RESCISSION AGREEMENT AND GENERAL RELEASE
This Rescission Agreement and General Release ("Agreement") is made
this 2nd day of December, 1999 by Premier Brands, Inc., a Utah corporation,
("PBI") and F D Import & Export, Inc., a New York corporation ("FD"), and the
persons listed on Exhibit A attached hereto and made a part hereof, being all of
FD's stockholders as of the closing date of the parties' previous Acquisition
Agreement dated September 1, 1998 (the "Sellers").
PREMISES
WHEREAS, PBI, FD, and Sellers mutually desire to rescind their previous
Acquisition Agreement dated September 1, 1998 (the "September 1998 Acquisition")
and to replace the September 1998 Acquisition with an agreement whereby each
party will return the stock it obtained by such agreement, bear its own costs,
and release all claims against every other party.
WHEREAS, the parties mutually desire this agreement to create a
novation which replaces the September 1998 Acquisition.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained herein, and for other good and valuable
consideration, the adequacy of which is expressly acknowledged, the parties
hereby agree as follows:
1. Novation of September 1998 Acquisition
PBI, FD, and the Sellers, and each of them, unanimously agree to cancel
and rescind the September 1998 Acquisition, and to replace the September 1998
Acquisition with a novation--namely, this Agreement.
2. Term of Agreement and Effective Date
The term of this Agreement ("Term") shall be perpetual from this day
forward, and will continue in duration until the parties unanimously agree in
writing otherwise. The effective date of this agreement shall be 10 days after a
sufficient number of PBI's shareholders sign consents and waivers approving of
this action.
3. Return of PBI Stock to PBI
The Sellers hereby agree to return to PBI, and PBI hereby agrees to
accept from Sellers, the 10,000,000 (post-reverse split) shares of PBI's $ .001
par value voting common stock, (the "PBI Common Shares"), which they had
previously received in the September 1998 Acquisition.
4. Return of FD Stock to Sellers
PBI hereby agrees to return to the Sellers, and the Sellers agree to
accept, the two hundred shares of FD's issued and outstanding common stock (the
"FD Common Shares") which they had previously received in the September 1998
Acquisition. The FD Common Shares will be delivered to the individual Sellers in
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accordance with Exhibit "A" attached hereto. Each of the Sellers hereby agrees
to the terms of this Agreement (the "Agreement").
5. Warranties and Representations of FD and Sellers
In order to induce PBI to enter into the Agreement and to complete the
transaction contemplated hereby, FD and Sellers warrant and represent to PBI
that:
A. Organization and Standing. FD is a corporation duly organized,
validly existing and in good standing under the laws of the State
of New York, is qualified to do business as a foreign corporation
in every other state or jurisdiction in which it operates to the
extent required by the laws of such states and jurisdictions, and
has full power and authority to carry on its business as now
conducted and to own and operate its assets, properties and
business.
B. Ownership of the PBI Shares As of the Date hereof, the Sellers
are the sole owners of the PBI Common Shares, free and clear of
all liens, encumbrances and restrictions of any nature
whatsoever, except due to the fact that the PBI Common Shares
have not been registered under the Securities Act of 1933 (the
"'33 Act"), or any applicable state securities laws.
C. No Misleading Statements or Omissions. Neither the Agreement nor
any exhibit attached hereto or presented to PBI in connection
herewith, contains any materially misleading statement, or omits
any fact or statement necessary to make the other statements or
facts therein set forth not materially misleading.
D. Validity of the Agreement. All corporate and other proceedings
required to be taken by the Sellers and by FD in order to enter
into and to carry out the Agreement have been duly and properly
taken. The Agreement has been duly executed by the Sellers and by
FD, and constitutes the valid and binding obligation of each of
them. The execution and delivery of the Agreement and the
carrying out of its purposes will not result in the breach of any
terms or conditions of, nor constitute a default under, nor
violate, FD's Certificate of Incorporation or By-Laws, or any
agreement, lease, mortgage, bond, indenture, license or other
document or undertaking, oral or written, to which the Sellers or
FD is a party or is bound or may be affected, nor will such
execution, delivery and carrying out violate any order, writ,
injunction, decree, law, rule or regulation of any court,
regulatory agency or other governmental body.
E. Enforceability of the Agreement. When duly executed and
delivered, the Agreement and the Exhibits hereto, which are
incorporated herein and made a part hereof, are legal, valid, and
enforceable by PBI according to their terms, except to the extent
limited by applicable bankruptcy, reorganization, insolvency,
moratorium or other laws relating to or effecting generally the
enforcement of creditor rights and that at the time of such
execution and delivery, PBI will have acquired title in and to
the PBI Common Shares free and clear of all claims, liens and
encumbrances.
6. Warranties and Representations of PBI
In order to induce the Sellers and FD to enter into the Agreement and
to complete the transaction contemplated hereby, PBI warrants and represents to
FD and Sellers that:
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a. Organization and Standing. PBI is a corporation duly organized,
validly existing and in good standing under the laws of the State
of Utah, is qualified to do business as a foreign corporation in
every other state in which it operates to the extent required by
the laws of such states, and has full power and authority to
carry on its business as now conducted and to own and operate its
assets, properties and business.
b. Ownership of Shares. By PBI's delivery of the FD Common Shares to
the Sellers pursuant to the Agreement, the Sellers will thereby
acquire good, absolute, marketable title thereto, free and clear
of all liens, encumbrances and restrictions of any nature
whatsoever, except by reason of the fact that such FD shares will
not have been registered under the '33 Act.
c. Validity of the Agreement. All corporate and other proceedings
required to be taken by PBI in order to enter into and to carry
out the Agreement have been duly and properly taken. The
Agreement has been duly executed by PBI, and constitutes a valid
and binding obligation of PBI. The execution and delivery of the
Agreement and the carrying out of its purposes will not result in
the breach of any of the terms or conditions of, nor constitute a
default under, nor violate, PBI's Certificate of Incorporation or
By-Laws, or any agreement, lease, mortgage, bond, indenture,
license or other document or undertaking, oral or written, to
which PBI is a party or is bound or may be affected, nor will
such execution, delivery and carrying out violate any order,
writ, injunction, decree, law, rule or regulation of any court
regulatory agency or other governmental body.
d. Enforceability of the Agreement. When duly executed and
delivered, the Agreement and the Exhibits hereto which are
incorporated herein and made a part hereof are legal, valid, and
enforceable by FD and the Sellers according to their terms, and
that at the time of such execution and delivery, the Sellers will
have acquired good, marketable title in and to the FD Common
Shares acquired pursuant hereto, free and clear of all liens and
encumbrances.
7. General Mutual Release of All Claims
PBI, FD, the Sellers, and each of them, hereby agree and covenant that
they do hereby forever release and hold harmless every other party to this
contract from any and all liabilities, claims, damages (including but not
limited to attorney's fees) and other obligations arising from or connected with
the September 1998 Acquisition, or arising from or connected with the
Acquisition Agreement between the parties dated September 1, 1998. This release
is intended by all parties to be a general release of all claims of any nature
whatsoever.
8. Mutual Agreement for Each Party to Bear Its Own Costs
PBI, FD, the Sellers, and each of them, hereby agree and covenant that
each party to this contract shall bear its own costs and expenses related to the
September 1998 Acquisition, and each party hereby holds every other party to
this agreement harmless from same.
9. All Prior Agreements Terminated
This Agreement comprises the entire agreement and understanding between
the parties hereto at the date of this Agreement as to the subject matter hereof
and supersedes and replaces all agreements, proposals, and negotiations, whether
oral or written, between the parties hereto in connection with the subject
matter
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hereof. None of the parties hereto shall be bound by any conditions,
definitions, warranties or representations with respect to the subject matter of
this Agreement other than as expressly provided in this Agreement unless the
parties hereto subsequently agree to vary this Agreement in writing, duly signed
by authorized representatives of the parties hereto.
10. Miscellaneous
A. Authority. The execution and performance of this Agreement have
been duly authorized by all requisite corporate action. This
Agreement constitutes a valid and binding obligation of the
parties hereto.
B. Amendment. This Agreement may be amended or modified at any time
and in any manner only by an instrument in writing executed by
all the parties hereto.
C. Waiver. No term of this Agreement shall be considered waived and
no breach excused by either party unless made in writing. No
consent, waiver or excuse by either party, express or implied,
shall constitute a subsequent consent, waiver or excuse.
D. Assignment:
(i) The rights and obligations of the Consultant under
this Agreement shall inure to the benefit of and
shall be binding upon its successors and assigns.
There shall be no rights of transfer or assignment of
this Agreement by Client except with the prior
written consent of the Consultant.
(ii) Nothing in this Agreement, expressed or implied, is
intended to confer upon any person, other than the
parties and their successors, any rights or remedies
under this Agreement.
E. Headings and Captions. The headings of paragraphs are included
solely for convenience. If a conflict exists between any heading
and the text of this Agreement, the text shall control.
F. Entire Agreement. This instrument and the exhibits to this
instrument contain the entire Agreement between the parties with
respect to the transaction contemplated by the Agreement. It may
be executed in any number of counterparts but the aggregate of
the counterparts together constitute only one and the same
instrument.
G. Effect of Partial Invalidity. In the event that any one or more
of the provisions contained in this Agreement shall for any
reason be held to be invalid, illegal, or unenforceable in any
respect, such invalidity, illegality or unenforceability shall
not affect any other provisions of this Agreement, but this
Agreement shall be constructed as if it never contained any such
invalid, illegal or unenforceable provisions.
H. Controlling Law. The validity, interpretation, and performance of
this Agreement shall be governed by the laws of the State of
Utah, without regard to its law on the conflict of laws. Any
dispute arising out of this Agreement shall be brought in a court
of competent jurisdiction in Salt Lake County, Utah. The parties
exclude any and all statutes, laws and treaties which
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would allow or require any dispute to be decided in another forum
or by other rules of decision than provided in this Agreement.
I. Attorney's Fees. If any action at law or in equity, including an
action for declaratory relief, is brought to enforce or interpret
the provisions of this Agreement, the prevailing party shall be
entitled to recover actual attorney's fees, court costs, and
other costs incurred in proceeding with the action from the other
party. The attorney's fees, court costs or other costs, may be
ordered by the court in its decision of any action described in
this paragraph or may be enforced in a separate action brought
for determining attorney's fees, court costs, or other costs.
Should either party be represented by in-house counsel, all
parties agree that party may recover attorney's fees incurred by
that in-house counsel in an amount equal to that attorney's
normal fees for similar matters, or, should that attorney not
normally charge a fee, by the prevailing rate charged by
attorneys with similar background in that legal community.
J. Time is of the Essence. Time is of the essence of this Agreement
and of each and every provision hereof.
K. Mutual Cooperation. The parties hereto shall cooperate with each
other to achieve the purpose of this Agreement, and shall execute
such other and further documents and take such other and further
actions as may be necessary or convenient to effect the
transactions described herein.
L. No Third Party Beneficiary. Nothing in this Agreement, expressed
or implied, is intended to confer upon any person, other than the
parties hereto and their successors, any rights or remedies under
or by reason of this Agreement, unless this Agreement
specifically states such intent.
M. Facsimile Counterparts. If a party signs this Agreement and
transmits an electronic facsimile of the signature page to the
other party, the party who receives the transmission may rely
upon the electronic facsimile as a signed original of this
Agreement.
EXECUTED by all parties on the date first above written.
Premier Brands, Inc. FD Import & Export Corp.
By: By:
----------------------- -------------------
Xxxx Xxxxxx Xxxx Xxxxxx
Its: Current President Its: President
SELLERS:
------------------------
Xxxx Xxxxxx
Xxxxxxxxx X. Dyablo
------------------------
Xxxxxxxxxx Xxxxxx
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EXHIBIT A
LIST OF SELLERS (FORMER SHAREHOLDERS OF FD)
1. Xxxx Xxxxxx 20 shares of FD common stock
2. Xxxxxxxxx X. Dyablo 80 shares of FD common stock
3. Xxxxxxxxxx Xxxxxx 100 shares of FD common stock
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