PLAN OF EXCHANGE
BY WHICH
HAIRMAX INTERNATIONAL, INC.
(A NEVADA CORPORATION)
SHALL ACQUIRE
ARCOTECT DIGITAL TECHNOLOGY LTD.
(A CORPORATION ORGANIZED UNDER THE LAWS OF HONG KONG)
I. RECITALS 1
1. The Parties to this Agreement: 1
(1.1) Hairmax International, Inc. 1
(1.2) Arcotect Digital Technology Ltd. 1
(1.3) Edward A. Roth 1
(1.4) Arcotect Shareholders 1
2. The Capital of the Parties: 1
(2.1) The Capital of HRMX 1
(2.2) The Capital of Arcotect 1
3. Transaction Descriptive Summary: 1
4. SEC compliance. 2
5. Nevada compliance. 2
6. Audited Financial Statements. 2
II. PLAN OF EXCHANGE 3
1. Conditions Precedent to Closing. 3
(1.1) Shareholder Approval. 3
(1.2) Board of Directors. 3
(1.3) Due Diligence Investigation. 3
(1.4) The rights of dissenting shareholders 3
(1.5) All of the terms, covenants and conditions 3
(1.6) The representations and warranties 3
(1.7) Certificate of The Majority Shareholders 4
2. Conditions Concurrent and Subsequent to Closing. 4
(2.1) Stock Transfer and new issuance. 4
3. Plan of Exchange 5
(3.1) Exchange of Shares: 5
(3.2) Conversion of Outstanding Stock: 5
(3.3) Closing/Effective Date: 5
(3.4) Surviving Corporations 5
(3.5) Rights of Dissenting Shareholders: 5
(3.6) Service of Process: 5
(3.7) Surviving Articles of Incorporation: 5
(3.8) Surviving By-Laws: 5
(3.9) Further Assurance, Good Faith and Fair Dealing: 5
(3.10) General Mutual Representations and Warranties. 6
(3.10.1) Organization and Qualification. 6
(3.10.2) Corporate Authority. 6
(3.10.3) Ownership of Assets and Property. 6
(3.10.4) Absence of Certain Changes or Events. 6
(3.10.5) Absence of Undisclosed Liabilities. 7
(3.10.6) Legal Compliance. 7
(3.10.7) Legal Proceedings. 8
(3.10.8) No Breach of Other Agreements. 8
(3.10.9) Capital Stock. 8
(3.10.10) SEC Reports, Liabilities and Taxes 8
(3.10.11) Brokers' or Finder's Fees 8
(3.11) Post Closing Covenants 9
(3.12) Miscellaneous Provisions 9
(3.12.1) 9
(3.12.2) 9
(3.12.3) 9
(3.12.4) 9
(3.12.5) 9
(3.12.6) 9
4. Termination. 10
5. Simultaneous Signing and Closing 10
6. Execution in Counterparts
Signatures
The Remainder of this Page is Intentionally left Blank
PLAN OF EXCHANGE
BY WHICH
HAIRMAX INTERNATIONAL, INC.
(A NEVADA CORPORATION)
SHALL ACQUIRE
ARCOTECT DIGITAL TECHNOLOGY LTD.
(A CORPORATION ORGANIZED UNDER THE LAWS OF HONG KONG)
THIS PLAN OF EXCHANGE is made and dated this 28th day of December, 2004 and
shall be construed and enforced together with the Letter of Intent signed
between the parties on December 14, 2004 (the "LOI") and the Escrow Agreement
signed on December 14, 2004 (the "Escrow Agreement"). To the extent that there
may be any inconsistency or conflict among this Agreement, the LOI and/or the
Escrow Agreement, the Escrow Agreement shall prevail. This Agreement anticipates
extensive due diligence by both parties, and may be terminated by written
notice, at any time (i) by mutual consent; (ii) by any party during the due
diligence phase.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK
I. RECITALS
1. THE PARTIES TO THIS AGREEMENT:11. THE PARTIES TO THIS LETTER OF INTENT:
(1.1) HAIRMAX INTERNATIONAL, INC. ("HRMX"), a Nevada corporation.
(1.2) ARCOTECT DIGITAL TECHNOLOGY LTD ("ADT"), a corporation organized
under the laws of Hong Kong.
(1.3) EDWARD A ROTH, President of HRMX, and, together with his wife,
Alisha Roth, being the majority shareholders of HRMX (the "Majority Shareholders
of HRMX").
(1.4) THE INDIVIDUAL SHAREHOLDERS OF ADT whose names are set forth on the
signature page hereof (the "ADT Shareholders").
2. THE CAPITAL OF THE PARTIES:
(2.1) THE CAPITAL OF HRMX consists of 500,000,000 shares of common voting
stock of $0.001 par value authorized, of which 206,921,001 shares are issued and
outstanding. HRMX intends to undertake a 100 for 1 reverse stock split which
would result in the total number of outstanding shares being reduced to
2,069,210. HRMX also has 40,000,000 shares of Series A convertible preferred
stock of $.001 par value authorized, of which 2,850,000 shares are issued and
outstanding, and 1,000 shares of Series B convertible preferred stock, of which
none are issued and outstanding.
After consummation of the transactions contemplated herein, the parties
intend that ADT Shareholders will own 90.62% of the issued and outstanding
shares of common stock of HRMX.
(2.2) THE CAPITAL OF ADT consists of HK$10,000 in registered capital,
which for the purposes of this Agreement, is referred to as "common stock" or
"capital stock".
3. TRANSACTION DESCRIPTIVE SUMMARY: HRMX desires to acquire ADT and the ADT
Shareholders wish ADT to be acquired by a public company. The ADT Shareholders
will exchange 100% of the capital stock of ADT for (i) 2,850,000 outstanding
shares of HRMX Series A convertible preferred stock such transfer to be made on
the date of execution of this Agreement and (ii) 20,000,000 (post-reverse stock
split) new shares of HRMX common stock to be transferred to the ADT Shareholders
on the Closing Date which shall in no event be later than January 7, 2005. In
addition, the ADT Shareholders will make the second of two payments to the
Majority Shareholders of HRMX of $400,000 in the aggregate, the first payment
having already been paid in escrow pursuant to the Escrow Agreement. The parties
intend that the transactions qualify and meet the Hong Kong Inland Revenue
Department and US Internal Revenue Code requirements for a tax free
reorganization, in which there is no corporate gain or loss recognized for the
parties, with reference to Internal Revenue Code (IRC) sections 354 and 368.
4. SEC COMPLIANCE. HRMX shall cause the filing and the mailing to its
stockholders of an Information Statement pursuant to Section 14(f) of the
Securities Exchange Act of 1934, before Closing.
5. NEVADA COMPLIANCE. Articles of Exchange are required to be filed by Nevada
law as the last act to make the acquisition final and effective under Nevada
law.
6. AUDITED FINANCIAL STATEMENTS. Certain filings under the Securities Exchange
Act of 1934, such as a Current Report on Form 8-K, require audited financial
statements of ADT to be filed with the SEC within 71 calendar days after
Closing. In connection with HRMX's (or as its name may be changed by agreement
of the parties) filing of a Current Report on Form 8-K after Closing, as it
relates to this transaction, audited financial statements of ADT will be
prepared and filed with the SEC.
The Remainder of this Page is Intentionally left Blank
II. PLAN OF EXCHANGE
1. CONDITIONS PRECEDENT TO CLOSING.
(1.1) SHAREHOLDER APPROVAL. Each corporate party shall have secured
shareholder approval for this transaction, if required, in accordance with the
laws of its place of incorporation and its constituent documents.
(1.2) BOARD OF DIRECTORS. The Boards of Directors of each corporate party
shall have approved the transaction and this agreement, in accordance with the
laws of its place of incorporation and its constituent documents.
(1.3) DUE DILIGENCE INVESTIGATION. Each party shall have furnished to the
other party certain corporate and financial information to conduct its
respective due diligence. If any party determines that there is a reason not to
complete this Agreement as a result of their due diligence examination, then
they must give written notice to the other party prior to the expiration of the
due diligence examination period. The Due Diligence period, for purposes of this
paragraph, shall expire on the Closing Date. The Closing Date shall occur on the
date mutually agreed upon by the parties, subject to the meeting of various
regulatory requirements and the fulfillment of all the conditions precedent.
(1.4) THE RIGHTS OF DISSENTING SHAREHOLDERS, if any, of each party shall
have been satisfied and the Board of Directors of each party shall have
determined to proceed with this Agreement.
(1.5) ALL OF THE TERMS, COVENANTS AND CONDITIONS of this Agreement to be
complied with or performed by each party for Closing shall have been complied
with, performed or waived in writing; and
(1.6) THE REPRESENTATIONS AND WARRANTIES of the parties, contained in this
Agreement , except as amended, altered or waived by the parties in writing,
shall be true and correct in all material respects at Closing with the same
force and effect as if such representations and warranties are made at and as of
such time; and each corporate party hereto shall provide the other with a
certificate, certified either individually or by an officer, dated the Closing
Date, to the effect, that all conditions precedent have been met, and that all
representations and warranties of such party are true and correct as of that
date. The form and substance of each party's certification shall be in a form
reasonably satisfactory to the other. In addition, it shall be a condition
precedent of ADT's obligation to consummate the transactions contemplated herein
that a certificate of good standing on HRMX shall have been delivered to it by
the Secretary of State of Nevada.
(1.7) CERTIFICATE OF THE MAJORITY SHAREHOLDERS OF HRMX. It shall be a
condition precedent to the obligation of ADT and the ADT Shareholders to
consummate the transactions contemplated herein that a certificate of the
Majority Shareholders of HRMX in substantially the following form be delivered
to them on the date of execution:
(I) HRMX is a corporation duly organized, validly existing and in good
standing underthe laws of the State of Nevada and has all requisite
corporate power to own, operate and lease its properties and assets
and to carry on its business.
(II) The authorized capitalization and the number of issued and outstanding
capital shares of HRMX are accurately and completely set forth in this
Agreement.
(III)The issued and outstanding shares of HRMX (including the 20,000,000
(post-reverse stock split) new shares of HRMX common stock to be
issued to the ADT Shareholders at Closing) have been or (as the case
may be) will be duly authorized and validly issued and are fully paid
and non-assessable.
(IV) HRMX currently has the full right, power and authority to sell,
transfer and deliver 2,850,000 shares of its series A convertible
preferred stock and, pending its de-registration as a US Business
Development Corporation, will have the full right, power and authority
to sell, transfer and deliver 20,000,000 (post-reverse stock split)
shares of its common stock to the ADT Shareholders, and, upon delivery
of the certificates representing such shares as contemplated in this
Agreement , will transfer to the ADT Shareholders good, valid and
marketable title thereto, free and clear of all liens.
(V) The holders of HRMX's series A convertible preferred shares shall (a)
be entitled to receive common stock dividends or other distributions
when, as, and if declared by the directors of HRMX, with the holders
of the common stock on an as converted basis; (b) be convertible, at
the option of the holder thereof, at any time after the date of
issuance into 200 shares of fully paid and nonassessable shares of
HRMX common stock and upon conversion; and (c) shall entitle holders
of such converted common stock to notice of any shareholders' meeting
and to vote as a single class upon any matter submitted to the
shareholders for a vote on the basis that the holders of each series
of Preferred Stock shall have one vote for each full share of common
stock into which share of such series would be convertible on the date
for the vote relative to the single vote per share of Common Stock
held as of such date.
(VI) To the best of his knowledge, there is no litigation, proceeding or
governmental investigation pending or threatened against or relating
to HRMX.
(VII)HRMX has taken all steps in connection with this Agreement and the
issuance of shares thereunder which are necessary to effect and
validly complete the transactions contemplated in this Agreement and
to comply in all material respects with the Securities Act of 1933, as
amended, and the Securities Exchange Act of 1934, as well as the rules
and regulations promulgated pursuant thereto.
(1.8) TRANSFER OF OUTSTANDING STOCK. On the execution date of this
Agreement, the Majority Shareholders of HRMX shall have transferred to the ADT
Shareholders 2,850,000 shares of its Series A convertible preferred stock.
(1.9) BOARD CONTROL. HRMX and the Majority Shareholders of HRMX shall
effect the resignations of all of then current directors of HRMX prior to the
Closing Date and the ADT Shareholders shall have effected a change of control
over HRMX with the appointment of all of the new directors.
(1.10) REGULATORY FILINGS. HRMX and the Majority Shareholders of HRMX
having procured all necessary regulatory filings, consents and approvals to
complete, validate and give effect to all of the transactions contemplated in
this Agreement up to the Closing Date.
2. CONDITIONS CONCURRENT AND SUBSEQUENT TO CLOSING.
(2.1) REGULATORY FILINGS. HRMX and the Majority Shareholders of HRMX shall
procure all necessary regulatory filings, consents and approvals to complete,
validate and give effect to all of the post-Closing transactions contemplated in
this Agreement.
(2.2) REVERSE STOCK SPLIT. Following the date of execution of the
Agreement and in no event later than January 7, 2005, the 100:1 reverse stock
split authorized by HRMX and the Majority Shareholders of HRMX on November 22,
2004 having become effective.
(2.3) TRANSFER OF NEW STOCK. Within twelve days to the Closing Date, HRMX
shall have transferred the issued 20,000,000 (post-reverse stock split) new
shares of HRMX common stock to the ADT Shareholders.
3. PLAN OF EXCHANGE
(3.1) EFFECTIVE AND CLOSING DATES. This Agreement shall become effective
immediately upon approval and execution by the parties hereto, in the manner
provided by the law of the places of incorporation and constituent corporate
documents, and upon compliance with governmental filing requirements, such as,
without limitation, compliance with Section 14 of the Securities Exchange Act of
1934, and the filing of Articles of Exchange, if applicable under State Law.
Closing shall occur when all such requirements have been met and when all of the
conditions precedent have been fulfilled. The Closing deliveries shall be made
pursuant to the terms of the Escrow Agreement and the LOI. The parties
anticipate the filing of a Schedule 14-F Information Statement within 10 days
after Closing.
(3.2) SURVIVING CORPORATIONS. Both corporate parties hereto shall survive
the exchange and reorganization herein contemplated and shall continue to be
governed by the laws of its place of incorporation and its constituent
documents.
(3.3) RIGHTS OF DISSENTING SHAREHOLDERS. Each corporate party is the
entity responsible for the rights of its own dissenting shareholders, if any.
(3.4) SERVICE OF PROCESS AND ADDRESS. Each of the corporate parties hereto
shall continue to be amenable to service of process in its own place of
incorporation, exactly as before this acquisition. The address of HRMX is 9900
West Sample Road, Suite 300, Coral Springs, Florida 33065. The address of ADT is
Suite B, 27/F K. Wah Center, 191 Java Road, North Point, Hong Kong. The address
of the ADT Shareholders is in care of ADT at Suite B, 27/F K. Wah Center, 191
Java Road, North Point, Hong Kong.
(3.5) SURVIVING ARTICLES OF INCORPORATION. the Articles of Incorporation
and Memoranda of Assocation of each of the corporate parties hereto shall remain
in full force and effect, unchanged.
(3.6) SURVIVING BY-LAWS. the By-Laws and Articles of Association of each of
the corporate parties hereto shall remain in full force and effect, unchanged.
(3.7) FURTHER ASSURANCE, GOOD FAITH AND FAIR DEALING. the Directors of each
corporate party hereto shall and will execute and deliver any and all necessary
documents, acknowledgments and assurances and do all things proper to confirm or
acknowledge any and all rights, titles and interests created or confirmed
herein; and both of the corporate partieshereto covenant expressly hereby to
deal fairly and in good faith with each other and each other's shareholders. In
furtherance of the parties desire, as so expressed, and to encourage timely,
effective and businesslike resolution the parties agree that any dispute arising
between them, capable of resolution by arbitration, shall be submitted to
binding arbitration. As a further incentive to private resolution of any
dispute, the parties agree that each party shall bear its own costs of dispute
resolution and shall not recover such costs from any other party.
(3.8) GENERAL MUTUAL REPRESENTATIONS AND WARRANTIES. Each of the parties
hereto severally warrant and represent to the others that unless otherwise
provided all of the following representations and warranties are or will be true
immediately before Closing:
(3.8.1) ORGANIZATION AND QUALIFICATION. Each corporate party hereto
is duly organized and in good standing, and is duly qualified to conduct any
business it may be conducting, as required by law or local ordinance.
(3.8.2) CORPORATE AUTHORITY. Each corporate party hereto has
corporate authority, under the laws of its jurisdiction and its constituent
documents, to do each and every element of performance to which it has agreed,
and which is reasonably necessary, appropriate and lawful, to carry out this
Agreement in good faith.
(3.8.3) OWNERSHIP OF ASSETS AND PROPERTY. Each corporate party hereto
has lawful title and ownership of its property as reported to the other, and as
disclosed in its financial statements.
(3.8.4) MAJORITY SHAREHOLDING. After consummation of the transactions
provided for herein, the ADT Shareholders will own 90.62% of the issued and
outstanding shares of common stock of HRMX.
(3.8.5) STATUS OF PUBLIC COMPANY. HRMX will retain its status as a
public company during and after all of the transactions provided for herein are
completed.
(3.8.6) DISCHARGE OF ASSETS AND LIABILITIES. All of the assets and
liabilities of HRMX as at the date of execution have been disposed of or
discharged (as the case may be).
(3.8.7) ABSENCE OF CERTAIN CHANGES OR EVENTS. Neither of the
corporate parties hereto has had any material changes of circumstances or events
which have not been fully disclosed to the other party, and which, if different
than previously disclosed in writing, have been disclosed in writing as
currently as is reasonably practicable. Specifically, and without limitation:
(3.8.7-A) the business of each corporate party hereto shall be
conducted only in the ordinary and usual course and consistent with its past
practice, and neither party shall purchase or sell (or enter into any agreement
to so purchase or sell) any properties or assets or make any other changes in
its operations, respectively, taken as a whole, or provide for the issuance of,
agreement to issue or grant of options to acquire any shares, whether common,
redeemable common or convertible preferred, in connection therewith;
(3.8.7-B) Neither of the corporate parties hereto shall (i) amend
its Articles of Incorporation or By-Laws (except in the case of HRMX's proposed
amendment to its Articles of Incorporation to effect the corporate name change),
(ii) change the number of authorized or outstanding shares of its capital stock,
except as set forth in the preceding clauses, or (iii) declare, set aside or pay
any dividend or other distribution or payment in cash, stock or property;
(3.8.7-C) Neither of the corporate parties hereto shall (i) issue,
grant or pledge or agree or propose to issue, grant, sell or pledge any shares
of, or rights of any kind to acquire any shares of, its capital stock, (ii)
incur any indebtedness other than in the ordinary course of business, (iii)
acquire directly or indirectly by redemption or otherwise any shares of its
capital stock of any class (except for the intended transfer of shares of common
stock and series A preferred stock) or (iv) enter into or modify any contact,
agreement, commitment or arrangement with respect to any of the foregoing;
(3.8.7-D) Except in the ordinary course of business, none of the
parties hereto shall (i) increase the compensation payable or to become payable
by it to any of its officers or directors; (ii) make any payment or provision
with respect to any bonus, profit sharing, stock option, stock purchase,
employee stock ownership, pension, retirement, deferred compensation, employment
or other payment plan, agreement or arrangement for the benefit of its employees
(iii) grant any stock options or stock appreciation rights or permit the
exercise of any stock appreciation right where the exercise of such right is
subject to its discretion (iv) make any change in the compensation to be
received by any of its officers; or adopt, or amend to increase compensation or
benefits payable under, any collective bargaining, bonus, profit sharing,
compensation, stock option, pension, retirement, deferred compensation,
employment, termination or severance or other plan, agreement, trust, fund or
arrangement for the benefit of employees, (v) enter into any agreement with
respect to termination or severance pay, or any employment agreement or other
contract or arrangement with any officer or director or employee, respectively,
with respect to the performance or personal services that is not terminable
without liability by it on thirty days notice or less, (vi) increase benefits
payable under its current severance or termination, pay agreements or policies
or (vii) make any loan or advance to, or enter into any written contract, lease
or commitment with, any of its officers or directors;
(3.8.7-E) None of the parties hereto shall assume, guarantee,
endorse or otherwise become responsible for the obligations of any other
individual, firm or corporation or make any loans or advances to any individual,
firm or corporation, other than obligations and liabilities expressly assumed by
the other that party;
(3.8.7-F) None of the parties hereto shall make any investment of a
capital nature either by purchase of stock or securities, contributions to
capital, property transfers or otherwise, or by the purchase of any property or
assets of any other individual, firm or corporation.
(3.8.8) ABSENCE OF UNDISCLOSED LIABILITIES. Each of the corporate
parties hereto has, and has no reason to anticipate having, any material
liabilities which have not been disclosed to the other, in the financial
statements or otherwise in writing.
(3.8.9) LEGAL COMPLIANCE. Each of the corporate parties hereto shall
comply in all material respects with all Federal, state, local and other
governmental (domestic or foreign) laws, statutes, ordinances, rules,
regulations (including all applicable securities laws), orders, writs,
injunctions, decrees, awards or other requirements of any court or other
governmental or other authority applicable to each of them or their respective
assets or to the conduct of their respective businesses, and use their best
efforts to perform all obligations under all contracts, agreements, licenses,
permits and undertaking without default.
(3.8.10) LEGAL PROCEEDINGS. Each of the corporate parties hereto has
no legal proceedings, administrative or regulatory proceeding, pending or
suspected, which have not been fully disclosed in writing to the other.
(3.8.11) NO BREACH OF OTHER AGREEMENTS. This Agreement, and the
faithful performance of this Agreement, will not cause any breach of any other
existing agreement, or any covenant, consent decree, or undertaking by any
party, which has not been disclosed to the other parties.
(3.8.12) CAPITAL STOCK. The issued and outstanding shares of each
of the corporate parties hereto is as detailed herein, that all such shares are
in fact issued and outstanding, duly and validly issued, were issued as and are
fully paid and non-assessable shares, and that, other than as represented in
writing, there are no other securities, options, warrants or rights outstanding,
to acquire further shares of such corporation.
(3.8.13) SEC REPORTS, LIABILITIES AND TAXES. (i) HRMX has filed all
required registration statements, prospectuses, reports, schedules, forms,
statements and other documents required to be filed by it with the SEC since the
date of its registration under the Securities Exchange Act of 1934
(collectively, including all exhibits thereto, the "HRMX SEC Reports"). None of
the HRMX SEC Reports, as of their respective dates, contained any untrue
statements of material fact or failed to contain any statements which were
necessary to make the statements made therein, in light of the circumstances,
not misleading. All of the HRMX SEC Reports, as of their respective dates (and
as of the date of any amendment to the respective HRMX SEC Reports), complied as
to form in all material respects with the applicable requirements of the
Securities Act and the Exchange Act and the rules and regulations promulgated
thereunder.
(ii) Except as disclosed in the HRMX SEC Reports filed prior to the date hereof,
HRMX and its Subsidiaries have not incurred any liabilities or obligations
(whether or not accrued, contingent or otherwise) that are of a nature that
would be required to be disclosed on a balance sheet of HRMX and its
Subsidiaries or the footnotes thereto prepared in conformity with GAAP, other
than (A) liabilities incurred in the ordinary course of business or (B)
liabilities that would not, in the aggregate, reasonably be expected to have a
material adverse effect on HRMX.
(iii) Except as disclosed in the HRMX SEC Reports filed prior to the date
hereof, HRMX and each of its Subsidiaries (i) have prepared in good faith and
duly and timely filed (taking into account any extension of time within which to
file) all material tax returns required to be filed by any of them and all such
filed tax returns are complete and accurate in all material respects; (ii) have
paid all taxes that are shown as due and payable on such filed tax returns or
that HRMX or any of its Subsidiaries are obligated to pay without the filing of
a tax return; (iii) have paid all other assessments received to date in respect
of taxes other than those being contested in good faith for which provision has
been made in accordance with GAAP on the most recent balance sheet included in
HRMX's financial statements; (iv) have withheld from amounts owing to any
employee, creditor or other person all taxes required by law to be withheld and
have paid over to the proper governmental authority in a timely manner all such
withheld amounts to the extent due and payable; and (v) have not waived any
applicable statute of limitations with respect to United States federal or state
income or franchise taxes and have not otherwise agreed to any extension of time
with respect to a United States federal or state income or franchise tax
assessment or deficiency.
(3.8.14) BROKERS' OR FINDER'S FEES. Neither of the corporate parties
hereto is aware of any claims for brokers' fees, or finders' fees, or other
commissions or fees, by any person not disclosed to the other, which would
become, if valid, an obligation of either company.
(3.9) ADDITIONAL POST-CLOSING COVENANT
The ADT Shareholders shall at the sole expense of the Majority Shareholders of
HRMX cause HRMX to dispose of any of remaining assets and liabilities of HRMX as
promptly as practicable after Closing . In connection with such disposal, the
Majority Shareholders of HRMX, jointly and severally, agree to indemnify and
hold harmless both HRMX and the ADT Shareholders against any and all losses,
claims, liabilities or expenses that may be associated with disposing of any
assets and liabilities of HRMX that exist after the Closing.
(3.10) MISCELLANEOUS PROVISIONS
(3.10.1) Except as required by law, no party shall provide any
information concerning any aspect of the transactions contemplated by this
Agreement to anyone other than their respective officers, employees and
representatives without the prior written consent of the other parties hereto.
The aforesaid obligations shall terminate on the earlier to occur of (a) the
Closing, or (b) the date by which any party is required under its articles or
bylaws or as required by law, to provide specific disclosure of such
transactions to its shareholders, governmental agencies or other third parties.
In the event that the transaction does not close, each party will return all
confidential information furnished in confidence to the other. In addition, all
parties shall consult with each other concerning the timing and content of any
press release or news release to be issued by any of them.
(3.10.2) This Agreement may be executed simultaneously in two or
more counterpart originals. The parties can and may rely upon facsimile
signatures as binding under this Agreement, however, the parties agree to
forward original signatures to the other parties as soon as practicable after
the facsimile signatures have been delivered.
(3.10.3) The Parties to this agreement have no wish to engage in
costly or lengthy litigation with each other. Accordingly, any and all disputes
which the parties cannot resolve by agreement or mediation, shall be submitted
to binding arbitration under the rules and auspices of the American Arbitration
Association. As a further incentive to avoid disputes, each party shall bear its
own costs, with respect thereto, and with respect to any proceedings in any
court brought to enforce or overturn any arbitration award. This provision is
expressly intended to discourage litigation and to encourage orderly, timely and
economical resolution of any disputes which may occur.
(3.10.4) If any provision of this Agreement or the application
thereof to any person or situation shall be held invalid or unenforceable, the
remainder of the Agreement and the application of such provision to other
persons or situations shall not be effected thereby but shall continue valid and
enforceable to the fullest extent permitted by law.
(3.10.5) No waiver by any party of any occurrence or provision
hereof shall be deemed a waiver of any other occurrence or provision.
(3.10.6) The parties acknowledge that both they and their counsel
have been provided ample opportunity to review and revise this agreement and
that the normal rule of construction shall not be applied to cause the
resolution of any ambiguities against any party presumptively. The Agreement
shall be governed by and construed in accordance with the laws of the State of
Nevada.
4. TERMINATION. This Agreement may be terminated by written notice, at any
time prior to Closing, by any of the Parties whether before or after approval by
the shareholders of either or both HRMX or ADT; (i) by mutual consent; (ii) by
any party hereto during the due diligence phase, or (iii) by any of the Parties,
in the event that any of the transactions provided for by this Agreement has not
been implemented and approved by the proper governmental authorities within 120
days from the of this Agreement. In the event that termination of this Agreement
by any party hereto, as provided above, this Agreement shall forthwith become
void and there shall be no liability on the part of any party or its respective
officers and directors, except as may exist pursuant to the Escrow Agreement .
EXECUTION IN COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and when all of the counterparts are put together as one document
it shall be a binding contract.
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THIS AGREEMENT is executed on behalf of each of the parties as of the date
first above written.
HAIRMAX INTERNATIONAL, INC. ARCOTECT DIGITAL TECHNOLOGY LTD
By: /s/ Edward A Roth By: /s/ Daniel Ng
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Edward A Roth, President Daniel Ng, President
ADT Shareholders:
______________________________ ______________________________
(Individually) (Individually)
______________________________ ______________________________
(Individually) (Individually)
______________________________ ______________________________
(Individually) (Individually)
______________________________ ______________________________
(Individually) (Individually)
______________________________ ______________________________
(Individually) (Individually)
______________________________ ______________________________
(Individually) (Individually)
The Majority Shareholders of HRMX:
/s/ Edward A Roth
- -------------------
(Individually)
/s/ Alisha M Roth
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(Individually)