AGREEMENT
Dated as of September 1, 2006
Among
LE' ELEGANT BATH, INC. - DBA, AMERICAN BATH FACTORY
And
GATEWAY VENTURE HOLDINGS LTD AND ITS WHOLLY OWNED SUBSIDIARY XXXXXXXX
CORPORATE ADMINISTRATION INC.
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PARTIES
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THIS Agreement ("Agreement"), dated as of September 1, 2006 is by and among
Le' Elegant Bath, Inc. - DBA, AMERICAN BATH FACTORY, a California Corporation,
00000 Xxxxxxx Xxxxxx, Xxxxxx Xxxxxxxxxx 00000 ("ABF"), and GATEWAY DISTRIBUTORS
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LTD, and its wholly owned subsidiary, XXXXXXXX CORPORATE ADMINISTRATION, INC
0000 Xxxx Xxxxxxxx Xxxx, Xxxxx Xxx Xxxxx 00000, a Nevada Corporation (the
"Company").
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R E C I T A L S
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A. The parties hereto wish to provide for the terms and conditions upon
which ABF will acquire Marketing and Technology services, Regulatory Compliance,
Employee Leasing, Inventory and Accounts Receivable Management and all cost
associated, and day to day consulting needs (to be determined), from the
Company's wholly owned subsidiary Xxxxxxxx Corporate Administration.
B. The parties hereto wish to make certain representations, warranties,
covenants and agreements in connection with the purchase of these services and
assumption of liabilities and also to prescribe various conditions to such
transaction.
A G R E E M E N T
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Accordingly, and in consideration of the representations, warranties,
covenants, agreements and conditions herein contained, the parties hereto agree
as follows:
ARTICLE 1
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PURCHASE OF SERVICES
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1.1 Services to be purchased. Upon satisfaction of all conditions to the
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obligations of the parties contained herein (other than such conditions as shall
have been waived in accordance with the terms hereof), ABF shall purchase from
the Company, all of the marketing and technology needed for the sale of product,
including without limitation: (a) the right to use the names and all variations
thereof related to the sale of the products, mall displays and material,
marketing literature and programs, personnel, facilities, and equipment.
1.2 Assumption of Liabilities. Upon satisfaction of all conditions to the
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obligations of the parties contained herein (other than such conditions as shall
have been waived in accordance with the terms hereof), shall assume liabilities
and obligations regarding product quality and replacements. ABF is not assuming,
and will not be obligated or liable for, any liability of MCA as it relates to
the services provided. MCA will not assume and will not be obligated for any
product related issues. All products related issues will be the responsibility
of the
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ABF. All information in the marketing material and correspondence will be the
liability of ABF. The Company will serve as the distribution center for the
marketing material.
1.3 Purchase Price. ABF shall pay for services on an agreed to price on
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each request for services. ABF and the Company will determine the price and a
purchase order will be submitted for services. (the "Purchase Price"): An
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initial order for services will be $850,000 which will be for marketing and
fulfillment services utilized in the development of collateral material.
1.4 Payment. ABF will make payment per agreement and normal terms on the
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$850,000 dollar order as indicated in 1.3 above. The Company will invoice for
services rendered on a regular basis and payments will be due within ten days of
such invoice.
ARTICLE 2
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REPRESENTATIONS AND WARRANTIES OF COMPANY
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The Company hereby represents and warrant to ABF as of the date hereof as
follows:
2.1 Corporate Organization. The Company is a Nevada corporation duly
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organized, validly existing and in good standing under the laws of the state of
Nevada, has full corporate power and authority to carry on its business as it is
now being conducted and to own, lease and operate its properties and assets, is
duly qualified or licensed to do business as a foreign corporation in good
standing in every other jurisdiction in which the character or location of the
properties and assets owned, leased or operated by it or the conduct of its
business requires such qualification or licensing, except in such jurisdictions
in which the failure to be so qualified or licensed and in good standing would
not, individually or in the aggregate, have a Material Adverse Effect (as
hereinafter defined) on the Company. The Company has heretofore delivered to
ABF complete and correct copies of its Articles or Certificate of Organization
and bylaws, as presently in effect. The Company is qualified and licensed to do
business.
2.2 Intellectual Property Rights. The Company owns the industrial and
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intellectual property rights, including without limitation the patents, patent
applications, patent rights, trademarks, trademark applications, trade names,
service marks, service xxxx applications, copyrights, computer programs and
other computer software, inventions, know-how, trade secrets, technology,
proprietary processes and formulae (collectively, "Intellectual Property
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Rights")
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2.3 Tax Matters. (a) Tax Returns. The Company has duly and timely filed
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all tax and information reports, returns and related documents required to be
filed by
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it with respect to the income-type, sales/use-type and employment-related taxes
of the United States and the states and other jurisdictions. (b) Cooperation on
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Tax Matters.
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ARTICLE 3
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REPRESENTATIONS AND WARRANTIES OF ABF
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ABF, jointly and severally, represents and warrants to the Company as of
the date hereof as follows:
3.1. Corporate Organization. ABF is a corporation duly organized, validly
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existing and in good standing under the laws of the State of California. ABF is
qualified to do business and is in good standing as a foreign corporation in
each jurisdiction where the nature of the activities conducted by it or the
character of the property owned, leased or operated by it make such
qualification necessary or appropriate, except for those jurisdictions where the
failure to be so qualified has not and could not reasonably be expected to have
a Material Adverse Effect on the ability of ABF to fulfill its obligations under
this Agreement.
3.2. Authorization. ABF has full corporate power and authority to enter
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into this Agreement and ABF delivered documents and to carry out the
transactions contemplated herein and therein. The Boards of Directors of ABF
have taken all action required by law, their respective Articles of
Incorporation and Bylaws or otherwise to authorize the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated herein. This Agreement is the valid and binding legal obligation
of ABF enforceable against it in accordance with its terms.
ARTICLE 4
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4.1 Confidentiality. Each of the parties hereto agrees that it will not
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use, or permit the use of, any of the information relating to any other party
hereto furnished to it in connection with the transactions contemplated herein
("Information") in a manner or for a purpose detrimental to such other party or
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otherwise than in connection with the transaction, and that they will not
disclose, divulge, provide or make accessible, or permit the Disclosure of
(collectively, "Disclose" or "Disclosure" as the case may be), any of the
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Information to any person or entity, other than their responsible directors,
officers, employees, investment advisors, accountants, counsel and other
authorized representatives and agents, except as may be required by judicial or
administrative process or, in the opinion of such party's regular counsel, by
other requirements of Law; provided, however, that prior to any Disclosure of
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any Information permitted hereunder, the disclosing party shall first obtain the
recipients' undertaking to comply with the provisions of this subsection with
respect to such information. The term "Information" as used herein shall not
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include any information relating to a party which the party disclosing such
information can show: (a) to have
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been in its possession prior to its receipt from another party hereto; (b) to be
now or to later become generally available to the public through no fault of the
disclosing party; (c) to have been available to the public at the time of its
receipt by the disclosing party; (d) to have been received separately by the
disclosing party in an unrestricted manner from a person entitled to disclose
such information; or (e) to have been developed independently by the disclosing
party without regard to any information received in connection with this
transaction. Each party hereto also agrees to promptly return to the party from
who originally received all original and duplicate copies of written materials
containing Information should the transactions contemplated herein not occur. A
party hereto shall be deemed to have satisfied its obligations to hold the
Information confidential if it exercises the same care as it takes with respect
to its own similar information.
4.2 Public Announcements. None of the parties hereto shall make any public
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announcement with respect to the transactions contemplated herein without the
prior written consent of the other parties, which consent shall not be
unreasonably withheld or delayed; provided, however, that any of the parties
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hereto may at any time make any announcements which are deemed by its counsel to
be required by applicable Law so long as the party so required to make an
announcement promptly upon learning of such requirement notifies the other
parties of such requirement and discusses with the other parties in good faith
the exact proposed wording of any such announcement.
ARTICLE 5
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TERMINATION AND ABANDONMENT
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5.1 Methods of Termination. This Agreement may be terminated and the
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transactions contemplated herein may be abandoned at any time notwithstanding
approval thereof by the Company, but not later than the Closing:
5.2 Governing Law. This Agreement and the legal relations among the parties
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hereto shall be governed by and construed in accordance with the internal
substantive laws of the State of Nevada (without regard to the laws of conflict
that might otherwise apply) as to all matters, including without limitation
matters of validity, construction, effect, performance and remedies.
5.3 Arbitration. Any controversy or claim arising out of or relating to
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this Agreement, or the making, performance or interpretation thereof, including
without limitation alleged fraudulent inducement thereof, shall be settled by
binding arbitration in Las Vegas, Nevada by a panel of three arbitrators in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association. Judgment upon any arbitration award may be entered in any court
having jurisdiction thereof and the parties consent to the jurisdiction of the
courts of the State of Nevada for this purpose.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
Xxxxxxxx Corporate Administration
By: Date:
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Xxxxx Xxxxxx
President, CFO
Le' Elegant Bath, Inc. - DBA, American Bath Factory By:
By: Date:
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Xxxxxxx X. Xxxxxxx
President
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