THE SECURITIES TO BE ISSUED BY HAPPY FOOD CORPORATION UNDER THIS EXCHANGE
AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "1933 ACT"), IN RELIANCE UPON SECTION 4(2) AND OTHER EXEMPTIONS UNDER THE
1933 ACT. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE
FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. THE
SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE
COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY,
NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF
THIS STOCK EXCHANGE OR THE ACCURACY OR INADEQUACY OF THIS STOCK EXCHANGE
AGREEMENT. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
AGREEMENT AND PLAN OF SHARE EXCHANGE
THIS AGREEMENT AND PLAN OF SHARE EXCHANGE (hereinafter referred to as this
"Agreement"), is entered into as of this 1st day of June, 2005, by and among
Happy Food Corporation, an Oklahoma corporation ("Happy Food"), Laser
Energetics, Inc., a Florida corporation ("LEI"), and each shareholder of LEI who
executes a counterpart signature page hereto (individually, a "Shareholder" and
collectively, the "Shareholders").
W I T N E S S E T H
A. Happy Food is presently a non-operating publicly traded company
(trading symbol "HPYF") which has been in existence since 1991. Happy Food does
not have any class of securities registered under the Securities Exchange Act of
1934, as amended.
B. The parties desire that (i) the Shareholders transfer to Happy Food all
of the shares of Class A Common Stock of LEI, par value $0.01 per share (the
"LEI Stock"), held by them in exchange for shares (the "Exchange Shares") of
common stock of Happy Food, par value $0.001 per share (the "Happy Food Stock"),
and (ii) the Shareholders transfer to Happy Food all of the shares of Class B
Common Stock of LEI, par value $0.01 per share (the "LEI Class B"), held by them
in exchange for shares of a Class B Common Stock of Happy Food to be authorized
prior to Closing and having the powers, designations, preferences, and relative,
participating, optional, or other special rights and the qualifications,
limitations, or restrictions of such preferences and/or rights, substantially as
set forth on Exhibit A hereto (the "HPYF Class B"), all pursuant to the terms
and conditions set forth in this Agreement.
C. Immediately prior to the share exchange provided for by this Agreement,
LEI will purchase from Xxxxx X. Xxxx 1,350,000 shares (the "Purchase Shares") of
Happy Food Stock held by him, pursuant to the terms and conditions set forth in
the Stock Purchase Agreement of even date herewith (the "Stock Purchase
Agreement"), between LEI and Xxxxx X. Xxxx.
X. XXX will become a majority-owned subsidiary of Happy Food after the
Closing of the exchange, with Happy Food holding at least eighty percent (80%)
of the outstanding LEI Stock and one hundred percent (100%) of the LEI Class B.
E. Immediately following the Closing, the Exchange Shares will represent
in excess of eighty-eight percent (88%) of the total outstanding shares of Happy
Food Stock, and the Purchase Shares will represent between four and five percent
(4% to 5%) of the total outstanding shares of Happy Food Stock. The precise
percentages will depend on which current holders of LEI Stock execute
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counterpart signature pages hereto. The HPYF Class B will not be convertible
into Happy Food Stock until the second anniversary of the date of this
Agreement, at which point the percentage of the Happy Food Stock into which it
will be convertible will depend on many factors, including the prices at which
Happy Food will have sold Happy Food Stock between the Closing and such time.
F. The parties intend that the transaction contemplated herein qualify as
a reorganization under Section 368 of the Internal Revenue Code of 1986, as
amended (the "Code"), and/or as a tax-free exchange under Section 351 of the
Code.
AGREEMENT
NOW THEREFORE, on the stated premises and for and in consideration of the
mutual covenants and agreements hereinafter set forth and the mutual benefits to
the parties to be derived herefrom, it is hereby agreed as follows:
ARTICLE I
PLAN OF EXCHANGE
1.1 The Exchange. (a) Happy Food Stock for LEI Stock. At the Closing (as
defined below), (i) each Shareholder severally and not jointly hereby agrees to
assign, transfer and deliver to Happy Food, free and clear of all claims,
charges, equities, liens, security interests, and encumbrances whatsoever
(collectively, "Encumbrances") all shares of LEI Stock owned by such
Shareholder; and (ii) Happy Food agrees to acquire from each Shareholder all the
shares being assigned, transferred and delivered by each Shareholder, by issuing
and delivering to such Shareholder in exchange therefore 0.2939583341 shares of
Happy Food Stock for every share of LEI Stock exchanged, and any fractional
shares shall be rounded up or down to the nearest whole share (with 0.5 of one
share rounded up).
(b) HPYF Class B for LEI Class B. At the Closing (as defined below),
(i) each Shareholder severally and not jointly hereby agrees to assign, transfer
and deliver to Happy Food, free and clear of all Encumbrances all shares of LEI
Class B owned by such Shareholder, if any; and (ii) Happy Food agrees to acquire
from each Shareholder all the shares being assigned, transferred and delivered
by each Shareholder, by issuing and delivering to such Shareholder in exchange
therefore one (1) share of HPYF Class B for every share of LEI Class B
exchanged.
1.2 Legend. The Happy Food Stock and the HPYF Class B will be issued to
the Shareholders and their designees with the following restrictive legend or
similar legend affixed thereto:
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"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR UNDER ANY STATE SECURITIES OR "BLUE SKY" LAWS. THE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD OR TRANSFERRED
FOR VALUE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION OF THEM UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS OR
AN OPINION OF COUNSEL ACCEPTABLE TO HAPPY FOOD CORPORATION THAT AN EXEMPTION
FROM SUCH REGISTRATION REQUIREMENTS IS AVAILABLE WITH RESPECT TO SUCH SALE OR
TRANSFER."
1.3 No Dilution. Except for the amendment of Happy Food's Certificate of
Incorporation to authorize 20,000,000 shares of HPYF Class B, Happy Food shall
neither effect, nor fix any record date with respect to, any stock split, stock
dividend, reverse stock split, recapitalization, or similar change in the Happy
Food Stock between the date of this Agreement and the Closing Date.
1.4 Closing. The closing ("Closing") of the transactions contemplated by
this Agreement shall take place at the offices of Xxxxxx Xxxxx Xxxxxxxx &
Xxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 on June 1,
2005, or on a date and at such time as the parties may agree ("Closing Date");
provided that each of the closing conditions set forth in Articles VI and VII
have been satisfied or waived.
1.5 Closing Events. At the Closing:
(a) Happy Food shall display share certificates representing the
Exchange Shares and the HPYF Class B shares to be issued to each
Shareholder pursuant to this Agreement. Happy Food shall hold such
certificates in escrow pending each Shareholder's surrender of its
respective stock certificates formerly representing shares of LEI
Stock and LEI Class B.
(b) Immediately upon and following the Closing, and whether or not stock
certificates representing such shares are exchanged, the
Shareholders shall for all purposes be the holders of the Exchange
Shares and the HPYF Class B shares to which they are entitled
pursuant to Section 1.1, and Happy Food shall be the holder of the
LEI Stock and LEI Class B held by the Shareholders immediately prior
to the Closing.
(c) Each of the respective parties hereto shall execute, acknowledge,
and deliver (or shall cause to be executed, acknowledged, and
delivered) any and all officers' certificates, opinions, financial
statements, schedules, agreements, resolutions, rulings, or other
instruments required by this Agreement to be so delivered at or
prior to the Closing, and the documents and stock certificates
provided in paragraphs 5.2 and 5.3 herein, together with such other
items as may be reasonably requested by the parties hereto and their
respective legal counsel in order to effectuate or evidence the
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transactions contemplated hereby. If agreed to by the parties, the
Closing may take place through the exchange of documents by efax,
fax, email and/or express courier.
1.6 Standstill. In order to reach Closing quickly, the parties will be
committing substantial resources to performing the various covenants to be
performed prior to Closing. In consideration of this process, for a period of 14
days after the date of this Agreement (the "Exclusivity Period"), or until the
transaction contemplated herein has been abandoned by LEI or Happy Food,
whichever comes first, it is agreed that none of the parties hereto shall seek,
receive, negotiate or accept any offers to enter into a merger, share exchange
or other business combination with any third party. Notwithstanding the
foregoing, nothing herein shall restrict LEI from pursuing any additional
transactions, provided that they will not become effective until after the
Closing.
ARTICLE II
REPRESENTATIONS, COVENANTS, AND
WARRANTIES OF LEI
As an inducement to, and to obtain the reliance of Happy Food, LEI
represents and warrants as follows:
2.1 Organization. LEI is a company duly organized, validly existing, and
in good standing under the laws of the State of Florida. LEI has the power and
is duly authorized, qualified, franchised, and licensed under all applicable
laws, regulations, ordinances, and orders of public authorities to own all of
its properties and assets and to carry on its business in all material respects
as it is now being conducted, including qualification to do business as a
foreign corporation in jurisdictions in which the character and location of the
assets owned by it or the nature of the business transacted by it requires
qualification. The execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated by this Agreement in accordance
with the terms hereof will not, violate any provision of LEI's organizational
documents. LEI has taken all action required by laws, its Articles of
Incorporation, certificate of business registration, or otherwise to authorize
the execution and delivery of this Agreement. LEI has full power, authority, and
legal right and has taken or will take all action required by law, its Articles
of Incorporation, and otherwise to consummate the transactions herein
contemplated. This Agreement has been duly executed and delivered by LEI and
constitutes a legal, valid, and binding obligation of LEI, enforceable against
it in accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, moratorium, or similar laws affecting the
rights of creditors generally and by general principles of equity.
2.2 Capitalization. LEI's authorized capitalization consists of: (i)
9,950,000,000 shares of LEI Stock; (ii) 45,000,000 shares of Class B Common
Stock, par value $.01 per share; and (iii) 5,000,000 shares of preferred stock,
par value $.01 per share. Other than 101,204,819 shares of LEI Stock and
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3,000,000 shares of LEI Class B (or, following the consumation of the
transactions contemplated by the Stock Purchase Agreement, 3,025,000 shares of
LEI Class B), no other shares of LEI's capital stock are issued and outstanding.
All issued and outstanding shares of LEI are legally issued, fully paid, and
non-assessable and were not issued in violation of the pre-emptive or other
rights of any person. Except as set forth in the LEI Schedules, LEI has no
outstanding options, warrants, or other convertible securities.
2.3 Subsidiaries and Predecessor Corporations. LEI does not own any
subsidiaries.
2.4 Financial Statements.
(a) On or before the Closing Date, LEI will provide to Happy Food its
audited balance sheet at December 31, 2004, and the related
statements of operations, stockholders' equity and cash flows for
the period then ended, together with notes to such statements. All
of these financial statements will be attached as Section 2.4(a) of
the LEI Schedules.
(b) Except as otherwise set forth in the LEI Schedules: the financial
statements will have been prepared in accordance with generally
accepted accounting principles in the United States; the LEI balance
sheet will present fairly as of its date the financial condition of
LEI; LEI will not have, as of the date of such balance sheet, except
as and to the extent reflected or reserved against therein, any
liabilities or obligations (absolute or contingent) which should be
reflected in the balance sheet or the notes thereto, prepared in
accordance with generally accepted accounting principles in the
United States, and all assets reflected therein will be properly
reported and present fairly the value of the assets of LEI, in
accordance with such generally accepted accounting principles; the
statement of income, condensed consolidated stockholders' equity,
and consolidated cash flows will reflect fairly the information
required to be set forth therein by generally accepted accounting
principles in the United States.
(c) LEI has filed all federal, state and local income tax returns
required to be filed by it from inception to the date hereof and all
taxes have been paid or will be paid when due. All such returns are
complete and accurate in all material respects.
(d) LEI has no liabilities with respect to the payment of federal,
state, local, or other taxes (including any deficiencies, interest,
or penalties), except for taxes accrued but not yet due and payable,
for which LEI may be liable in its own right or as a transferee of
the assets of, or as a successor to, any other corporation or
entity.
(e) No deficiency for any taxes has been proposed, asserted or assessed
against LEI. There has been no tax audit, nor has there been any
notice to LEI by any taxing authority regarding any such tax audit,
or, to the knowledge of LEI, is any such tax audit threatened with
regard to any taxes or LEI tax returns. LEI does not expect the
assessment of any additional taxes of LEI for any period prior to
the date hereof and has no knowledge of any unresolved questions
concerning the liability for taxes of LEI.
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(f) The books and records, financial and otherwise, of LEI are in all
material respects complete and correct and have been maintained in
accordance with good business and accounting practices.
(g) LEI has good and marketable title to its assets and, except as set
forth in the LEI Schedules or the financial statements of LEI or the
notes thereto, has no material contingent liabilities, direct or
indirect, matured or unmatured.
2.5 Information. The information concerning LEI set forth in this
Agreement and in the LEI Schedules is accurate in all material respects and does
not contain any untrue statement of a material fact or omit to state a material
fact required to make the statements made, in light of the circumstances under
which they were made, not misleading.
2.6 Options or Warrants. Except as set forth in the LEI Schedules, there
are no existing options, warrants, calls, or commitments of any character
relating to the authorized and unissued LEI Stock.
2.7 Absence of Certain Changes or Events. Except as set forth in this
Agreement or the LEI Schedules, since the date of the most recent LEI balance
sheet, when received:
(a) except in the normal course of business, there will not be (i) any
material adverse change in the business, operations, properties,
assets, or condition of LEI; or (ii) any damage, destruction, or
loss to LEI (whether or not covered by insurance) materially and
adversely affecting the business, operations, properties, assets, or
condition of LEI;
(b) LEI will not have (i) borrowed or agreed to borrow any funds or
incurred, or become subject to, any material obligation or liability
(absolute or contingent) not otherwise in the ordinary course of
business, and except for capital raised by issuance of debt or
equity in a private placement or other capital raising transaction
deemed advisable by LEI; (ii) paid any material obligation or
liability not otherwise in the ordinary course of business (absolute
or contingent) other than current liabilities reflected in or shown
on the most recent LEI balance sheet, and current liabilities
incurred since that date in the ordinary course of business; (iii)
sold or transferred, or agreed to sell or transfer, any of its
assets, properties, or rights not otherwise in the ordinary course
of business (except assets, properties, or rights not used or useful
6
in its business which, in the aggregate have a value of less than
$50,000), or canceled, or agreed to cancel, any debts or claims
(except debts or claims which in the aggregate are of a value of
less than $50,000); (iv) made or permitted any amendment or
termination of any contract, agreement, or license to which they are
a party not otherwise in the ordinary course of business if such
amendment or termination is material, considering the business of
LEI; or (v) issued, delivered, or agreed to issue or deliver any
stock, bonds or other corporate securities including debentures
(whether authorized and unissued or held as treasury stock).
2.8 Title and Related Matters. LEI has good and marketable title to all of
its properties, inventory, interests in properties, and assets, real and
personal, which will be reflected in the most recent LEI balance sheet or
acquired after that date (except properties, interests in properties, and assets
sold or otherwise disposed of since such date in the ordinary course of
business), free and clear of all liens, pledges, charges, or encumbrances
except:
(a) described in the LEI Schedules;
(b) statutory liens or claims not yet delinquent; and
(c) such imperfections of title and easements as do not and will not
materially detract from or interfere with the present or proposed
use of the properties subject thereto or affected thereby or
otherwise materially impair present business operations on such
properties.
2.9 Litigation and Proceedings. Except as set forth in the LEI Schedules,
there are no actions, suits, proceedings, or investigations pending or, to the
knowledge of LEI, threatened by or against LEI, or affecting LEI, or its
properties, at law or in equity, before any court or other governmental agency
or instrumentality, domestic or foreign, or before any arbitrator of any kind.
LEI does not have any knowledge of any default on its part with respect to any
judgment, order, writ, injunction, decree, award, rule, or regulation of any
court, arbitrator, or governmental agency or instrumentality.
2.10 Contracts.
(a) LEI has provided, or will provide Happy Food on reasonable request,
copies of all material contracts, agreements, franchises, license
agreements, or other commitments to which LEI is a party or by which
it or any of its assets, products, technology, or properties are
bound;
(b) All contracts, agreements, franchises, license agreements, and other
commitments to which LEI is a party or by which its properties are
bound and which are material to the operations of LEI, taken as a
whole are valid and enforceable by LEI in all respects, except as
limited by bankruptcy and insolvency laws and by other laws
affecting the rights of creditors generally; and
7
(c) Except as described in the LEI Schedules, LEI is not party to or
bound by, and the properties of LEI, is not subject to, any
contract, agreement, other commitment or instrument; any charter or
other corporate restriction; or any judgment, order, writ,
injunction, decree, or award which materially and adversely affects,
or in the future may (as far as LEI can now foresee) materially and
adversely affect, the business, operations, properties, assets, or
condition of LEI.
2.11 Material Contract Defaults. Except as set forth in the LEI Schedules,
LEI is not in default in any material respect under the terms of any outstanding
contract, agreement, lease, or other commitment which is material to the
business, operations, properties, assets, or condition of LEI and there is no
event of default in any material respect under any such contract, agreement,
lease, or other commitment in respect of which LEI has not taken adequate steps
to prevent such a default from occurring.
2.12 No Conflict With Other Instruments. The execution of this Agreement
and the consummation of the transactions contemplated by this Agreement will not
result in the breach of any term or provision of, or constitute an event of
default under, any material indenture, mortgage, deed of trust, or other
material contract, agreement, or instrument to which LEI is a party or to which
any of its properties or operations are subject.
2.13 Compliance With Laws and Regulations. LEI has complied with all
applicable statutes and regulations of any national, county, or other
governmental entity or agency thereof, except to the extent that noncompliance
would not materially and adversely affect the business, operations, properties,
assets, or condition of LEI, or except to the extent that noncompliance would
not result in the incurrence of any material liability for LEI.
2.14 Approval of Agreement. The board of directors of LEI will have
authorized the execution and delivery of this Agreement by LEI, and has or will
have approved the transactions contemplated hereby.
2.15 Material Transactions or Affiliations. Set forth in the LEI Schedules
is a description of every material contract, agreement, or arrangement between
LEI and any predecessor and any person who was at the time of such contract,
agreement, or arrangement an officer, director, or person owning of record, or
known by LEI to own beneficially, 10% or more of the issued and outstanding
common stock of LEI and which is to be performed in whole or in part after the
date hereof or which was entered into not more than three years prior to the
date hereof. In all of such transactions, the amount paid or received, whether
in cash, in services, or in kind, is, had been during the full term thereof, and
is required to be during the unexpired portion of the term thereof, no less
favorable to LEI than terms available from otherwise unrelated parties in arm's
length transactions. Except as disclosed in the LEI Schedules or otherwise
disclosed herein, no officer, director, or 10% shareholder of LEI has, or has
had since inception of LEI, any material interest, direct or indirect, in any
material transaction with LEI. There are no commitments by LEI, whether written
or oral, to lend any funds to, borrow any money from, or enter into any other
material transaction with, any such affiliated person.
8
2.16 LEI Schedules. LEI will deliver, as soon as practicable, the
following schedules, which are collectively referred to as the "LEI Schedules"
and which consist of separate schedules dated as of the date of execution of
this Agreement and instruments and data as of such date, all certified by the
chief executive officer of LEI as complete, true, and correct:
(a) a schedule containing complete and accurate copies of the
organizational documents, as amended, of LEI in effect as of the
date of this Agreement;
(b) a schedule containing a copy of the financial statements of LEI
identified in paragraph 2.4(a);
(c) a schedule setting forth all material contracts, agreements, or
other instruments to which LEI is a party or by which it or its
properties are bound, specifically including all contracts,
agreements, or arrangements referred to in Section 2.10;
(d) a schedule setting forth a description of any material adverse
change in the business, operations, property, inventory, assets, or
condition of LEI since the date of the most recent LEI balance
sheet, required to be provided pursuant to section 2.7 hereof; and
(e) a schedule setting forth any other information required to be
disclosed in the LEI Schedules by sections 2.1 through 2.15. LEI
shall cause the LEI Schedules and the instruments and data delivered
to Happy Food hereunder to be updated after the date hereof up to
and including the Closing Date.
2.17 Ownership of LEI Stock. The Shareholders are the legal and beneficial
owners of not less than 80% of the outstanding LEI Stock and 100% of the
outstanding LEI Class B, and the Shareholders have full right, power, and
authority to transfer, assign, convey, and deliver their respective LEI Stock
and LEI Class B; and delivery of such LEI Stock and LEI Class B at the Closing
will convey to Happy Food good and marketable title to such shares free and
clear of any Encumbrances except for any Encumbrances arising out of such shares
being held by Happy Food.
ARTICLE III
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF THE SHAREHOLDERS
As an inducement to, and to obtain the reliance of Happy Food, each
Shareholder severally and not jointly represents and warrants as follows:
9
3.1 Authorization. Such Shareholder has full power, authority, and legal
right and has taken or will take all action required by law and otherwise to
consummate the transactions herein contemplated. This Agreement has been duly
executed and delivered by such Shareholder and constitutes a legal, valid, and
binding obligation of such Shareholder, enforceable against it in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, moratorium, or similar laws affecting the rights of
creditors generally and by general principles of equity. Such Shareholder has
complied with all applicable community property laws, and no spousal signature
or other consent is required from any person other than the signatories hereto
in connection with the execution, delivery and performance of this Agreement by
such Shareholder.
3.2 Capitalization. Such Shareholder is the legal and beneficial owner of
all the shares of LEI Stock and LEI Class B held of record by such Shareholder,
and such Shareholder has full right, power, and authority to transfer, assign,
convey, and deliver the LEI Stock and LEI Class B held by him or her; and
delivery of such LEI Stock and LEI Class B at the Closing will convey to Happy
Food good and marketable title to such shares free and clear of any Encumbrances
except for any Encumbrances arising out of such shares being held by Happy Food.
3.3 Accredited Investor Status. Such Shareholder is an "accredited
investor" within the meaning of Regulation D promulgated under the Securities
Act of 1933, as amended (the "Securities Act").
3.4 Accuracy of Investment Representations. The representations and
warranties of such Shareholder set forth on Schedule I and previously made by
such Shareholder to Happy Food are true, correct and complete in all respects.
3.5 No Plan to Dispose of Exchange Shares or HPYF Class B. Such
Shareholder has not entered into any contract, arrangement or other
understanding pursuant to which such Shareholder will dispose of the Exchange
Shares or HPYF Class B that such Shareholder will receive pursuant to this
Agreement; and such Shareholder has no current plan or intention to do so.
ARTICLE IV
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF HAPPY FOOD
As an inducement to, and to obtain the reliance of LEI, Happy Food
represents and warrants as follows:
4.1 Organization. Happy Food is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Oklahoma, and has
the corporate power and is duly authorized, qualified, franchised, and licensed
under all applicable laws, regulations, ordinances, and orders of public
authorities to own all of its properties and assets and to carry on its business
in all material respects as it is now being conducted, and there is no
10
jurisdiction in which it is not qualified in which the character and location of
the assets owned by it or the nature of the business transacted by it requires
qualification. Included in the Happy Food Schedules (as hereinafter defined) are
complete and correct copies of the Certificate of Incorporation and bylaws of
Happy Food, and all amendments thereto, as in effect on the date hereof. The
execution and delivery of this Agreement does not, and the consummation of the
transactions contemplated hereby will not, violate any provision of Happy Food's
Certificate of Incorporation or bylaws. Happy Food has taken all action required
by law, its Certificate of Incorporation, its bylaws, or otherwise to authorize
the execution and delivery of this Agreement, and Happy Food has full power,
authority, and legal right and has taken all action required by law, its
Certificate of Incorporation, bylaws, or otherwise to consummate the
transactions herein contemplated. This Agreement has been duly executed and
delivered by Happy Food and constitutes a legal, valid, and binding obligation
of Happy Food, enforceable against it in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
moratorium, or similar laws affecting the rights of creditors generally and by
general principles of equity.
4.2 Capitalization. Happy Food's authorized capitalization consists of
9,500,000 shares of common stock, par value $0.001, of which no more than
3,200,000 shares will be issued and outstanding at Closing; and 500,000 shares
of Preferred Stock of which no shares are issued and outstanding. All presently
issued and outstanding shares are legally issued, fully paid, and non-assessable
and not issued in violation of the pre-emptive or other rights of any person.
4.3 Subsidiaries. Happy Food does not have any subsidiaries and does not
own, beneficially or of record, any shares of any other corporation.
4.4 Financial Statements.
(a) Included in the Happy Food Schedules are copies of the audited
balance sheets of Happy Food as of December 31, 2003, and the
related audited statements of operations, stockholders' equity, and
cash flow for the two fiscal years ended December 31, 2003 together
with the notes to such statements; the unaudited balance sheet of
Happy Food as of December 31, 2004, and the related unaudited
statements of operations, stockholders' equity, and cash flow for
the year ended December 31, 2004, together with the notes to such
statements.
(b) All such financial statements have been prepared in accordance with
generally accepted accounting principles in the United States
consistently applied throughout the periods involved. The Happy Food
balance sheets presents fairly as of December 31, 2003 and 2004, the
financial condition of Happy Food. Happy Food did not have as of the
date of any such Happy Food balance sheet, except as and to the
extent reflected or reserved against therein, any liabilities or
obligations (absolute or contingent) which should be reflected in a
balance sheet or the notes thereto prepared in accordance with
generally accepted accounting principles, and all assets reflected
therein are properly reported and present fairly the value of the
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assets of Happy Food, in accordance with generally accepted
accounting principles. The statements of operations, stockholders'
equity, and cash flow reflect fairly the information required to be
set forth therein by generally accepted accounting principles.
(c) Happy Food has filed all federal, state and local income tax returns
required to be filed by it from inception to the date hereof and all
taxes have been paid or will be paid when due. All such returns are
complete and accurate in all material respects. Included in the
Happy Food Schedules is a list of the federal income tax returns of
Happy Food filed since 1991.
(d) Happy Food has no liabilities with respect to the payment of
federal, state, local, or other taxes (including any deficiencies,
interest, or penalties), except for taxes accrued but not yet due
and payable, for which Happy Food may be liable in its own right or
as a transferee of the assets of, or as a successor to, any other
corporation or entity.
(e) No deficiency for any taxes has been proposed, asserted or assessed
against Happy Food. There has been no tax audit, nor has there been
any notice to Happy Food by any taxing authority regarding any such
tax audit, or, to the knowledge of Happy Food, is any such tax audit
threatened with regard to any taxes or Happy Food tax returns. Happy
Food does not expect the assessment of any additional taxes of Happy
Food for any period prior to the date hereof and has no knowledge of
any unresolved questions concerning the liability for taxes of Happy
Food.
(f) The books and records, financial and otherwise, of Happy Food are in
all material respects complete and correct and have been maintained
in accordance with good business and accounting practices.
(g) Happy Food has good and marketable title to its assets and, except
as set forth in the Happy Food Schedules or the Financial Statements
of Happy Food or the notes thereto, has no material contingent
liabilities, direct or indirect, matured or unmatured.
4.5 Information. The information concerning Happy Food set forth in this
Agreement and the Happy Food Schedules are and will be accurate in all material
respects and does not contain any untrue statement of a material fact or omit to
state a material fact required to make the statements made, in light of the
circumstances under which they were made, not misleading as of the date hereof
and as of the Closing date.
4.6 Options or Warrants. There are no existing options, warrants, calls,
or commitments of any character relating to authorized and unissued stock of
Happy Food.
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4.7 Absence of Certain Changes or Events. Except as described herein or in
the Happy Food Schedules, since the date of the most recent Happy Food balance
sheet:
(a) there has not been (i) any material adverse change in the business,
operations, properties, assets, or condition of Happy Food (whether
or not covered by insurance) materially and adversely affecting the
business, operations, properties, assets, or condition of Happy
Food;
(b) Happy Food has not (i) amended its Certificate of Incorporation or
bylaws; (ii) declared or made, or agreed to declare or make any
payment of dividends or distributions of any assets of any kind
whatsoever to stockholders or purchased or redeemed, or agreed to
purchase or redeem, any of its capital stock; (iii) waived any
rights of value which in the aggregate are extraordinary or material
considering the business of Happy Food; (iv) made any material
change in its method of management, operation, or accounting; (v)
entered into any other material transactions; (vi) made any accrual
or arrangement for or payment of bonuses or special compensation of
any kind or any severance or termination pay to any present or
former officer or employee; (vii) increased the rate of compensation
payable or to become payable by it to any of its officers or
directors or any of its employees; or (viii) made any increase in
any profit sharing, bonus, deferred compensation, insurance,
pension, retirement, or other employee benefit plan, payment, or
arrangement, made to, for, or with its officers, directors, or
employees;
(c) Happy Food has not (i) granted or agreed to grant any options,
warrants, or other rights for its stocks, bonds, or other corporate
securities calling for the issuance thereof; (ii) borrowed or agreed
to borrow any funds or incurred, or become subject to, any material
obligation or liability (absolute or contingent) except liabilities
incurred in the ordinary course of business; (iii) paid or agreed to
pay any material obligation or liability (absolute or contingent)
other than current liabilities reflected in or shown on the most
recent Happy Food balance sheet and current liabilities incurred
since that date in the ordinary course of business and professional
and other fees and expenses incurred in connection with the
preparation of this Agreement and the consummation of the
transactions contemplated hereby; (iv) sold or transferred, or
agreed to sell or transfer, any of its assets, property, or rights
(except assets, property, or rights not used or useful in its
business which, in the aggregate have a value of less than $1,000),
or canceled, or agreed to cancel, any debts or claims (except debts
or claims which in the aggregate are of a value of less than
$1,000); (v) made or permitted any amendment or termination of any
contract, agreement, or license to which it is a party if such
amendment or termination is material, considering the business of
Happy Food; or (vi) issued, delivered, or agreed to issue or deliver
any stock, bonds, or other corporate securities including debentures
(whether authorized and unissued or held as treasury stock), except
in connection with this Agreement;
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(d) It is understood and agreed that Happy Food will have no material
liabilities or accounts payable as of the Closing date; and
(e) to the best knowledge of Happy Food, it has not become subject to
any law or regulation which materially and adversely affects, or in
the future may adversely affect, the business, operations,
properties, assets, or condition of Happy Food.
4.8 Title and Related Matters. Happy Food has good and marketable title to
all of its properties, interest in properties, and assets, real and personal,
which are reflected in the Happy Food balance sheet or acquired after that date
(except properties, interest in properties, and assets sold or otherwise
disposed of since such date in the ordinary course of business), free and clear
of all liens, pledges, charges, or encumbrances except:
(a) statutory liens or claims not yet delinquent;
(b) such imperfections of title and easements as do not and will not
materially detract from or interfere with the present or proposed
use of the properties subject thereto or affected thereby or
otherwise materially impair present business operations on such
properties; and
(c) as described in the Happy Food Schedules.
4.9 Litigation and Proceedings. There are no actions, suits, or
proceedings pending or, to the knowledge of Happy Food, threatened by or against
or affecting Happy Food, at law or in equity, before any court or other
governmental agency or instrumentality, domestic or foreign, or before any
arbitrator of any kind. Happy Food does not have any knowledge of any default on
its part with respect to any judgment, order, writs, injunction, decree, award,
rule, or regulation of any court, arbitrator, or governmental agency or
instrumentality.
4.10 Contracts. Happy Food is not a party to any material contract,
agreement, or other commitment, except as specifically disclosed in its
schedules to this Agreement.
4.11 No Conflict With Other Instruments. The consummation of the
transactions contemplated by this Agreement and the Stock Purchase Agreement
will not result in the breach of any term or provision of, or constitute a
default under, any indenture, mortgage, deed of trust, or other material
agreement or instrument to which Happy Food is a party or to which it or any of
its assets or operations are subject.
4.12 Governmental Authorizations. Happy Food has all licenses, franchises,
permits, and other government authorizations, that are legally required to
enable it to conduct its business operations in all material respects as
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conducted on the date hereof. Except for compliance with federal and state
securities or corporation laws, as hereinafter provided, no authorization,
approval, consent, or order of, or registration, declaration, or filing with,
any court or other governmental body is required in connection with the
execution and delivery by Happy Food of this Agreement and the consummation by
Happy Food of the transactions contemplated hereby.
4.13 Compliance With Laws and Regulations. To the best of its knowledge,
Happy Food has complied with all applicable statutes and regulations of any
federal, state, or other applicable governmental entity or agency thereof,
except to the extent that noncompliance would not materially and adversely
affect the business, operations, properties, assets, or conditions of Happy Food
or except to the extent that noncompliance would not result in the incurrence of
any material liability. This compliance includes, but is not limited to, the
filing of all reports to date with the U.S. Securities and Exchange Commission
and state securities authorities.
4.14 Insurance. Happy Food owns no insurable properties and carries no
casualty or liability insurance.
4.15 Approval of Agreement. The board of directors of Happy Food has
authorized the execution and delivery of this Agreement by Happy Food and has
approved this Agreement and the transactions contemplated hereby.
4.16 Continuity of Business Enterprises. Happy Food has no commitment or
present intention to liquidate Happy Food or sell or otherwise dispose of a
material portion of its business or assets following the consummation of the
transactions contemplated hereby.
4.17 Material Transactions of Affiliations. Except as disclosed herein and
in the Happy Food Schedules, there exists no material contract, agreement, or
arrangement between Happy Food and any person who was at the time of such
contract, agreement, or arrangement an officer, director, or person owning of
record or known by Happy Food to own beneficially, 10% or more of the issued and
outstanding common stock of Happy Food and which is to be performed in whole or
in part after the date hereof or was entered into not more than three years
prior to the date hereof. Neither any officer, director, nor 10% shareholder of
Happy Food has, or has had during the last preceding full fiscal year, any known
interest in any material transaction with Happy Food which was material to the
business of Happy Food, except compensation paid to Xxxxx X. Xxxx by the
issuance of Common Stock of Happy Food. Happy Food has no commitment, whether
written or oral, to lend any funds to, borrow any money from, or enter into any
other material transaction with any such affiliated person.
4.18 Employment Matters. Happy Food has no employees other than its
executive officers.
4.19 Happy Food Schedules. Happy Food has delivered to LEI, or will
deliver as soon as practicable at LEI's request, the following schedules, which
are collectively referred to as the "Happy Food Schedules," which are dated the
15
date of this Agreement, all certified by an officer to be complete, true, and
accurate:
(a) a schedule containing complete and accurate copies of the
Certificate of Incorporation and bylaws, as amended, of Happy Food
as in effect as of the date of this Agreement;
(b) a schedule containing the financial statements of Happy Food
identified in paragraph 4.4(a);
(c) a schedule containing a list of the federal income tax returns of
Happy Food identified in paragraph 4.4(d);
(d) a schedule setting forth the description of any material adverse
change in the business, operations, property, assets, or condition
of Happy Food since the date of the most recent Happy Food balance
sheet, required to be provided pursuant to section 4.7 hereof; and
(e) a schedule setting forth any other information required to be
disclosed in the Happy Food Schedules by sections 4.1 through 4.17.
4.20. Happy Food shall cause the Happy Food Schedules and the instruments
and data delivered to LEI hereunder to be updated after the date hereof up to
and including the Closing Date.
ARTICLE V
SPECIAL COVENANTS
5.1 Stockholders' Actions of Happy Food. Prior to the Closing, Happy Food
shall cause the following actions to be taken by the written consent of the
holders of a majority of the outstanding shares of Happy Food Stock.
(a) fixing the number of directors constituting the entire board of
directors of Happy Food at two;
(b) the removal of each current director of Happy Food and the election
of Xxxxxx X. Xxxxxx and Xxxx X. XxXxxxxx as the sole directors of
Happy Food effective at the time of the Closing;
(c) the approval of this Agreement, the Stock Purchase Agreement and the
transactions contemplated hereby and thereby; and
(d) such other actions as the directors may determine are necessary or
appropriate.
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5.2 Happy Food Charter Amendment. Prior to the Closing, Happy Food shall
amend its Certificate of Incorporation to increase the authorized number of
shares of Happy Food's common stock from 9,500,000 to 200,000,000, to authorize
20,000,000 shares of HPYF Class B and to make such other modifications thereto
as LEI may reasonably request;
5.3 [Reserved.]
5.4 Access to Properties and Records. Happy Food and LEI will each afford
to the officers and authorized representatives of the other full access to the
properties, books, and records of Happy Food or LEI in order that each may have
full opportunity to make such reasonable investigation as it shall desire to
make of the affairs of the other, and each will furnish the other with such
additional financial and operating data and other information as to the business
and properties of Happy Food or LEI as the other shall from time to time
reasonably request.
5.5 Delivery of Books and Records. At the Closing, Happy Food shall
deliver to Xxxx Xxxxxx, the originals of the corporate minute books, books of
account, contracts, records, and all other books or documents of Happy Food now
in the possession or control of Happy Food or its representatives and agents.
5.6 Private Placement Exemption. LEI shall use its best efforts (i) to
obtain a representation letter prior to Closing from each Shareholder including
the representations set forth in Schedule I hereto (the executed copies of each
such representation letter being collectively referred to herein as the
"Shareholder Representation Letters"), and (ii) to cause Happy Food to file a
Form D notice with the U.S. Securities and Exchange Commission consistent with
Rule 506 under Regulation D promulgated under the Securities Act within the time
frames prescribed by law.
5.7 Actions Prior to Closing.
(a) From and after the date of this Agreement until the Closing Date and
except as set forth in the Happy Food or LEI Schedules or as
permitted or contemplated by this Agreement, Happy Food and LEI will
each: (i) carry on its business in substantially the same manner as
it has heretofore; (ii) maintain and keep its properties in states
of good repair and condition as at present, except for depreciation
due to ordinary wear and tear and damage due to casualty; (iii)
maintain in full force and effect insurance comparable in amount and
in scope of coverage to that now maintained by it; (iv) perform in
all material respects all of its obligation under material
contracts, leases, and instruments relating to or affecting its
assets, properties, and business; (v) use its best efforts to
maintain and preserve its business organization intact, to retain
its key employees, and to maintain its relationship with its
material suppliers and customers; and (vi) fully comply with and
perform in all material respects all obligations and duties imposed
on it by all federal and state laws and all rules, regulations, and
orders imposed by federal or state governmental authorities.
17
(b) From and after the date of this Agreement until the Closing Date,
neither Happy Food nor LEI will: (i) make any change in their
organizational documents, Certificate of Incorporation (except as
provided herein), or bylaws; (ii) take any action described in
section 2.7 in the case of LEI, or in section 4.7, in the case of
Happy Food (all except as permitted therein or as disclosed in the
applicable party's schedules); (iii) enter into or amend any
contract, agreement, or other instrument of any of the types
described in such party's schedules, except that a party may enter
into or amend any contract, agreement, or other instrument in the
ordinary course of business involving the sale of goods or services;
or (iv) make or change any material tax election, settle or
compromise any material tax liability or file any amended tax
return.
5.8 Indemnification.
(a) LEI hereby agrees to indemnify Happy Food and each of the officers,
agents and directors of Happy Food as of the date of execution of
this Agreement against any loss, liability, claim, damage, or
expense (including, but not limited to, any and all expense
whatsoever reasonably incurred in investigating, preparing, or
defending against any litigation, commenced or threatened, or any
claim whatsoever), to which it or they may become subject arising
out of or based on any inaccuracy appearing in or misrepresentation
made in Article II of this Agreement. The indemnification provided
for in this paragraph shall survive the Closing and consummation of
the transactions contemplated hereby and termination of this
Agreement.
(b) Happy Food hereby agrees to indemnify LEI and each of the officers,
agents and directors of LEI as of the date of execution of this
Agreement against any loss, liability, claim, damage, or expense
(including, but not limited to, any and all expense whatsoever
reasonably incurred in investigating, preparing, or defending
against any litigation, commenced or threatened, or any claim
whatsoever), to which it or they may become subject arising out of
or based on any inaccuracy appearing in or misrepresentation made
under Article IV of this Agreement. The indemnification provided for
in this paragraph shall survive the Closing and consummation of the
transactions contemplated hereby and termination of this Agreement.
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ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF HAPPY FOOD
The obligations of Happy Food under this Agreement are subject to the
satisfaction, at or before the Closing, of the following conditions:
6.1 Accuracy of Representations; Performance.
(a) The representations and warranties made by LEI in this Agreement
were true when made and shall be true at the Closing Date with the
same force and effect as if such representations and warranties were
made at and as of the Closing Date (except for changes therein
permitted by this Agreement), and LEI shall have performed or
complied with all covenants and conditions required by this
Agreement to be performed or complied with by LEI prior to or at the
Closing. Happy Food may request to be furnished with a certificate,
signed by a duly authorized officer of LEI and dated the Closing
Date, to the foregoing effect.
(b) The representations and warranties made by the Shareholders in this
Agreement were true when made and shall be true at the Closing Date
with the same force and effect as if such representations and
warranties were made at and as of the Closing Date (except for
changes therein permitted by this Agreement), and each Shareholder
shall have performed or complied with all covenants and conditions
required by this Agreement to be performed or complied with by it
prior to or at the Closing.
6.2 Officer's Certificates. Happy Food shall have been furnished with a
certificate dated the Closing Date and signed by a duly authorized officer of
LEI to the effect that no litigation, proceeding, investigation, or inquiry is
pending or, to the best knowledge of LEI threatened, which might result in an
action to enjoin or prevent the consummation of the transactions contemplated by
this Agreement, or, to the extent not disclosed in the LEI Schedules, by or
against LEI which might result in any material adverse change in any of the
assets, properties, business, or operations of LEI.
6.3 No Material Adverse Change. Prior to the Closing Date, there shall not
have occurred any material adverse change in the financial condition, business,
or operations of LEI, nor shall any event have occurred which, with the lapse of
time or the giving of notice, may cause or create any material adverse change in
the financial condition, business, or operations.
6.4 Minimum Shareholder Participation. Shareholders holding, in the
aggregate, at least eighty percent (80%) of the LEI Stock and all of the LEI
Class B outstanding shall have executed counterpart signature pages hereto.
6.5 Other Items.
(a) Happy Food shall have received a shareholder list of LEI containing
the name, address, and number of shares held by each LEI shareholder
as of the date of Closing certified by an executive officer of LEI
as being true, complete, and accurate.
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(b) Happy Food shall have received such further documents, certificates,
or instruments relating to the transactions contemplated hereby as
Happy Food may reasonably request.
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF LEI
The obligations of LEI under this Agreement are subject to the
satisfaction, at or before the Closing, of the following conditions:
7.1 Accuracy of Representations; Performance. The representations and
warranties made by Happy Food in this Agreement were true when made and shall be
true as of the Closing Date (except for changes therein permitted by this
Agreement) with the same force and effect as if such representations and
warranties were made at and as of the Closing Date, and Happy Food shall have
performed and complied with all covenants and conditions required by this
Agreement to be performed or complied with by Happy Food prior to or at the
Closing. LEI shall have been furnished with a certificate, signed by a duly
authorized executive officer of Happy Food and dated the Closing Date, to the
foregoing effect.
7.2 Officer's Certificate. LEI shall have been furnished with a
certificate dated the Closing Date and signed by a duly authorized executive
officer of Happy Food to the effect that no litigation, proceeding,
investigation, or inquiry is pending or, to the best knowledge of Happy Food
threatened, which might result in an action to enjoin or prevent the
consummation of the transactions contemplated by this Agreement.
7.3 No Material Adverse Change. Prior to the Closing Date, there shall not
have occurred any material adverse change in the financial condition, business,
or operations of Happy Food nor shall any event have occurred which, with the
lapse of time or the giving of notice, may cause or create any material adverse
change in the financial condition, business, or operations of Happy Food.
7.4 Good Standing. Happy Food shall have received a certificate of good
standing from the Secretary of State of the State of Oklahoma or other
appropriate office, dated as of a date within ten days prior to the Closing Date
certifying that Happy Food is in good standing as a corporation in the State of
Oklahoma and has filed all tax returns required to have been filed by it to date
and has paid all taxes reported as due thereon.
7.5 Minimum Shareholder Participation. Shareholders holding, in the
aggregate, at least eighty percent (80%) of the LEI Stock and all of the LEI
Class B outstanding shall have executed counterpart signature pages hereto.
20
7.6 Other Items.
(a) LEI shall have received a shareholder list of Happy Food containing
the name, address, and number of shares held by each Happy Food
shareholder as of the date of Closing certified by an executive
officer of Happy Food as being true, complete, and accurate.
(b) LEI shall have received such further documents, certificates, or
instruments relating to the transactions contemplated hereby as LEI
may reasonably request.
ARTICLE VIII
TERMINATION
8.1 Termination.
(a) This Agreement may be terminated by the board of directors of either
Happy Food or LEI at any time prior to the Closing Date if: (i)
there shall be any actual or threatened action or proceeding before
any court or any governmental body which shall seek to restrain,
prohibit, or invalidate the transactions contemplated by this
Agreement and which, in the judgment of such board of directors,
made in good faith and based on the advice of its legal counsel,
makes it inadvisable to proceed with the exchange contemplated by
this Agreement; (ii) any of the transactions contemplated hereby are
disapproved by any regulatory authority whose approval is required
to consummate such transactions or in the judgment of such board of
directors, made in good faith and based on the advice of counsel,
there is substantial likelihood that any such approval will not be
obtained or will be obtained only on a condition or conditions which
would be unduly burdensome, making it inadvisable to proceed with
the exchange; or (iii) there shall have been any change after the
date of the latest balance sheets of LEI and Happy Food,
respectively, in the assets, properties, business, or financial
condition of LEI and Happy Food, which could have a materially
adverse affect on the value of the business of LEI and Happy Food
respectively, except any changes disclosed in the LEI and Happy Food
Schedules, as the case may be, dated as of the date of execution of
this Agreement. In the event of termination pursuant to this
paragraph (a) of section 8.1, no obligation, right, or liability
shall arise hereunder, and each party shall bear all of the expenses
incurred by it in connection with the negotiation, drafting, and
execution of this Agreement and the transactions herein
contemplated.
(b) This Agreement may be terminated at any time prior to the Closing by
action of the board of directors of Happy Food if LEI shall fail to
comply in any material respect with any of its covenants or
agreements contained in this Agreement or if any of the
representations or warranties of LEI contained herein shall be
inaccurate in any material respect, and, in either case if such
21
failure is reasonably subject to cure, it remains uncured for seven
days after notice of such failure is provided to LEI. If this
Agreement is terminated pursuant to this paragraph (b) of section
8.1, this Agreement shall be of no further force or effect, and no
obligation, right, or liability shall arise hereunder, except that
LEI shall bear its own costs as well as the costs incurred by Happy
Food in connection with the negotiation, preparation, and execution
of this Agreement and qualifying the offer and sale of securities
contemplated hereby for exemption from the registration requirements
of state and federal securities laws.
(c) This Agreement may be terminated at any time prior to the Closing by
action of the board of directors of LEI if Happy Food shall fail to
comply in any material respect with any of its covenants or
agreements contained in this Agreement or if any of the
representations or warranties of Happy Food contained herein shall
be inaccurate in any material respect, and, in either case if such
failure is reasonably subject to cure, it remains uncured for seven
days after notice of such failure is provided to Happy Food. If this
Agreement is terminated pursuant to this paragraph (c) of section
8.1, this Agreement shall be of no further force or effect, and no
obligation, right, or liability shall arise hereunder, except that
Happy Food shall bear its own costs as well as the costs of LEI
incurred in connection with the negotiation, preparation, and
execution of this Agreement.
ARTICLE IX
MISCELLANEOUS
9.1 Brokers. Except as set forth on Schedule 9.1, Happy Food and LEI agree
that there were no finders or brokers involved in bringing the parties together
or who were instrumental in the negotiation, execution, or consummation of this
Agreement. Happy Food and LEI each agree to indemnify the other against any
claim by any third person (other than the persons set forth on Schedule 9.1) for
any commission, brokerage, or finders' fee arising from the transactions
contemplated hereby based on any alleged agreement or understanding between the
indemnifying party and such third person, whether express or implied from the
actions of the indemnifying party.
9.2 Governing Law. This Agreement shall be governed by, enforced, and
construed under and in accordance with the laws of the United States of America
and, with respect to matters of state law, with the laws of Oklahoma. Any
dispute arising under or in any way related to this Agreement will be submitted
to binding arbitration before a single arbitrator by the American Arbitration
Association in accordance with the Association's commercial rules then in
effect. The arbitration will be conducted in Oklahoma City, Oklahoma. The
decision of the arbitrator will set forth in reasonable detail the basis for the
decision and will be binding on the parties. The arbitration award may be
confirmed by any court of competent jurisdiction.
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9.3 Notices. Any notices or other communications required or permitted
hereunder shall be sufficiently given if personally delivered to it or sent by
registered mail or certified mail, postage prepaid, or by prepaid telegram
addressed as follows:
If to Happy Food, to: Xxxxx X. Xxxx
0000 Xxxx Xxxxxxxxxx Xxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
With copies to: Xxxxxxx X. Xxxxxx, Xx., Esq.
Xxxxxxx X. Xxxxxx, Xx., P.C.
000 X. Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx Xxxx, Xxxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to LEI, to: Xxxxxx X. Xxxxxx, CEO
LEI Energetics, Inc.
0000 Xxxxxxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
With copies to: Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
If to the Shareholders, to each Shareholder at the respective addresses and
facsimile numbers set forth on each such Shareholder's counterpart signature
page hereto,
or such other addresses as shall be furnished in writing by any party in the
manner for giving notices hereunder, and any such notice or communication shall
be deemed to have been given as of the date so delivered, mailed, or
telegraphed.
9.4 Attorney's Fees. In the event that any party institutes any action or
suit to enforce this Agreement or to secure relief from any default hereunder or
breach hereof, the breaching party or parties shall reimburse the non-breaching
party or parties for all costs, including reasonable attorneys' fees, incurred
in connection therewith and in enforcing or collecting any judgment rendered
therein.
9.5 Confidentiality. Each party hereto agrees with the other parties that,
unless and until the transactions contemplated by this Agreement have been
consummated, each party and their representatives will hold in strict confidence
all data and information obtained with respect to another party or any
23
subsidiary thereof from any representative, officer, director, or employee, or
from any books or records or from personal inspection, or such other party, and
shall not use such data or information or disclose the same to others, except
(i) to the extent such data or information is published, is a matter of public
knowledge, or is required by law to be published; and (ii) to the extent that
such data or information must be used or disclosed in order to consummate the
transactions contemplated by this Agreement.
9.6 Expenses of Stock Exchange. Happy Food and LEI agree that they will
each bear their own costs and expenses in negotiating and closing the
transactions contemplated by this Agreement, including but not limited to,
attorneys' fees, accounting fees, due diligence expenses, travel, printing,
copying, mail, telephone and other related expenses.
9.7 Schedules; Knowledge. Each of LEI and Happy Food is presumed to have
full knowledge of all information set forth in the other party's schedules
delivered pursuant to this Agreement.
9.8 Third Party Beneficiaries. This contract is solely between Happy Food,
LEI and the Shareholders, and, except as specifically provided, no director,
officer, stockholder, employee, agent, independent contractor, or any other
person or entity shall be deemed to be a third party beneficiary of this
Agreement.
9.9 Entire Agreement. This Agreement (including all exhibits and schedules
attached hereto) and the Shareholder Representation Letters represent the entire
agreement among the parties relating to the exchange of LEI Stock for Happy Food
Stock. There are no other courses of dealing, understandings, agreements,
representations, or warranties, written or oral, except as set forth herein.
9.10 Survival; Termination. The representations, warranties, and covenants
of the respective parties shall survive the Closing Date and the consummation of
the transactions herein contemplated.
9.11 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which taken
together shall be but a single instrument.
9.12 Amendment, Modification, or Waiver. Every right and remedy provided
herein shall be cumulative with every other right and remedy, whether conferred
herein, at law, or in equity, and may be enforced concurrently herewith, and no
waiver by any party of the performance of any obligation by the other shall be
construed as a waiver of the same or any other default then, theretofore, or
thereafter occurring or existing. At any time prior to the Closing Date, this
Agreement may be amended or modified by a writing signed by LEI and Happy Food,
with respect to any of the terms contained herein, and any term or condition of
24
this Agreement may be waived or the time for performance hereof may be extended
by a writing signed by the party or parties for whose benefit the provision is
intended; provided, however, that no amendment, modification or waiver which, by
its express terms, affects the rights or obligations hereunder of a particular
Shareholder in a materially adverse manner and which does not, by its express
terms, affect the rights or obligations hereunder of all Shareholders with
similar rights or obligations in a similarly materially adverse manner shall be
binding as to such particularly affected Shareholder without the prior written
consent of such Shareholder.
[Signature pages follow immediately]
25
IN WITNESS WHEREOF, the corporate parties hereto have caused this
Agreement to be executed by their respective officers, hereunto duly authorized,
as of the date first above-written.
HAPPY FOOD CORPORATION
By: /s/ Xxxxx X. Xxxx
-----------------------------------------
Xxxxx X. Xxxx, President
LASER ENERGETICS, INC.
By:
-----------------------------------------
Xxxxxx X. Xxxxxx, Chief Executive Officer
IN WITNESS WHEREOF, the corporate parties hereto have caused this
Agreement to be executed by their respective officers, hereunto duly authorized,
as of the date first above-written.
HAPPY FOOD CORPORATION
By:
-----------------------------------------
Xxxxx X. Xxxx, President
LASER ENERGETICS, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxx, Chief Executive Officer
COUNTERPART SIGNATURE PAGE OF THE SHAREHOLDERS
IN WITNESS WHEREOF, the undersigned shareholder of Laser Energetics, Inc.
has caused this counterpart signature page to this Agreement to be executed, as
of the date first above-written.
Xxxxxx Xxxxxxxxx
-----------------------------------------
(Name of Shareholder exactly as it
appears on the books and records of
Laser Energetics, Inc.)
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------------
Name:
Title (if applicable):
Address: material omitted pursuant to
------------------------------
confidentiality request
------------------------------
------------------------------
Facsimile:
------------------------------
COUNTERPART SIGNATURE PAGE OF THE SHAREHOLDERS
IN WITNESS WHEREOF, the undersigned shareholder of Laser Energetics, Inc.
has caused this counterpart signature page to this Agreement to be executed, as
of the date first above-written.
XXXXXX X. XXXXXX
-----------------------------------------
(Name of Shareholder exactly as it
appears on the books and records of
Laser Energetics, Inc.)
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name:
Title (if applicable):
Address: material omitted pursuant
------------------------------
to confidentiality request
------------------------------
------------------------------
Facsimile:
------------------------------
COUNTERPART SIGNATURE PAGE OF THE SHAREHOLDERS
IN WITNESS WHEREOF, the undersigned shareholder of Laser Energetics, Inc.
has caused this counterpart signature page to this Agreement to be executed, as
of the date first above-written.
Xx. Xxx X Xxxxx
-----------------------------------------
(Name of Shareholder exactly as it
appears on the books and records of
Laser Energetics, Inc.)
By:
-------------------------------------
Name:
Title (if applicable):
Address: material omitted pursuant
------------------------------
to confidentiality request
------------------------------
------------------------------
Facsimile:
------------------------------
COUNTERPART SIGNATURE PAGE OF THE SHAREHOLDERS
IN WITNESS WHEREOF, the undersigned shareholder of Laser Energetics, Inc.
has caused this counterpart signature page to this Agreement to be executed, as
of the date first above-written.
Xxxxxx Xxxxx
---------------------------------------------
(Name of Shareholder exactly as it
appears on the books and records of
Laser Energetics, Inc.)
By: /s/ Xxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxx Xxxxx
Title (if applicable):
Address: material omitted pursuant
----------------------------------
to confidentiality request
----------------------------------
----------------------------------
Facsimile:
----------------------------------
COUNTERPART SIGNATURE PAGE OF THE SHAREHOLDERS
IN WITNESS WHEREOF, the undersigned shareholder of Laser Energetics, Inc.
has caused this counterpart signature page to this Agreement to be executed, as
of the date first above-written.
Xxxxxxx Xxxxx Trust, Xxxxxx Xxxxx, Trustee
---------------------------------------------
(Name of Shareholder exactly as it
appears on the books and records of
Laser Energetics, Inc.)
By: /s/ Xxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxx Xxxxx
Title (if applicable): Trustee
Address: material omitted pursuant
----------------------------------
to confidentiality request
----------------------------------
----------------------------------
Facsimile:
----------------------------------
COUNTERPART SIGNATURE PAGE OF THE SHAREHOLDERS
IN WITNESS WHEREOF, the undersigned shareholder of Laser Energetics, Inc.
has caused this counterpart signature page to this Agreement to be executed, as
of the date first above-written.
Xxxxxxx Xxxxxxxxx
---------------------------------------------
(Name of Shareholder exactly as it
appears on the books and records of
Laser Energetics, Inc.)
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------------------
Name:
Title (if applicable):
Address: material omitted pursuant
----------------------------------
to confidentiality request
----------------------------------
----------------------------------
Facsimile:
----------------------------------
COUNTERPART SIGNATURE PAGE OF THE SHAREHOLDERS
IN WITNESS WHEREOF, the undersigned shareholder of Laser Energetics, Inc.
has caused this counterpart signature page to this Agreement to be executed, as
of the date first above-written.
Xxxxxx X. Xxxxxxxx
---------------------------------------------
(Name of Shareholder exactly as it
appears on the books and records of
Laser Energetics, Inc.)
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name:
Title (if applicable): N/A
Address: material omitted pursuant
----------------------------------
to confidentiality request
----------------------------------
----------------------------------
Facsimile:
----------------------------------
COUNTERPART SIGNATURE PAGE OF THE SHAREHOLDERS
IN WITNESS WHEREOF, the undersigned shareholder of Laser Energetics, Inc.
has caused this counterpart signature page to this Agreement to be executed, as
of the date first above-written.
Cincinnati Sub-Zero Products, Inc.
---------------------------------------------
(Name of Shareholder exactly as it
appears on the books and records of
Laser Energetics, Inc.)
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Title (if applicable): President
Address: material omitted pursuant
----------------------------------
to confidentiality request
----------------------------------
----------------------------------
Facsimile:
----------------------------------
COUNTERPART SIGNATURE PAGE OF THE SHAREHOLDERS
IN WITNESS WHEREOF, the undersigned shareholder of Laser Energetics, Inc.
has caused this counterpart signature page to this Agreement to be executed, as
of the date first above-written.
XXXXX X. XXXXXXX
---------------------------------------------
(Name of Shareholder exactly as it
appears on the books and records of
Laser Energetics, Inc.)
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name:
Title (if applicable):
Address: material omitted pursuant
----------------------------------
to confidentiality request
----------------------------------
----------------------------------
Facsimile:
----------------------------------
COUNTERPART SIGNATURE PAGE OF THE SHAREHOLDERS
IN WITNESS WHEREOF, the undersigned shareholder of Laser Energetics, Inc.
has caused this counterpart signature page to this Agreement to be executed, as
of the date first above-written.
XXXXXX X. XXXXXXX
---------------------------------------------
(Name of Shareholder exactly as it
appears on the books and records of
Laser Energetics, Inc.)
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name:
Title (if applicable):
Address: material omitted pursuant
----------------------------------
to confidentiality request
----------------------------------
----------------------------------
Facsimile:
----------------------------------
COUNTERPART SIGNATURE PAGE OF THE SHAREHOLDERS
IN WITNESS WHEREOF, the undersigned shareholder of Laser Energetics, Inc.
has caused this counterpart signature page to this Agreement to be executed, as
of the date first above-written.
XXXX XXXXXXX
---------------------------------------------
(Name of Shareholder exactly as it
appears on the books and records of
Laser Energetics, Inc.)
By: /s/ Xxxx Xxxxxxx
-----------------------------------------
Name:
Title (if applicable):
Address: material omitted pursuant
----------------------------------
to confidentiality request
----------------------------------
----------------------------------
Facsimile:
----------------------------------
COUNTERPART SIGNATURE PAGE OF THE SHAREHOLDERS
IN WITNESS WHEREOF, the undersigned shareholder of Laser Energetics, Inc.
has caused this counterpart signature page to this Agreement to be executed, as
of the date first above-written.
THE ESTATE OF XXXXXX XXXXXXX
---------------------------------------------
(Name of Shareholder exactly as it
appears on the books and records of
Laser Energetics, Inc.)
By: /s/ Estate of Xxxxxx Xxxxxxx
/s/ Xxxxx X. Dworking, Personal Rep.
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title (if applicable): Executor
Address: material omitted pursuant
----------------------------------
to confidentiality request
----------------------------------
----------------------------------
Facsimile:
----------------------------------
Xxxxx X. Xxxx, President
LASER ENERGETICS, INC.
By:
-----------------------------------------
Xxxxxx X. Xxxxxx, Chief Executive Officer
COUNTERPART SIGNATURE PAGE OF THE SHAREHOLDERS
IN WITNESS WHEREOF, the undersigned shareholder of Laser Energetics, Inc.
has caused this counterpart signature page to this Agreement to be executed, as
of the date first above-written.
XXXXX XXXXX
---------------------------------------------
(Name of Shareholder exactly as it
appears on the books and records of
Laser Energetics, Inc.)
By: /s/ Xxxxx Xxxxx
-----------------------------------------
Name: Xxxxx Xxxxx
Title (if applicable): material omitted
pursuant to
confidentiality
request
COUNTERPART SIGNATURE PAGE OF THE SHAREHOLDERS
IN WITNESS WHEREOF, the undersigned shareholder of Laser Energetics, Inc.
has caused this counterpart signature page to this Agreement to be executed, as
of the date first above-written.
Xxxxx Xxxxxxxxx
---------------------------------------------
(Name of Shareholder exactly as it
appears on the books and records of
Laser Energetics, Inc.)
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------------
Name:
Title (if applicable):
Address: material omitted pursuant
----------------------------------
to confidentiality request
----------------------------------
----------------------------------
Facsimile:
----------------------------------
COUNTERPART SIGNATURE PAGE OF THE SHAREHOLDERS
IN WITNESS WHEREOF, the undersigned shareholder of Laser Energetics, Inc.
has caused this counterpart signature page to this Agreement to be executed, as
of the date first above-written.
XXXXX Xx Xxxxxx
---------------------------------------------
(Name of Shareholder exactly as it
appears on the books and records of
Laser Energetics, Inc.)
By: /s/ Xxxxx Xx Xxxxxx
-----------------------------------------
Name:
Title (if applicable):
Address: material omitted pursuant
----------------------------------
to confidentiality request
----------------------------------
----------------------------------
Facsimile:
----------------------------------
COUNTERPART SIGNATURE PAGE OF THE SHAREHOLDERS
IN WITNESS WHEREOF, the undersigned shareholder of Laser Energetics, Inc.
has caused this counterpart signature page to this Agreement to be executed, as
of the date first above-written.
XXXXXX X. XXXXX
---------------------------------------------
(Name of Shareholder exactly as it
appears on the books and records of
Laser Energetics, Inc.)
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name:
Title (if applicable):
Address: material omitted pursuant
----------------------------------
to confidentiality request
----------------------------------
----------------------------------
Facsimile:
----------------------------------
COUNTERPART SIGNATURE PAGE OF THE SHAREHOLDERS
IN WITNESS WHEREOF, the undersigned shareholder of Laser Energetics, Inc.
has caused this counterpart signature page to this Agreement to be executed, as
of the date first above-written.
Xxxxx Xxxxxxxx Xxxxxx (Xxxxx Xxxxxxxx Xxxxxx)
---------------------------------------------
(Name of Shareholder exactly as it
appears on the books and records of
Laser Energetics, Inc.)
By: /s/ Xx. Xxxxx Xxxxxxxx Kassow
-----------------------------------------
Name:
Title (if applicable):
Address: material omitted pursuant
----------------------------------
to confidentiality request
----------------------------------
----------------------------------
Facsimile:
----------------------------------
COUNTERPART SIGNATURE PAGE OF THE SHAREHOLDERS
IN WITNESS WHEREOF, the undersigned shareholder of Laser Energetics, Inc.
has caused this counterpart signature page to this Agreement to be executed, as
of the date first above-written.
XXXXXXX XXXX
---------------------------------------------
(Name of Shareholder exactly as it
appears on the books and records of
Laser Energetics, Inc.)
By: /s/ Xxxxxxx Xxxx
-----------------------------------------
Name:
Title (if applicable):
Address: material omitted pursuant
----------------------------------
to confidentiality request
----------------------------------
----------------------------------
Facsimile:
----------------------------------
COUNTERPART SIGNATURE PAGE OF THE SHAREHOLDERS
IN WITNESS WHEREOF, the undersigned shareholder of Laser Energetics, Inc.
has caused this counterpart signature page to this Agreement to be executed, as
of the date first above-written.
XXXX X XXXXXXXX M.D
---------------------------------------------
(Name of Shareholder exactly as it
appears on the books and records of
Laser Energetics, Inc.)
By: /s/ Xxxx X XxXxxxxx M.D
-----------------------------------------
Name:
Title (if applicable):
Address: material omitted pursuant
----------------------------------
to confidentiality request
----------------------------------
----------------------------------
Facsimile:
----------------------------------
COUNTERPART SIGNATURE PAGE OF THE SHAREHOLDERS
IN WITNESS WHEREOF, the undersigned shareholder of Laser Energetics, Inc.
has caused this counterpart signature page to this Agreement to be executed, as
of the date first above-written.
XXXXXX XXXXX
---------------------------------------------
(Name of Shareholder exactly as it
appears on the books and records of
Laser Energetics, Inc.)
By: /s/ Xxxxxx Xxxxx
-----------------------------------------
Name:
Title (if applicable):
Address: material omitted pursuant
----------------------------------
to confidentiality request
----------------------------------
----------------------------------
Facsimile:
----------------------------------
COUNTERPART SIGNATURE PAGE OF THE SHAREHOLDERS
IN WITNESS WHEREOF, the undersigned shareholder of Laser Energetics, Inc.
has caused this counterpart signature page to this Agreement to be executed, as
of the date first above-written.
Xxx X. Xxxx
---------------------------------------------
(Name of Shareholder exactly as it
appears on the books and records of
Laser Energetics, Inc.)
By: /s/ Xxx X. Xxxx
-----------------------------------------
Name:
Title (if applicable):
Address: material omitted pursuant
----------------------------------
to confidentiality request
----------------------------------
----------------------------------
Facsimile:
----------------------------------
COUNTERPART SIGNATURE PAGE OF THE SHAREHOLDERS
IN WITNESS WHEREOF, the undersigned shareholder of Laser Energetics, Inc.
has caused this counterpart signature page to this Agreement to be executed, as
of the date first above-written.
Nevyas Eye Associates PC 401K Profit Sharing
Plan FBO A/C of X. Xxxxxx
---------------------------------------------
(Name of Shareholder exactly as it
appears on the books and records of
Laser Energetics, Inc.)
By: /s/ Xxxxxxx X. Xxxxxx Trustee
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title (if applicable): Trustee
Address: material omitted pursuant
----------------------------------
to confidentiality request
----------------------------------
----------------------------------
Facsimile:
----------------------------------
COUNTERPART SIGNATURE PAGE OF THE SHAREHOLDERS
IN WITNESS WHEREOF, the undersigned shareholder of Laser Energetics, Inc.
has caused this counterpart signature page to this Agreement to be executed, as
of the date first above-written.
Xxxxxxx Xxxxxx
---------------------------------------------
(Name of Shareholder exactly as it
appears on the books and records of
Laser Energetics, Inc.)
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxx
Title (if applicable):
Address: material omitted pursuant
----------------------------------
to confidentiality request
----------------------------------
----------------------------------
Facsimile:
----------------------------------
COUNTERPART SIGNATURE PAGE OF THE SHAREHOLDERS
IN WITNESS WHEREOF, the undersigned shareholder of Laser Energetics, Inc.
has caused this counterpart signature page to this Agreement to be executed, as
of the date first above-written.
Xxxxxxx Xxxxxx
---------------------------------------------
(Name of Shareholder exactly as it
appears on the books and records of
Laser Energetics, Inc.)
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------
Name:
Title (if applicable):
Address: material omitted pursuant
----------------------------------
to confidentiality request
----------------------------------
----------------------------------
Facsimile:
----------------------------------
COUNTERPART SIGNATURE PAGE OF THE SHAREHOLDERS
IN WITNESS WHEREOF, the undersigned shareholder of Laser Energetics, Inc.
has caused this counterpart signature page to this Agreement to be executed, as
of the date first above-written.
Xxxxxxxxxxx Revocable Trust
---------------------------------------------
(Name of Shareholder exactly as it
appears on the books and records of
Laser Energetics, Inc.)
By: /s/ Xxxxx Prediville, Trustee
-----------------------------------------
Name:
Title (if applicable):
Address: material omitted pursuant
----------------------------------
to confidentiality request
----------------------------------
----------------------------------
Facsimile:
----------------------------------
COUNTERPART SIGNATURE PAGE OF THE SHAREHOLDERS
IN WITNESS WHEREOF, the undersigned shareholder of Laser Energetics, Inc.
has caused this counterpart signature page to this Agreement to be executed, as
of the date first above-written.
XXXXXXX CONST. Co
---------------------------------------------
(Name of Shareholder exactly as it
appears on the books and records of
Laser Energetics, Inc.)
By: /s/ Xxxxxx Xxxxxxx, Pres
-----------------------------------------
Name:
Title (if applicable):
Address: material omitted pursuant
----------------------------------
to confidentiality request
----------------------------------
----------------------------------
Facsimile:
----------------------------------
COUNTERPART SIGNATURE PAGE OF THE SHAREHOLDERS
IN WITNESS WHEREOF, the undersigned shareholder of Laser Energetics, Inc.
has caused this counterpart signature page to this Agreement to be executed, as
of the date first above-written.
XXXXXX XXXXXXX
---------------------------------------------
(Name of Shareholder exactly as it
appears on the books and records of
Laser Energetics, Inc.)
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------
Name:
Title (if applicable):
Address: material omitted pursuant
----------------------------------
to confidentiality request
----------------------------------
----------------------------------
Facsimile:
----------------------------------
COUNTERPART SIGNATURE PAGE OF THE SHAREHOLDERS
IN WITNESS WHEREOF, the undersigned shareholder of Laser Energetics, Inc.
has caused this counterpart signature page to this Agreement to be executed, as
of the date first above-written.
XXXXXX XXXXXXXX
---------------------------------------------
(Name of Shareholder exactly as it
appears on the books and records of
Laser Energetics, Inc.)
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------------
Name:
Title (if applicable):
Address: material omitted pursuant
----------------------------------
to confidentiality request
----------------------------------
----------------------------------
Facsimile:
----------------------------------
COUNTERPART SIGNATURE PAGE OF THE SHAREHOLDERS
IN WITNESS WHEREOF, the undersigned shareholder of Laser Energetics, Inc.
has caused this counterpart signature page to this Agreement to be executed, as
of the date first above-written.
SCHWARTZBARD XXXXXXX ASSOCIATES
---------------------------------------------
(Name of Shareholder exactly as it
appears on the books and records of
Laser Energetics, Inc.)
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title (if applicable): General Partner
Address: material omitted pursuant
----------------------------------
to confidentiality request
----------------------------------
----------------------------------
Facsimile:
----------------------------------
COUNTERPART SIGNATURE PAGE OF THE SHAREHOLDERS
IN WITNESS WHEREOF, the undersigned shareholder of Laser Energetics, Inc.
has caused this counterpart signature page to this Agreement to be executed, as
of the date first above-written.
Trey Resources, Inc.
---------------------------------------------
(Name of Shareholder exactly as it
appears on the books and records of
Laser Energetics, Inc.)
By: /s/ Xxxx Xxxxxx
-----------------------------------------
Name:
Title (if applicable): CEO
Address: material omitted pursuant
----------------------------------
to confidentiality request
----------------------------------
----------------------------------
Facsimile:
----------------------------------
COUNTERPART SIGNATURE PAGE OF THE SHAREHOLDERS
IN WITNESS WHEREOF, the undersigned shareholder of Laser Energetics, Inc.
has caused this counterpart signature page to this Agreement to be executed, as
of the date first above-written.
Xxxx Xxxxx
---------------------------------------------
(Name of Shareholder exactly as it
appears on the books and records of
Laser Energetics, Inc.)
By: /s/ Xxxx Xxxxx
-----------------------------------------
Name:
Title (if applicable):
Address: material omitted pursuant
----------------------------------
to confidentiality request
----------------------------------
----------------------------------
Facsimile:
----------------------------------
COUNTERPART SIGNATURE PAGE OF THE SHAREHOLDERS
IN WITNESS WHEREOF, the undersigned shareholder of Laser Energetics, Inc.
has caused this counterpart signature page to this Agreement to be executed, as
of the date first above-written.
Xxxxx X. Xxxx
---------------------------------------------
(Name of Shareholder exactly as it
appears on the books and records of
Laser Energetics, Inc.)
By: /s/ Xxxxx X. Xxxx
-----------------------------------------
Name:
Title (if applicable):
Address: material omitted pursuant
----------------------------------
to confidentiality request
----------------------------------
----------------------------------
Facsimile:
----------------------------------
COUNTERPART SIGNATURE PAGE OF THE SHAREHOLDERS
IN WITNESS WHEREOF, the undersigned shareholder of Laser Energetics, Inc.
has caused this counterpart signature page to this Agreement to be executed, as
of the date first above-written.
Xxxx X. Xxxxxx
---------------------------------------------
(Name of Shareholder exactly as it
appears on the books and records of
Laser Energetics, Inc.)
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Name:
Title (if applicable):
Address: material omitted pursuant
----------------------------------
to confidentiality request
----------------------------------
----------------------------------
Facsimile:
----------------------------------
Schedule I
to
AGREEMENT AND PLAN OF SHARE EXCHANGE
Dated May ______, 2005
1. Investment Intent. I recognize that an investment in the Happy
Securities involves a high degree of risk including, but not limited to, the
following: (i) the Company remains a development stage business with limited
operating history and requires substantial funds; (ii) an investment in the
Company is highly speculative, and only investors who can afford the loss of
their entire investment should consider investing in the Company or the Happy
Securities, (iii) I may not be able to liquidate my investment; (iv)
transferability of the Happy Securities is extremely limited; (v) in the event
of a disposition of the Happy Securities, I could sustain the loss of my entire
investment and (vi) the Company has not paid any dividends since inception and
does not anticipate the payment of dividends on the Common Stock in the
foreseeable future.
2. Lack of Liquidity. I confirm that I am able (i) to bear the
economic risk of this investment, (ii) to hold the Happy Securities for an
indefinite period of time, and (iii) presently to afford a complete loss of my
investment; and represent that I have sufficient liquid assets so that the
illiquidity associated with this investment will not cause any undue financial
difficulties or affect my ability to provide for my current needs and possible
financial contingencies, and that my commitment to all speculative investments
is reasonable in relation to my net worth and annual income.
3. Knowledge and Experience. I hereby acknowledge and represent that
I have prior investment experience, including investment in securities that are
non-listed, unregistered and are not traded on the Nasdaq National or SmallCap
Market, nor on the National Association of Securities Dealers, Inc.'s (the
"NASD") automated quotation system.
4. Receipt of Information. I have been furnished by the Company with
all information regarding the Company which I have requested or desired to know,
have been afforded the opportunity to ask questions of, and to receive answers
from, duly authorized officers or other representatives of the Company
concerning the terms and conditions of the Exchange Agreement, the Happy
Securities and the affairs of the Company and have received any additional
information which I or my representative has requested.
5. Reliance on Information. I have relied solely upon the
information provided by the Company in the Exchange Agreement in making the
decision to invest in the Happy Securities. To the extent necessary, I have
retained, at my sole expense, and relied upon, appropriate professional advice
regarding the investment, tax and legal merits and consequences of the Exchange
Agreement and my acquisition of the Happy Securities.
6. No Solicitation. I represent that no Happy Securities were
offered or sold to me by means of any form of general solicitation or general
advertising, and in connection therewith I neither: (A) received or reviewed any
advertisement, article, notice or other communication published in a newspaper
or magazine or similar media or broadcast over television or radio whether
closed circuit, or generally available; nor (B) attended any seminar meeting or
industry investor conference whose attendees were invited by any general
solicitation or general advertising.
7. Registration. I hereby acknowledge that the offering of Happy
Securities pursuant to the Exchange Agreement has not been reviewed by the
Securities and Exchange Commission or any state regulatory authority, since such
offering is intended to be exempt from the registration requirements of Section
5 of the Securities Act of 1933, as amended (the "Securities Act"), pursuant to
Regulation D promulgated thereunder. I shall not sell or otherwise transfer the
Happy Securities unless such Happy Securities are registered under the
Securities Act or unless an exemption from such registration is available.
8. Purchase for own Account. I understand that the Happy Securities
have not been registered under the Securities Act by reason of a claimed
exemption under the provisions of the Securities Act which depends, in part,
upon my investment intention. In this connection, I hereby represent that I am
acquiring the Happy Securities for my own account for investment and not with a
view toward the resale or distribution to others or for resale in connection
with, any distribution or public offering (within the meaning of the Securities
Act), nor with any present intention of distributing or selling the same and I
have no present or contemplated agreement, undertaking, arrangement, obligation
or commitment providing for the disposition thereof.
9. Holding Period. I understand that there is no public trading
market for the Happy Securities and that no such market may ever develop. I
understand and hereby acknowledge that the Company is under no obligation to
register any of the Happy Securities under the Securities Act or any applicable
non-United States, state securities or "blue sky" laws. I shall hold the Company
and its directors, officers, employees, controlling persons and agents and their
respective heirs, representatives, successors and assigns harmless from, and
shall indemnify them against, all liabilities, costs and expenses incurred by
them as a result of (i) any misrepresentation made by me contained in this
letter, (ii) any sale or distribution by me in violation of the Securities Act
or any applicable non-United States, state securities or "blue sky" laws or
(iii) any untrue statement made by me.
27
10. Legends. I consent to the placement of the following legend
regarding restrictions on transfer pursuant to the applicable securities laws on
any certificate or other document evidencing the Happy Securities:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY STATE SECURITIES OR "BLUE
SKY" LAWS. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE
SOLD OR TRANSFERRED FOR VALUE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
OF THEM UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY APPLICABLE
STATE SECURITIES LAWS OR AN OPINION OF COUNSEL ACCEPTABLE TO HAPPY FOOD
CORPORATION THAT AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS IS
AVAILABLE WITH RESPECT TO SUCH SALE OR TRANSFER.
I am aware that the Company will make a notation in its appropriate
records with respect to the restrictions on the transferability of the Happy
Securities.
11. Address. I hereby represent that my address set forth at the top
of this letter is the address of my primary residence.
12. Authority. This letter constitutes my legal, valid and binding
obligation, enforceable against me by the Company in accordance with its terms.
13. Securities Laws. I acknowledge that at such time, if ever, as
the Happy Securities are registered, sales of the Happy Securities will be
subject to applicable non-United States and state securities laws.
14. Beneficial Owner. I will be the sole beneficial owner of the
Happy Securities that I acquire pursuant to the Exchange Agreement.
15. Reliance on Representation and Warranties. I understand that the
Happy Securities are being offered and issued to the undersigned in reliance on
specific exemptions from the registration requirements of United States Federal
and state securities laws and that the Company is relying upon the truth and
accuracy of the representations, warranties, agreements, acknowledgments and
understandings of the undersigned set forth herein in order to determine the
applicability of such exemptions and the suitability of the undersigned to
acquire the Happy Securities.
EXHIBIT A
(Terms of HPYF Class B)
Each holder of Class B Common Stock shall have the right, at any
time after May __, 2007, to convert each share of Class B Common Stock into the
number of shares of Class A Common Stock calculated by dividing the number of
Class B Common Stock being converted by fifty percent (50%) of the lowest price
that the Company had previously issued its Class A Common Stock since the Class
B Common Stock were issued. By way of example only, if 100 shares of Class B
Common Stock are being converted and the lowest price that the Company had
previously issued its Class A Common Stock since the Class B Common Stock were
issued is $1.00, such Class B Common Stock would be converted to 200 shares of
Class A Common Stock. Every holder of the outstanding shares of the Class B
Common Stock shall be entitled on each matter to cast the number of votes equal
to the number of shares of Class A Common Stock that would be issued upon the
conversion of the Class B Common Stock held by that holder, had all the
outstanding Class B Common Stock held by that holder been converted on the
record date used for purposes of determining which shareholders would vote in
such an election. With respect to all matters upon which shareholders are
entitled to vote or to which shareholders are entitled to give consent, the
holders of the outstanding shares of Class B Common Stock shall vote together
with Class A Common Stock without regard to class, except as to those matters on
which the separate class voting is required by applicable law. There shall be no
cumulative voting by the shareholders. Each holder of Class B Common Stock shall
receive dividends or other distributions, as declared, equal to the dividends
declared on such number of shares of Class A Common Stock that would be issued
upon the conversion of the Class B Common Stock, had all the outstanding Class B
Common Stock been converted on the record date established for the purposes
distributing any divided or other shareholder distribution.
