EXHIBIT 10.2
ISSUANCE AGREEMENT
ISSUANCE AGREEMENT (this "Agreement"), dated as of September 9, 2005,
between EUROFORTUNE HOLDING, S.A., a Luxembourg company ("Buyer"), and HERITAGE
WORLDWIDE, INC., a Delaware corporation (the "Company").
R E C I T A L S :
Buyer is purchasing from HEM Mutual Assurance LLC, a Colorado limited
liability company ("Seller"), the following debentures: (a) the 1% Convertible
Debenture Due October 9, 2008, dated October 9, 2003, with a stated principal
amount of $498,750, issued by the Company's wholly-owned subsidiary and
predecessor in interest, OS MXM, Inc. ("OS"), to Seller, and titled 'First
Debenture A' ("First Debenture A"), (b) the 1% Convertible Debenture Due October
9, 2008, dated October 9, 2003, with a stated principal amount of $500,000,
issued by the Company's wholly-owned subsidiary and predecessor in interest, OS,
to Seller, and titled 'First Debenture B' ("First Debenture B"), and (c) the 1%
Convertible Debenture Due October 9, 2008, dated October 9, 2003, with a stated
principal amount of $1,250, issued by the Company's wholly-owned subsidiary and
predecessor in interest, OS, and titled 'Second Debenture' ("Second Debenture"
and together with First Debenture A and First Debenture B, the "Debentures"),
pursuant to the terms and conditions of the Debenture Purchase Agreement (the
"Debenture Purchase Agreement") dated as of September 9, 2005 between Buyer,
Seller and the Company.
As a condition to Buyer's purchase, Buyer and the Company desire to enter
into this Agreement to, among other things, reissue the Debentures, reallocate
the principal of the Debentures and reissue the Company's common stock held in
escrow for the potential conversion of the Debentures.
NOW, THEREFORE, in consideration of the mutual promises and agreements set
forth herein, the parties hereto hereby agree as follows:
1. Immediately after the closing of the Debenture Purchase Agreement, the
Company shall reissue First Debenture A in the form attached hereto as Exhibit A
("New Debenture A") to Buyer in exchange for First Debenture A and Second
Debenture. First Debenture A and Second Debenture shall thereafter be cancelled
and of no further force and effect. It is acknowledged that the principal
balance of Second Debenture will be added to the principal balance of First
Debenture A through the issuance of New Debenture A.
2. Immediately after the closing of the Debenture Purchase Agreement, the
Company shall reissue First Debenture B in the form attached hereto as Exhibit B
("New Debenture B") to Buyer in exchange for First Debenture B. First Debenture
B shall thereafter be cancelled and of no further force and effect.
3. Pursuant to the Escrow Agreement, there are (or should be) 10,000,000
shares of the Company's common stock held in escrow for the potential conversion
of all or any portion of the Debentures into the Company's common stock. Prior
to the closing of the Debenture Purchase Agreement, those shares were issued to
Seller and were (or should have been) held in escrow. As a condition to the
Debenture Purchase Agreement, those shares (including shares that Seller may
have received in connection with prior attempts to convert the Debentures which
were rescinded and unwound under the Debenture Purchase Agreement) are to be
returned to the Company's transfer agent and retired. Buyer and the Company also
agree that any shares issued upon conversion of a Debenture will contain the
following legend (or a similar legend):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND HAVE BEEN
ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE
OR DISTRIBUTION THEREOF. NO TRANSFER MAY BE EFFECTED WITHOUT AN EFFECTIVE
REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER
APPLICABLE FEDERAL OR STATE SECURITIES LAWS."
4. Notwithstanding anything contained the Original Debenture Purchase
Agreement (as defined in the Debenture Purchase Agreement), the Debentures or
any agreement, document or instrument executed and delivered in connection with
the original issuance of the Debentures to Seller (the "Original Debenture
Documents"), Buyer and the Company agree and acknowledge that the shares of the
Company's capital stock into which the Debentures are convertible are not and
have never been freely tradable under federal and state securities laws. Buyer
agrees that the shares may only be transferred as provided in the legend above.
Buyer agrees to be bound by all of the terms and conditions of the Original
Debenture Documents, in its capacity as holder of the Debentures, other than the
Escrow Agreement which will be terminated as of the Closing Date. As of the
Closing Date, the Escrow Agreement shall hereby terminate.
5. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York applicable to a contract executed and
performed in such State without giving effect to the conflicts of laws
principles thereof.
6. This Agreement contains the entire understanding of the parties and
supersedes all prior agreements and understandings relating to the subject
matter hereof and this Agreement shall not be amended or waived (in full or in
part) except by a written instrument hereafter signed by all of the parties
hereto.
7. The parties irrevocably agree that all actions arising under or relating
to this Agreement and the transactions contemplated hereby shall be brought
exclusively in any United States District Court or New York State Court located
in New York, New York having subject matter jurisdiction over such matters, and
each of the parties hereby consents and agrees to such personal jurisdiction,
and waives any objection as to the venue, of such courts for purposes of such
action.
8. None of the parties hereto may assign its rights or delegate its
obligations under this Agreement without the written consent of the other
parties hereto. This Agreement and all of the provisions hereof shall be binding
upon and inure only to the benefit of the parties hereto and their respective
heirs, executors, personal representatives and successors.
9. This Agreement may be executed in multiple counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument, and the different parties to this Agreement need not
execute the same counterpart. This Agreement shall be effective upon delivery of
original signature pages or facsimile copies thereof executed by each of the
parties.
10. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY WAIVES TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY OR AGAINST IT ON ANY
MATTERS WHATSOEVER, IN CONTRACT OR IN TORT, ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS AGREEMENT.
IN WITNESS WHEREOF, and intending to be legally bound thereby, the parties
hereto have caused this Agreement to be duly executed and delivered by their
duly authorized officers as of the date and year first above written.
EUROFORTUNE HOLDING, S.A.
By: /s/ Alain Sereyjol-Garros
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Name: Alain Sereyjol-Garros
Title: Director
HERITAGE WORLDWIDE, INC.
By: /s/ Xxxx Xxxxxx Mas
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Name: Xxxx Xxxxxx Mas
Title: Chairman of the Board
