COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT is entered into as of this 14TH
day of June, 2006 (the "Agreement"), by and among Xxxxxxx X. Xxxxxxx ("BJL"),
BAC Investments, Inc. ("BAC"), Kapuha, LLC ("KAP"),Carmella Investments, LLC
("Car") and LI Funding, LLC ("LI"; BJL, BAC, KAP, Car and LI collectively
referred to as the "Sellers"), Aerobic Creations, Inc. (the "Company"), Xxxxxx
X. Xxxxx ("APK"), and R&R Biotech Partners, LLC ("Xxxxxx," Xxxxxx and APK are
collectively referred to as the "Purchasers"), all collectively referred to as
the "Parties".
WHEREAS, Sellers own an aggregate of 1,300,000 shares of common stock,
par value $.001 per share, of the Company (the "Shares") and, immediately prior
to the Closing, the Shares will represent approximately 72.2% of the then issued
and outstanding shares of Common Stock of the Company: and
WHEREAS, the Purchasers desire to purchase from the Sellers, and the
Sellers desire to sell to the Purchasers, all of the Shares upon the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the undertakings and commitments
contained herein and other good and valuable consideration, the sufficiency of
which is hereby acknowledged, the Parties agree as follows:
ARTICLE 1
SALE OF THE SHARES
Section 1.1 SALE OF THE SHARES. Subject to the terms and conditions set
forth in this Agreement, Sellers agree to sell, transfer and assign to the
Purchasers and the Purchasers agree to purchase from the Sellers, the Shares, in
exchange for an aggregate purchase price (the "Purchase Price") consisting of
(i) $400,000 in cash and (ii) shares of Common Stock of the Company which shall
represent on a fully diluted basis, (after giving effect to any shares of Common
Stock (including any shares issuable pursuant to any convertible securities)
being issued in conjunction with certain events described below, including any
financing thereof) (the "Trigger Shares") $625,000 in value determined and
delivered as of the earlier to occur of the following events (the "Trigger
Event"); (i) an equity financing, or series of equity financings, yielding gross
proceeds to the Company of a minimum of $15,000,000 or (ii) consummation of the
Merger with an operating business as set forth in Section 3.20, PROVIDED,
HOWEVER, that in the event that the Trigger Event specified in (i) and (ii)
occur within 15 days of each other, then the number of Trigger Shares shall be
determined as of the later of such Trigger Events. The Company shall issue the
Trigger Shares to the Sellers upon the date of the Trigger Event. For purposes
of this section, value per share shall mean the price per share of Common Stock
or common stock equivalents in any equity financing or series of equity
financings referred to above or the price per share of Common Stock or common
stock equivalents attributed to the Merger as determined by the Board of
Directors of the Company in good faith, and consistent with the valuation of the
Merger.
Section 1.2 ALLOCATION OF SHARES. The proportion of the Shares
purchased by each Purchaser shall be as set forth on the signature page hereto.
Section 1.3 PURCHASE PRICE.
(a) The cash portion of the Purchase Price shall be paid to the Sellers
by certified bank check or by wire transfer at the Closing (as defined below).
(b) The Trigger Shares shall be issued to the Sellers contemporaneously
with the closing of a Trigger Event as set forth in Section 1.1 above.
ARTICLE 2
CLOSING AND DELIVERY
Section 2.1 CLOSING DATE. Upon the terms and subject to the conditions
set forth herein, the consummation of the purchase and sale of the Shares (the
"Closing") shall be held at such date (the "Closing Date") and time as
determined at the mutual discretion of the Sellers and the Purchasers; PROVIDED,
HOWEVER, that the Closing shall occur no later than ten (10) business days after
the conditions precedent contained in Article 7 herein have been satisfied
(which the Parties hereto agree shall not be later than June 30, 2006 (unless
extended as provided for herein). The Closing shall take place at the offices of
Purchaser's counsel Xxxxx Xxxxxxx Xxxx & Xxxxxx, LLP, 000 Xxxx Xxxxxx - Xxxxx
0000, Xxx Xxxx, XX 00000, or by the exchange of documents and instruments by
mail, courier, telecopy and wire transfer to the extent mutually acceptable to
the parties hereto.
Section 2.2 DELIVERY AT CLOSING.
At the Closing:
(a) The Sellers shall deliver to the Purchasers stock certificates
representing the Shares. The certificates representing the Shares shall be duly
endorsed for transfer to the Purchasers, as applicable, and accompanied by, (i)
if required by the Company's transfer agent, an opinion of counsel reasonably
acceptable to the Company, the Purchasers and the Company's transfer agent and
(ii) stock powers with medallion signature guarantees or other instruments of
transfer duly executed to the Purchasers; and
(b) The Purchasers shall transfer the aggregate Purchase Price to the
Sellers in the form of certified bank check or wire transfer.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLERS AND THE COMPANY
Sellers and the Company jointly and severally represent and warrant to
the Purchasers that:
Section 3.1 EXISTENCE AND POWER. The Company is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Nevada and has all corporate powers and all governmental licenses,
authorizations, permits, consents and approvals required to carry on its
business as now conducted. Each Seller, except for BJL who is an individual, is
an entity either duly incorporated or duly formed, as the case may be, validly
existing and in good standing under the laws of its respective state of
incorporation or formation, and has all corporate
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powers and all governmental licenses, authorizations, permits, consents and
approvals required to carry on its business as now conducted. The Company has
heretofore delivered to the Purchasers true and complete copies of the Articles
of Incorporation, as amended, and Bylaws, each as currently in effect.
Section 3.2 AUTHORIZATION; NO AGREEMENTS. The execution, delivery and
performance by each of the Sellers of this Agreement, the performance of its
obligations hereunder, and the consummation of the transactions contemplated
hereby are within the Sellers' powers. This Agreement has been duly and validly
executed and delivered by the Sellers and is a legal, valid and binding
obligation of each Seller, enforceable against it in accordance with its terms.
The execution, delivery and performance by each of the Sellers of this Agreement
does not violate any contractual restriction contained in any agreement that
binds or affects or purports to bind or affect any of the Sellers. Sellers are
not a party to any agreement, written or oral, creating rights in respect of any
of such Shares in any third party or relating to the voting of the Shares.
Sellers are the lawful owner of the Shares, free and clear of all security
interests, liens, encumbrances, equities and other charges. Sellers further
represent that they do not beneficially own any options or warrants or other
rights to purchase shares of Common Stock. At the Closing there will be no
outstanding or authorized options, warrants, rights, calls, commitments,
conversion rights, rights of exchange or other agreements of any character,
contingent or otherwise, providing for the purchase, issuance or sale of any of
the Shares, or any arrangements that require or permit any of the Shares to be
voted by or at the discretion of anyone other than the Sellers, and there are no
restrictions of any kind on the transfer of any of the Shares other than (a)
restrictions on transfer imposed by the Securities Act of 1933, as amended (the
"Securities Act") and (b) restrictions on transfer imposed by applicable state
securities or "blue sky" laws.
Section 3.3 CAPITALIZATION.
(a) The authorized capital stock of the Company consists of 100,000,000
shares of common stock, with a $0.001 par value per share; there are 1,800,000
shares of common stock issued and outstanding as of the Closing Date, and there
are approximately 22 shareholders of record holding the common stock. There are
no shares of preferred stock authorized, issued or outstanding. All of the
issued and outstanding shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid and nonassesasable. All of the
issued and outstanding shares of capital stock of the Company have been offered,
issued and sold by the Company in compliance with all applicable federal and
state securities laws. No securities of the Company are entitled to preemptive
or similar rights, and no Person has any right of first refusal, preemptive
right, right of participation, or any similar right to participate in the
transactions contemplated hereby. Except as a result of the purchase and sale of
the Shares, there are no outstanding options, warrants, script rights to
subscribe to, calls or commitments of any character whatsoever relating to, or
securities, rights or obligations, convertible into or exchangeable for, or
giving any Person any right to subscribe for or acquire, any shares of Common
Stock, or contracts, commitments, understandings or arrangements by which the
Company is or may become bound to issue additional shares of Common Stock, or
securities or rights convertible or exchangeable into shares of Common Stock.
The issuance and sale of the Shares will not obligate the Company to issue
shares of Common Stock or other securities to any Person (other than the
Purchaser) and shall not result in a right of any holder of Company securities
to adjust the exercise, conversion, exchange or reset price under such
securities.
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(b) There are no outstanding obligations, contingent or otherwise, of
the Company to redeem, purchase or otherwise acquire any capital stock or other
securities of the Company.
(c) There are no shareholder agreements, voting trusts or other
agreements or understandings to which Sellers are a party or by which the
Sellers are bound relating to the voting of any shares of the capital stock of
the Company.
(d) The Shares shall be duly authorized for issuance, when delivered in
accordance with the terms of this Agreement, and shall be validly issued, fully
paid and nonassessable and the transfer of said Shares shall not be subject to
any preemptive or other similar right.
Section 3.4 SUBSIDIARIES.
The Company has no subsidiaries and does not own or control, directly
or indirectly, any shares of capital stock of any corporation or any interest in
a partnership, limited liability company, joint venture, or other non-corporate
business enterprise.
Section 3.5 FINANCIAL STATEMENTS.
a) SEC REPORTS; FINANCIAL STATEMENTS. The Company has filed all reports
required to be filed by it under the Securities Act and the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), including pursuant to Section
13(a) or 15(d) of the Exchange Act, since 2005 as a public reporting company
(the foregoing materials being collectively referred to herein as "SEC
Reports"), including the annual report on Form 10-KSB for the fiscal year ended
December 31, 2005 and the quarterly report on Form 10-QSB for the period ended
March 31, 2006. The Seller has identified and made available to the Purchasers a
copy of all SEC Reports filed within the 10 days preceding the date of this
Agreement. As of their respective dates, the SEC Reports complied in all
material respects with the requirements of the Securities Act and the Exchange
Act and the rules and regulations of the Securities and Exchange Commission (the
"Commission") promulgated thereunder, none of the SEC Reports, when filed,
contained any untrue statement of a material fact or omitted 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. The financial statements of the Company included in the SEC Reports
comply in all material respects with applicable accounting requirements and the
rules and regulations of the Commission with respect thereto as in effect at the
time of filing. Such financial statements have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis during
the periods involved ("GAAP"), except as may be otherwise specified in such
financial statements or the notes thereto, and fairly present in all material
respects the financial position of the Company and its consolidated subsidiaries
as of and for the dates thereof and the results of operations and cash flows for
the periods then ended, subject, in the case of unaudited statements, to normal,
immaterial, year-end audit adjustments.
(b) Except as set forth in its Form 10-KSB for the fiscal year ended
December 31, 2005, the Company has not been engaged in any other business
activity since January 1, 2005.
(c) Since the date of the filing of its annual report on Form 10-KSB
for the period ended December 31, 2005, except as specifically disclosed in the
SEC Reports: (i) there has been no event, occurrence or development that has had
or that could result in a Material Adverse Effect; (ii) the Company has not
incurred any liabilities (contingent or otherwise) or amended of
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any material term of any outstanding security; (iii) the Company has not altered
its method of accounting or the identity of its auditors; (iv) the Company has
not declared or made any dividend or distribution of cash or other property to
its stockholders or purchased, redeemed or made any agreements to purchase or
redeem any shares of its capital stock; (v) the Company has not issued any
equity securities to any officer, director or Affiliate of the Company; (vi) the
Company has not made any loan, advance or capital contributions to or investment
in any Person; (vii) the Company has not, except for the sale of the Subsidiary,
entered into any transaction or commitment made, or any contract or agreement
entered into, relating to its business or any of its assets (including the
acquisition or disposition of, or creation of a lien on, any assets) or any
relinquishment by the Company of any contract or other right; (viii) the Company
has not granted any severance or termination pay to any current or former
director, officer or employee thereof, or increased the benefits payable under
any existing severance or termination pay policies or employment agreements or
entered into any employment, deferred compensation or other similar agreement
(or any amendment to any such existing agreement) with any current or former
director, officer or employee of the Company; (ix) the Company has not
established, adopted or amended (except as required by applicable law) any
collective bargaining, bonus, profit sharing, thrift, pension, retirement,
deferred compensation, compensation, stock option, restricted stock or other
benefit plan or arrangement covering any current or former director, officer or
employee thereof; (x) the Company has not increased the compensation, bonus or
other benefits payable or otherwise made available to any current or former
director, officer or employee of the Company; (xi) the Company has not made any
tax election or any settlement or compromise of any tax liability, in either
case that is material to or entered into any transaction by the Company not in
the ordinary course of business.
Section 3.6 NO LIABILITIES OR DEBTS. The Company is not a guarantor of
any indebtedness of any other person, firm or corporation, and, except as
disclosed on the Financial Statements, there are no liabilities or debts of the
Company of any kind whatsoever, whether accrued, contingent, absolute,
determined, determinable or otherwise, and there is no existing condition,
situation or set of circumstances which could reasonably be expected to result
in such a liability or debt.
Section 3.7 LITIGATION. There is no action, suit, investigation, audit
or proceeding pending against, or to the best knowledge of the Company
threatened against or affecting, the Company or any of its assets or properties
before any court or arbitrator or any governmental body, agency or official. The
Company is not subject to any outstanding judgment, order or decree. Neither the
Company, nor any officer, key employee or 5% stockholder of the Company in his,
her or its capacity as such, is in default with respect to any order, writ,
injunction, decree, ruling or decision of any court, commission, board or any
other government agency. The Commission has not issued any stop order or other
order suspending the effectiveness of any registration statement filed by the
Company under the Exchange Act or the Securities Act.
Section 3.8 TAXES. The Company has (i) duly filed with the appropriate
taxing authorities all tax returns required to be filed by or with respect to
its business, or are properly on extension and all such duly filed tax returns
are true, correct and complete in all material respects and (ii) paid in full or
made adequate provisions for on its balance sheet (in accordance with GAAP) all
Taxes shown to be due on such tax returns. There are no liens for taxes upon the
assets of the Company, except for statutory liens for current taxes not yet due
and payable or which may thereafter be paid without penalty or are being
contested in good faith. The Company has not received any notice of audit, is
not undergoing any audit of its tax returns, or
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has received any notice of deficiency or assessment from any taxing authority
with respect to liability for taxes which has not been fully paid or finally
settled. There have been no waivers of statutes of limitations by the Company
with respect to any tax returns. The Company has not filed a request with the
Internal Revenue Service for changes in accounting methods within the last three
years which change would affect the accounting for tax purposes, directly or
indirectly, of its business. The Company has not executed an extension or waiver
of any statute of limitations on the assessment or collection of any taxes due
(excluding such statutes that relate to years currently under examination by the
Internal Revenue Service or other applicable taxing authorities) that is
currently in effect.
Section 3.9 INTERNAL ACCOUNTING CONTROLS; XXXXXXXX-XXXXX ACT OF 2002.
To the best of its knowledge, the Company is in compliance with the requirements
of the Xxxxxxxx-Xxxxx Act of 2002 applicable to it as of the date hereof. The
Company has established disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and designed such
disclosures controls and procedures to ensure that material information relating
to the Company, is made known to the certifying officers by others within those
entities, particularly during the period in which the Company's Form 10-KSB or
10-QSB, as the case may be, is being prepared. The Company's certifying officers
have evaluated the effectiveness of the Company's controls and procedures as of
the date of its most recently filed periodic report (such date, the "Evaluation
Date"). The Company presented in its most recently filed periodic report the
conclusions of the certifying officers about the effectiveness of the disclosure
controls and procedures based on their evaluations as of the Evaluation Date.
Since the Evaluation Date, there have been no significant changes in the
Company's internal controls (as such term is defined in Item 307(b) of
Regulation S-K under the Exchange Act) or, to the Company's knowledge, in other
factors that could significantly affect the Company's internal controls. The
Company's auditors, at all relevant times, have been duly registered in good
standing with the Public Company Accounting Oversight Board.
Section 3.10 NO BROKERS. No brokerage or finder's fees or commissions
are or will be payable by the Sellers to any broker, financial advisor or
consultant, finder, placement agent, investment banker, bank or other Person
with respect to the transactions contemplated by this Agreement except for MBA
Investors, Ltd., a Florida corporation, which will be paid a finders fee by the
Company, in the amount of $25,000, payable in shares of Common Stock from the
Trigger Shares to be issued pursuant to Section 1.1 above. The Company has not
taken any action that would cause any Purchasers to be liable for any such fees
or commissions. The Company and Sellers agree that the Purchasers shall have no
obligation with respect to any fees or with respect to any claims made by or on
behalf of any Person for fees of the type contemplated by this Section and
Sellers shall indemnify and hold Purchasers harmless from any fees, costs or
liabilities of any kind incurred by Purchasers in connection therewith.
Section 3.11 DISCLOSURE. The Company and Sellers confirm that neither
they, nor any other Person acting on their behalf has provided any of the
Purchasers or its agents or counsel with any information that constitutes or
might constitute material, nonpublic information concerning the Company. The
Company and Sellers understand and confirm that the Purchasers will rely on the
foregoing representations in effecting transactions in securities of the
Company. All disclosure provided to the Purchasers regarding the Company, its
business and the transactions contemplated hereby furnished by or on behalf of
the Company with respect to the representations and warranties made herein are
true and correct with respect to such representations and warranties and do not
contain any untrue statement of a material fact or omit
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to state any material fact necessary in order to make the statements made
therein, in light of the circumstances under which they were made, not
misleading. The Company and Sellers acknowledge and agree that the Purchasers
have not made, nor are the Purchasers making, any representations or warranties
with respect to the transactions contemplated hereby other than those
specifically set forth herein.
Section 3.12 NO CONFLICTS. The execution, delivery and performance of
this Agreement and the transactions contemplated hereby do not and will not: (i)
conflict with or violate any provision of the Company's Certificate or Articles
of Incorporation, Bylaws or other organizational or charter documents, or (ii)
conflict with, or constitute a default (or an event that with notice or lapse of
time or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation (with or without notice,
lapse of time or both) of any agreement, credit facility, debt or other
instrument (evidencing a Company debt or otherwise) or other understanding to
which the Company is a party or by which any property or asset of the Company is
bound or affected or (iii) result in a violation of any law, rule, regulation,
order, judgment, injunction, decree or other restriction of any court or
governmental authority to which the Company is subject (including federal and
state securities laws and regulations), or by which any property or asset of the
Company is bound or affected.
Section 3.13 FILINGS, CONSENTS AND APPROVALS. Neither the Sellers nor
the Company are required to obtain any consent, waiver, authorization or order
of, give any notice to, or make any filing or registration with, any court or
other federal, state, local or other governmental authority or other Person in
connection with the execution, delivery and performance of this Agreement.
Section 3.14 NO DISAGREEMENTS WITH ACCOUNTANTS AND LAWYERS. There are
no disagreements of any kind presently existing, or reasonably anticipated by
the Sellers to arise, between the accountants, and lawyers formerly or presently
employed by the Company, and the Company is current with respect to any fees
owed to its accountants and lawyers.
Section 3.15 COMPLIANCE. The Company: (i) is not in default under or in
violation of (and no event has occurred that has not been waived that, with
notice or lapse of time or both, would result in a default by the Company
under), nor has the Company received notice of a claim that it is in default
under or that it is in violation of, any indenture, loan or credit agreement or
any other agreement or instrument to which it is a party or by which it or any
of its properties is bound (whether or not such default or violation has been
waived), (ii) is not in violation of any order of any court, arbitrator or
governmental body and (iii) is not and has not been in violation of any statute,
rule or regulation of any governmental authority.
Section 3.16 TRANSACTIONS WITH AFFILIATES AND EMPLOYEES. Except as
required to be set forth in the SEC Reports, none of the officers or directors
of the Company and, to the knowledge of the Sellers, none of the Affiliates or
employees of the Company is presently a party to any transaction with the
Company (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of the Company, any entity in
which any officer, director, or any such employee has a substantial interest or
is an officer, director, trustee or partner.
Section 3.17 ASSETS. Except as set forth in the SEC Reports, the
Company has no
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assets, including, without limitation, goodwill, assets, real property, tangible
personal property, intangible personal property, rights and benefits under
contracts and cash, as to which there will be no distribution prior to the
Closing Date. All Company leases for real or personal property are in good
standing, valid and effective in accordance with their respective terms, and
there is not under any of such leases, any existing material default or event of
default (or event which with notice or lapse of time, or both, would constitute
a material default).
Section 3.18 INVESTMENT COMPANY/INVESTMENT ADVISOR. The business of the
Company does not require it to be registered as an investment company or
investment advisor, as such terms are defined under the Investment Company Act
and the Investment Advisors Act of 1940.
Section 3.19 INFORMED DECISION. Sellers are aware of the Company's
business affairs and financial condition and has reached an informed and
knowledgeable decision to sell the Shares.
Section 3.20 CONSUMMATION OF A MERGER TRANSACTION. Sellers acknowledge
that it is the intention of the Purchasers, upon completion of the transactions
contemplated hereby, to cause at some future date the Company to consummate a
merger or business combination with one or more as yet unidentified private
operating companies (collectively the "Merger") subsequent to the Closing Date.
Sellers further acknowledge that upon consummation of a Merger, it is probable
that each Share will increase in value, possibly substantially.
Section 3.21 LISTING ON THE OTCBB. The Common Stock is approved for
listing and quoted on the Over-The-Counter Bulletin Board (the "OTCBB") and the
Company has and continues to satisfy all of the requirements of the OTCBB for
such listing and for the trading of its Common Stock thereunder. Sellers and the
Company have not been informed, nor have knowledge, that the NASD or any other
regulatory agency will take action to cease the Company's Common Stock from
being quoted on the OTCBB.
ARTICLE 4
REPRESENTATIONS OF THE PURCHASERS
Each Purchaser jointly and severally represents and warrants to the
Sellers, as follows:
Section 4.1 EXECUTION AND DELIVERY. The execution, delivery and
performance by the Purchasers of this Agreement is within Purchaser's power and
does not (i) violate any contractual restriction contained in any agreement
which binds or affects or purports to bind or affect the Purchaser; (ii) require
any filing with, or permit, authorization, consent of approval of, any
Governmental entity, except for the filings required to be filed with the SEC
pursuant to the execution of this Agreement.
Section 4.2 BINDING EFFECT. This Agreement, when executed and delivered
by the Purchaser shall be irrevocable and will constitute the legal, valid and
binding obligations of the Purchaser enforceable against the Purchaser in
accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency, moratorium and other laws of general application affecting
enforcement of creditors' rights generally or general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
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Section 4.3 INVESTMENT PURPOSE. The Purchaser hereby represents that
he/it is purchasing the Shares for his/its own account, with the intention of
holding the Shares, with no present intention of dividing or allowing others to
participate in this investment or of reselling or otherwise participating,
directly or indirectly, in a distribution of the Shares, and shall not make any
sale, transfer, or pledge thereof without registration under the Securities Act
and any applicable securities laws of any state unless an exemption from
registration is available under those laws. The Shares delivered to Purchaser
shall bear a restrictive legend indicating that they have not been registered
under the Securities Act of 1933 and are "restricted securities" as that term is
defined in Rule 144 under the Act.
Section 4.4 INVESTMENT REPRESENTATION. The Purchaser represents that he
has adequate means of providing for its current needs and has no need for
liquidity in this investment in the Shares. Purchaser represents that he/it is
an "accredited investor" as defined in Rule 501(a) of Regulation D promulgated
under the Securities Act. Purchaser is financially able to bear the economic
risk of this investment, including the ability to hold the Shares indefinitely
or to afford a complete loss of his/its investment in the Shares.
Section 4.5 INVESTMENT EXPERIENCE. Purchaser such knowledge and
experience in financial, tax and business matters as to be capable of evaluating
the merits and risks of the purchase of the Shares, and of making an informed
investment decision with respect thereto.
Section 4.6 OPPORTUNITY TO INQUIRE AND ASK QUESTIONS. Purchaser
confirms that, in making its decision to purchase the Shares it has relied upon
independent investigations made by Purchaser or by its representatives,
including its own professional tax and other advisers and that Purchasers have
had a full and fair opportunity to examine all documents and to make inquiries
about the terms and conditions of this Agreement, to discuss the same and all
related matters with its own independent counsel and its own accountants and tax
advisers. Purchaser has been given the opportunity to ask questions of, and
receive answers from Sellers concerning the terms and conditions of this
Agreement and to obtain such additional written information about the Company to
the extent Sellers possess such information or can acquire it without
unreasonable effort or expense.
Section 4.7 TRIGGER SHARES. The Trigger Shares of the Company shall be
duly authorized for issuance when delivered in accordance with the terms of this
Agreement, and shall be validly issued, fully paid and nonassessable and the
issuance of said shares shall not be subject to any preemptive or other similar
right, and shall represent $625,000 in value determined on a fully diluted basis
as of the completion of the Trigger Event (after giving effect to any shares
being issued in conjunction with such Trigger Event).
ARTICLE 5
COVENANTS OF THE COMPANY
Section 5.1 PUBLIC COMPANY STATUS. The Company shall make any and all
required filings under the Exchange Act so that it remains a reporting company
under the Exchange Act and its Common Stock continues to be a publicly traded
security. The Company shall, to the best of its ability, cause its Common Stock
to continue to be approved for listing on the OTCBB.
Section 5.2 FINANCIAL CONDITION AS OF THE CLOSING DATE. As of the
Closing Date, the Company shall not be a guarantor of any indebtedness of any
other person, firm or corporation,
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and, there shall be no liabilities or debts of the Company of any kind
whatsoever, whether accrued, contingent, absolute, determined, determinable or
otherwise, and there is no existing condition, situation or set of circumstances
which could reasonably be expected to result in such a liability or debt.
Section 5.3 PIGGY-BACK REGISTRATION. If at any time following the
Closing Date, the Company shall determine to prepare and file with the
Commission a registration statement relating to an offering for its own account
or the account of others under the Securities Act of any of its equity
securities (a "Registration Statement"), other than on Form S-4 or Form S-8
(each as promulgated under the Securities Act), then the Company shall send to
Purchasers a written notice of such determination and, if within fifteen (15)
days after the date of such notice, Purchasers shall so request in writing, the
Seller shall include in such Registration Statement all or any part of such
Shares. If the Registration Statement is being filed pursuant to a written
agreement obligating the Company to file same (a "Registration Agreement"),
Purchasers requesting to be included in such Registration Statement shall be
entitled to receive all notices and documents sent by the Company to the parties
whose securities are being registered pursuant to such Registration Agreement.
ARTICLE 6
COVENANTS OF THE PARTIES
The Parties hereto agree that:
Section 6.1 PUBLIC ANNOUNCEMENTS. Each of the Sellers, the Company and
the Purchasers shall consult with each other before issuing any press release or
making any public statement with respect to this Agreement or the transactions
contemplated hereby and, except as may be required by applicable law, will not
issue any such press release or make any such public statement prior to such
consultation and without the consent of the other Parties.
Section 6.2 NOTICES OF CERTAIN EVENTS. In addition to any other notice
required to be given by the terms of this Agreement, each of the Parties shall
promptly notify the other party hereto of:
(a) any notice or other communication from any Person alleging that the
consent of such Person is or may be required in connection with any of the
transactions contemplated by this Agreement;
(b) any notice or other communication from any governmental or
regulatory agency or authority in connection with the transactions contemplated
by this Agreement; and
(c) any actions, suits, claims, investigations or proceedings commenced
or, to its knowledge threatened against, relating to or involving or otherwise
affecting such party that, if pending on the date of this Agreement, would have
been required to have been disclosed pursuant to Section 3 or Section 4 (as the
case may be) or that relate to the consummation of the transactions contemplated
by this Agreement.
Section 6.3 ACCESS TO INFORMATION. Following the date of this
Agreement, until consummation of all transactions contemplated hereby, the
Sellers and the Company shall give to the Purchasers, their counsel, financial
advisers, auditors and other authorized representatives
10
reasonable access to the Company's offices, properties, books and records,
financial and other data and information as the Purchasers and their respective
representatives may reasonably request for the purpose of performing in-depth
due diligence. In this regard, Purchasers shall cooperate with Sellers and the
Company so as to minimize the impact and disturbance of such inquiries and any
sort of due diligence on the business of the Company. Any sort of information
which is disclosed pursuant to this provision shall be kept by Purchasers and/or
any of its representatives in strict confidence and shall not be disclosed to
except to persons participating in this transaction on their behalf, including
attorneys, accountants and other advisors, except that nothing herein shall
prevent disclosure or use of any information as may be required by applicable
law.
Section 6.4 COMPANY'S BUSINESS. The Company will not, without the prior
written consent of Purchasers, (i) make any material change in the type or
nature of its business, or in the nature of its operations, (ii) create or
suffer to exist any debt, other than that currently shown in the SEC Reports,
(iii) issue any capital stock or (iv) enter into any new agreements of any kind
(other than those contemplated by this Agreement) or undertake any new
obligations or liabilities.
Section 6.5 REASONABLE EFFORTS. Each of the Parties will use its
reasonable best efforts to take all action and to do all things necessary in
order to consummate and make effective the transactions contemplated by this
Agreement.
Section 6.6 CONSENTS OF THIRD PARTIES. Each of the Parties will give
any notices (and will cause its subsidiary to give any notices) to third
parties, and will use its reasonable best efforts to obtain (and will cause its
subsidiary to use its reasonable best efforts to obtain) any third party
consents, that the other Parties reasonably may request in connection with this
Agreement. Each of the Parties will give any notices to, make any filings with,
and use its reasonable best efforts to obtain any authorizations, consents, and
approvals of governments and governmental agencies in connection with the
matters in this Agreement.
ARTICLE 7
CONDITIONS PRECEDENT
Section 7.1 CONDITIONS OF OBLIGATIONS OF THE PURCHASERS. The
obligations of the Purchasers are subject to the satisfaction of the following
conditions, any or all of which may be waived in whole or in part by Purchasers:
(a) REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties of the Sellers and the Company set forth in this Agreement shall be
true and correct in all material respects as of the date of this Agreement and
as of the Closing Date as though made on and as of the Closing Date.
(b) COMPLIANCE CERTIFICATE. The Chief Executive Officer of the
Company shall deliver to the Purchasers at the Closing a certificate certifying:
(i) that there has been no material adverse change in the business, affairs,
prospects, operations, properties, assets or conditions of the company since the
date of this Agreement, except as contemplated by this Agreement; (ii) that
attached thereto is a true and complete copy of the Company's Articles of
Incorporation, as amended, as in effect at the Closing; (iii) that attached
thereto is a true and complete copy of its Bylaws as in effect at the Closing;
and (iv) each of the representations and warranties of the
11
Sellers and the Company set forth in this Agreement are true and correct in all
material respects as of the Closing Date as though made on and as of the Closing
Date.
(c) GOOD STANDING CERTIFICATES. The Company shall have furnished the
Purchasers with good standing and existence certificates for the Company from
its jurisdiction of formation and such other jurisdictions as the Purchasers
reasonably request.
(d) CERTIFIED LIST OF RECORD HOLDERS. The Purchasers shall have
received a current certified list from the Company's transfer agent of the
holders of record of the Company's Common Stock.
(e) BOARD OF DIRECTORS RESOLUTIONS. The Purchasers shall have received
executed resolutions of the Board of Directors of the Company approving the
transactions contemplated herein including the resignation of all current
directors of the Company, if so requested.
(f) PERFORMANCE. The Sellers and the Company shall have performed and
complied with all agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it on or before
the Closing.
(g) LEGAL OPINION. The Company shall deliver an opinion of counsel that
the Shares, upon delivery to the Purchaser, will be duly authorized, validly
issued, fully-paid and non-assessable.
Section 7.2 CONDITIONS OF OBLIGATIONS OF THE SELLERS. The obligations
of the Sellers to effect the sale of the Shares are subject to the following
conditions, any or all of which may be waived in whole or in part by the
Sellers:
(a) REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties of the Purchasers set forth in this Agreement shall be true and
correct in all material respects as of the date of this Agreement and as of the
Closing Date as though made on and as of the Closing Date.
(b) COMPLIANCE CERTIFICATE. The authorized officer of the Purchasers,
if not an individual, and Purchaser that is an individual, shall each deliver to
the Seller at the Closing a certificate certifying each of the representations
and warranties of the Purchasers set forth in this Agreement are true and
correct in all material respects as of the Closing Date as though made on and as
of the Closing Date.
(c) PERFORMANCE. The Purchasers shall have performed and complied with
all agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it or him on or before the Closing.
(d) NO LEGAL OBSTACLE. There shall not be any judgment, order, decree,
stipulation, injunction, or charge in effect preventing consummation of any of
the transactions contemplated by this Agreement.
12
ARTICLE 8
TERMINATION
Section 8.1 TERMINATION. This Agreement may be terminated and
the purchase and sale of the Shares may be abandoned at any time prior to the
Closing:
(a) by mutual written consent of the parties hereto;
(b) by either the Sellers or the Purchasers if the Closing shall not
have occurred on or before June 30, 2006 (unless the failure to consummate the
transactions by such date shall be due to the action or failure to act of the
party seeking to terminate this Agreement or regulatory delays);
(c) by the Purchasers if (i) Sellers shall have failed to comply in any
material respect with any of the covenants, conditions, terms or agreements
contained in this Agreement to be complied with or performed by Sellers; which
breach is not cured within ten (10) days if capable of cure; or (ii) any
representations and warranties of Sellers or the Company contained in this
Agreement shall not have been true when made or on and as of the Closing Date as
if made on and as of Closing Date (except to the extent it relates to a
particular date); or (iii) Purchaser is not satisfied with its due diligence
review of the Sellers and the Company; or
(d) by Sellers if (i) the Purchasers shall have failed to comply in any
material respect with any of the covenants, conditions, terms or agreements
contained in this Agreement to be complied with or performed by it; or (ii) any
representations and warranties of the Purchasers contained in this Agreement
shall not have been true when made or on and as of the Closing Date.
Section 8.2 EFFECT OF TERMINATION. In the event of the termination of
this Agreement pursuant to this Article 8, all further obligations of the
Parties under this Agreement shall forthwith be terminated without any further
liability of any party to the other parties; provided, however, that nothing
contained in this Section 8.2 shall relieve any party from liability for any
breach of this Agreement.
Section 8.3 INDEMNIFICATION
(a) The Sellers shall indemnify and hold the Purchasers harmless, and
shall reimburse Purchasers for, any loss, liability, claim, damage, expense
(including, but not limited to, reasonable cost of investigation and defense and
reasonable attorneys' fees) or diminution of value (collectively, "Damages")
arising from or in connection with (a) any inaccuracy in any of the
representations and warranties of the Sellers pursuant to this Agreement or in
any certificate delivered by the Sellers pursuant to this Agreement, or any
actions, omissions or states of facts inconsistent with any such representation
or warranty, or (b) any failure by the Sellers to perform or comply with any
provision of this Agreement. Notwithstanding any other provision stating or
implying otherwise and notwithstanding the generality of the above, the amount
of Damages which the Sellers may be obligated to pay or reimburse the Purchaser
pursuant to the breach or non-performance of the provisions of this Agreement by
the Seller or of any of the transactions contemplated hereby, shall be capped at
an amount of $1,025,000, regardless of the severity of the egregious nature of
the breach or non-performance. This maximum amount of indemnified Damages is
calculated as the aggregate Purchase Price set forth in Section 1.3 above.
(b) Purchasers shall indemnify and hold the Seller harmless, and shall
reimburse Seller for any Damages arising from (a) any material inaccuracy in any
of the representations
13
and warranties of Purchasers in this Agreement or in any certificate delivered
by the Purchasers pursuant to this Agreement, or any actions, omissions or
states of facts inconsistent with any such representation or warranty, or (b)
any failure by the Purchaser to perform or comply with any provision of this
Agreement.
Section 8.4 PROCEDURE FOR INDEMNIFICATION. Promptly after receipt by an
indemnified party of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against an indemnifying
party under such section, give notice to the indemnifying party of the
commencement thereof, but the failure so to notify the indemnifying party shall
not relieve it of any liability that it may have to any indemnified party except
to the extent the defense of such action by the indemnifying party is prejudiced
thereby. In case any such action shall be brought against an indemnified party
and it shall give notice to the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, to assume the defense thereof with counsel reasonable
satisfactory to such indemnified party and, after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under such section for any fees of other counsel or any other expenses, in each
case subsequently incurred by such indemnified party in connection with the
defense thereof, other than reasonable costs of investigation, If an
indemnifying party assume the defense of such an action, (a) no compromise or
settlement thereof may be effected by the indemnifying party without the
indemnified party's consent (which shall not be unreasonable withheld) unless
(i) there is no finding or admission of any violation of law or any violation of
the rights of any person which is not fully remedied by the payment referred to
in clause (ii) and no adverse effect on any other claims that may be made
against the indemnified party and (ii) the sole relief provided is monetary
damages that are paid in full by the indemnifying party, (b) the indemnifying
party shall have no liability with respect to any compromise or settlement
thereof effected without its consent (which shall not be reasonably withheld)
and (c) the indemnified party will reasonable cooperate with the indemnifying
party in the defense of such action. If notice is given to an indemnifying party
of the commencement of any action and it does not, within 15 days after the
indemnified party's notice is given, give notice to the indemnified party of its
election to assume the defense thereof, the indemnifying party shall be bound by
any determination made in such action or any compromise or settlement thereof
effected by the indemnified party. Notwithstanding the foregoing, if an
indemnified party determined in good faith that there is a reasonable
probability that an action may materially and adversely affect it or its
affiliated other than as a result of monetary damages, such indemnified party
may, by notice to the indemnifying party, assume the exclusive right to defend,
compromise or settle such action, but the indemnifying party shall not be bound
by any determination of an action so defended or any compromise or settlement
thereof effected without its consent (which shall not be unreasonably withheld).
ARTICLE 9
MISCELLANEOUS
Section 9.1 NOTICES. All notices, requests and other communications
to any party hereunder shall be in writing and either delivered personally,
telecopied or sent by certified or registered mail, postage prepaid,
14
IF TO THE SELLERS:
Xxxxxxx X. Xxxxxxx
000 X. Xxxxxxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
Kapuha, LLC
Xxxxxxx Xxxxxxxx, Manager
00 Xxxxxxxx Xxxxx
Xxxxxxxx XX 00000
BAC Investments, Inc.
Xxx Xxxxx, President
00 Xxxxx Xxxxxxx
Xxxxxxx XX 00000
LI Funding, LLC
Xxxxxx Xxxxxx, Manager
0000 Xxxxxxx Xxx
Xxxxxxx XX 00000
Carmella Investments, LLC
Xxxx Lapomo, Manager
XX Xxx 000
Xxxxxxxxx, XX 00000
With a copy to: Xxxxx X. Xxxxxxx, Esq.
Batcher, Xxxxxxx & Xxxxx, LLP
0000 Xxxxxx Xxxx, #000
Xxxxxx, Xxxxx. 00000
Fax: (000) 000-0000
IF TO PURCHASERS: R&R Biotech Partners, LLC
c/o Rodman & Xxxxxxx Holding, LLC
0000 Xxxxxx xx Xxxxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxx, CFO
Fax: (000) 000-0000
and
Xxxxxx X. Xxxxx
000 Xxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
15
With a copy to: Xxxxx Xxxxxxx Xxxx & Xxxxxx, LLP
000 Xxxx Xxxxxx - Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxx, Esq.
Fax: (000) 000-0000
IF TO THE COMPANY: Aerobic Creations, Inc.
000-00000 Xxxxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxx Xxxxxxxx
Xxxxxx, X0X 0X0
With a copy to: Xxxxx X. Xxxxxxx, Esq.
Batcher, Xxxxxxx & Xxxxx, LLP
0000 Xxxxxx Xxxx, #000
Xxxxxx, Xxxxx. 00000
Fax: (000) 000-0000
or such other address or fax number as such party may hereafter specify for the
purpose by notice to the other Parties hereto. All such notices, requests and
other communications shall be deemed received on the date delivered personally
or by overnight delivery service or telecopied or, if mailed, five (5) business
days after the date of mailing if received prior to 5 p.m. in the place of
receipt and such day is a business day in the place of receipt. Otherwise, any
such notice, request or communication shall be deemed not to have been received
until the next succeeding business day in the place of receipt.
Section 9.2 AMENDMENTS; NO WAIVERS.
(a) Any provision of this Agreement with respect to transactions
contemplated hereby may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed, in the case of an amendment, by the Seller
and Purchasers; or in the case of a waiver, by the party against whom the waiver
is to be effective.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
Section 10.3 FEES AND EXPENSES. Whether or not the Closing is
consummated, each of the Parties will pay all of its own legal and accounting
fees and other expenses incurred in the preparation and negotiation of this
Agreement and the performance of the terms and provisions of this Agreement.
Section 10.4 SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall be binding upon and inure to the benefit of the Parties hereto and their
respective successors and assigns; provided that Purchasers shall have the right
to assign this Agreement to an affiliate of
16
such Purchasers and no other party hereto may assign, delegate or otherwise
transfer any of its rights or obligations under this Agreement without the
consent of each other party hereto, but any such transfer or assignment will not
relieve the appropriate party of its obligations hereunder.
Section 10.5 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to the principles of conflicts of law thereof.
Section 10.6 JURISDICTION. Any suit, action or proceeding seeking to
enforce any provision of, or based on any matter arising out of or in connection
with, this Agreement or the transactions contemplated hereby may be brought in
any federal or state court located in the City of New York, Borough of
Manhattan, and each of the parties hereto consents to the jurisdiction of such
courts (and of the appropriate appellate courts therefrom) in any such suit,
action or proceeding and irrevocably waives, to the fullest extent permitted by
law, any objection which it may now or hereafter have to the laying of the venue
of any such suit, action or proceeding in any such court or that any such suit,
action or proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 10.1 shall be deemed
effective service of process on such party. Each party hereto (including its
affiliates, agents, officers, directors and employees) irrevocably waives, to
the fullest extent permitted by applicable law, any and all right to trial by
jury in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
Section 10.7 COUNTERPARTS; EFFECTIVENESS. This Agreement may be signed
in any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto has received
counterparts hereof signed by all of the other parties. No provision of this
Agreement is intended to confer upon any Person other than the parties hereto
any rights or remedies under this Agreement.
Section 10.8 ENTIRE AGREEMENT. This Agreement and the attached Exhibits
and Schedules constitute the entire agreement between the parties with respect
to the subject matter of this Agreement and supersedes all prior agreements and
understandings, both oral and written, between the parties with respect to the
subject matter of this Agreement.
Section 10.9 CAPTIONS. The captions are included for convenience of
reference only and shall be ignored in the construction or interpretation of
this Agreement.
Section 10.10 SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated
so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any parties. Upon
such a determination, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of
17
the parties as closely as possible in an acceptable manner in order that the
transactions contemplated hereby are consummated as originally contemplated to
the fullest extent possible.
Section 10.11 SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the its terms and that the parties shall be
entitled to specific performance of the terms of this Agreement in addition to
any other remedy to which they are entitled at law or in equity.
Section 10.12 DEFINITION AND USAGE.
"Indebtedness" shall mean (a) any liabilities for borrowed
money or amounts owed, (b) all guaranties, endorsements and other contingent
obligations, whether or not the same are or should be reflected in the Company's
balance sheet or the notes thereto, except guaranties by endorsement of
negotiable instruments for deposit or collection in the ordinary course of
business, and (c) the present value of any lease payments under leases required
to be capitalized in accordance with GAAP.
"Material Adverse Effect" means any effect or change that is
or would be materially adverse to the business, operations, assets, prospects,
condition (financial or otherwise) or results of operations of the Company and
any of its subsidiaries, taken as a whole.
"Person" means an individual, corporation, partnership,
limited liability company, association, trust or other entity or organization,
including a government or political subdivision or an agency or instrumentality
of the foregoing.
"Taxes" means any and all federal, state, local, foreign or
other taxes of any kind (together with any and all interest, penalties,
additions to tax and additional amounts imposed with respect thereto) imposed by
any taxing authority, including, without limitation, taxes or other charges on
or with respect to income, franchises, windfall or other profits, gross
receipts, sales, use, capital stock, payroll, employment, social security,
workers' compensation, unemployment compensation, or net worth, and taxes or
other charges in the nature of excise, withholding, ad valorem or value added.
[REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK]
18
IN WITNESS WHEREOF, each of the following individuals has caused this
Agreement to be signed, and each party that is not an individual has caused this
Agreement to be duly executed under seal by its respective authorized officers,
all as of the day and year first above written.
SELLERS:
/s/XXXXXXX X. XXXXXXX
--------------------------------
XXXXXXX X. XXXXXXX
KAPUHA, LLC
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Manager
BAC INVESTMENTS, INC.
By: /s/ Xxx Xxxxx
-------------------
Name: Xxx Xxxxx
Title: President
LI FUNDING, LLC
By: /s/ Xxxxxx Xxxxxx
-----------------------
Name: Xxxxxx Xxxxxx
Title: Manager
CARMELLA INVESTMENTS, LLC
By: /s/ Xxxx Lapomo
--------------------
Name: Xxxx Lapomo
Title: Manager
THE COMPANY:
AEROBIC CREATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Executive Officer and Sole Director
19
PURCHASERS:
R&R BIOTECH PARTNERS LLC PORTION OF SHARES PURCHASED
---------------------------
By: /s/ Xxxxxx Xxxxx
---------------------
Name: Xxxxxx Xxxxx 80%
Title: Chief Financial Officer
XXXXXX X. XXXXX
20%
/s/ Xxxxxx X. Xxxxx
-------------------
