SHARE PURCHASE AGREEMENT
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THIS AGREEMENT is made effective as of the 2nd day of April, 2002.
AMONG:
THE UNDERSIGNED SHAREHOLDERS OF
HOUSE OF BRUSSELS HOLDINGS LTD.,
A BRITISH COLUMBIA COMPANY
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(hereinafter called the "Selling Shareholders")
OF THE FIRST PART
AND:
HOUSE OF BRUSSELS HOLDINGS LTD,
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a British Columbia company
(hereinafter called "House of Brussels")
OF THE SECOND PART
AND:
GREEN FUSION CORPORATION,
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a Nevada corporation
(hereinafter called "Green Fusion")
OF THE THIRD PART
WHEREAS:
A. The Selling Shareholders are the owners of all of the issued and standing
common shares of House of Brussels.
B. GFC Ventures Corp. ("GFC") and the Selling Shareholders executed a letter
of intent dated June 22, 2001 (the "Letter of Intent") that contemplated the
acquisition of all of the issued and outstanding shares of House of Brussels by
a publicly traded company designated by GFC.
C. GFC has designated Green Fusion as the public company contemplated by the
Letter of Intent and Green Fusion has agreed to acquire all of the issued and
outstanding shares of GFC.
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X. Xxxxx Fusion has offered to purchase all of the issued and outstanding
shares of the common stock of House of Brussels and the Selling Shareholders
have agreed to sell all of the issued and outstanding shares of the common stock
of House of Brussels to Green Fusion on the terms and conditions of this
Agreement.
X. Xxxxx Fusion, the Selling Shareholders and House of Brussels entered into
a share purchase agreement dated August 17, 2001, as amended (the "Original
Share Purchase Agreement".
X. Xxxxx Fusion, the Selling Shareholders and House of Brussels have agreed
to enter into this Agreement to replace and supersede the Original Share
Purchase Agreement in order to set forth the revised terms and conditions on
which Green Fusion will acquire House of Brussels from the Selling Shareholders.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the foregoing
and of the sum of $10.00 paid by Green Fusion to each of the Selling
Shareholders and to House of Brussels, the receipt of which is hereby
acknowledged, the parties hereto agree each with the other as follows:
ARTICLE I.
INTERPRETATION
1.01 Definitions. Where used herein or in any amendments or Schedules
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hereto, the following terms shall have the following meanings:
(a) "Agreement" means this agreement and any amendments and schedules
hereto;
(b) "Business" means the business in which House of Brussels and its
operating subsidiaries are engaged as disclosed in the Financial Statements of
House of Brussels attached to this Agreement;
(c) "Closing" means the closing of the acquisition of House of Brussels
by Green Fusion;
(d) "Closing Date" means the date contemplated by Section 2.03 of this
Agreement;
(e) "Green Fusion Shares" means those 30,000,000 fully paid and
non-assessable common shares of Green Fusion to be issued to the Selling
Shareholders by Green Fusion on Closing.
(f) "House of Brussels Shares" means the 14,500 common shares of House
of Brussels held by the Selling Shareholders, being all of the issued and
outstanding common shares of House of Brussels;
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(g) "Financial Statements" (i) "House of Brussels Financial Statements"
means the audited consolidated financial statements for the year ended April 30,
2001, and (ii) "Brussels Chocolates Financial Statements" means the unaudited
financial statements of House of Brussels' subsidiary, Brussels Chocolates Ltd.,
for the period ended January 31, 2002, in the forms attached hereto as
Disclosure Schedule 3.07;
(h) "Transaction" means the purchase of the House of Brussels Shares by
Green Fusion in accordance with the terms and conditions of this Agreement.
1.02 Currency. All dollar amounts referred to in this agreement are in
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United States funds, unless expressly stated otherwise.
1.03 Schedules. The following schedules are attached to and form part of
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this Agreement:
Disclosure Schedule 3.04 - Operating Subsidiaries
Disclosure Schedule 3.06 - Guarantees
Disclosure Schedule 3.07 - Financial Statements
Disclosure Schedule 3.08 - Material Changes
Disclosure Schedule 3.10 - Encumbrances
Disclosure Schedule 3.12 - Intellectual Property
Disclosure Schedule 3.13 - Leases
Disclosure Schedule 3.15 - Material Contracts
Disclosure Schedule 3.16 - Lawsuits, Proceedings and Actions Taken Against
House of Brussels Holdings Ltd.
Disclosure Schedule 5.13 - Green Fusion Material Liabilities
ARTICLE II.
PURCHASE AND SALE OF SHARES
2.01 Purchase and Sale of Shares. The Selling Shareholders hereby covenant
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and agree to sell, assign and transfer to Green Fusion, and Green Fusion
covenants and agrees to purchase from the Selling Shareholders all of House of
Brussels Shares held by the Selling Shareholders.
2.02 Consideration. As consideration for the sale of House of Brussels
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Shares, Green Fusion shall allot and issue the Green Fusion Shares to the
Selling Shareholders, or their designates, on Closing, provided that the
issuance of any Green Fusion Shares to any designate will be conditional upon
the designate delivering to Green Fusion an investment letter and any other
required documentation in a form acceptable to the attorneys for Green Fusion as
required to establish an exemption from the registration requirements of the
United States Securities Act of 1933 (the "1933 Act") provided by Section 4(2)
of the 1933 Act and any other applicable securities regulation. The Green
Fusion Shares shall be issued to the Selling Shareholders pro rata in accordance
to the
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number of the House of Brussels Shares transferred by each Selling Shareholder
to Green Fusion on Closing. The Selling Shareholders acknowledge and agree that
the Green Fusion Shares are being issued pursuant to available exemptions from
the prospectus and registration requirements of the 1933 Act. The Selling
Shareholders agree to abide by all applicable resale restrictions and hold
periods imposed by all applicable securities legislation. All shares
certificates representing the Green Fusion Shares will be endorsed with the
following legend pursuant to the 1933 Act:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 (THE "ACT"), AND HAVE BEEN ISSUED IN RELIANCE UPON
EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE ACT. SUCH SECURITIES MAY
NOT BE REOFFERED FOR SALE OR RESOLD OR OTHERWISE TRANSFERRED UNLESS THEY ARE
REGISTERED UNDER THE APPLICABLE PROVISIONS OF THE ACT OR ARE EXEMPT FROM SUCH
REGISTRATION.
2.03 Closing Date. The closing of the purchase and sale of the House of
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Brussels Shares (the "Closing") will take place on the 1st day of May, 2002
(the "Closing Date").
2.04 Green Fusion Share Issuances, Registration Statements and Funding. The
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Selling Shareholders acknowledge and agree that Green Fusion has taken or will
take the following actions prior to or after the Closing, at Green Fusion's
discretion:
(a) The issuance by Green Fusion of up to 1,520,900 shares of its common
stock to the consultants, employees, officers and directors of Green Fusion in
settlement of accrued compensation in the amount of $136,577 (the "Compensation
Shares"). These Compensation Shares have been issued as of the date of this
Agreement;
(b) The filing of a Form S-8 registration statement by Green Fusion with the
SEC in order to qualify the issuance of the Compensation Shares. This
registration statement has been filed with the SEC as of the date of this
Agreement;
(c) The issuance by Green Fusion of up to 4,999,400 units at a deemed price
of $0.11 per unit in settlement of loans to Green Fusion aggregating $549,916
(the "Debt Settlement Units"), where each Debt Settlement Unit will consist of
one share of common stock and one warrant to purchase one additional share of
common stock at a price of $0.25 per share. The shares comprising the Debt
Settlement Units are referred to herein as the "Debt Settlement Shares". The
warrants comprising the Debt Settlement Units are referred to herein as the
"Debt Settlement Warrants". The shares issuable upon exercise of the Debt
Settlement Warrants are referred to herein as the "Debt Settlement Warrant
Shares". The creditors receiving the Debt Settlement Units are referred to
herein as the "Debt Settlement
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Creditors".
(d) The filing of a Form S-3 registration statement by Green Fusion with the
SEC in order to qualify the resale of the Debt Settlement Shares and the Debt
Settlement Warrant Shares by the Debt Settlement Creditors;
(e) The issuance by Green Fusion of up to 3,000,000 units on a private
placement basis (the "Units") at a price of not less than $0.11 per unit, where
each unit will consist of one share of common stock and one warrant to purchase
one additional share of common stock at a price of not less than $0.25 per
share. The shares comprising the Units are referred to herein as the "Private
Placement Shares". The warrants comprising the Units are referred to herein as
the "Private Placement Warrants". The shares issuable upon exercise of the
Private Placement Warrants are referred to herein as the "Private Placement
Warrant Shares". The purchasers of the Units are referred to herein as the
"Private Placement Investors".
(f) The filing of a Form S-3 registration statement by Green Fusion with the
SEC in order to qualify the resale of the Private Placement Shares and the
Private Placement Warrant Shares by the Private Placement Investors;
(g) The issuance of up to 1,363,636 units (the "Convertible Note Units") to
the holders of Green Fusion's outstanding convertible notes in the aggregate
principal amount of $150,000 (the "Convertible Notes") at a deemed price of not
less than $0.11 per Convertible Note Unit, where each Convertible Note Unit will
consist of one share of common stock and one warrant to purchase one additional
share of common stock at a price of not less than $0.25 per share. The
Convertible Note Units will be issued in consideration for the cancellation of
the Convertible Notes. The shares comprising the Convertible Note Units are
referred to herein as the "Convertible Note Shares". The warrants comprising
the Units are referred to herein as the "Convertible Note Warrants". The shares
issuable upon exercise of the Convertible Note Warrants are referred to herein
as the "Convertible Note Warrant Shares". The holders of the Convertible Notes
are referred to herein as the "Convertible Note Holders".
(h) The filing of a Form S-3 registration statement by Green Fusion with the
SEC in order to qualify the resale of the Convertible Note Shares and the
Convertible Note Warrant Shares by Convertible Note Holders;
(i) The issuance of up to 858,443 units (the "Xxxx Siemens Units") to Xxxx
Siemens in settlement of the aggregate principal amount of $150,000 CDN (the
"Xxxx Siemens Notes") at a deemed price of not less than $0.11 per Xxxx Siemens
Unit, where each unit will consist of one share of common stock and one warrant
to purchase one additional share of common stock at
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a price of not less than $0.25 per share. The Xxxx Siemens Units will be issued
in consideration for the cancellation of the amount of $150,000 CDN of debt owed
by House of Brussels to Xxxx Siemens. The shares comprising the Xxxx Siemens
Units are referred to herein as the "Xxxx Siemens Shares". The warrants
comprising the Units are referred to herein as the "Xxxx Siemens Warrants". The
shares issuable upon exercise of the Convertible Note Warrants are referred to
herein as the "Xxxx Siemens Warrant Shares".
(j) The filing of a Form S-3 registration statement by Green Fusion with the
SEC in order to qualify the resale of the Xxxx Siemens Shares and the Xxxx
Siemens Warrant Shares by Xxxx Siemens;
(k) The issuance of up to 13,684,700 shares to the shareholders of GFC
Ventures in consideration of the acquisition of all of the outstanding shares of
GFC Ventures.
The Selling Shareholders and House of Brussels further agree and acknowledge
that Green Fusion may in the course of undertaking the above actions enter into
agreements confirming Green Fusion's obligations, including registration rights
agreements. These agreements will be binding on Green Fusion and may be
performed prior to or subsequent to Closing.
2.05 Cancellation of Original Share Purchase Agreement. The Original Share
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Purchase Agreement, together with all amendments, is hereby terminated and
agreed to be of no further force and effect.
ARTICLE III.
COVENANTS, REPRESENTATIONS AND WARRANTIES
OF THE SELLING SHAREHOLDERS AND HOUSE OF BRUSSELS
The Selling Shareholders and House of Brussels jointly and severally covenant
with and represent and warrant to Green Fusion as follows, and acknowledge that
Green Fusion is relying upon such covenants, representations and warranties in
connection with the purchase by Green Fusion of House of Brussels Shares.
Provided that the liability of each of the Selling Shareholders in respect of
any breach of such covenants, representations and warranties shall be several,
and not joint and several, proportionate to their respective interest in House
of Brussels.
3.01 House of Brussels and each of its subsidiaries (together the "House of
Brussels Subsidiaries") has been duly incorporated and organized, is validly
existing and is in good standing under the laws of the Province of British
Columbia; has the corporate power to own or lease its property and to carry on
the Business; is duly qualified as a corporation to do business and is in good
standing with respect thereto in each jurisdiction in which the nature of the
Business or the property owned or leased by it makes such qualification
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necessary; and has or will have on the Closing Date all necessary licenses,
permits, authorizations and consents to operate its Business.
3.02 The issued and outstanding capital of House of Brussels consists of
14,500 common shares, each of which shares has been duly issued and is
outstanding as fully paid and non-assessable.
3.03 No person, firm or corporation has any agreement or option, including
convertible securities, warrants or convertible obligations of any nature, or
any right or privilege (whether by law, pre-emptive or contractual) capable of
becoming an agreement or option for the purchase, subscription, allotment or
issuance of any of the unissued shares in the capital of House of Brussels or of
any securities of House of Brussels.
3.04 Other than as disclosed in Disclosure Schedule 3.04, House of Brussels
does not have any subsidiaries or agreements of any nature to acquire any
subsidiary or to acquire or lease any other business operations and will not
prior to the Closing Date acquire, or agree to acquire, any subsidiary or
business without the prior written consent of Green Fusion.
3.05 House of Brussels will not, without the prior written consent of Green
Fusion, issue any additional shares from and after the date hereof to the
Closing Date or create any options, warrants or rights for any person to
subscribe for or acquire any unissued shares in the capital of House of
Brussels.
3.06 Except as disclosed in Disclosure Schedule 3.06, House of Brussels and
each of the House of Brussels Subsidiaries is not a party to or bound by any
agreement or guarantee, warranty, indemnification, assumption or endorsement or
any other like commitment of the obligations, liabilities (contingent or
otherwise) or indebtedness of any other person, firm or corporation, or of any
products related to the Business.
3.07 Attached hereto as Disclosure Schedule 3.07 are true and correct copies
of House of Brussels Consolidated Financial Statements and the Brussels
Chocolates Financial Statements. The House of Brussels Consolidated Financial
Statements are based on the books and records of House of Brussels and present
fairly and accurately the assets, liabilities and financial position of House of
Brussels as of, and the results of its operations for, the respective period
specified. The House of Brussels Consolidated Financial Statements have been
prepared in accordance with generally accepted accounting principles. There
have been no material changes since the date of the House of Brussels
Consolidated Financial Statements, except as reflected in the Brussels
Chocolates Financial Statements, other than the issuance of 8,558 shares of
House of Brussels to Xxxx Siemens in consideration of $1,497,650 Cdn.
3.08 Since January 31, 2002 and except as disclosed in Disclosure Schedule
3.08, there has been no:
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(a) change in the assets, liabilities or financial condition of House
of Brussels or any of the House of Brussels Subsidiaries which has a material
adverse effect on House of Brussels's assets or business;
(b) material loss, damage or destruction of or to any of the assets of
House of Brussels or any of the House of Brussels Subsidiaries, whether or not
covered by insurance;
(c) sale, lease, transfer or other disposition by House of Brussels of,
or mortgages or pledges of or the imposition of any lien, charge or encumbrance
on, any material portion of the assets of House of Brussels or any of the House
of Brussels Subsidiaries, other than those made in the ordinary course of
business;
(d) substantial increase in the compensation payable by House of
Brussels or any of the House of Brussels Subsidiaries to any of its employees,
directors, independent contractors or agents, or increase in, or institution of,
any bonus, insurance, pension, profit-sharing or other employee benefit plan or
arrangements made to, for or with the employees, directors, independent
contractors or agents of House of Brussels or any of the House of Brussels
Subsidiaries;
(e) payment by House of Brussels of any dividend or other distribution
to its stockholders;
(f) material change in the accounting methods or practices employed by
House of Brussels or change in adopted depreciation or amortization policies; or
(g) strike, work stoppage or other labor dispute by or with employees
of House of Brussels or any of the House of Brussels Subsidiaries which
materially adversely affects House of Brussels's operations.
3.09 There are no lawsuits, proceedings, actions, arbitrations, governmental
investigations, claims, inquiries or proceedings pending or, to the knowledge of
House of Brussels and the Selling Shareholders, threatened against or involving
House of Brussels or any of the House of Brussels Subsidiaries except as
disclosed in Disclosure Schedule 3.16. House of Brussels and the Selling
Shareholders do not know of any basis for any other lawsuits, proceedings,
actions, arbitrations, governmental investigations, claims, inquiries or
proceedings involving House of Brussels or any of the House of Brussels
Subsidiaries.
3.10 Except as disclosed in Disclosure Schedule 3.10, House of Brussels and
each of the House of Brussels Subsidiaries is the sole legal and beneficial
owner of the personal property used in operating its business, including all
personal property reflected in House of Brussels Financial Statements and all
such personal property is owned by House of Brussels free and clear of all
liens, security interests, charges and encumbrances. All equipment owned or
leased by House of Brussels and each of the House of Brussels
9
Subsidiaries performs the respective functions it is supposed to perform and is
in good working order, ordinary wear and tear excepted.
3.11 The Business has been carried on in the ordinary and normal course by
House of Brussels and each of the House of Brussels Subsidiaries since the dates
of the their respective incorporation and will be carried on in the ordinary and
normal course after the date hereof and up to the Closing Date.
3.12 Intellectual Property
----------------------
(1) Intellectual Property Assets. The Intellectual Property Assets are
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all those necessary for the operation of the business of House of Brussels as it
is currently conducted. References to House of Brussels includes reference to
both House of Brussels and each of the House of Brussels Subsidiaries. The term
"Intellectual Property Assets" includes:
(i) the names "House of Brussels" and "Brussels Chocolates", all functional
business names, trading names, registered and unregistered trademarks, service
marks, and applications (collectively, "Marks");
(ii) all patents, patent applications, licensing agreements and inventions
and discoveries that may be patentable (collectively, "Patents");
(iii) all copyrights in both published works and unpublished works
(collectively, "Copyrights");
(iv) all know-how, trade secrets, confidential information, customer lists,
software, technical information, data, process technology, plans, drawings, and
blue prints owned, used, or licensed by House of Brussels as licensee or
licensor (collectively, "Trade Secrets").
(2) Agreements. Disclosure Schedule 3.12 contains a complete and
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accurate list and summary description, including any royalties paid or received
by House of Brussels, of all contracts and agreements relating to the
Intellectual Property Assets to which House of Brussels is a party or by which
House of Brussels is bound, except for any license implied by the sale of a
product and perpetual, paid-up licenses for commonly available software programs
with a value of less than $500 under which House of Brussels is the licensee.
There are no outstanding or threatened disputes or disagreements with respect to
any such agreements.
(3) Intellectual Property and Know-How Necessary for the Business.
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Except as set forth in Disclosure Schedule 3.12, House of Brussels is the owner
of all right, title, and interest in and to each of the Intellectual Property
Assets, free and clear of
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all liens, security interests, charges, encumbrances, and other adverse claims,
and has the right to use without payment to a third party all of the
Intellectual Property Assets. Except as set forth in Disclosure Schedule 3.12,
all former and current employees and contractors of House of Brussels have
executed written contracts, agreements or other undertakings with House of
Brussels that assign all rights to any inventions, improvements, discoveries, or
information relating to the business of House of Brussels. No employee,
director, officer or shareholder of House of Brussels owns directly or
indirectly in whole or in part, any Intellectual Property Asset which House of
Brussels is presently using or which is necessary for the conduct of its
business. No employee or contractor of House of Brussels has entered into any
contract or agreement that restricts or limits in any way the scope or type of
work in which the employee may be engaged or requires the employee to transfer,
assign, or disclose information concerning his work to anyone other than House
of Brussels.
(4) Patents. Disclosure Schedule 3.12 contains a complete and accurate
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list and Summary description of all Patents. Except as set forth in Disclosure
Schedule 3.12, House of Brussels is the owner of all right, title, and interest
in and to each of the Patents, free and clear of all liens, security interests,
charges, encumbrances, and other adverse claims. All of the issued Patents are
currently in compliance with formal legal requirements (including payment of
filing, examination, and maintenance fees and proofs of working or use), are
valid and enforceable, and are not subject to any maintenance fees or taxes or
actions falling, due within ninety days after the Effective Time. No Patent has
been or is now involved in any interference, reissue, reexamination, or
opposition proceeding. There is no potentially interfering patent or patent
application of any third party. No Patent is infringed or has been challenged
or threatened in any way. None of the products manufactured and sold, nor any
process or know-how used, by House of Brussels, to the best of our knowledge,
infringe or is alleged to infringe any patent or other proprietary night of any
other person or entity. All products made, used, or sold under the Patents have
been marked with the proper patent notice.
(5) Trademarks. Disclosure Schedule 3.12 contains a complete and
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accurate list and summary description of all Marks and the jurisdiction where
the Xxxx is registered, if applicable. House of Brussels is the owner of all
right, title, and interest in and to each of the Marks, free and clear of all
liens, security interests, charges, encumbrances, and other adverse claims. All
Marks that have been registered with the United States Patent and Trademark
Office or any other country's trademark registration office are currently in
compliance with all formal legal requirements (including the timely
post-registration filing of affidavits of use and incontestability and renewal
applications), are valid and enforceable, and are not subject to any maintenance
fees or taxes or actions falling due within ninety days after the Effective
Time. No Xxxx has been or is now involved in any opposition, invalidation, or
cancellation and no such action is threatened with the respect to any of the
Marks. There is no potentially interfering trademark or trademark application
of any third party. No Xxxx is, to the best of our knowledge, infringed or has
been challenged or threatened in any way. None of the Marks used by House of
Brussels infringes or is alleged to infringe any trade name, trademark, or
service xxxx of any third party. All products and materials containing a
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Xxxx xxxx the proper federal or other registration notice where permitted by
law.
(6) Copyrights. Disclosure Schedule 3.12 contains a complete and
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accurate list and summary description of all Copyrights. House of Brussels is
the owner of all right, title, and interest in and to each of the Copyrights,
free and clear of all liens, security interests, charges, encumbrances, and
other adverse claims. All the Copyrights have been registered and are currently
in compliance with formal legal requirements, are valid and enforceable, and are
not subject to any maintenance fees or taxes or actions falling due within
ninety days after the Effective Time. No Copyright is infringed or has been
challenged or threatened in any way. None of the subject matter of any of the
Copyrights, to the best of our knowledge, infringes or is alleged to infringe in
any copyright of any third party or is a derivative work based on the work of a
third party. All works encompassed by the Copyrights have been marked with the
proper copyright notice.
(7) Trade Secrets. House of Brussels has taken all reasonable
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precautions to protect the secrecy, confidentiality, and value of its Trade
Secrets. House of Brussels has good title and an absolute (but not necessarily
exclusive) right to use the Trade Secrets. The Trade Secrets are not part of
the public knowledge or literature, and have not been used, divulged, or
appropriated either for the benefit of any person or entity or to the detriment
of House of Brussels. No Trade Secret is subject to any adverse claim or has
been challenged or threatened in any way.
3.13 House of Brussels and each of the House of Brussels Subsidiaries do not
own any real property. Disclosure Schedule 3.13 lists all leases, subleases or
other real property interests (collectively, "Leases") to which House of
Brussels and each of the House of Brussels Subsidiaries is a party or bound.
Each of the Leases are legal, valid, binding, enforceable in accordance with its
terms and is in full force and effect in all material respects. All rental and
other payments required to be paid by House of Brussels and each of the House of
Brussels Subsidiaries pursuant to any such Leases have been duly paid and no
event has occurred which, upon the passing of time, the giving of notice, or
both, would constitute a breach or default by any party under any of the Leases.
The Leases will continue to be legal, valid, binding, enforceable and in full
force and effect on identical terms following the Closing Date. House of
Brussels and each of the House of Brussels Subsidiaries has not assigned,
transferred, conveyed, mortgaged, deeded in trust, or encumbered any interest in
the Leases or the leasehold property pursuant thereto.
3.14 House of Brussels and each of the House of Brussels Subsidiaries has
its property insured against loss or damage by all insurable hazards or risks on
a replacement cost basis and such insurance coverage will be continued in full
force and effect to and including the Closing Date; to the best of the knowledge
of House of Brussels and the Selling Shareholders, House of Brussels and each of
the House of Brussels Subsidiaries is not in default with respect to any of the
provisions contained in any such insurance policy and has not failed to give any
notice or present any claim under any such insurance policy in due and timely
fashion.
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3.15 Disclosure Schedule 3.15 contains a list of all material contracts,
agreements, licenses, permits, arrangements, commitments, instruments,
understandings or contracts, whether written or oral, express or implied,
contingent, fixed or otherwise, to which House of Brussels and each of the House
of Brussels Subsidiaries is a party (collectively, the "Contracts").
(a) Except as listed on Disclosure Schedule 3.15 and with this
exception of the agreement between House of Brussels and Green Fusion, House of
Brussels and each of the House of Brussels Subsidiaries is not a party to any
written or oral:
(1) agreement for the purchase, sale or lease of any capital assets, or
continuing contracts for the purchase or lease of any materials, supplies,
equipment, real property or services;
(2) agreement regarding, sales agency, distributorship, or the payment
of commissions;
(3) agreement for the employment or consultancy of any person or
entity;
(4) note, debenture, bond, trust agreement, letter of credit agreement
loan agreement, or other contract or commitment for the borrowing or lending of
money, or agreement or arrangement for a line of credit or guarantee, pledge, or
undertaking of the indebtedness of any other person;
(5) agreement, contract, or commitment for any charitable or political
contribution;
(6) agreement, contract, or commitment limiting or restraining House of
Brussels, their business or any successor thereto from engaging or competing in
any manner or in any business or from hiring any employees, nor is any employee
of House of Brussels subject to any such agreement, contract, or commitment;
(7) material agreement, contract, or commitment not made in the ordinary
course of business;
(8) agreement establishing or providing for any joint venture, partnership,
or similar arrangement with any other person or entity;
(9) agreement, contract or understanding containing a "change in control,"
or similar provision; or
(10) power of attorney or similar authority to act.
(b) Each Contract is in full force and effect, and there exists no
material breach
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or violation of or default by House of Brussels or any of the House of Brussels
Subsidiaries under any Contract to which it is a party nor by any other party to
a Contract, or any event that with notice or the lapse of time, or both, will
create a material breach or violation thereof or default under any Contract by
House of Brussels or any of the House of Brussels Subsidiaries or by any other
party to a Contract. The continuation, validity, and effectiveness of each
Contract will in no way be affected by the consummation of the transactions
contemplated by this Agreement. Except as listed on Disclosure Schedule 3.15,
there exists no actual or threatened termination, cancellation, or limitation
of, or any amendment, modification, or change to any Contract. A true, correct
and complete copy (and if oral, a description of material terms) of each
Contract, as amended to date, has been furnished to Green Fusion.
3.16 To the best of the knowledge of House of Brussels and the Selling
Shareholders, House of Brussels and each of the House of Brussels Subsidiaries
is conducting and will conduct the Business in compliance with all applicable
laws, rules and regulations of each jurisdiction in which the Business is or
will be carried on, House of Brussels and each of the House of Brussels
Subsidiaries is not in material breach of any such laws, rules or regulations
and is or will be on the Closing Date fully licensed, registered or qualified in
each jurisdiction in which House of Brussels and each of the House of Brussels
Subsidiaries owns or leases property or carries on or proposes to carry on the
Business to enable the Business to be carried on as now conducted and its
property and assets to be owned, leased and operated, and all such licenses,
registrations and qualifications are or will be on the Closing Date valid and
subsisting and in good standing and that none of the same contains or will
contain any provision, condition or limitation which has or may have a
materially adverse effect on the operation of the Business.
3.17 House of Brussels and each of the House of Brussels Subsidiaries has no
loans or indebtedness which have been made to directors, former directors,
officers, shareholders and employees of House of Brussels or any of the House of
Brussels Subsidiaries or to any person or corporation not dealing at arm's
length with any of the foregoing.
3.18 House of Brussels has made full disclosure to Green Fusion of all
aspects of the Business and has made all of its books and records available to
the representatives of Green Fusion in order to assist Green Fusion in the
performance of its due diligence searches and no material facts in relation to
the Business, to the best knowledge of House of Brussels and the Selling
Shareholders, have been concealed by House of Brussels or the Selling
Shareholders.
3.19 No claim shall be made by Green Fusion against House of Brussels or the
Selling Shareholders as a result of any misrepresentation or as a result of the
breach of any covenant or warranty herein contained unless the aggregate loss or
damage to Green Fusion exceeds $5,000.
3.20 The entering into of this agreement and the consummation of the
transactions contemplated hereby will not result in the violation of any of the
terms and provisions of the Articles of Incorporation or bylaws of House of
Brussels or of any indenture,
14
instrument or agreement, written or oral, to which House of Brussels or the
Selling Shareholders may be a party;
3.21 The entering into of this agreement and the consummation of the
transactions contemplated hereby will not, to the best of the knowledge of House
of Brussels and the Selling Shareholder, result in the violation of any
applicable law or regulation, or of any provinces in which they are resident or
in which the Business is or at the Closing Date will be carried on or of any
city bylaw or ordinance to which House of Brussels or the Business may be
subject;
3.22 This agreement has been duly authorized, validly executed and delivered
by House of Brussels.
3.23 To the best knowledge of House of Brussels and the Selling
Shareholders, there is no fact material to the assets, businesses, liabilities
or prospects of House of Brussels as a whole which has not been set forth or
described in this Agreement or in the Exhibits hereto and which is material to
the conduct, prospects, operations or financial condition of House of Brussels.
None of the information included in this Agreement and Exhibits hereto, or other
documents furnished or to be furnished by House of Brussels contains any untrue
statement of a material fact or is misleading in any material respect or omits
to state any material fact necessary in order to make any of the statements
herein or therein not misleading in light of the circumstances in which they
were made. Copies of all documents referred to in any Exhibit hereto have been
delivered or made available to Green Fusion and constitute true, correct and
complete copies thereof and include all amendments, exhibits, schedules,
appendices, supplements or modifications thereto or waivers thereunder.
ARTICLE IV.
ADDITIONAL COVENANTS, REPRESENTATIONS AND WARRANTIES
OF EACH SELLING SHAREHOLDER
Each Selling Shareholder covenants with and represents and warrants to Green
Fusion as follows, and acknowledges that Green Fusion is relying upon such
covenants, representations and warranties in connection with the purchase by
Green Fusion of the House of Brussels Shares:
4.01 The House of Brussels Shares owned by each Selling Shareholder are
owned by them as the recorded owners with a good and marketable title thereto,
free and clear of all mortgages, liens, charges, security interests, adverse
claims, pledges, encumbrances and demands whatsoever and the Selling Shareholder
has all necessary power and authority to deal with House of Brussels shares in
accordance with this Agreement.
4.02 No person, firm or corporation has any agreement or option or any right
or privilege (whether by law, pre-emptive or contractual) capable of becoming an
agreement
15
or option for the purchase from the Selling Shareholder any of House of Brussels
Shares held by the Selling Shareholder.
4.03 This agreement has been duly authorized, validly executed and delivered
by each Selling Shareholder.
ARTICLE V.
COVENANTS, REPRESENTATIONS AND WARRANTIES
OF GREEN FUSION
Green Fusion covenants with and represents and warrants to the Selling
Shareholders and House of Brussels as follows and acknowledges that House of
Brussels and the Selling Shareholders are relying upon such covenants,
representations and warranties in entering into this agreement:
5.01 Green Fusion has been duly incorporated and organized and is validly
subsisting under the laws of the State of Nevada; it has the corporate power to
own or lease its properties and to carry on its business as now being conducted
by it; and it is duly qualified as a corporation to do business and is in good
standing with respect thereto in each jurisdiction in which the nature of its
business or the property owned or leased by it makes such qualification
necessary.
5.02 The authorized capital of Green Fusion consists of 100,000,000 shares
of Common Stock, par value of $0.001 per share. The issued and outstanding
capital of Green Fusion currently consists of 11,315,900 shares of common stock.
This number of issued and outstanding shares includes the issuance of the
Compensation Shares disclosed pursuant to Section 2.04(a) of this Agreement. All
issued shares of Green Fusion shall be duly issued and outstanding as fully paid
and non-assessable.
5.03 Except as contemplated by Section 2.04 of this Agreement, no person,
firm or corporation has any agreement or option, including convertible
securities, warrants or convertible obligations of any nature, or any right or
privilege (whether by law, pre-emptive or contractual) capable of becoming an
agreement or option for the purchase, subscription, allotment or issuance of any
of the unissued shares in the capital of Green Fusion or of any securities of
Green Fusion.
5.04 The directors and officers of Green Fusion are as follows:
Name Position
Xxxx Xxxxxxx President, Secretary, Treasurer and Director
5.05 Green Fusion is not a party to or bound by any agreement or guarantee,
warranty, indemnification, assumption or endorsement or any other like
commitment of the
16
obligations, liabilities (contingent or otherwise) or indebtedness or any other
person, firm or corporation.
5.06 There are no actions, suits or proceedings (whether or not purportedly
on behalf of Green Fusion), pending or threatened against or affecting Green
Fusion or affecting Green Fusion's business, at law or in equity, or before or
by any federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign and Green Fusion
is not aware of any existing ground on which any such action, suit or proceeding
might be commenced with any reasonable likelihood of success.
5.07 Green Fusion does not currently have any employees and is not party to
any collective agreements with any labour unions or other association of
employees.
5.08 With the exception of GFC, Green Fusion does not have any subsidiaries
or agreements of any nature to acquire any subsidiary or to acquire or lease any
other business operations and will not prior to the Closing Date acquire, or
agree to acquire, any subsidiary or business without the prior written consent
of House of Brussels.
5.09 The business of Green Fusion now and until the Closing Date will be
carried on in the ordinary and normal course after the date hereof and upon to
the Closing Date and no material transactions shall be entered into until the
Closing Date without the prior written consent of the Selling Shareholders.
5.10 No capital expenditures in excess of $5,000 have been made or
authorized by Green Fusion since the date of incorporation and no capital
expenditures in excess of $5,000 will be made or authorized by Green Fusion
after the date hereof and up to the Closing Date without the prior written
consent of the Selling Shareholders.
5.11 Green Fusion is not indebted to any of its directors or officers nor
are any of Green Fusion's directors or officers indebted to Green Fusion except
as disclosed in Section 2.04 of this Agreement.
5.12 The Articles of Incorporation and by-laws of Green Fusion in effect
with the appropriate corporate authorities as at the date of this agreement will
not have been materially changed as at the Closing Date.
5.13 Except as listed in Disclosure Schedule 5.13, there are no material
liabilities of Green Fusion of any kind whatsoever, whether or not accrued and
whether or not determined or determinable, in respect of which Green Fusion or
House of Brussels may become liable on or after the consummation of the
transaction contemplated by this agreement. Green Fusion is not party to any
leases and does not own any real property.
5.14 The entering into of this agreement and the consummation of the
transactions contemplated hereby will not result in the violation of any of the
terms and provisions of
17
the Articles of Incorporation or bylaws of Green Fusion or of any indenture,
instrument or agreement, written or oral, to which Green Fusion may be a party.
5.15 The entering into of this agreement and the consummation of the
transactions contemplated hereby will not, to the best of the knowledge of Green
Fusion, result in the violation of any law or regulation of the United States or
any state or of any city bylaw or ordinance to which Green Fusion or Green
Fusion's business may be subject.
5.16 This agreement has been duly authorized, validly executed and delivered
by Green Fusion.
5.17 Green Fusion has no contracts with any officers, directors,
accountants, lawyers or others which cannot be terminated without penalty or
compensation and with not more than one month's notice.
5.18 No claims shall be made by House of Brussels or the Selling
Shareholders against Green Fusion as a result of any misrepresentation or as a
result of the breach of any covenant or warranty herein contained unless the
aggregate loss or damage to House of Brussels or the Selling Shareholders
exceeds $5,000.
5.19 The common stock of Green Fusion is traded only on the NASD OTC
Bulletin Board. Green Fusion is in good standing with respect to all
requirements necessary to maintain its quotation on the NASD OTC Bulletin Board.
Green Fusion has provided to the Selling Shareholders and House of Brussels true
and complete copies, as filed with the Securities Exchange Commission (the
"SEC"), of Green Fusion's Form 10-KSB Annual Reports for the years ended
December 31, 2001 and December 31, 2000 and its Form 10-QSB Quarterly Reports
for the fiscal quarters ending March 31, 2001, June 30, 2001 and October 31,
2001 (the "Green Fusion Public Reports"). Each of the Green Fusion Public
Reports, at the time it was filed with the appropriate authorities or otherwise
issued or distributed, was prepared, filed and distributed timely and in
accordance in all material respects with the applicable rules and regulations of
such authorities and applicable requirements of the Securities Exchange Act of
1934, as amended (the "Exchange Act") and did not, at the time they were so
filed or mailed, contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading. As of their respective dates, the financial
statements of Green Fusion contained in the Green Fusion Public Reports (the
"Green Fusion Financial Statements") were prepared in accordance with, and
complied as to form in all material respects with, applicable accounting
requirements and with the published rules and regulations of the applicable
authorities with respect thereto, were prepared in accordance with generally
accepted accounting principles applied on a consistent basis during the periods
indicated except to the extent required by changes in generally accepted
accounting principles and as may be indicated in the notes thereto and fairly
presented the consolidated balance sheet and the consolidated assets,
liabilities and financial position of Green Fusion as at the dates thereof and
the consolidated results of operations and cash flows of Green Fusion for the
periods then
18
ended. There are no filings and reports required to be made by Green Fusion
under the Exchange Act which have not been made.
5.20 To the best knowledge of Green Fusion, there is no fact material to the
assets, businesses, liabilities or prospects of Green Fusion as a whole which
has not been set forth or described in this Agreement, in the Exhibits hereto or
the Green Fusion Public Reports and which is material to the conduct, prospects,
operations or financial condition of Green Fusion. None of the information
included in this Agreement and Exhibits hereto, or other documents furnished or
to be furnished by Green Fusion contains any untrue statement of a material fact
or is misleading in any material respect or omits to state any material fact
necessary in order to make any of the statements herein or therein not
misleading in light of the circumstances in which they were made. Copies of all
documents referred to in any Exhibit hereto have been delivered or made
available to House of Brussels and constitute true, correct and complete copies
thereof and include all amendments, exhibits, schedules, appendices, supplements
or modifications thereto or waivers thereunder.
ARTICLE VI.
COVENANTS OF PARTIES PENDING CLOSING
6.01 Preservation of Business and Assets of House of Brussels. From the
------------------------------------------------------------
date hereof until the Closing, House of Brussels will use its best efforts and
will do or cause to be done all such acts and things as may be necessary to
preserve, protect and maintain intact the operation of its business and assets
as a going concern consistent with prior practice and not other than in the
ordinary course of business, including preserving, protecting and maintaining
the goodwill of its suppliers, employees, clientele, and others having business
relations with House of Brussels.
6.02 Material Transactions. Except as contemplated by this Agreement, prior
---------------------
to the Closing Date, neither party will, without first obtaining the written
consent of the other:
(a) dispose of or encumber any asset or enter into any transaction or
make any contract commitment relating to the properties, assets and business of
such entity, other than in the ordinary course of business or as otherwise
disclosed herein;
(b) except as contemplated in this Agreement, issue or sell, or agree
to issue or sell, any shares of capital stock or other securities of such
entity;
(c) amend its articles of incorporation, charter or bylaws, or
applicable organizational documents; or
(d) engage in any extraordinary transaction.
6.03 Legal Conditions to Transactions. Each party hereto will take all
-----------------------------------
reasonable actions necessary to comply promptly with all legal requirements
which may be imposed
19
on it with respect to the Transactions and will promptly cooperate with and
furnish information to each other party in connection with any such requirements
imposed upon either party in connection with the Transactions.
6.04 Preserve Accuracy of Representations and Warranties. Each party hereto
---------------------------------------------------
will refrain from taking any action which would render any of its
representations and warranties contained in this Agreement untrue, inaccurate or
misleading as of Closing and the Closing Date. Through Closing, each party will
promptly notify the other parties of any lawsuit, claim, audit, investigation,
administrative action or other proceeding asserted or commenced against such
party that may involve or relate in any way to another party to this Agreement.
Each party hereto will promptly notify the other parties of any facts or
circumstances that come to its attention and that cause, or through the passage
of time may cause, any of a party's representations, warranties or covenants to
be untrue or misleading at any time from the date hereof through Closing.
6.05 Notice of Subsequent Events. Each party hereto shall notify the other
----------------------------
parties of any changes, additions or events of which it has knowledge which
would cause any material change in or material addition to this Agreement
(including but not limited to the Exhibits attached hereto and thereto) promptly
after occurrence of the same. If the effect of such change or addition would,
individually or in the aggregate with the effect of changes or additions
previously disclosed pursuant to this Section, constitute a material adverse
effect on the notifying party, any non-notifying party may, within ten (10) days
after receipt of such notice, elect to terminate this Agreement. If no
non-notifying party gives written notice of such termination with such 10-day
period, the non-notifying parties shall be deemed to have consented to such
change or addition and shall not be entitled to terminate this Agreement by
reason thereof.
6.06 Maintain Books and Accounting Practices. From the date hereof until
------------------------------------------
the Closing, each party will maintain its books of account in the usual, regular
and ordinary manner on a basis consistent with prior years and will make no
change in its accounting methods or practices.
6.07 Compliance with Laws and Regulatory Consents. From the date hereof
------------------------------------------------
until the Closing, (a) each party will comply with all applicable statutes,
laws, ordinances and regulations, (b) each party will keep, hold and maintain
all Licenses, (c) each party will use its reasonable efforts and will cooperate
fully with the other parties hereto to obtain all consents, stockholder and
other approvals, exemptions and authorizations of third parties, whether
governmental or private, necessary to consummate the Transactions, and (d) each
party will make and cause to be made all filings and give and cause to be given
all notices which may be necessary or desirable on their part under all
applicable laws and under their respective contracts, agreements and commitments
in order to consummate the Transactions.
20
ARTICLE VII.
CONDITIONS TO CLOSING
7.01 Conditions to Each Party's Obligation to Effect the Transaction. The
-----------------------------------------------------------------
obligation of each party hereto to effect the Transactions shall be subject to
the fulfillment at or prior to the Closing of the following conditions:
(a) No action or proceeding before a court or other governmental body
by any governmental agency or public authority shall have been instituted or
threatened to restrain or prohibit the transactions contemplated under this
Agreement or to obtain an amount of damages or other material relief in
connection with the execution of this Agreement; and no governmental agency
shall have given notice to any party hereto to the effect that consummation of
the transactions contemplated under this Agreement would constitute a violation
of any law or that it intends to commence proceedings to restrain consummation
of the Transactions.
(b) All consents, authorizations, orders and approvals of (or filings
or registrations with) any governmental commission, board or other regulatory
body or any other third party (including lenders and lessors) required in
connection with the execu-tion, delivery and performance of this Agreement shall
have been obtained or made.
7.02 Further Conditions to Obligation of Green Fusion to Effect the
-----------------------------------------------------------------------
Transactions. The obligation of Green Fusion to effect the Transactions shall
------------
also be subject to the fulfillment at or prior to the Closing of the following
conditions:
(a) House of Brussels and the Selling Shareholders shall have performed
their obligations contained in this Agreement required to be performed on or
prior to the Closing, including delivery of the closing items set forth in
Sections 8.02, and the representations and warranties of House of Brussels and
the Selling Shareholders contained in this Agreement and in any document
delivered in connection herewith shall be true and correct as of the Closing.
(b) Green Fusion and its representatives shall have had reasonable
access of inspection of the business of House of Brussels in connection with
Green Fusion's due diligence review, and the results of Green Fusion's
inspection and due diligence review shall be acceptable to it. Further, should
any such due diligence reveal a matter reasonably related to any representation,
warranty or covenant herein or any exhibit hereto, Green Fusion may require
appropriate amendment(s) to address such matter.
7.03 Further Conditions to Obligation of the Selling Shareholders and House
-----------------------------------------------------------------------
of Brussels to Effect the Transactions. The obligations of House of Brussels
-----------------------------------------
and the Selling Shareholders to effect the Transactions shall also be subject to
the fulfillment at or prior to the Closing of the following conditions:
(a) Green Fusion shall have performed its obligations contained in this
Agreement, required to be performed on or prior to the Closing, including
delivery of the
21
closing items set forth in Sections 8.03, and the representations and warranties
of Green Fusion contained in this Agreement and in any document delivered in
connection herewith shall be true and correct as of the Closing.
(b) House of Brussels and its representatives shall have had reasonable
access of inspection of the books and records of Green Fusion in connection with
House of Brussels' due diligence review, and the results of House of Brussels's
inspection and due diligence review shall be acceptable to it. Further, should
any such due diligence reveal a matter reasonably related to any representation,
warranty or covenant herein or any exhibit hereto, House of Brussels may require
appropriate amendment(s) to address such matter.
ARTICLE VIII.
CLOSING
8.01 Closing. The Closing will occur on the Closing Date at the offices of
-------
Green Fusion or its attorneys or at such other location as agreed to by the
parties.
8.02 Closing Deliveries of House of Brussels and the Selling Shareholders.
----------------------------------------------------------------------
At Closing, House of Brussels and the Selling Shareholders will deliver or cause
to be delivered the following, fully executed and in form and substance
reasonably satisfactory to Green Fusion:
(a) copies of all resolutions and/or consent actions adopted by or on
behalf of the boards of directors of House of Brussels evidencing approval of
this Agreement and the Transaction.
(b) a certificate of an officer of House of Brussels, dated as of
Closing, certifying that (a) each covenant and obligation of House of Brussels
has been complied with, and (b) each representation, warranty and covenant of
House of Brussels is true and correct at the Closing as if made on and as of the
Closing;
(c) certificates representing all House of Brussels Shares duly
endorsed in blank for transfer or with a stock power of attorney (in either case
with the signature guaranteed by the appropriate official) with all eligible
security transfer taxes paid;
(d) the minute books of House of Brussels and all books and records of
House of Brussels.
8.03 Closing Deliveries of Green Fusion. At Closing, Green Fusion will
--------------------------------------
deliver or cause to be delivered the following, fully executed and in form and
substance reasonably satisfactory to House of Brussels:
22
(a) copies of all resolutions and/or consent actions adopted by or on
behalf of the boards of directors of Green Fusion evidencing approval of this
Agreement and the Transaction.
(b) a certificate of an officer of Green Fusion, dated as of Closing,
certifying that (a) each covenant and obligation of Green Fusion has been
complied with, and (b) each representation, warranty and covenant of Green
Fusion is true and correct at the Closing as if made on and as of the Closing;
(c) share certificates representing Green Fusion Shares duly endorsed
with legends, acceptable to Green Fusion's counsel, respecting restrictions on
transfer as required by or necessary under the applicable securities legislation
of the United States, as contemplated by this Agreement;
(d) evidence of approval of the shareholders of Green Fusion of the
transactions contemplated by this Agreement or an opinion of counsel for Green
Fusion, reasonably satisfactory to House of Brussels, that no such approval is
necessary;
ARTICLE IX.
TERMINATION; AMENDMENT; EXTENSION AND WAIVER
9.01 Termination by Mutual Consent. This Agreement may be terminated and
---------------------------------
the Transactions may be abandoned at any time prior to the Closing Date by the
written agreement of House of Brussels and Green Fusion.
9.02 Termination by Green Fusion. This Agreement may be terminated at any
-----------------------------
time prior to the Closing Date by Green Fusion, if (a) there has been a breach
by House of Brussels of any representation or warranty contained in this
Agreement which would have or would be reasonably likely to have a material
adverse effect on the operations of House of Brussels; or (b) there has been a
breach of any of the covenants or agreements set forth in this Agreement on the
part of House of Brussels, which breach is not curable or, if curable, is not
cured within thirty (30) days after written notice of such breach is given by
Green Fusion to House of Brussels.
9.03 Termination by House of Brussels. This Agreement may be terminated at
---------------------------------
any time prior to the Closing Date by House of Brussels, if (a) there has been a
breach by Green Fusion of any representation or warranty contained in this
Agreement which would have or would be reasonably likely to have a material
adverse effect on the operations of Green Fusion; (b) there has been a breach of
any of the covenants or agreements set forth in this Agreement on the part of
Green Fusion, which breach if curable is not cured within 30 days after written
notice of such breach is given by House of Brussels to Green Fusion.
9.04 Effect of Termination and Abandonment. Upon termination of this
-----------------------------------------
Agreement pursuant to this Article 9 or Section 6.05, this Agreement and all
agreements and
23
documents (including legal opinions) related hereto shall be void and of no
force or effect, and there shall be no liability by reason of this Agreement or
the termination thereof on the part of any party hereto, or on the part of the
respective directors, officers, managers, employees, agents, representatives or
shareholders of any of them; provided that this Section 9.04 will not relieve:
(i) any party from liability for damages incurred as a result of any willful
breach by such party or by an affiliate of such party of any of its respective
representations, warranties, covenants or obligations set forth in this
Agreement; or (ii) House of Brussels from any liability pursuant to the Interim
Loans and the promissory notes executed as evidence of the Interim Loans.
ARTICLE X.
SURVIVAL OF PROVISIONS AND INDEMNIFICATION
10.01 Survival. The covenants, obligations, representations and warranties
--------
of each party contained in this Agreement, or in any certificate or document
delivered pursuant to this Agreement, will be deemed to be material and to have
been relied upon by the other parties notwithstanding any investigation prior to
the Closing, will not be merged into any documents delivered in connection with
the Closing.
10.02 Indemnification by Green Fusion. Subject to the provisions of Section
-------------------------------
10.01, Green Fusion shall indemnify, defend and hold the Selling Shareholders
and House of Brussels and its officers, directors, employees, agents and
representatives harmless against any and all losses, costs and expenses
(including reasonable cost of investigation, court costs and legal fees actually
incurred) and other damages resulting from any breach by Green Fusion of any of
their covenants, obligations, representations or warranties or breach or untruth
of any representation, warranty, fact or conclusion contained in this Agreement
or any certificate or document of Green Fusion.
10.03 Indemnification by House of Brussels. Subject to the provisions of
---------------------------------------
Section 10.01, House of Brussels shall indemnify, defend and hold Green Fusion
and its respective officers, directors, employees and representatives harmless
against any and all losses, costs and expenses (including reasonable cost of
investigation, court costs and legal fees actually incurred) and other damages
resulting from any breach by House of Brussels of any of their respective
covenants, obligations, representations or warranties or breach or untruth of
any representation, warranty, fact or conclusion contained in this Agreement or
any certificate or document of House of Brussels delivered pursuant to this
Agreement.
10.04 Indemnification by Selling Shareholders. Subject to the provisions of
---------------------------------------
Section 10.01, the Selling Shareholders shall indemnify, defend and hold Green
Fusion and its respective officers, directors, employees and representatives
harmless against any and all losses, costs and expenses (including reasonable
cost of investigation, court costs and legal fees actually incurred) and other
damages resulting from any breach by the Selling Shareholders of any of their
respective covenants, obligations, representations or warranties or breach or
untruth of any representation, warranty, fact or conclusion contained in this
Agreement or any certificate or document of House of Brussels or the
24
Selling Shareholders delivered pursuant to this Agreement. Provided that the
liability of each Selling Shareholder in respect of any breach not directly
attributable to such Selling Shareholder shall be several, and not joint and
several, in proportion to such shareholder's interest in House of Brussels.
ARTICLE XI.
MISCELLANEOUS
11.01 Other Expenses. Except as otherwise provided in this Agreement, each
---------------
party will pay all of its expenses in connection with the negotiation,
execution, and implementation of the transactions contemplated under this
Agreement.
11.02 Notices. All notices, requests, demands, waivers and other
-------
communications required or permitted to be given under this Agreement will be in
writing and will be deemed to have been duly given: (a) if delivered personally
or sent by facsimile, on the date received, (b) if delivered by overnight
courier, on the second day after deliver to the overnight courier, and (c) if
mailed, ten days after mailing with postage prepaid. Any such notice will be
sent as follows:
TO HOUSE OF BRUSSELS AND TO THE SELLING SHAREHOLDERS:
-------------------------------------------------------------
House of Brussels Holdings Ltd.
#000 - 000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx X0X 0X0
Facsimile: (000) 000-0000
with courtesy copies to:
Mr. Xxxx Xxxxx,
Xxxxxx Grey Easton
Barristers & Solicitors
0000 Xxxxxxxxx Xxxxxx, XX Xxx 00000
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx X0X 0X0
Facsimile: (000) 000-0000
TO GREEN FUSION
-----------------
Green Fusion Corporation
#000, 000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
00
Xxxxxx X0X 0X0
Facsimile: (000) 000-0000
with courtesy copies to:
Xxxxxxx X. Xxxxxx, Xxxxxxx X. Cane,
X'Xxxxx & Company Cane & Company, LLC
Xxxxx 0000, Xxxxx Xxxxxx Xxxxx 000, Xxx 00
0000 Xxxx Xxxxxxx St., Box 11122 0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx Las Vegas, Nevada
Canada V6E 3P3 USA 89102
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
11.03 Controlling Law. This Agreement will be construed, interpreted and
----------------
enforced in accordance with the substantive laws of the State of Nevada, without
giving effect to its conflicts of laws provisions.
11.04 Headings. Any table of contents and Section headings in this
--------
Agreement are for convenience of reference only and will not be considered or
referred to in resolving questions of interpretation.
11.05 Benefit. This Agreement will be binding upon and will inure to the
-------
exclusive benefit of the parties hereto and their respective heirs, legal
representatives, successors and assigns. No party hereto may assign any rights
or delegate any duties hereunder without the prior written consent of the other
parties hereto and any prohibited assignment or delegation will be deemed null
and void.
11.06 Partial Invalidity. The invalidity or unenforceability of any
-------------------
particular provision of this Agreement will not affect the other provisions
hereof, and this Agreement will be construed in all respects as if such invalid
or unenforceable provisions were omitted. Further, there will be automatically
substituted for such invalid or unenforceable provision a provision as similar
as possible which is valid and enforceable.
11.07 Counterparts and Facsimiles. This Agreement may be executed
------------------------------
simultaneously in two (2) or more counterparts each of which will be deemed an
original and all of which together will constitute but one and the same
instrument. The signature page to this Agreement and all other documents
required to be executed at Closing may be delivered by facsimile and the
signatures thereon will be deemed effective upon receipt by the intended
receiving party.
11.08 Interpretation. All pronouns and any variation thereof will be deemed
--------------
to refer to the masculine, feminine, neuter, singular or plural as the identity
of the person or entity, or the context, may require. Further, it is
acknowledged by the parties that this Agreement has undergone several drafts
with the negotiated suggestions of both; and, therefore, no
26
presumptions will arise favoring either party by virtue of the authorship of any
of its provisions or the changes made through revisions.
11.09 Entire Agreement; Waivers. This Agreement, including the Exhibits and
-------------------------
Attachments hereto and those portions incorporated herein by reference,
constitutes the entire agreement between the parties hereto with regard to the
matters contained herein and it is understood and agreed that all previous
undertakings, negotiations, letter of intent and agreements between the parties
are merged herein. The failure of any party to this Agreement to assert any of
its rights under this Agreement or otherwise will not constitute a waiver of
such rights. Neither the failure nor any delay on the part of any party hereto
in exercising any rights, power or remedy hereunder will operate as a waiver
thereof or of any right, power or remedy; nor will any single or partial
exercise of any right, power or remedy preclude any further or other exercise
thereof, or the exercise of any other right, power or remedy.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
27
11.10 Legal Fees and Costs. In the event any party hereto incurs legal
-----------------------
expenses to enforce or interpret any provision of this Agreement, the prevailing
party will be entitled to recover such legal expenses, including, without
limitation, attorney's fees, costs and disbursements, in addition to any other
relief to which such party will be entitled.
11.11 Independent Legal Advice. Each of House of Brussels and the Selling
--------------------------
Shareholders acknowledges that X'Xxxxx & Company have acted solely for Green
Fusion in the negotiation and execution of this Agreement and X'Xxxxx & Company
have advised each of House of Brussels and the Selling Shareholders to obtain
the advice of their independent legal counsel.
IN WITNESS WHEREOF the parties hereto have executed this agreement as of the day
and year first above written.
GREEN FUSION CORPORATION
a Nevada corporation by its
authorized signatory:
/S/ L. Xxxx Xxxxxxx
________________________________
Signature of Authorized Signatory
L. Xxxx Xxxxxxx
________________________________
Name of Authorized Signatory
President and Director
________________________________
Position of Authorized Signatory
HOUSE OF BRUSSELS HOLDINGS LTD.
a British Columbia company by its
authorized signatories:
/s/ Xxxxxxx X. Xxxxxx
________________________________
Signature of Authorized Signatory
________________________________
Signature of Authorized Signatory
28
SIEMENS INDUSTRIES LTD.
by its authorized signatory:
/s/ Xxxx Siemens
________________________________
Signature of Authorized Signatory
X. X. XXXXXX LTD.
by its authorized signatory:
/s/ Xxxxxxx X. Xxxxxx
________________________________
Signature of Authorized Signatory
HONG KONG BASE LIMITED
by its authorized signatory:
/s/ Xxxx Xxx Fun
________________________________
Signature of Authorized Signatory
XXXXXX X. XXXXXXXX, IN HIS PERSONAL CAPACITY:
---------------------------------------------
SIGNED, SEALED AND DELIVERED
in the presence of:
/s/ Xxxx Xxxxxxxx
________________________________
Signature
XXXX XXXXXXXX /s/ Xxxxxx X. Xxxxxxxx
________________________________ ________________________________
Name XXXXXX X. XXXXXXXX
0000 Xxxxx Xxxxxx
________________________________
Xxxxxxx
Xxxx. XX X0X 0X0
________________________________
29
XXXXXX X. XXXXXXX, IN HIS PERSONAL CAPACITY:
--------------------------------------------
SIGNED, SEALED AND DELIVERED
BY XXXXXX X. XXXXXXX in the
presence of:
/s/ Xxxx Xxxxxxxx /s/ Xxx Xxxxxxx
________________________________ ________________________________
Signature XXXXXX X. XXXXXXX
XXXX XXXXXXXX
________________________________
Name
0000 Xxxxx Xxxxxx Xxxx. X0X 0X0
________________________________
Address
________________________________
DISCLOSURE SCHEDULE 3.04
------------------------
to that Share Purchase Agreement dated as of the 25th day of March, 2002
OPERATING SUBSIDIARIES OF HOUSE OF BRUSSELS HOLDINGS LTD.
Brussels Chocolates Ltd.
DISCLOSURE SCHEDULE 3.06
------------------------
to that Share Purchase Agreement dated as of the 25th day of March, 2002
GUARANTEES OF HOUSE OF BRUSSELS HOLDINGS LTD.
None.
DISCLOSURE SCHEDULE 3.07
------------------------
to that Share Purchase Agreement dated as of the 25th day of March, 2002
FINANCIAL STATEMENTS
(i) Audited consolidated financial statements of House of Brussels Holdings
Ltd. for the year ended April 30, 2001.
(ii) Unaudited financial statements of Brussels Chocolates Ltd., subsidiary
of House of Brussels Holdings Ltd., for the period ended January 31, 2002.
DISCLOSURE SCHEDULE 3.08
------------------------
to that Share Purchase Agreement dated as of the 25th day of March, 2002
MATERIAL CHANGES OF HOUSE OF BRUSSELS HOLDINGS LTD.
None.
DISCLOSURE SCHEDULE 3.10
------------------------
to that Share Purchase Agreement dated as of the 25th day of March, 2002
ENCUMBRANCES OF HOUSE OF BRUSSELS HOLDINGS LTD.
None.
DISCLOSURE SCHEDULE 3.12
------------------------
to that Share Purchase Agreement dated as of the 25th day of March, 2002
INTELLECTUAL PROPERTY OF HOUSE OF BRUSSELS HOLDINGS LTD.
House of Brussels Chocolates Trademark
License Agreement for Hedgehogs with X.X. Xxxxx Chocolates Ltd.
DISCLOSURE SCHEDULE 3.13
------------------------
to that Share Purchase Agreement dated as of the 25th day of March, 2002
LEASES OF HOUSE OF BRUSSELS HOLDINGS LTD.
1. Point Grey - Lease dated April 13, 1999 between Brussels Chocolates Ltd.
and GSL Enterprises Ltd. for a term of four years of 101-4416 Xxxx 00xx Xxxxxx,
Xxxxxxxxx, XX.
2. Coquitlam Centre - Lease dated March 21, 2000 between Brussels Chocolates
Ltd. and Pensionfund Realty Limited for a term of five years expiring October
31, 2005.
3. Metrotown - Amendment of Lease dated January 26, 2001 between Brussels
Chocolates Ltd. and Cambridge Shopping Centres Limited for a term expiring
December 31, 2001.
4. Cathedral Court Downtown - Renewal Agreement dated July 11, 2001 between
Brussels Chocolates Ltd. and Xxxx Georgia Investments Ltd. for a term expiring
July 31, 2006.
5. Sevenoaks Abbotsford - Lease Extension dated April 25, 2001 between
Brussels Chocolates Ltd. and 585562 BC Ltd. for a term expiring September 30,
2006.
6. Park Royal - Lease dated November 26, 1997 between Brussels Chocolates
Ltd. and Park Royal Shopping Centre Holdings Ltd. for a term expiring November
30, 2000. The lease is currently on a month-to-month basis and Brussels
Chocolates Ltd. has give notice of its intent to terminate the lease as of April
30, 2002.
7. Toronto - Lease Amending Agreement dated June 7, 2000 between Brussels
Chocolates Ltd. and Investors Group Trust Co. Ltd. as Trustee for Investors Real
Property Fund for a term expiring January 31, 2003.
DISCLOSURE SCHEDULE 3.15
------------------------
to that Share Purchase Agreement dated as of the 25th day of March, 2002
MATERIAL CONTRACTS OF HOUSE OF BRUSSELS HOLDINGS LTD.
1. Licence Agreement dated July 28, 2000 with Xxxxxx'x Bay Company;
2. Master Merchandise Vendor Agreement dated January 1, 2001 with Xxxxxx'x
Bay Company;
3. HDS Retail North America Vendor Agreement dated September 9, 2000 with
HDS Retail North America.
4. Authorized Supplier Agreement dated May 17, 2000 with International Cigar
Stores Limited.
5. Amendment Regarding Sales Representation dated October 25, 2000 with
Advantage/Xxxxxxx X. Xxxxx & Associates Ltd.
6. Executive Suite License Agreement dated November 30, 1994 with Northwest
Arena Corporation.
7. Equipment Lease No. 1-163561 dated October 15, 1998 with CIBC Equipment
Finance.
8. Equipment Lease No. 1-160447 dated September 24, 1997 with CIBC Equipment
Finance.
9. Vehicle Lease dated May 16, 2000 with Wheaton Pacific Pontiac Buick GMC
Ltd.
10. Vehicle Lease dated May, 1999 with Ocean Park Ford.
DISCLOSURE SCHEDULE 3.16
------------------------
to that Share Purchase Agreement dated as of the 25th day of March, 2002
LAWSUITS, PROCEEDINGS AND ACTIONS TAKEN AGAINST HOUSE OF BRUSSELS HOLDINGS LTD.
1. Lien issued by 1359800 Ontario Inc, operating as Bloomington Contracting
against the Xxxxxx'x Bay Company store located at 000 Xxxxx Xxxxxx, Xxxxxxx,
XX., for work performed by plaintiff for House of Brussels in the Xxxxxx'x Bay
store in Toronto.
DISCLOSURE SCHEDULE 5.13
------------------------
to that Share Purchase Agreement dated as of the 25th day of March, 2002
GREEN FUSION MATERIAL LIABILITIES
Advances to Green Fusion from X. Xxxxxxxx $342,161
Advances to Green Fusion from X. Xxxxxxx 117,132
Advances to Green Fusion from X. Xxxxxxx 10,700
Advances to Green Fusion from X. Xxxxxxx 3,470
Estimated legal, accounting and office expenses 50,000
--------
$523,463
--------
