EXHIBIT 2.4
SHARE EXCHANGE AGREEMENT
THIS SHARE EXCHANGE AGREEMENT ("Agreement') made this 12th day of April
2005, by and between Medical Makeover Corporation of America, Inc., a Delaware
corporation, (the "Parent"), Aventura Makeover Corporation ("Aventura"),
Aventura Electrolysis and Skin Care Center, Inc,, a Florida corporation,
("Aventura Laser") and the individuals listed in Exhibit A attached hereto, (the
"Shareholders"), which Shareholders own of all the issued and outstanding shares
of Aventura Laser. Parent, Aventura, Shareholders and Aventura Laser being
sometimes hereinafter collectively referred to as the "Parties" or generically
as a "Party").
Preamble:
WHEREAS, the respective boards of directors of Parent, Aventura and
Aventura Laser believe it is in the best interests of each Party and their
respective stockholders that Aventura Laser becomes a wholly owned subsidiary of
Aventura and, in furtherance thereof, have approved this transaction; and
WHEREAS, Aventura is a wholly-owned subsidiary of Parent; and
WHEREAS, pursuant to the terms of this transaction, as hereinafter set
forth, among other things, all of the issued and outstanding securities of
Aventura Laser will be acquired by Aventura and exchanged for One Hundred
Thousand (100,000) shares of Parent's common stock, $0.001 par value ("Parent's
common stock") and a cash payment of one hundred twenty five thousand dollars
($125,000.00) payable pursuant to Section 1 below; and
WHEREAS, the Parties have mutually agreed to make certain representations
and warranties and other agreements in connection with this transaction and
their subsequent operating and business relationships; and
NOW, THEREFORE, in consideration of the covenants, promises and
representations set forth herein, and for other good and valuable consideration
the sufficiency of which is acknowledged, the Parties, intending to be legally
bound, hereby agree as follows:
1. EXCHANGE OF SECURITIES AND OTHER CONSIDERATION Subject to the terms and
conditions of this Agreement, the Parent agrees to issue to Shareholders One
Hundred Thousand (100,000) shares of the Parent's common stock, $0.001 par value
("Parent's common stock") and cash payments totaling one hundred twenty five
thousand dollars ($125,000.00) as set forth below, in exchange for Aventura
acquiring One Hundred (100) shares of Aventura Laser, representing 100% of the
issued and outstanding shares of Aventura Laser ("Aventura Laser's Stock"), such
that Aventura Laser shall become a wholly owned subsidiary of Aventura. The
schedule for payments under this provision is as follows:
i. Aventura and Parent will pay Shareholders forty thousand dollars
($40,000.00) upon the Closing Date;
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ii. Aventura will pay Shareholders ten thousand dollars ($10,000.00)
90 days after the Closing Date;
iii. Aventura will pay Shareholders twenty five thousand dollars
($25,000.00) 6 months after the Closing Date;
iv. Aventura will pay Shareholders twenty five thousand dollars
($25,000.00) 1 year after the Closing Date; and
v. Aventura will pay Shareholders twenty five thousand dollars
($25,000.00) 15 months after the Closing Date.
In the event Aventura Makeover or Parent fails or refuses for any reason to
make any one or more of the installment payments when due hereunder, or within
30 days thereafter, time being of the essence hereof, all monies due hereunder
shall be due and payable immediately without notice or demand. In addition in
the event Aventura or Parent fails or refuses for any reason to make any one or
more of the payments due under the equipment lease agreement within five (5)
days after same is due, time being of the essence or, in the event Aventura or
Parent fails or refuses for any reason to make payments pursuant to the
Employment Agreement entered into with Aventura Laser or Xxxxxx Xxxxxx when due,
time being of the essence, any and all future installment payments due hereunder
shall become due and payable immediately without notice or demand. These
agreements have been executed simultaneously with this and in consideration of
the parties executing this Agreement.
2. Excluded Inventory. Shareholders shall be entitled to sell and receive
the net sales proceeds from the sales of the Aventura Laser's current inventory,
a list of the inventory is attached hereto as Schedule 2. The Parties agree that
all future inventory of Aventura Laser and the proceeds therefrom shall belong
to Aventura Laser.
3. LASER MACHINE. The parties acknowledge that the laser hair Removal
machine described as Syneron Aurora ("Laser Machine") was purchased by Aventura
Laser utilizing the credit of Aventura Laser, Shareholder and other parties
through an outstanding loan with Wachovia Bank. The Laser Machine may be
collateralized in connection with such loan along with other collateral of
Shareholder and other parties. The loan is in the name of Aventura Laser and
guaranteed by other parties. The parties hereto agree that Aventura Laser shall
continue to utilize the Laser Machine in its business pursuant to an equipment
lease agreement ("Equipment Lease Agreement") to be agreed upon and entered into
simultaneous with this Agreement which will provide for monthly payments equal
to the outstanding monthly loan amount plus sales tax and for maintenance and
maintenance agreements covering the Laser Machine. The Laser Machine owned and
previously used in connection with the business of Aventura Laser is
specifically excluded from the assets owned by Aventura Laser which is subject
to this Agreement and exchange of stock. The parties acknowledge and agree that
the Laser Machine shall be deemed transferred to Shareholder or an entity
designated by Shareholder prior to the closing of this transaction and Aventura,
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Parent, and Aventura Laser have paid no money and or given no consideration for
the Laser Machine. Parent, Aventura and Aventura Laser shall enter into a
separate Equipment Lease Agreement regarding the Laser Machine. In the event of
any default under the Equipment Lease Agreement, for any reason whatsoever, same
shall be deemed a breach and default pursuant to this Agreement and the
Employment Agreement of even date herewith. In addition, the parties
specifically acknowledge and agree that in connection with the transfer of the
Laser Machine from Aventura Laser, Xxxxxx Xxxxxx and her designee shall continue
to pay the monthly loan payments due Wachovia Bank under the loan agreement in
connection with the Laser Machine.
4. PARENT REPRESENTATIONS AND WARRANTIES. Parent represents and warrants to
Shareholders and Aventura Laser the following:
A. Organization, Standing and Power. Parent is a corporation duly
organized, validly existing, and in good standing under the laws of
Florida, and has all necessary corporate powers to own properties and carry
on a business, and is duly qualified to do business and is in good standing
in Florida. A true and correct copy of its articles of incorporation and
bylaws, as amended to date, are available at the Security and Exchange
Commission's ("SEC") web site in the XXXXX archives, filed as exhibits to
the report on Form 10-KSB for the year ended 2004, and any future
modifications thereof will be filed with the Commission and will also be
available at such site.
B. Capital. The authorized capital stock of Parent consists of
200,000,000 shares of common stock, $0.0001 par value, of which 46,996,913
are issued and outstanding, and 10,000,000 shares of preferred stock,
$0.0001 par value, none of which are issued. All outstanding shares are
fully paid and non-assessable, free of liens, encumbrances, options,
restrictions and legal or equitable rights of others not a party to this
Agreement.
C. Financial Statements. The Parent's Financial Statements comply as
to form in all Material respects with applicable accounting requirements
and with the published rules and regulations of the Securities and Exchange
Commission ("SEC") with respect thereto, have been prepared in accordance
with generally accepted accounting principles ("GAAP") and fairly present
the consolidated financial position of Parent at the date thereof and of
its operations and cash flows for the period then ended, subject to normal
year end audit adjustments. There has been no change in Parent's accounting
policies or estimates except as described in the notes to Parent's
financial statements. Since the date of the financial statements, there has
not been any change in the financial condition or operations of Parent,
except changes in the ordinary course of business, which changes have not
in the aggregate been materially adverse.
D. Ability to Carry Out Obligations. Parent has the right, power, and
authority to enter into and perform its obligations under this Agreement.
The execution and delivery of this Agreement by Parent and the performance
by Parent of its obligations hereunder will not cause, constitute, or
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conflict with or result in (a) any breach or violation or any of the
provisions of or constitute a default under any license, indenture,
mortgage, charter, instrument, articles of incorporation, bylaw, or other
agreement or instrument to which Parent is a party, or by which it may be
bound, nor will any consents or authorizations of any party other than
those hereto be required, (b) an event that would cause Parent to be liable
to any party, or (c) an event that would result in the creation or
imposition or any lien, charge or encumbrance on any asset of Parent or
upon the securities of Parent to be acquired by the Shareholder.
E. Full Disclosure. None of the representations and warranties made by
the Parent contains or will contain any untrue statement of a material
fact, or omit any material fact the omission of which would be misleading.
F. Conduct of Business. Prior to the closing, Parent shall conduct its
business in the normal course.
G. Title. The Parent's Shares to be issued to the Shareholders will
be, at closing, free and clear of all liens, security interests, pledges,
charges, claims, encumbrances. The stock shall not be restricted and will
be freely traded stock fifteen (15) months from the date of this agreement
and in accordance with federal and state securities law requirements and
specifically Rule 144 of the federal securities rules and regulations. None
of such Parent's Stock is or will be subject to any voting trust or
agreement. There is no applicable local, state or federal law, rule,
regulation, or decree which would, as a result of the issuance of the
Parent's Stock to Shareholders, impair, restrict or delay Shareholders'
voting rights with respect to the Parent's Stock.
5. SHAREHOLDERS and Aventura Laser REPRESENTATIONS AND WARRANTIES.
Shareholders and Aventura Laser represent and warrant to Parent and Aventura the
following:
A. Organization. Aventura Laser is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Florida. Aventura Laser has the corporate power to own its property and to
carry on its business as now being conducted and as proposed to be
conducted by Aventura Laser. Aventura Laser has delivered or made available
a true and correct copy of its articles of incorporation and bylaws (or
similar governing instruments), each as amended to date, to counsel for
Parent.
B. Capital Structure. The authorized Capital Stock of Aventura Laser
consists of seven thousand five hundred (7,500) shares of common stock,
$0.001 par value, and zero (0) shares of preferred stock. There are five
thousand (5,000) shares of Aventura Laser common stock and zero (0) shares
of Aventura Laser preferred stock issued and outstanding, held by the
persons, and in the amounts, set forth on Schedule A. All issued and
outstanding shares of Aventura Laser common stock are duly authorized,
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validly issued, fully paid and non-assessable and not subject to preemptive
rights created by statute, the articles of incorporation or bylaws of
Aventura Laser or any agreement to which Aventura Laser is a party or is
bound. Aventura Laser has no other outstanding securities or securities
reserved for issuance for any purpose, there being no other obligations
directly or indirectly obligating Aventura Laser to issue any of its
securities to any person for any purpose; and there are no other options,
warrants, calls, rights, commitments or agreements of any character to
which Aventura Laser is a party or by which it is bound obligating Aventura
Laser to issue, deliver, sell, repurchase or redeem, or cause to be issued,
delivered, sold, repurchased or redeemed, any shares of the Aventura Laser
Capital Stock or obligating Aventura Laser to grant, extend or enter into
any such option, warrant, call, right, commitment or agreement.
C. Subsidiaries. Aventura Laser does not have any subsidiaries, and
does not otherwise own any shares of stock or any interest in, or control,
directly or indirectly, any other corporation, partnership, association,
joint venture or business entity.
D. Authority. Aventura Laser has all requisite corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of Aventura Laser.
E. No Conflict. The execution and delivery of this Agreement by
Aventura Laser does not, and the consummation of the transactions
contemplated hereby will not, conflict with, or result in any violation of,
or default under (with or without notice or lapse of time, or both), or
give rise to a right of termination, cancellation or acceleration of any
obligation or loss of a material benefit under (i) any provision of the
articles of incorporation or bylaws of Aventura Laser or (ii) any material
mortgage, indenture, lease, contract or other agreement or instrument,
permit, concession, franchise, license, judgment, order, decree, statute,
law, ordinance, rule or regulation applicable to Aventura Laser or its
properties or assets.
F. Governmental Consent. No consent, approval, order or authorization
of, or registration, declaration or filing with, any court, administrative
agency or commission or other governmental authority or instrumentality
("Governmental Entity"), is required by or with respect to Aventura Laser
in connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby, except for such
consents, approvals, orders, authorizations, registrations, declarations
and filings as may be required under applicable state and federal
securities laws.
G. Financial Statements. Aventura Laser's financial statements for the
fiscal year ended December 31, 2003, attached as Schedule 5(G) are complete
and correct in all material respects and have been prepared in accordance
GAAP throughout the periods indicated. Aventura Laser shall have its
financial statements for the fiscal year ended December 31, 2004 prepared
at its earliest convenience but no later than sixty (60) days from the
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closing of this transaction and the return of bank statements and documents
to Aventura Laser for delivery to accountant. Aventura Laser's financial
statements have been reviewed by the Parent. The Parent believes the
financial records represent the financial condition and operating results
of Aventura Laser as of the dates and during the periods indicated therein,
subject to normal year-end audit adjustments, which will not be material in
the aggregate. Aventura Laser's financial statements comply with the
requirements for material acquisitions under SEC Regulation S-B and in a
manner permitting Parent to comply with its obligation under the Securities
Act and the Exchange Act in conjunction therewith and Parent accepts such
financials. The Parent shall be responsible for, and pay in order to have
the financial records of Aventura Laser become compliant with SEC
requirements. The understanding between the parties is that the Parent is
responsible for cost of preparing documents and information for submission
to the SEC, but will not assume liability for any obligation Aventura Laser
may have for prior year taxes, fines or penalties, relating to IRS claims
only and not SEC matters.
H. No Undisclosed Liabilities. To the best of its knowledge, Aventura
Laser represents and warrants that it does not have any material
liabilities or obligations, either accrued or contingent (whether or not
required to be reflected in financial statements in accordance with
generally accepted accounting principles), and whether due or to become
due, which individually or in the aggregate (i) have not been reflected in
Aventura Laser's balance sheet (including the notes thereto) or (ii) have
not been specifically described in this Agreement such as the ordinary
current liabilities, bills and expenses which are due in connection with
the normal operation of the business which have been disclosed and shall be
paid by Aventura Laser as same become due.
I. Title of Properties, Absence of Liens and Encumbrances & Condition
of Equipment. Schedule 5(I) sets forth a true and complete list of all real
property owned and leased by Aventura Laser and the aggregate annual
mortgage, rental or other fee payable therefor or under any such lease. All
deeds, titles, leases and mortgages are in good standing, valid and
effective in accordance with their respective terms, and there is not with
respect to Aventura Laser under any of such deeds, titles, leases or
mortgages, any existing default or event of default (or event which with
notice or lapse of time, or both, would constitute a default and with
respect to which Aventura Laser has not taken adequate steps to prevent
such default from occurring). Aventura Laser each holds good and valid
title to, or, in the case of leased properties and assets, valid leasehold
interests in, all of its tangible properties and assets, real, personal and
mixed, used in its business, free and clear of any liens, charges, pledges,
security interests or other encumbrances, except as reflected in Aventura
Laser's financial statements. The personal property owned or leased by
Aventura Laser are listed in Schedule 5(I) (the "Equipment"), except
individual pieces of equipment owned by Aventura Laser with an individual
value of less than $100. The Equipment is, taken as a whole, in good
operating condition and regularly and properly maintained, reasonable wear
and tear excepted. The Parent has had the opportunity to fully inspect the
assets and equipment and as such, the equipment and assets owned by
Aventura Laser is accepted in as is, where is condition.
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J. Litigation. To its knowledge, Aventura Laser does not have any
suits, actions, legal, administrative, arbitration or other proceedings or
governmental investigations or any other claims, pending or threatened or
which Aventura Laser expects will ultimately be threatened or commenced.
K. Minute Books. The minute book of Aventura Laser have been provided
or made available to Parent which contains a complete and accurate summary
of all meetings of directors and stockholders since the time of
incorporation of Aventura Laser, and reflect all transactions referred to
in such minutes accurately in all material respects.
L. Regulation SB Disclosure Document. The information supplied by
Aventura Laser responding to each Item in SEC Regulation S-B (other than
Items 201, 501, 502, 506, 512 and, to the extent of audit requirements,
Item 310) annexed hereto as Exhibit 2.11 (the "Regulation S-B Disclosure
Documents"), part of which must be included in a current report on
Commission Form 8-K to be filed by Parent within four (4) days after the
Closing Date, as well as in all other reports which Parent files thereafter
pursuant to the Exchange Act, will not contain any statement which, at such
time and in light of the circumstances under which it is made, is false or
misleading with respect to any Material fact, or will omit to state any
Material fact necessary in order to make the statements made therein not
false or misleading or omit to state any material fact necessary to correct
any statement which has become false or misleading. The costs of
preparation of information in order to comply with applicable laws subject
to this provision will be borne by the Parent. If asked, Aventura Laser
agrees to assist in document preparation or producing documents or
information needed by the Parent in order to comply.
6. INVESTMENT INTENT. The Shareholders hereby represent and warrant that
he, she or it:
A. Has had access through the SEC's Internet web site at xxx.xxx.xxx,
in the XXXXX Archives sub-cite, to all of Parent's reports filed with the
SEC during the past two fiscal years, has reviewed all such reports and
has, either directly or through a representative, been granted access to
all of Parent's officers and directors, and to all officers and directors
of Parent's operating subsidiaries, for purposes of providing all
disclosure required under applicable federal and state securities laws in
conjunction with the exchange contemplated by this Agreement;
B. Has been advised that: (1) The securities to be issued to them by
Parent in exchange for their shares of Aventura Laser's Stock have not been
registered under the Securities Act, the Exchange Act or any comparable
state securities laws, but rather are being issued in reliance on the
exemption from registration under the Securities Act provided by Section
4(2) thereof; (2) All certificates for their Parent's Stock will bear
legends restricting any transactions therein, directly or indirectly,
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unless the Parent's Stock are first registered under applicable federal and
state securities laws or the proposed transaction is exempt from such
registration requirements, and such facts are demonstrated to the
satisfaction of Parent and its legal counsel, based on such third party
legal opinions, affidavits and transfer agency procedures as Parent will
reasonably require; and (3) Parent's transfer agent has been instructed to
decline transfers of certificates for their shares of Parent's common
stock, unless the foregoing requirements have been met and have been
confirmed as having been met by a duly authorized officer of Parent. The
shares will become unrestricted and freely traded shares following the
successful completion of the terms of this agreement, fifteen (15) months
from the date executed by the parties.
7. CONDITIONS TO CLOSING. During the period from the date of this Agreement
and continuing until the earlier of the termination of this Agreement or the
Closing, as the case may be, the Parties agree (except to the extent that the
Parties will otherwise consent in writing), that they will promptly notify the
other of any event or occurrence or emergency which is not in the ordinary
course of business and which is Material and adverse to the business of the
respective Parties.
8. CLOSING. The closing date and time of this transaction will be the date
and time on which the closing of this Agreement is consummated, which shall, in
any event, take place on or before March 31, 2005 ("Closing Date"), unless the
Parties agree in writing to further extend the Closing Date.
A. At the Closing the Parties will exchange all closing documentation,
certificates, resolutions, exhibits, schedules and opinions called for by
this Agreement, and
B. All of Aventura Laser's Stock will be exchanged for the Parent's
Stock, as specified above; provided that delivery of the certificates for
the shares of Parent's Stock will be made directly to the Shareholder by
the Parent's stock transfer agent as soon as practicable after the Closing.
9. DOCUMENTS TO BE DELIVERED AT CLOSING.
A. By the Parent and Aventura
(i) Board of Directors Minutes authorizing the issuance of a
certificate or certificates for 100,000 Parent's Shares, registered in
the names of the Shareholders based upon their holdings in Aventura
Laser as agreed to on Exhibit A.
(ii) Board of Directors Minutes of Parent and Aventura respectively
authorizing the transaction and this Agreement.
(iii) A check made payable to Shareholders in the amount of Forty
Thousand dollars ($40,000).
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B. By the Shareholder and Aventura Laser
(i) Delivery to Parent, or to its Transfer Agent, the certificates
representing 100% of the issued and outstanding stock of Aventura
Laser.
(ii) Consents signed by all the shareholders of Aventura Laser
consenting to the terms of this Agreement.
(iii) Financial statements in form and substance, which has already
been delivered, reviewed and accepted by Parent and Aventura, and
prepared in accordance with, rules and regulations of the SEC and
meeting the filing requirements for a transaction of this type.
(iv) All of the business and corporate records of Aventura Laser,
including but not limited to correspondence files, bank statements,
checkbooks, savings account books, minutes of shareholder and
directors meetings, financial statements, shareholder listings, stock
transfer records, agreements and contracts.
10. ARBITRATION. Any controversy or claim arising out of, or relating to,
this Agreement, or the making, performance, or interpretation thereof, shall be
settled by arbitration in Dade County, Florida in accordance with the Rules of
the American Arbitration Association then existing, and judgment on the
arbitration award may be entered in any court having jurisdiction over the
subject matter of the controversy.
11. Termination, Amendment and Waiver
A. Termination. This Agreement may be terminated and this transaction
abandoned at any time prior to the Closing Date, as follows:
(i) By mutual consent of the Parties.
(ii) By the non-breaching Party if it is not in Material breach of its
obligations under this Agreement and there has been a Material breach
of any representation, warranty, covenant or agreement contained in
this Agreement on the part of a breaching Party and such breach has
not been cured within 10 days after notice to the breaching Party.
(iii) By any Party if: the Closing has not occurred by March 31, 2005;
there is an order of a federal or state court in effect preventing
consummation of the transaction; or there will be any action taken, or
any statute, rule, regulation or order enacted, promulgated or issued
or deemed applicable to the transaction by any Governmental Entity
which would make consummation of the transaction illegal.
(iv) Where action is taken to terminate this Agreement pursuant to
this Section 11, it will be sufficient for such action to be
authorized by the board of directors (as applicable) of the Party
taking such action.
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(v.) In the event Parent, Aventura or Aventura Laser (Aventura Laser
after execution of this Agreement only) fails or refuses to comply
with this Agreement or the related Equipment Lease Agreement or
employment agreement entered into by Parent, Aventura, Aventura Laser
or Xxxxxx Xxxxxx as applicable, for any reason, then in that event,
same shall be deemed a material default of all the agreements.Aventura
Laser may, on 30-days written notice, declare this agreement, or the
assignment of lease agreement or employment agreement, null and void.
B. Effect of Termination. In the event of termination of this
Agreement as provided in Section 11, this Agreement will immediately become
null and void and there will be no liability or obligation on the part of
any Party or their respective officers, directors or stockholders, except
if such termination results from the breach by a Party of any of its
representations, warranties, covenants or agreements set forth in this
Agreement.
C. Amendment. This Agreement may be amended by the Parties at any time
before or after approval of matters presented in connection with the
Closing by the stockholders of those Parties required by applicable law to
so approve but, after any such stockholder approval, no amendment will be
made which by law requires the further approval of stockholders of a party
without obtaining such further approval. This Agreement may not be amended
except by an instrument in writing signed on behalf of each of the Parties.
D. Extension & Waiver. At any time prior to the Closing any Party may,
to the extent legally allowed: (1) extend the time for the performance of
any of the obligations or other acts of the other Parties; (2) waive any
inaccuracies in the representations and warranties made to such party
contained herein or in any document delivered pursuant hereto; or (3) waive
compliance with any of the agreements or conditions for the benefit of such
Party contained herein. Any agreement on the part of a Party to any such
extension or waiver will be valid only if set forth in an instrument in
writing signed on behalf of such Party.
12. Additional Agreements.
A. Report on Form 8-K.
(i) Within four (4) days following the Closing Date, Parent, with the
assistance and cooperation of Aventura Laser's current officers,
auditors, employees and legal counsel, will prepare and file with the
SEC a current report on Commission Form 8-K (the "8-K Report")
disclosing the transaction and containing information concerning
Aventura Laser required by SEC Regulation S-B. The cost of preparation
of this information will be borne by Parent, and Aventura Laser agrees
to cooperate, provide information as requested and instruct third
parties to cooperate with Parent in preparation of required reports
and information.
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(ii) The Parties will use their best efforts to secure the SEC's
acceptance of Aventura Laser's financial statements, as complying with
the requirements of Regulation S-B, and Aventura Laser will make any
modifications to its financial statements suggested by the SEC
provided same does not increase any tax liabilities; and, if required,
will use reasonable efforts to secure from the SEC required extensions
of time in which to provide materials complying with SEC Regulation
S-B, if necessary, at the cost of Parent and Aventura.
B. Consent of Aventura Laser's Shareholders. Because each Aventura
Laser Shareholder has independently made the decision to exchange all of
his, her or its Aventura Laser Stock for Parent's Stock, no formal
stockholder action by Aventura Laser will be required in conjunction with
authorization of this Agreement or the Closing; however, each Aventura
Laser Shareholder must have become a party to this Agreement.
C. Access to Information. Aventura Laser will afford Parent and its
accountants, counsel and other representatives, reasonable access during
normal business hours during the period prior to the Closing to all of its
properties, books, contracts, commitments, internal financial statements
and records; and other information concerning the business, properties and
personnel of Aventura Laser as Parent may reasonably request.
D. Confidentiality.
(i) From the date hereof to and including the Closing Date, the
Parties will maintain, and cause their directors, employees, agents
and advisors to maintain, in confidence and not disclose or use for
any purpose, except the evaluation of the transactions contemplated
hereby and the accuracy of the respective representations and
warranties of the Parties contained herein, information concerning the
other Parties and obtained directly or indirectly from such Parties,
or their directors, employees, agents or advisors, or as was in the
possession of such Party prior to obtaining such information from such
other Party as to which the fact of prior possession such possessing
Party will have the burden of proof and such information as is or
becomes:
(1) Available to the non-disclosing Party from third parties not
subject to an undertaking of confidentiality or secrecy;
(2) Generally available to the public other than as a result of
a breach by the non-disclosing party hereunder; or
(3) Required to be disclosed under applicable law.
(ii) In the event that the transactions contemplated hereby will not
be consummated, all such information which will be in writing will be
returned to the Party furnishing the same, including to the extent
reasonably practicable, copies or reproductions thereof which may have
been prepared.
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E. Expenses. Whether or not the transaction is consummated, all
expenses incurred in connection with the transaction and this Agreement
will be the sole obligation of the Party incurring such expenses.
F. Public Disclosure. Unless otherwise required by law, prior to the
Closing Date no disclosure (whether or not in response to an inquiry) of
the subject matter of this Agreement will be made by any Party unless
approved by all Parties prior to release, provided that such approval will
not be unnecessarily withheld, subject, in the case of Parent, to Parent's
obligation to comply with applicable securities laws.
G. Legal Requirements. The Parties will take all reasonable actions
necessary to comply promptly with all legal requirements which may be
imposed on them with respect to the consummation of the transactions
contemplated by this Agreement and will promptly cooperate with and furnish
information to any Party in connection with any such requirements imposed
upon such other Party in connection with the consummation of the
transactions contemplated by this Agreement and will take all reasonable
actions necessary to obtain (and will cooperate with the other Parties in
obtaining) any consent, approval, order or authorization of, or any
registration, declaration or filing with, any Governmental Entity or other
person, required to be obtained or made in connection with the taking of
any action contemplated by this Agreement. The cost of compliance under
this provision will be at the expense of the Parent, with the understanding
that the Parent will not assume responsibility for prior obligations of
Aventura Laser and that Aventura Laser agrees to cooperate in the
production of documents and information needed by the Parent to comply.
13. Miscellaneous.
A. Interpretation. When a reference is made in this Agreement to
Schedules or Exhibits, such reference will be to a Schedule or Exhibit to
this Agreement unless otherwise indicated. The words "include," "includes"
and "including" when used herein will be deemed in each case to be followed
by the words "without limitation." The headings contained in this Agreement
are for reference purposes only and will not affect in any way the meaning
or interpretation of this Agreement. The captions in this Agreement are for
convenience and reference only and in no way define, describe, extend or
limit the scope of this Agreement or the intent of any provisions hereof.
All pronouns and any variations thereof will be deemed to refer to the
masculine, feminine, neuter, singular or plural, as the identity of the
Party or Parties, or their personal representatives, successors and assigns
may require. The Parties agree that they have been represented by counsel
during the negotiation and execution of this Agreement (or waive its right
to such representation) and, therefore, waive the application of any law,
regulation, holding or rule of construction providing that ambiguities in
an agreement or other document will be construed against the party drafting
such agreement or document.
B. Non Waiver. Except as otherwise provided herein, This Agreement and
any provision hereof, may not be waived, changed, modified, or discharged
orally Unless expressly in writing and signed by the party against whom
12
such change or waiver is charged; and (i) the failure of any party to
insist in any one or more cases upon the performance of any of the
provisions, covenants, or conditions of this Agreement or to exercise any
option herein contained shall not be construed as a waiver or
relinquishment for the future of any such provisions, covenants, or
conditions, (ii) the acceptance of performance of anything required by this
Agreement to be performed with knowledge of the breach or failure of a
covenant, condition, or provision hereof shall not be deemed a waiver of
such breach or failure, and (iii) no waiver by any party of one breach by
another party shall be construed as a waiver with respect to any other or
subsequent breach.
C. Time of Essence. Time is of the essence of this Agreement and of
each and every provision hereof.
D. Entire Agreement.This Agreement contains the entire Agreement and
understanding between the parties hereto, and supersedes all prior
agreements and understandings.
E. Counterparts. This Agreement may be executed simultaneously in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. Execution by
exchange of facsimile transmission will be deemed legally sufficient to
bind the signatory; however, the Parties will, for aesthetic purposes,
prepare a fully executed original version of this Agreement which will be
the document filed with the Commission.
F. Notices. All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be deemed to have been
duly given on the date of service if served personally on the party to whom
notice is to be given, or on the third day after mailing if mailed to the
party to whom notice is to be given, by first class mail, registered or
certified, postage prepaid, and properly addressed, and by fax, as follows:
Parent & Aventura: Medical Makeover Corporation of America, Inc.
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
COPY TO: Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxx, Xxxxxxx & Xxxxx, LLP
0000 X. Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
Aventura Laser/Shareholder:
G. Further Assurances. The Parties agree to do, execute, acknowledge
and deliver or cause to be done, executed, acknowledged or delivered and to
perform all such acts and deliver all such deeds, assignments, transfers,
conveyances, powers of attorney, assurances, stock certificates and other
13
documents, as may, from time to time, be required herein to effect the
intent and purpose of this Agreement.
H. Benefit of Agreement. The terms and provisions of this Agreement
will be binding upon and inure to the benefit of the Parties, their
successors, assigns, personal representatives, estate, heirs and legatees
but are not intended to confer upon any other person any rights or remedies
hereunder.
I. Indemnification. Each Party hereby irrevocably agrees to indemnify
and hold the other Parties harmless from any and all liabilities and
damages (including legal or other expenses incidental thereto), contingent,
current, or inchoate to which they or any one of them may become subject as
a direct, indirect or incidental consequence of any action by the
indemnifying Party or as a consequence of the failure of the indemnifying
Party to act, whether pursuant to requirements of this Agreement or
otherwise. In the event it becomes necessary to enforce this indemnity
through an attorney, with or without litigation, the successful Party will
be entitled to recover from the indemnifying Party, all costs incurred
including reasonable attorneys' fees throughout any negotiations, trials or
appeals, whether or not any suit is instituted.
J. Severability. If any provision or any portion of any provision of
this Agreement, other than one of the conditions precedent or subsequent,
or the application of such provision or any portion thereof to any person
or circumstance will be held invalid or unenforceable, the remaining
portions of such provision and the remaining provisions of this Agreement
or the application of such provision or portion of such provision as is
held invalid or unenforceable to persons or circumstances other than those
to which it is held invalid or unenforceable, will not be affected thereby.
K. Survival. The several representations, warranties and covenants of
the Parties contained herein will survive the execution hereof and the
Closing and will be effective regardless of any investigation that may have
been made or may be made by or on behalf of any Party.
L. Joint and Several Liability. Parent and Aventura shall be joint and
severally liable as to all warranties, representations, agreements and or
covenants made by either Parent or Aventura and each unconditionally
guarantees the performance pursuant to this Agreement.
[ SIGNATURES APPEAR ON FOLLOWING PAGE ]
14
IN WITNESS WHEREOF, the undersigned have executed this Agreement this 12th
day of April, 2005.
MEDICAL MAKEOVER CORPORATION OF AMERICA
By: /s/ Xxxxx Xxxxx
-------------------------------
Its: Chief Executive Officer
AVENTURA MAKEOVER CORPORATION,
By: /s/ Xxxxx Xxxxx
-------------------------------
Its: Chief Executive Officer
AVENTURA ELECTROLYSIS AND SKIN CARE CENTER, INC,
By: /s/ Xxxxxx Xxxxxx
-------------------------------
Its: President
15
EXHIBIT "A"
Aventura Electrolysis and Skin Care Center, Inc,
A FLORIDA CORPORATION
SHAREHOLDER LIST AND CONSENT
The undersigned shareholder agrees and consents to the terms and conditions
of the Share Exchange Agreement and agrees to be bound by the terms and
conditions thereof. My signature hereto constitutes my consent thereto.
/s/Xxxxxx Xxxxxx 100%
-------------------- ------------
Name: Xxxxxx Xxxxxx # of Shares
16
SCHEDULE 5(I)
1. The parties acknowledge that the Aventura Laser presently leases space
located at 000X Xxx Xxxxxxx Xxx., Xxxxxxxxxx, XX 00000, pursuant to an oral
lease with weekly payments in the amount of $190.00 per week. Parent and
Aventura have approved Aventura Laser agreement to an additional one year
lease at the above location for a one year period.
2. Aventura Laser presently has an outstanding loan with Wachovia Bank for a
laser machine purchased by Aventura Laser and/or Shareholder utilizing the
credit of Aventura Laser, Shareholder and/or collateral of the laser
machine and/or collateral of other parties. Xxxxxx Xxxxxx shall be
responsible for and pay the monthly payments due for said loan based upon
the Equipment Lease Agreement entered into at time of execution of this
Agreement.
3. List of Equipment:
17
