Xxxx Xxxxxxx
Title: Attorney-in-fact
Address:
0 Xxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder: PEQUOT MARINER MASTER FUND, L.P.
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxxx
Title: CFO
Address:
c/o Pequot Capital Management
000 Xxxxx Xxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder: PREMIUM SERIES PCC LIMITED-CELL 32
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Attorney and Agent-in-Fact
Address:
c/o Pequot Capital Management
000 Xxxxx Xxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder: PEQUOT HEALTHCARE FUND, L.P.
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxxx
Title: CFO
Address:
c/o Pequot Capital Management
000 Xxxxx Xxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder: PEQUOT HEALTHCARE OFFSHORE FUND, INC.
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxxx
Title: CFO
Address:
c/o Pequot Capital Management
000 Xxxxx Xxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder: PEQUOT SCOUT FUND, L.P.
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxxx
Title: CFO
Address:
c/o Pequot Capital Management
000 Xxxxx Xxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder: PEQUOT NAVIGATOR OFFSHORE FUND, L.P.
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxxx
Title: CFO
Address:
c/o Pequot Capital Management
000 Xxxxx Xxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder:
PEQUOT DIVERSIFIED MASTER FUND, LTD.
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxxx
Title: CFO
Address:
c/o Pequot Capital Management
000 Xxxxx Xxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder:
PEQUOT HEALTHCARE INSTITUTIONAL FUND, L.P.
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxxx
Title: CFO
Address:
c/o Pequot Capital Management
000 Xxxxx Xxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder: PREMIUM SERIES PCC LIMITED-CELL 33
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Attorney and Agent-in-fact
Address:
c/o Pequot Capital Management
000 Xxxxx Xxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder: BALLYSHANNON FAMILY PARTNERSHIP, LP
By: /s/ Xxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx
Title: Attorney-in-fact
Address:
Attn: Xxxxx Xxxxxx
000 Xxxx Xxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder:
BALLYSHANNON PARTNERS, LP
By: /s/ Xxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx
Title: Attorney-in-fact
Address:
Attn: Xxxxx Xxxxxx
000 Xxxx Xxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder: CABERNET PARTNERS, LP
By: /s/ Xxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx
Title: Attorney-in-fact
Address:
000 Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder: NORTHWOOD CAPITAL PARTNERS, LP
By: /s/ Xxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx
Title: Attorney-in-fact
Address:
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxx xx Xxxxxxx, Xxxxxxxxxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder:
/s/ Xxxx Xxxxxxx, Attorney-in-fact
----------------------------------
Xxxxxx Xxxxxx
Address:
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder: GGCP, INC.
By: /s/ Xxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx
Title: Attorney-in-fact
Address:
Gabelli Group Cap Partners
Attn: Xxxxx Xxxxxxx, CFO
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder:
/s/ Xxxx Xxxxxxx, Attorney-in-fact
----------------------------------
Xxx X. Xxxx
Address:
c/o Emerging Growth Equities
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxx xx Xxxxxxx, Xxxxxxxxxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder:
LAGUNITAS PARTNERS, LP
By: /s/ Xxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx
Title: Attorney-in-fact
Address:
c/o Gruber and McBaine Capital Management LLC
00 Xxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
(Signature Page to Share Exchange Agreement)
Dated as of:
Securityholder:
FIREFLY PARTNERS, LP
By: /s/ Xxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx
Title: Attorney-in-fact
Address:
c/o Gruber and McBaine Capital Management LLC
00 Xxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Dated as of:
Securityholder: XXXXXX AND MCBAINE INTERNATIONAL
By: /s/ Xxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx
Title: Attorney-in-fact
Address:
c/o Gruber and XxXxxxx Capital Management LLC
00 Xxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
52
Dated as of:
Securityholder:
XXXX X. AND XXXXX XXXXXX TRUST
By: /s/ Xxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx
Title: Attorney-in-fact
Address:
c/o Gruber and McBaine Capital Management LLC
00 Xxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
53
Dated as of:
Securityholder:
By: /s/ Xxxx Xxxxxxx, Attorney-in-fact
----------------------------------
X. Xxxxxxxxx XxXxxxx
Address:
c/o Gruber and McBaine Capital Management LLC
00 Xxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
EXHIBIT A
---------
Shareholders of Advanced Aesthetics, Inc.
EXHIBIT B
---------
Form of Accounting Firm Consent Letter
(See Attached)
