AGREEMENT OF SALE
AGREEMENT OF SALE, made August 28, 2001, between Sel-Leb Marketing,
Inc., a New York corporation, having an address at 000 Xxxxx Xxxxxx, Xxxxxxxx,
Xxx Xxxxxx 00000 ("Sel-Leb"), and Perfume Center of America, Inc., a New York
corporation, having an address at 0000 Xxxxxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx
00000 ("PCA").
WHEREAS, Sel-Leb, since 1996, has been the de facto exclusive supplier
of national brand-name fragrances to X.X.'s Wholesale Club ("X.X.'s") in
connection with X.X.'s fragrance rack program (the "Program");
WHEREAS, in connection with its sale of fragrances to X.X.'s under the
Program, Sel-Leb has purchased fifty-three (53) sales racks which are located
and maintained at various X.X.'s locations within the United States (the
"Racks," as further described in Exhibit A);
WHEREAS, in connection with its sale of fragrances to X.X.'s under the
Program, Sel-Leb has acquired an inventory of fragrances for sale to X.X.'s (the
"Inventory," as further described in Exhibit B);
WHEREAS, PCA desires to acquire the Program, Racks and Inventory from
Sel-Leb and engage Sel-Leb to serve as an independent general advisor and
consultant to PCA on all matters relating to PCA's relationship to X.X.'s;
WHEREAS, Sel-Leb is desirous of selling its interest in the Program,
Racks and Inventory to PCA, and becoming engaged to serve as an independent
general advisor and consultant to PCA on all matters relating to PCA's
relationship with X.X.'s; and
WHEREAS, this agreement (the "Agreement") sets forth the terms and
conditions upon which PCA will acquire the Program, Racks and Inventory from
Sel-Leb and Sel-Leb will become engaged to serve as an independent general
advisor and consultant to PCA on all matters relating to PCA's relationship with
X.X.'s.
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, the parties represent, warrant, covenant and hereby agree as follows:
ARTICLE I
SALE OF THE PROGRAM, RACKS AND INVENTORY
1.1 AGREEMENT TO SELL. Sel-Leb agrees to sell, transfer and
deliver to PCA, and PCA agrees to purchase, upon the terms and conditions
hereinafter set forth, the Program, Racks and Inventory.
1.2 CONSIDERATION FOR THE PURCHASE OF THE PROGRAM. The purchase
price to be paid by PCA for Sel-Leb's interest in and to the Program is
$400,000.00 payable as follows:
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1.2.1 $200,000.00 payable at the closing of the
transactions contemplated hereby (the "Closing," as defined in Article II
hereof);
1.2.2 $100,000.00 payable on or before December 1, 2002;
and;
1.2.3 $100,000.00 payable on or before December 1, 2003.
1.3 CONSIDERATION FOR THE PURCHASE OF THE RACKS. The purchase
price to be paid by PCA for the Racks shall be one-half of Sel-Leb's one
thousand seven hundred dollar ($1,700.00) acquisition cost of each Rack
indicated on Exhibit A attached hereto, which amounts to $45,050, and shall be
payable on or before December 31, 2001.
1.4 CONSIDERATION FOR THE PURCHASE OF THE INVENTORY. The purchase
price to be paid by PCA for the Inventory shall be Sel-Leb's aggregate standard
acquisition cost of same as indicated on Exhibit B attached hereto, which
amounts to $248,286.90, and shall be payable on that date which is six (6)
months from the date of the Closing.
ARTICLE II
THE CLOSING
2.1 THE CLOSING. The "Closing" shall mean the consummation of the
transactions contemplated by this Agreement, and shall take place on August 28,
2001, or such other date not later than September 1, 2001, as the parties
mutually agree upon. The Closing shall take place at the offices of Xxxxxxxxx &
Roshco, LLP, 000 Xxxxx Xxxxxx - 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000, or such
other place as the parties may mutually agree upon.
2.2 ACCEPTABLE FUNDS. All money payable under this Agreement,
unless otherwise specified, shall be paid either: (a) in cash, but not more than
$1,000 shall be paid in cash; (b) by good certified check of PCA, or official
check of any bank, savings bank, trust company, or savings and loan association
which is a member of the New York Clearing House, payable to the direct order of
Sel-Leb; or (c) as otherwise agreed to in writing by the parties or their
attorneys.
2.3 DELIVERIES AT CLOSING.
2.3.1 DELIVERIES BY PCA. At the closing PCA shall deliver
to Sel-Leb all sums due and payable to Sel-Leb at Closing pursuant to Article I.
2.3.2 DELIVERIES BY SEL-LEB. At the closing Sel-Leb shall
execute and deliver to PCA:
(a) a Xxxx of Sale substantially in the form of
Exhibit C hereto
(b) such other instruments as may be reasonably be
necessary or proper to transfer to PCA all other
ownership interests in the Program, Racks and
Inventory.
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ARTICLE III
BULK TRANSFER REQUIREMENTS
3.1 WAIVER OF BULK TRANSFER REQUIREMENTS. The parties waive
compliance with the bulk transfer provisions of the Uniform Commercial Code,
which may be applicable to this transaction.
ARTICLE IV
ENGAGEMENT OF SEL-LEB BY PCA
4.1 CONSULTING AGREEMENT. Effective upon the consummation of the
Closing PCA retains Sel-Leb, and Sel-Leb accepts and agrees, to serve as an
independent general advisor and consultant to PCA on all matters relating to
PCA's relationship with X.X.'s, including, but not limited to, preservation of
the Program (the "Services"), subject to the terms and conditions of this
Article IV (the "Consulting Agreement").
4.2 PERFORMANCE. Sel-Leb agrees to utilize its best efforts in the
provision of the Services described herein, on a non-exclusive basis with
respect to Sel-Leb's other business ventures, but on an exclusive basis with
respect to sales of designer fragrances to X.X.'s in connection with the
Program, and agrees that it will devote such time during the term hereof as is
reasonably necessary to accomplish the desired results on PCA's behalf. It is
understood and accepted by PCA that the Sel-Leb has made no guarantees
concerning its performance hereunder other than those expressly stated herein.
4.3 TERM. The term of this Agreement shall commence upon the
consummation of the Closing and shall continue as long as X.X.'s continues the
Program with PCA.
4.3.1 TERMINATION BY SEL-LEB. Sel-Leb shall have the right
to terminate this Consulting Agreement at any time during the term hereof,
effective upon the Company giving written notice of such termination to the
Consultant as herein specified in the event PCA fails to make any payment to
Sel-Leb within forty-five (45) days of the date such payment is due. Any such
payment shall not affect PCA's obligations under Article I above.
4.3.2 TERMINATION BY PCA. In the event PCA does not achieve
Net Sales (as defined below) greater than or equal to $1,600,000 during the
twelve (12) month period following the Closing, PCA shall have the right to
terminate this Consulting Agreement, as well as its obligations under Article I
above, by providing Sel-Leb with notice of such termination together with (i) a
document certifying that in consideration of the termination of this agreement,
and PCA's obligations hereunder, PCA shall not make any sales to X.X.'s in
connection with the Program for a period of two (2) years from the date of
termination; (ii) a xxxx of sale for the Racks, and (iii) a check in immediately
available funds payable to Sel-Leb in the sum of the aggregate Net Sales
achieved by PCA since the Closing less (x) the cost of goods sold and (y) all
sums actually paid by PCA to Sel-Leb pursuant to Sections 1.2 and 1.3 above.
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4.4 CONSIDERATION. In full consideration of the Services to be
performed under this Article IV by Sel-Leb and subject to the terms hereof, PCA
shall pay to Sel-Leb and Sel-Leb shall accept five percent (5%) of realized net
sales ("Net Sales" as defined herein) on all sales of fragrances and other
products by PCA to X.X.'s.
4.4.1 NET SALES. As used herein, the term "Net Sales" shall
mean monies paid to PCA for products shipped to X.X.'s, its affiliates and/or
subsidiaries, less (i) freight and insurance charges, value added taxes, sales
taxes, and/or other similar taxes and duties, and (ii) discounts and returns not
the result of damaged merchandise, late shipment or shipping errors.
4.4.2 PAYMENT. Payments due to Sel-Leb pursuant to this
Section 4.3 shall be paid on or before the 30th day of each month during the
term hereof (and on or before the 15th day of the month following termination or
expiration of this Agreement) based upon Net Sales during the immediately
preceding calendar month.
4.4.3 PAYMENT REPORTS. On or before the 15th of each month
during the term hereof (and on or before the 30th day of the month following
termination or expiration of this Agreement), PCA shall furnish to Sel-Leb
complete and accurate statements showing the number, description and gross sales
price, itemized deductions from gross sales price, and Net Sales derived from
the products sold by PCA to X.X.'s during the preceding calendar month less
itemized deductions from Net Sales from prior periods which were not known or
available to PCA at the time the Payment Report for such Net Sales was prepared
and payments made in connection therewith. Such Payment Reports shall be
furnished by PCA whether or not any Products had been shipped during calendar
months to which such statements refer. The receipt and/or deposit by Sel-Leb of
any of the statements furnished pursuant to this Section 4.3.3 or of any sums
paid hereunder shall not preclude Sel-Leb from questioning the correctness
thereof at any time, and in the event that any inconsistencies or mistakes are
discovered in such statements or payments, they shall immediately be rectified
and the appropriate payments made by PCA. All sums not paid when due shall bear
interest at the lesser of ten percent (10%) per annum or the highest rate
permitted under the Laws of the State of New York without prejudice to any other
rights of Sel-Leb in connection therewith.
4.4.4 ACCOUNTING AND AUDIT. PCA shall keep, maintain and
preserve (in PCA's principal place of business) for at least two (2) years
following expiration or earlier termination of this Consulting Agreement or any
renewals or extensions hereof, complete and accurate records of accounts
including, without limitation, invoices, correspondence, banking and financial,
and other records pertaining to X.X.'s and the Program required to be submitted
by PCA pursuant to this Agreement. Such records and accounts shall be made
available for inspection and audit by the Sel-Leb and its representatives, and
make copies thereof, at the offices of the PCA during normal business hours,
upon seven (7) days notice during the term of this Agreement or any renewal(s)
or extensions hereof. Each such audit shall be conducted in a manner, which will
not unduly interfere with PCA's business. All materials reviewed and copied
shall be held in confidence by Sel-Leb and not used for any purpose except for
purposes of enforcing the terms of this Agreement. Any such inspections or
audits shall be conducted at Sel-Leb's expense unless the audit establishes an
underpayment of five (5%) percent or more for the period subject to audit, in
which case the expense of such audit shall be borne by PCA, in
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addition to which interest at the lower of (i) the highest rate permissible
under New York State law or (ii) ten percent (10%) per annum, shall be added to
the amount discovered to be due, to be computed from the first day of the first
accounting period covered by the audit. If the services of attorneys are engaged
by Sel-Leb in collection of the monies due to it hereunder, their reasonable
fees, expenses and costs shall be borne by PCA or, if paid by Sel-Leb, promptly
reimbursed to it by PCA.
4.5 EXPENSES. In addition to any fees that may be payable to
Sel-Leb hereunder, PCA shall reimburse Sel-Leb promptly (but in no event longer
then 5 business days) upon request from time to time for out-of-pocket expenses
(including, without limitation, expenses relative to travel and entertainment)
reasonably incurred in connection with Sel-Leb's performance hereunder and
approved by PCA in advance of being incurred.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.1 REPRESENTATIONS AND WARRANTIES OF SEL-LEB. Sel-Leb represents
and warrants to PCA as follows:
5.1.1 Sel-Leb is a corporation duly organized and validly
existing under the laws of New York, and is duly qualified to do business in New
York. Sel-Leb has full power and authority to conduct its business as now
carried on, and to carry out and perform its undertakings and obligations as
provided herein.
5.1.2 The execution and delivery of this Agreement and the
consummation by Sel-Leb of the transactions contemplated hereby have been duly
authorized by all necessary actions on the part of the Sel-Leb.
5.1.3 This Agreement constitutes valid and binding
obligations of the Sel-Leb, enforceable in accordance with their respective
terms.
5.1.4 Neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated hereby will (i) result in
the creation or imposition of any security interest, lien, charge or other
encumbrance (a "Lien") upon the Program, Racks or Inventory under any agreement
or commitment to which the Sel-Leb is a party or by which Sel-Leb is bound, or
to which Program, Racks or Inventory are subject, or (ii) violate any statute or
law or any judgment, decree, order, regulation or rule of any of any court or
governmental authority.
5.1.5 Sel-Leb is the owner of and has good and marketable
title to the Racks and Inventory, free of all liens, claims and encumbrances,
except as may be set forth herein.
5.1.6 Sel-Leb is not involved in any actions, proceedings,
or investigations, which might materially or adversely affect the Program, Racks
or Inventory or which would prevent of hamper the transactions contemplated by
this Agreement.
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5.1.7 No consent of any person is necessary to the
consummation of the transactions contemplated hereby.
5.2 REPRESENTATIONS AND WARRANTIES OF PCA. PCA represents and
warrants to Sel-Leb as follows:
5.2.1 PCA is a corporation duly organized and validly
existing under the laws of New York, and is duly qualified to do business in New
York. PCA has full power and authority to conduct its business as now carried
on, and to carry out and perform its undertakings and obligations as provided
herein.
5.2.2 The execution and delivery of this Agreement and the
consummation by PCA of the transactions contemplated hereby have been duly
authorized by all necessary actions on the part of PCA.
5.2.3 This Agreement constitutes valid and binding
obligations of PCA, enforceable in accordance with their respective terms.
5.2.4 Neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated hereby will violate any
statute or law or any judgment, decree, order, regulation or rule of any of any
court or governmental authority.
5.2.5 PCA is not involved in any actions, proceedings, or
investigations, which would prevent or hamper the transactions contemplated by
this Agreement.
5.2.6 No consent of any person is necessary to the
consummation of the transactions contemplated hereby.
5.3 NO OTHER REPRESENTATIONS. PCA acknowledges that neither
Sel-Leb nor any representative or agent of Sel-Leb has made any representation
or warranty (expressed or implied) regarding the Program, Racks or Inventory, or
any matter or thing affecting or relating to this Agreement, except as
specifically set forth herein.
5.4 NEGATION OF WARRANTIES. PCA ACKNOWLEDGES THAT THE PROGRAM IS
NOT SUBJECT TO A WRITTEN AGREEMENT BETWEEN SEL-LEB AND X.X.'S AND THEREFORE, THE
PROGRAM IS SUBJECT TO TERMINATION BY X.X.'S AT ANY TIME FOR ANY REASON OR NO
REASON AT ALL. SEL-LEB MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE
PROGRAM OTHER THAN THOSE SPECIFICALLY SET FORTH HEREIN.
5.5 "AS IS" CONDITION. PCA has inspected the Racks and Inventory
agrees to take them "as is" and in their present condition, subject to
reasonable use, wear, tear and deterioration between now and the Closing.
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ARTICLE VI
EXPENSES BEFORE AND AFTER THE CLOSING
6.1 EXPENSES BEFORE AND AFTER THE CLOSING. Except as otherwise
provided in this agreement, Sel-Leb shall be liable for the payment of all bills
for Racks and Inventory acquired by Sel-Leb prior to the Closing and shall
likewise be entitled to all payment from X.X.'s based upon orders shipped under
the Program prior to the Closing
ARTICLE VII
CONDITIONS TO CLOSING
7.1 CONDITIONS TO CLOSING. The obligations of the parties to close
hereunder are subject to the following conditions:
7.1.1 All of the terms, covenants and conditions to be
complied with or performed by the other party under this agreement on or before
the closing shall have been complied with or performed in all material respects.
7.1.2 All representations or warranties of the other party
herein are true in all material respects as of the closing date.
7.1.3 On the Closing date, there shall be no liens or
encumbrances against the Racks or Inventory, except as may be provided for
herein.
ARTICLE VIII
INDEMNIFICATION
8.1 INDEMNIFICATION. Each party hereto shall indemnify and hold
the other party harmless from and against all liability, claim, loss, damage or
expense, including reasonable attorneys' fees, incurred or required to be paid
by such other party by reason of any breach or failure of observance or
performance of any representation, warranty or covenant or other provision of
this agreement by such party. The provisions of this Article VIII shall survive
the closing.
ARTICLE IX
MISCELLANEOUS
9.1 BROKERAGE. The parties hereto represent and warrant to each
other that they have not dealt with any broker or finder in connection with this
agreement or the transactions contemplated hereby, and no broker or any other
person is entitled to receive any brokerage commission, finder's fee or similar
compensation in connection with this agreement or the transactions contemplated
hereby. Each of the parties shall indemnify and hold the other harmless from and
against all liability, claim, loss, damage or expense, including reasonable
attorneys' fees, pertaining to any broker, finder or other person with whom such
party has dealt. The provisions of this Article IX shall survive the closing.
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9.2 ASSIGNMENT. PCA shall not assign this agreement without the
prior written consent of Sel-Leb in each instance. Any attempted assignment
without Sel-Leb's consent shall be null and void. Notwithstanding the foregoing,
PCA shall have the right to assign this Agreement to any entity acquiring all of
the assets of PCA, provided that notice of such assignment is given to Sel-Leb.
9.3 NOTICES. All notices, demands and other communications
required or permitted to be given hereunder shall be in writing and shall be
deemed to have been properly given if delivered by hand or by Federal Express
courier or by registered or certified mail, return receipt requested, with
postage prepaid, to the respective parties at the addresses above.
9.4 SURVIVAL. None of the representations, warranties, covenants,
or other obligations of the parties hereunder shall survive the closing, except
as expressly provided herein and then only for a period of one year from the
closing date. Acceptance of the Xxxx of Sale by PCA shall be deemed full and
complete performance and discharge of every agreement and obligation on the part
of Sel-Leb hereunder, except those, if any, which expressly are stated herein to
survive the closing, and then such survival shall be only for a period of one
year.
9.5 ENTIRE AGREEMENT. This Agreement (including any schedules and
exhibits delivered hereunder) constitutes the entire agreement between the
parties on the subject matter hereof, superseding all prior agreements and
understandings, oral and written, and may not be amended except by a written
instrument signed by all parties hereto.
9.6 GOVERNING LAW. This agreement shall be governed by and
construed in accordance with the laws of the State of New York.
9.7 BINDING EFFECT. This agreement shall not be considered an
offer or an acceptance of an offer by Sel-Leb, and shall not be binding upon
Sel-Leb until executed and delivered by both Sel-Leb and PCA. Upon such
execution and delivery, this agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, successors and permitted assigns.
9.8 THIRD PARTY ADVISE. Each party to this Agreement has received
independent advise from attorneys and/or other third party advisors and
consultants of its own choosing. Each party has contributed to the drafting of
this Agreement and the parties agree that the Agreement shall not be interpreted
for or against any party on the basis that one party drafted or contributed to
drafting any provision.
9.9 HEADINGS. The paragraph and other headings contained in this
Agreement are for reference only and shall not be deemed to be a part of this
Agreement or to affect the meaning or interpretation of any of its provisions.
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9.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this agreement the date
first above written.
SEL-LEB MARKETING, INC.
By: /s/ Xxx Xxxxxxxxx
-------------------------------------------
Name: Xxx Xxxxxxxxx
Title: C.O.B.
PERFUME CENTER OF AMERICA, INC.
By: /s/ Kanak Xxx Xxxxx
-------------------------------------------
Name: KANAK XXX XXXXX
Title: PRESIDENT
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XXXXX XX XXX XXXX, XXXXXX XX XXX XXXX, ss.
On the 28 day of August, 2001, before me, the undersigned, personally appeared
Xxx Xxxxxxxxx, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed
to the within instrument and acknowledged to me that he/she/they executed the
same in his/her/their capacity, and that by his/her/their signature(s) on the
instrument, the individual(s), or the person upon behalf of which the
individual(s) acted, executed the instrument.
/s/ Xxxx X. Xxxxxxxxx
-------------------------------
Notary Public
XXXX X. XXXXXXXXX
NOTARY PUBLIC, STATE OF NEW YORK
LIC. #02MA6061665
QUALIFIED IN NASSAU COUNTY
COMMISSION EXPIRES JULY 16, 0000
XXXXX XX XXX XXXX, XXXXXX XX XXX XXXX, ss.
On the 28 day of August, 2001, before me, the undersigned, personally appeared
Kanak Xxx Xxxxx, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed
to the within instrument and acknowledged to me that he/she/they executed the
same in his/her/their capacity, and that by his/her/their signature(s) on the
instrument, the individual(s), or the person upon behalf of which the
individual(s) acted, executed the instrument.
/s/ Xxxx X. Xxxxxxxxx
-------------------------------
Notary Public
XXXX X. XXXXXXXXX
NOTARY PUBLIC, STATE OF NEW YORK
LIC. #02MA6061665
QUALIFIED IN NASSAU COUNTY
COMMISSION EXPIRES JULY 16, 2003
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