Exhibit 10.1
PURCHASE AGREEMENT
BETWEEN
SHAREHOLDERS OF LASALLE BRANDS CORPORPORATION
A NEVADA PUBLIC CORPORATION
AND
SHAREHOLDERS OF LASALLE BRANDS, INC.
A NEW YORK CORPORATION
AGREEMENT, made this 10th day of August 2007, by and between LaSalle Brands,
Inc. ("LBI") and LaSalle Brands Corporation ("LBC").
RECITALS
WHEREAS, XxxXxx Xxxxxxx is the owner of one hundred percent (100%) of the
shares of LbI the licensee of LaSalle Brands Ice Cream and related products, and
subsidiaries 000 Xxxxx Xxxxxx Corp. and LaSalle Fine Imports, Inc. (the
"SUBSIDIARIES") which includes all assets including but not limited to
ownership, management, and control of LaSalle Brands Inc. brand ice cream and
related products, and distribution system, as located at 000 Xxxxxx Xxxxxx,
Xxxxx, Xxx Xxxx 00000 and 000 Xxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000, identified
in the list attached hereto as Exhibit A, including all property, all furniture,
equipment, intellectual property rights, logos, commercial symbols, slogans,
domain names, websites, recipes, handbooks, training manuals, fixtures, signs,
accounts, and income allocable, as well as any liabilities allocable as set
forth in LBI's financial statements attached hereto as Exhibit B,
WHEREAS, LBI agrees to transfer its ownership including its SUBSIDIARIES to
LBC, pursuant to the terms of this Agreement, for the consideration recited
below;
NOW, THEREFORE, in consideration of the mutual promises, covenants, and
representations contained herein,
THE PARTIES HERETO AGREE AS FOLLOWS:
CONSIDERATION
CONSIDERATION. LBI will transfer 100% of its interest including all assets,
liabilities, management, and control allocable thereto, for the following
consideration:
(a) LBC will deliver upon SIGNING of this agreement Eleven Million Seven
Hundred Fifty Thousand shares (11,750,000) of restricted common stock
of LBC. Said shares to be delivered in the amounts and to the persons
listed on Exhibit C.
(b) LBC will deliver promptly after the SIGNING of this agreement Two
Million Five Hundred Thousand dollars ($2,500,000) of $10.00 per share
Convertible Preferred Shares (each share is convertible into two (2)
common shares). Said shares shall be delivered in the amounts and to
the persons listed on Exhibit D.
(c) LBC will deliver upon CLOSING $3,500,000.00 in cash and the issuance
of $10.00 Convertible Preferred Stock for the balance up to $4,000,000
based on the terms in Article 2.1.
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF LAS SALLE BRANDS, INC. ("LBI").
LBI hereby represents and warrants to LBC that:
1.1 LBI will transfer to LBC one hundred percent (100%) of the shares in
LBI, the licensee of LaSalle Brands ice cream and related products, and its
SUBSIDIARIES which includes all assets including but not limited to ownership,
management, and control of LaSalle Brands Inc. brand ice cream and related
products, and distribution system, as located at 000 Xxxxxx Xxxxxx Xxxxx, XX
00000 and 000 Xxxxx Xxxxxx XX, XX 00000, identified in the list attached hereto
as Exhibit A, including all property, all furniture, fixtures, equipment,
intellectual property rights, logos, commercial symbols, slogans, domain names,
websites, recipes, handbooks, training manuals, signs, accounts, and income
allocable, as well as any liabilities allocable as set forth in LBI's financial
statements attached hereto as Exhibit B. The licenses and trademarks of LaSalle
brand ice cream and related products shall be delivered upon SIGNING. These
items are attached as Exhibit E. The remainder is due upon CLOSING.
1.2 Organization. LBI is a corporation duly organized, validly existing and
in good standing under the laws of the State of New York, has all necessary
corporate powers to own its property, including its SUBSIDIARIES, and to carry
on its business as now owned and operated by it, and is duly qualified to do
business and is in good standing in each of the states where its business
requires qualification.
1.3 Capital. Management of LBI owns 100% control of LBI and its SUBSIDIARIES
and therefore has the right to vote for the completion of this transaction. LBI
represents that there are no other issued and outstanding open subscriptions,
options, rights, warrants, debentures, instruments, convertible securities, or
other agreements or commitments obligating LBI to issue or to transfer from
treasury any additional shares of its capital stock.
1.4 Financial Statements. The most recent financial statements of the LBI
and its SUBSIDIARIES are to be attached prior to Closing, as Exhibit B. The
financial statements have been prepared in accordance with generally accepted
accounting principles and practices consistently followed by LBI. and its
SUBSIDIARIES throughout the period indicated, and fairly represent the financial
position of LBI and its SUBSIDIARIES as of the date of the Balance Sheet
included in the financial statements.
1.5 Investigation of Financial Condition. Without in any manner reducing or
otherwise mitigating the representations contained herein, LBC and/or its
attorneys shall have the opportunity to meet with the accountants and attorneys
to discuss the financial condition of LBI and its SUBSIDIARIES. LBI shall make
available to LBC and/or its attorney all books and records of LBI., and its
SUBSIDIARIES, once reasonable notice of such request has been given.
1.6 Authority. The Board of Directors of LBI has authorized the execution
of this Agreement and the consummation of transactions contemplated herein, and
LBI has full power and authority to execute, deliver, and perform this Agreement
and this Agreement is a legal, valid and binding obligation of LBI and is
enforceable in accordance with its terms and conditions.
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1.7 Ability to Carry Out Obligations. The execution and delivery of this
Agreement by LBI of its obligations hereunder in the time and in the manner
contemplated will not cause, constitute or conflict with or result in (a) any
breach or violation of any of the provisions or constitute a default under any
license, indenture, mortgage, charter, instrument, articles of incorporation,
bylaws, or other agreement or instrument to which either is a party, or by which
it may be bound, nor will any consents or authorizations of any party other than
those hereto be required, (b) an event that would permit any party to any
agreement or instrument to terminate it or to accelerate the maturity of any
indebtedness or other obligation of LBI., or (c) any event that would result in
the creation or imposition of any lien, charge, or encumbrance on any asset of
LBI.
1.8 Full Disclosure. None of the representations and warranties made by LBI
herein, or in any exhibit, certificate or memorandum furnished or to be
furnished by either, or on their behalf, contains or will contain any untrue
statement of material fact, or omit any material fact the omission of which
would be misleading.
1.9 Good Title. Other than as described in Exhibit 1.9, LBI has good and
marketable title to the Membership Interest, free and clear of any liens, claims
and encumbrances of any nature, form or description.
1.10 Indemnification. LBI and its SUBSIDIARIES agrees to defend and hold
LBC harmless against and in respect of any and all claims, demands, losses,
costs, expenses, obligations, liabilities, damages, recoveries, and
deficiencies, including interest, penalties, and reasonable attorney's fees,
that it shall incur or suffer, which arise out of, result from or relate to any
breach of, or failure by LBI to perform any of its representations, warranties,
covenants and agreements in this Agreement or in any exhibit or other instrument
furnished or to be furnished by LBI under this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF LASALLE BRANDS CORPORATION ("LBC")
LBC hereby represents and warrants to LBI. that:
2.1 LBC will deliver upon SIGNING Eleven Million Seven Hundred Fifty
Thousand shares (11,750,000) of restricted common stock of LBC and Two Million
Five Hundred Thousand dollars ($2,500,000) of $10.00 per share Convertible
Preferred Shares (each share is convertible into two (2) common shares). Said
shares to be delivered in the amounts and to the persons listed in Exhibits C
and D respectively. Upon CLOSING a minimum of $3,500,000.00 or 7.0 times audited
Earnings Before Interest, Taxes, Depreciation, and Amortization "EBITDA", to a
maximum of $4,000,000 (providing EBITDA is at least $500,000.00), plus the value
of equipment acquired outside of the assets owned by LBI and its SUBSIDIARIES
(This value to be determined by a Replacement Value Independent Appraisal). The
purchase price will be payable on the Closing Date by payment in cash of
$3,500,000.00 and the issuance of $10.00 Convertible Preferred Stock for the
balance. It is understood that LBI shall have the right to require LBC to redeem
a portion of its holding of Preferred Stock resulting in proceeds of One Million
Five Hundred Thousand Dollars ($1,500,000) within 18 months of closing.
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2.2 Financial Ability. LBC is a Nevada corporation duly organized, validly
existing and in good standing, and has the necessary wherewithal to execute this
Agreement.
2.3 Authority. LBC has authorized the execution of this Agreement and the
consummation of transactions contemplated herein by and through its President
and CEO. LBC's President and CEO has full power and authority to execute,
deliver, and perform this Agreement and this Agreement is a legal, valid and
binding obligation of LBC, and is enforceable in accordance with its terms and
conditions.
2.4 Ability to Carry Out Obligations. The execution and delivery of this
Agreement by LBC and the performance by LBC of its obligations hereunder in the
time and in the manner contemplated will not cause, constitute or conflict with
or result in (a) any breach or violation of any of the provisions or constitute
a default under any license, indenture, mortgage, charter, instrument, articles
of incorporation, bylaws, or other agreement or instrument to which LBC is a
party, or by which it may be bound, nor will any consents or authorizations of
any party other than those hereto be required except approvals required by law,
if any, (b) an event that would permit any party to any agreement or instrument
to terminate it or to accelerate the maturity of any indebtedness or other
obligation of LBC, or (c) any event that would result in the creation or
imposition of any lien, charge, or encumbrance on any asset of LBC.
2.5 Full Disclosure. None of the representations and warranties made by
LASALLE BRANDS CORPORATION herein, or in any exhibit, certificate or memorandum
furnished or to be furnished by LASALLE BRANDS CORPORATION, or on its behalf,
contains or will contain any untrue statement of material fact, or omit any
material fact the omission of which would be misleading.
2.6 Indemnification. LBC agrees to defend and hold LBI harmless against
and in respect to any and all claims, demands, losses, costs, expenses,
obligations, liabilities, damages, recoveries, and deficiencies, including
interest, penalties, and reasonable attorney's fees, that it shall incur or
suffer, which arise out of, result from or relate to any breach of, or failure
by LBC to perform any of its respective representations, warranties, covenants
and agreements in this Agreement or in any exhibit or other instrument furnished
or to be furnished by LBC under this Agreement.
2.7 Capitalization. As of the date hereof, the authorized capital stock LBC
consists of (i) 200,000,000 shares of Common Stock, of which 19,674,092 shares
are issued and outstanding, no shares are reserved for issuance pursuant to
LBC's stock option plans, no shares are reserved for issuance pursuant to
securities exercisable for, or convertible into or exchangeable for shares of
common stock and (ii) 1,000,000 shares of preferred stock, of which no shares
are issued and outstanding. All of such outstanding shares of capital stock are,
or upon issuance will be, duly authorized, validly issued, fully paid and
nonassessable. No shares of capital stock of LBC are subject to preemptive
rights or any other similar rights of the shareholders of LBC or any liens or
encumbrances imposed through the actions or failure to act of LBC. Except as
otherwise disclosed , as of the effective date of this Agreement, (i) there are
no outstanding options, warrants, scrip, rights to subscribe for, puts, calls,
rights of first refusal, agreements, understandings, claims or other commitments
or rights of any character whatsoever relating to, or securities or rights
convertible into or exchangeable for any shares of capital stock of LBC or any
of its Subsidiaries, or arrangements by which LBC or any of its Subsidiaries is
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or may become bound to issue additional shares of capital stock of LBC or any of
its Subsidiaries, (ii) there are no agreements or arrangements under which LBC
or any of its Subsidiaries is obligated to register the sale of any of its or
their securities under the 1933 Act (except the Registration Rights Agreement)
and (iii) there are no anti-dilution or price adjustment provisions contained in
any security issued by LBC (or in any agreement providing rights to security
holders) that will be triggered by the issuance of the restricted stock
hereunder.
2.8 No Conflicts. The execution, delivery and performance of this Agreement
and the consummation by LBC of the transactions contemplated hereby (including,
without limitation, the issuance and reservation for issuance of the shares of
Convertible Preferred Shares and restricted common stock) will not (i) conflict
with or result in a violation of any provision of the Articles of Incorporation
or By-laws or (ii) violate or conflict with, or result in a breach of any
provision of, or constitute a default (or an event which with notice or lapse of
time or both could become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, any agreement,
indenture, patent, patent license or instrument to which LBC or any of its
Subsidiaries is a party, or (iii) result in a violation of any law, rule,
regulation, order, judgment or decree (including federal and state securities
laws and regulations and regulations of any self-regulatory organizations to
which LBC or its securities are subject) applicable to LBC or any of its
Subsidiaries or by which any property or asset of LBC or any of its Subsidiaries
is bound or affected (except for such conflicts, defaults, terminations,
amendments, accelerations, cancellations and violations as would not,
individually or in the aggregate, have a Material Adverse Effect, as hereinafter
defined). "Material Adverse Effect" means any material adverse effect on the
business, operations, assets, financial condition or prospects of by LBC or its
Subsidiaries, if any, taken as a whole, or on the transactions contemplated
hereby or by the agreements or instruments to be entered into in connection
herewith Neither LBC nor any of its Subsidiaries is in violation of its Articles
of Incorporation, By-laws or other organizational documents and neither LBC nor
any of its Subsidiaries is in default.
2.9 Listing Requirements. LBC is not in violation of the listing
requirements of the Over-the-Counter Bulletin Board (the "OTCBB"), has not
received a notice of removal from the OTCBB and does not anticipate that the
Common Stock will be delisted by the OTCBB in the foreseeable future. LBC and
its management are unaware of any facts or circumstances which might give rise
to any of the foregoing.
2.10 SEC Documents; Financial Statements. LBC, as of the date of signing,
has filed all reports, schedules, forms, statements and other documents required
to be filed by it with the SEC pursuant to the reporting requirements of the
Securities Exchange Act of 1934, as amended (the "1934 Act") (all of the
foregoing filed prior to the date hereof and all exhibits included therein and
financial statements and schedules thereto and documents (other than exhibits to
such documents) incorporated by reference therein, being hereinafter referred to
herein as the "SEC Documents"). As of their respective dates, the SEC Documents
complied in all material respects with the requirements of the 1934 Act and the
rules and regulations of the SEC promulgated thereunder applicable to the SEC
Documents, and none of the SEC Documents, at the time they were filed with the
SEC, contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. None of the statements made in any such SEC Documents is, or has
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been, required to be amended or updated under applicable law (except for such
statements as have been amended or updated in subsequent filings prior the date
hereof). As of their respective dates, the financial statements of LBC included
in the SEC Documents complied as to form in all material respects with
applicable accounting requirements and the published rules and regulations of
the SEC with respect thereto. Such financial statements have been prepared in
accordance with United States generally accepted accounting principles,
consistently applied, during the periods involved (except (i) as may be
otherwise indicated in such financial statements or the notes thereto, or (ii)
in the case of unaudited interim statements, to the extent they may not include
footnotes or may be condensed or summary statements) and fairly present in all
material respects the consolidated financial position of LBC and its
consolidated Subsidiaries as of the dates thereof and the consolidated results
of their operations and cash flows for the periods then ended (subject, in the
case of unaudited statements, to normal year-end audit adjustments). LBC has no
liabilities, contingent or otherwise, except as set forth in the financial
statements of the LBC included in the SEC Documents, other than (i) liabilities
incurred in the ordinary course of business subsequent to December 31, 2006 and
(ii) obligations under contracts and commitments incurred in the ordinary course
of business and not required under generally accepted accounting principles to
be reflected in such financial statements, which, individually or in the
aggregate, are not material to the financial condition or operating results of
LBC.
2.11 Absence of Certain Changes. Since December 31, 2006, there has been no
material adverse change and no material adverse development in the assets,
liabilities, business, properties, operations, financial condition, results of
operations or prospects of LBC.
2.12 Absence of Litigation. There is no action, suit, claim, proceeding,
inquiry or investigation before or by any court, public board, government
agency, self-regulatory organization or body pending or, to the knowledge of LBC
or any of its Subsidiaries, threatened against or affecting LBC, or their
officers or directors in their capacity as such. LBC and its Subsidiaries are
unaware of any facts or circumstances which might give rise to any of the
foregoing.
2.13 Patents, Copyrights, etc. LBC and each of its Subsidiaries owns or
possesses the requisite licenses or rights to use all patents, patent
applications, patent rights, inventions, know-how, trade secrets, trademarks,
trademark applications, service marks, service names, trade names and copyrights
("Intellectual Property") necessary to enable it to conduct its business as now
operated; there is no claim or action by any person pertaining to, or proceeding
pending, or to LBC's knowledge threatened, which challenges the right of LBC or
of a Subsidiary with respect to any Intellectual Property necessary to enable it
to conduct its business as now operated; to the best of LBC's knowledge, LBC's
and its Subsidiaries' current and intended products, services and processes do
not infringe on any Intellectual Property or other rights held by any person;
and LBC is unaware of any facts or circumstances which might give rise to any of
the foregoing. LBC and each of its Subsidiaries have taken reasonable security
measures to protect the secrecy, confidentiality and value of their Intellectual
Property.
2.14 No Materially Adverse Contracts, Etc. LBC is not subject to any
charter, corporate or other legal restriction, or any judgment, decree, order,
rule or regulation.
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2.15 Tax Status. LBC has made or filed all federal, state and foreign
income and all other tax returns, reports and declarations required by any
jurisdiction to which it is subject (unless and only to the extent that LBC has
paid all taxes and other governmental assessments and charges that are material
in amount, shown or determined to be due on such returns, reports and
declarations, except those being contested in good faith and has set aside on
its books provisions reasonably adequate for the payment of all taxes for
periods subsequent to the periods to which such returns, reports or declarations
apply. There are no unpaid taxes in any material amount claimed to be due by the
taxing authority of any jurisdiction, and the officers of LBC know of no basis
for any such claim. LBC has not executed a waiver with respect to the statute of
limitations relating to the assessment or collection of any foreign, federal,
state or local tax.
2.16 Certain Transactions. Except for arm's length transactions pursuant to
which LBC or any of its Subsidiaries makes payments in the ordinary course of
business upon terms no less favorable than LBC or any of its Subsidiaries could
obtain from third parties and none of the officers, directors, or employees of
LBC is presently a party to any transaction with LBC or any of its Subsidiaries
(other than for services as employees, officers and directors), including any
contract, agreement or other arrangement providing for the furnishing of
services to or by, providing for rental of real or personal property to or from,
or otherwise requiring payments to or from any officer, director or such
employee or, to the knowledge of LBC, any corporation, partnership, trust or
other entity in which any officer, director, or any such employee has a
substantial interest or is an officer, director, trustee or partner.
2.17 Disclosure. All information relating to or concerning LBC set forth in
this Agreement and in connection with the transactions contemplated hereby is
true and correct in all material respects and LBC has not omitted to state any
material fact necessary in order to make the statements made herein or therein,
in light of the circumstances under which they were made, not misleading. No
event or circumstance has occurred or exists with respect to LBC or any of its
Subsidiaries or its or their business, properties, prospects, operations or
financial conditions, which, under applicable law, rule or regulation, requires
public disclosure or announcement by LBC but which has not been so publicly
announced or disclosed (assuming for this purpose that LBC's reports filed under
the 1934 Act are being incorporated into an effective registration statement
filed by LBC's under the 1933 Act).
2.18 Title to Property. LBC and its Subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title to all
personal property owned by them which is material to the business of LBC and its
Subsidiaries, in each case free and clear of all liens, encumbrances and
defects. Any real property and facilities held under lease by LBC and its
Subsidiaries are held by them under valid, subsisting and enforceable leases.
2.19 Insurance. LBC and each of its Subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in such
amounts as management of LBC believes to be prudent and customary in the
businesses in which LBC and its Subsidiaries are engaged. Neither LBC nor any
such Subsidiary has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business.
2.20 Internal Accounting Controls. LBC maintains a system of internal
accounting controls sufficient, in the judgment of the LBC's board of directors,
to provide reasonable assurance that (i) transactions are executed in accordance
with management's general or specific authorizations, (ii) transactions are
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recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain asset
accountability, (iii) access to assets is permitted only in accordance with
management's general or specific authorization and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
2.21 Foreign Corrupt Practices. Neither LBC, nor any director, officer,
agent, employee or other person acting on behalf of LBC or any Subsidiary has,
in the course of his actions for, or on behalf of, LBC, used any corporate funds
for any unlawful contribution, gift, entertainment or other unlawful expenses
relating to political activity; made any direct or indirect unlawful payment to
any foreign or domestic government official or employee from corporate funds;
violated or is in violation of any provision of the U.S. Foreign Corrupt
Practices Act of 1977, as amended, or made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment to any foreign or domestic
government official or employee.
2.22 Resale Restrictions. Prior to signing, LBC agrees to cause all
shareholders beneficially owning more than 1% of the total issued common stock
of LBC (the "Restricted Persons") to agree not to sell, pledge or hypothecate
any of such shares for a period of six months following the Closing. Following
such six month period, the Restricted Persons shall not sell more than 10% of
their shares during any one month period (the "Lock-Up"). The Lock-Up shall also
provide that the Restricted Persons shall not make any sales during the period
between Signing and Closing.
2.23 Solvency. LBC (after giving effect to the transactions contemplated by
this Agreement) is solvent (i.e., its assets have a fair market value in excess
of the amount required to pay its probable liabilities on its existing debts as
they become absolute and matured) and currently LBC has no information that
would lead it to reasonably conclude that LBC would not, after giving effect to
the transaction contemplated by this Agreement, have the ability to, nor does it
intend to take any action that would impair its ability to, pay its debts from
time to time incurred in connection therewith as such debts mature. LBC did not
receive a qualified opinion from its auditors with respect to its most recent
fiscal year end and, after giving effect to the transactions contemplated by
this Agreement, does not anticipate or know of any basis upon which its auditors
might issue a qualified opinion in respect of its current fiscal year.
2.24 Breach of Representations and Warranties by LBC. If LBC materially
breaches any of the representations or warranties set forth in this Article II,
and in addition to any other remedies available to LBI, pursuant to this
Agreement, LBC shall pay to LBI, liquidated damages in an amount ordered by any
court of competent jurisdiction in cash or in shares of common stock at the
option of LBI., until such breach is cured.
ARTICLE III
COVENANTS
3.1 Investigative Rights. From the date of this Agreement until the Closing
date, LBI, and its SUBSIDIARIES shall provide LBC full access during normal
business hours to all properties, books, contracts, commitments, and records of
LBI. for the purpose of examining same.
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3.2 Conduct of Business. Prior to the Closing, LBI, and its SUBSIDIARIES
shall conduct its business in the normal course and LBI, and its SUBSIDIARIES
shall not sell, pledge, transfer, or assign any of their assets without the
prior written consent of LBC. Neither LBC nor LBI. and its SUBSIDIARIES shall
amend its membership agreements, operating agreements, articles of incorporation
or Bylaws, declare dividends, redeem or sell stock or other securities, incur
additional or newly-funded liabilities, acquire or dispose of fixed assets or
settle or discharge any balance sheet receivable other than in the normal course
of business prior to Closing.
3.3 Required Corporate Action by LBC. LBC and its officers and directors
shall cause a meeting to be held as soon as practicable for the purpose of
voting on the approval of this Agreement, if required.
ARTICLE IV
CONDITIONS PRECEDENT TO LBC'S PERFORMANCE
4.1 Conditions. LBC's obligations hereunder shall be subject to the
satisfaction, at or before the Closing, of all the conditions set forth in this
Article IV. LBC may waive any of these conditions in whole or in part without
prior notice; provided however, that no such waiver of a condition shall
constitute a waiver by LBC of any other condition of or any of LBC's other
rights or remedies, at law or in equity, if LBI shall be in default of any of
their representations, warranties, or covenants under this Agreement.
4.2 LBI. Performance. LBI shall have performed, satisfied and complied with
all covenants, agreements, and conditions required by this Agreement to be
performed or complied with by it, on or before the Closing Date.
4.3 Accuracy of Representations. Except as otherwise permitted by this
Agreement, all representations and warranties by LBI in this Agreement or in any
written statement that shall be delivered to LBC by LBI under this Agreement
shall be true and accurate on and as of the Closing Date as though made at that
time.
ARTICLE V
CONDITIONS PRECEDENT TO LBI PERFORMANCE
5.1 Conditions. LBI obligations hereunder shall be subject to the
satisfaction, at or before the Closing, of all the conditions set forth in this
Article V. LBI may waive any of these conditions in whole or in part without
prior notice; provided however, that no such waiver of a condition shall
constitute a waiver by LBI of any other condition of or any of LBI other rights
or remedies, at law or in equity, if LBC shall be in default of any of their
representations, warranties, or covenants under this Agreement.
5.2 LBC Performance. LBC shall have performed, satisfied and complied with
all covenants, agreements, and conditions required by this Agreement to be
performed or complied with by it, on or before the Closing Date.
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5.3 Accuracy of Representations. Except as otherwise permitted by this
Agreement, all representations and warranties by LBC in this Agreement or in any
written statement that shall be delivered to LBI by LBC under this Agreement
shall be true and accurate on and as of the Closing Date as though made at that
time.
ARTICLE VI
SIGNING & CLOSING
6.1 Signing. The Signing of this Agreement shall be held at a place and on
a date mutually acceptable to the parties.
At the Signing the parties shall deliver the following in form acceptable
to counsel to the parties or as set forth herein:
By LBC:
a) LBC will deliver Eleven Million Seven Hundred Fifty Thousand shares
(11,750,000) of restricted common stock.
b) LBC will deliver Two Million Five Hundred Thousand dollars
($2,500,000) of $10.00 per share Convertible Preferred Shares (each
share is convertible into two (2) common shares) (The "Class A
Preferred Stock"). The Certificate of Designation for such preferred
stock shall be substantially identical to the form attached hereto as
Exhibit E.
By LBI:
a) LBI will transfer the license of LaSalle brand ice cream and related
products as attached hereto as Exhibit F.
6.2 Closing. The Closing of this transaction shall occur within 90 days of
Signing and shall be held at a place and on a date mutually acceptable to the
parties.
At the Closing the parties shall deliver the following in form acceptable
to counsel to the parties or as set forth herein:
By LASALLE BRANDS CORPORATION:
a) LASALLE BRANDS CORPORATION will deliver the greater of $3,500,000.00
or an amount equal to 7 times LaSalle Brands, Inc's. audited EBITDA
for the year ended December 31, 2006, as determined in accordance with
U.S. GAAP, up to a maximum of $4.0 million. In addition, LaSalle
Brands Corporation will issue an amount of shares of Class A Preferred
Stock with a value (based on $10.00 per share equal to the value of
equipment acquired by LaSalle Brands, Inc. (This value to be
determined by a Replacement Value Independent Appraisal). The purchase
price will be payable on the Closing Date by payment in cash of
$3,500,000.00 and the issuance of $10.00 Convertible Preferred Stock
for the balance. For example, if LaSalle Brands, Inc's EBITDA entitles
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them to an additional $500,000, as set forth above and the value of
the equipment is $500,000, LaSalle Brands Corporation will deliver
$3,500,000 in cash and $1,000,000 of Class A Preferred Stock.
By LBI:
a) LBI will transfer one hundred percent (100%) of the shares in LaSalle
Brands Inc. licensee of LaSalle Brands Ice Cream and related products,
and its SUBSIDIARIES which includes all assets including but not
limited to ownership, management, and control of LaSalle Brands Inc.
Brand Ice Cream and related products, and distribution system, as
located at 000 Xxxxxx Xxxxxx Xxxxx, XX 00000 and 000 Xxxxx Xxxxxx XX,
XX 00000, identified in the list attached hereto as Exhibit A,
including all property, all furniture, fixtures, equipment,
intellectual property rights, logos, commercial symbols, slogans,
domain names, websites, recipes, handbooks, training manuals,
fixtures, signs, accounts, and income allocable, as well as any
liabilities allocable as set forth in LBI's Consolidated Balance Sheet
shall be attached hereto prior to Closing as Exhibit B.
7. Effect of Non-Closing In the event that there is no Closing and the
consideration required by Section 6.2(a) is not delivered in full, LBI shall
have the right to terminate this Agreement in which event LBI shall return all
compensation received pursuant to Section 6.1(b) and LBC shall immediately
transfer the license referred to in Section 6.1(a) and shall cause a public
announcement to be made announcing the cancellation of the Agreement. For
purposes of clarity, in the event that there is no Closing, LBI's shareholders
shall be entitled to retain the 11,750,000 shares of common stock.
ARTICLE VIII
REMEDIES
8.1 Legal Action and Costs. If any legal action or any arbitration or other
proceeding is brought for the enforcement of this Agreement, or because of an
alleged dispute, breach, default, or misrepresentation in connection with any of
the provisions of this agreement, the successful or prevailing party or parties
shall be entitled to recover reasonable attorney's fees and other costs incurred
in that action or proceeding, in addition to any other relief to which it or
they may be entitled. Any legal action or proceeding brought for the enforcement
of this Agreement shall be instituted and prosecuted in the State or Federal
Courts of New York, and the parties waive any right, claim, or plea with respect
to any other jurisdiction or venue.
8.2 Termination. In addition to the other remedies, any of the parties
hereto may terminate this Agreement, without liability:
(i) upon the failure of any condition not otherwise waived by the parties;
or
(ii) upon mutual consent of the respective boards of directors of LBC and
LBI.
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ARTICLE VIIII
MISCELLANEOUS
9.1 Captions and Headings. The Article and paragraph headings throughout
this Agreement are for convenience and reference only, and shall in no way be
deemed to define, limit, or add to the meaning of any provision of this
Agreement.
9.2 No Oral Change. This Agreement and any provisions hereof, may not be
waived, changed, modified or discharged orally, but it can be changed by an
agreement in writing signed by the party against whom enforcement of any waiver,
change, modification or, discharge is sought.
9.3 Non-Waiver. Except as otherwise expressly provided herein, no waiver of
any covenant, condition, or provision of this Agreement shall be deemed to have
been made unless expressly in writing and signed by the party against whom such
waiver is charged.
9.4 Time of Essence. Time is of the essence of this Agreement and each and
every part hereof.
9.5 Entire Agreement. This Agreement constitutes the entire agreement and
understanding between the parties hereto and supersedes all prior agreements and
understandings and merges any such prior discussions and/or agreements herein,
and there are no other understandings, written or oral agreements, or amendments
of any kind.
9.6 Choice of Law. This Agreement is construed in accordance with and
governed by the laws of the State of New York applicable to contracts made and
to be wholly performed therein without regard to its conflicts of law rules.
9.7 Severability. If any provision of this Agreement is held to be illegal,
invalid, or unenforceable, the legality, validity, and enforceability of the
remaining provisions of this Agreement shall not be affected thereby.
9.8 Notices. All notices, requests, demands, and other communications under
this Agreement shall be in writing and shall be deemed to have been duly given
on the date of service if served personally on the party to whom notice is to be
given, by first class mail, registered or certified, postage prepaid, and
properly addressed as follows:
LBC Representative:
Xxxxx Xxxxxxxx
0000 X. Xxxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
LBI. Representative:
Xxxxxx Xxxxxxx
000 Xxxxxx Xxxxxx
Xxxxx, XX 00000
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9.9 Binding Effect. This Agreement shall inure to and be binding upon the
heirs, executors, personal representatives successors and assigns of each of the
parties to this Agreement.
9.10 Effect of Closing. All representations, warranties, covenants, and
agreements of the parties contained in this Agreement, or in any instrument,
certificate, opinion, or other writing provided for in it, shall survive the
Closing of this Agreement.
9.11 Brokers. The parties hereto represent that no finder's fee has been
paid or is payable by any party.
9.12 Expenses. Each party will pay its own legal, accounting and any other
out-of-pocket expenses reasonably incurred in connection with this transaction,
whether or not the transaction contemplated hereby is consummated.
9.13 Facsimile Signatures as Originals. Original signatures transmitted by
facsimile communication shall constitute originals for the purpose of validly
executing this Agreement.
AGREED TO AND ACCEPTED as of the date first above written.
LBC:
By /s/ Xxxxx Xxxxxxxx
----------------------------------
Xxxxx Xxxxxxxx, President & C.E.O.
LBI:
By /s/ XxxXxx Xxxxxxx
----------------------------------
XxxXxx Xxxxxxx, President & C.E.O.
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EXHIBIT A
LBI INC. ASSETS AND PROPERTY
To be provided prior to Closing
14
EXHIBIT B
LBI FINANCIAL STATEMENTS
To be provided prior to Closing.
15
EXHIBIT C
NAMES AND AMOUNTS OF THOSE TO RECEIVE COMMON SHARES
1.) Xxxxxx Xxxxxxx 10,250,000 shares
0 Xxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
2.) Xxxxxx Xxxxxxxx 500,000 shares
000X Xxxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
3.) Xxxxxxx X. Lebeb 500,000 shares
00-00 Xxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
4.) Xxxx Xxxxxxx Xxxxx 500,000 shares
00 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
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EXHIBIT D
NAMES AND AMOUNTS OF THOSE TO RECEIVE $ 10.00 PAR VALUE PREFERRED SHARES
1.) Xxxxxx Xxxxxxx 250,000 shares
0 Xxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
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EXHIBIT E
LICENSE OF LASALLE BRAND ICE CREAM AND RELATED PRODUCTS
18
