Exhibit 10.4
AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into this
22nd day of May, 1996 by and among XXXXXXXXX LEIBSTONE
ASSOCIATES, INC., a New York corporation ("BLAI), TTSB, LTD., an
Ohio limited liability company ("TTSB"), XXXXXXX LEIBSTONE
ASSOCIATES, INC., a Florida corporation ("WLAI"), and XXXXXXX
LEIBSTONE ("Leibstone").
WITNESSETH:
WHEREAS, WLAI issued a pomissory note dated July 14, 1995 in
the principal amount of Nine Hundred and Forty-One Thousand Three
Hundred and Forty-Eight Dollars ($941,348) in favor of BLAI ("WLAI
Note"); and
WHEREAS, the WLAI Note is personally guaranteed by Leibstone
on a non-recourse basis pursuant to a nonrecourse guaranty dated
July 14, 1995 ("Guaranty"), which Guaranty is secured by a pledge
of One Million One Hundred Thousand (1,100,000) shares of the
common stock of BLAI owned by Leibstone ("Leibstone Stock")
pursuant to a stock pledge and escrow agreement dated July 14,1995
("Leibstone Pledge Agreement") among Leibstone, BLAI and Xxxxx,
McClosky, Smith, Xxxxxxxx & Xxxxxxx, P.A., as escrow agent ("Escrow
Agent"); and
WHEREAS, TTSB desires to acquire the WLAI Note from BLAI in
exchange for a promissory note to be issued by TTSB in favor of
BLAI ("TTSB Note") in the original principal amount of One Million
Thirteen Thousand Six Hundred Sixty-Two and 60/100 Dollars
($1,013,662.60); and
WHEREAS, the TTSB Note will be secured by a pledge by TTSB of
Five Hundred Six Thousand (506,000) shares of BLAI common stock
pursuant to a stock pledge agreement in favor of BLAI ("TTSB
Pledge Agreement"); and
WHEREAS, BLAI desires to sell the WLAI Note and assign its
rights under the Guaranty and the Leibstone Pledge Agreement to
TTSB in exchange for the TTSB Note and the rights to the
collateral securing the TTSB Note as provided in the TTSB Pledge
Agreement, and TTSB desires to consummate such transactions in the
manner and under such terms and conditions as are set forth
herein; and
WHEREAS, immediately upon TTSB's acquisition of BLAI's right,
title and interest in and to the WLAI Note, the Guaranty and the
Leibstone Pledge Agreement, TTSB shall assign to Leibstone all of
its right, title and interest in and to the WLAI Note, the Guaranty
and the Leibstone Pledge Agreement, and, in consideration thereof,
Leibstone shall absolutely assign to TTSB Five Hundred Six
Thousand (506,000) shares of the Leibstone Stock; and
WHEREAS, Leibstone desires to make a loan of One Hundred
Thousand Dollars ($100,000) to BLAI ("Leibstone Loan") and BLAI
desires to accept such Leibstone Loan, which Leibstone Loan shall
be evidenced by a promissory note issued by BLAI in favor of
Leibstone ("BLAI Note").
NOW, THEREFORE, in consideration of the mutual promises
covenants and agreements contained herein, the parties hereby agree
as follows:
SECTION 1. The Transactions.
At the Closing (as hereinafter defined), the following
transactions shall occur:
(a) ExchangeTransaction. BLAI shall sell, transfer
assign, and convey to TTSB all of its right, title and interest in
and to the WLAI Note, the Guaranty and the Leibstone Pledge
Agreement and in exchange therefor TTSB shall issue to BLAI the
TTSB Note, which TTSB Note will be secured by the TTSB Pledge
Agreement;
(b) Assignment of TTSB's Rights to Leibstone.
Immediately thereafter, TTSB shall sell, transfer, assign and
convey to Leibstone all of its right, title and interest in and to
the WLAI Note, the Guaranty and the Leibstone Pledge Agreement and
in exchange therefor Leibstone shall absolutely assign to TTSB
Five Hundred Six Thousand (506,000) shares of the Leibstone Stock;
and
(c) Leibstone Loan. Leibstone shall make the Leibstone
Loan to BLAI and BLAI shall deliver the BLAI Note to Leibstone in
exchange therefor.
SECTION 2. Closing. The closing (the "Closing") of the
transactions described in Section 1 hereof (the "Transactions")
shall take place at the offices of Xxxxx, McClosky, Smith, Xxxxxxxx
& Xxxxxxx, P.A. in Fort Lauderdale, Florida, upon the performance
of the parties' respective obligations in Sections 5, 6 and 7
hereof.
SECTION 3. Representations and Warranties BLAI. As a
material inducement to TTSB and Leibstone to enter into this
Agreement and consummate the Transactions, BLAI hereby represents
and warrants as of the date hereof, that:
(a) BLAI is a corporation duly organized and existing under
the laws of the State of New York. BLAI is in good standing under
the laws of the State of Florida. The execution and delivery of
this Agreement and the BLAI Note by BLAI and the performance of its
obligations hereunder and thereunder has been duly authorized and
approved by all requisite corporate action on the part of BLAI.
Pursuant to such authorization, BLAI has all power and authority to
enter into and perform its obligations under this Agreement and
the BLAI Note and the execution hereof and thereof by the person
signing this Agreement and the BLAI Note and all related documents
and instruments on behalf of BLAI is sufficient to bind BLAI to
same.
(b) This Agreement, the BLAI Note and each of the other
documents, instruments and agreements executed by BLAI in
connection herewith constitute its legal, valid and binding
agreement enforceable against it in accordance with their
respective terms except that (i) enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws of general application effecting the enforcement of
the rights and remedies of creditors; and (ii) the availability of
equitable remedies may be limited by equitable principles.
(c) Neither the execution, delivery or performance of
this Agreement, the BLAI Note or any other documents, instruments
or agreements executed by BLAI in connection herewith, nor the
consummation of the transactions contemplated hereby or thereby:
(i) constitutes a violation of or default under (either
immediately upon notice, lapse of time, or both), the Certificate
of Incorporation or Bylaws of BLAI, any provision of any contract,
agreement or other document to which BLAI or its assets may be
bound, or any provision of any law, judgment or order applicable
to BLAI; or (ii) will or could result in the creation or imposition
of any lien, encumbrance or security interest upon or give to any
third party any interest in or right to the WLAI Note, the
Guaranty, the Leibstone Pledge Agreement or the Leibstone Stock.
(d) BLAI is the sole beneficial owner of the WLAl Note
and, upon the consummation of the Transactions set forth in
Section I (a), TTSB will be vested with good and valid title to
the WLAI Note, free and clear of any and all claims, liens, pledges
or encumbrances of any kind. BLAI has not entered into any
agreement (other than this Agreement) which would grant any other
persons any rights or claims under the Guaranty, the Leibstone
Pledge Agreement or the Leibstone Stock.
(e) The TTSB Note to be aquired by BLAI pursuant to this
Agreement will be acquired for BLAI for its own account as an
investment and not with a view to or intention of distribution
thereof. The TTSB Note will not be offered for sale or disposed of
in contravention of the Securities Act of 1933 as amended (the
"Securities Act"), or any applicable state securities laws. BLAI
is an "accredited investor" as that term is defined in Regulation
D of the Securities.Act. BLAI has made a decision to enter into
this Agreement and consummate the Transactions described herein
based upon BLAI's own investigation of TTSB as it deems necessary
in order for it to make a fully informed decision to enter into
this Agreement without reliance upon any representations or
warranties of TTSB except those expressly made to BLAI hereunder.
SECTION 4. Representations and Warranties of TTSB. As a
material inducement to BLAI and Leibstone to enter into this
Agreement and consummate the Transactions, TTSB hereby represents
and warrants that:
(a) TTSB is a limited liability company duly organized
and existing under the laws of the State of Ohio. The execution
and delivery of this Agreement, the TTSB Note, the TTSB Pledge
Agreement and each of the other documents, instruments and
agreements executed by TTSB in connection herewith and therewith
and the performance of its obligations hereunder and thereunder
have been duly authorized and approved by all requisite corporate
action on the part of TTSB. Pursuant to such authorization, TTSB
has all power and authority to enter into and perform its
obligations under this Agreement, the TTSB Note, the TTSB Pledge
Agreement and each of the other documents, instruments and
agreements executed by TTSB in connection herewith and therewith
and the execution hereof and thereof by the person signing this
Agreement, the TTSB Pledge Agreement and all related documents and
instruments on behalf of TTSB is sufficient to bind TTSB to the
same. This Agreement, the TTSB Note, the TTSB Pledge Agreement and
each of the other documents, instruments and agreements executed
by TTSB in connection herewith or therewith constitute, legal,
valid and binding agreements of TTSB enforceable against it in
accordance with their respective terms except that (i)
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws of general
application affecting the enforcement of the rights and remedies
of creditors; and (ii) the availability of equitable remedies may
be limited by equitable principles.
(c) Neither the execution, delivery or performance of
this Agreement, the TTSB Note or the TTSB Pledge Agreement or any
other, documents, instruments or agreements executed by TTSB in,
connection herewith or therewith, nor the consummation of the
transactions contemplated hereby or thereby (i) constitutes a
violation of or default under (either immediately upon notice, or
upon lapse of time, or both), the Articles of Organization or other
constituent documents of TTSB, any provision of any contract,
agreement or other document to which TTSB or its assets (including
the collateral to be pledged under the TTSB Pledge Agreement) may
be bound, or any provision of any law, judgment or order
applicable to TTSB; or (ii) could result in the creation or
imposition of any lien, encumbrance or security interest upon or
give to any third party any interest in or right to the WLAI Note,
the Guaranty, the Leibstone Pledge Agreement or the Leibstone
Stock (other than as contemplated by this Agreement).
(d) The WLAI Note to be acquired by TTSB pursuant to
this Agreement will be acquired by TTSB for its own account as an
investment and not with a view to or intention of distribution
thereof. The WLAI Note will not be offered for sale or disposed of
in contravention of the Securities Act or any applicable state
securities laws. TTSB is an "accredited investor" as that term is
defined in Regulation D of the Securities Act. TTSB has made a
decision to enter into this Agreement and consummate the
Transactions described herein based upon TTSB's own investigation
of WLAI as it deems necessary in order for it to make a fully
informed decision to enter into this Agreement, without reliance
upon any representations or warranties of BLAI, WLAI or Leibstone,
except those expressly made to TTSB hereunder.
(e) Immediately after the transfer of the WLAI Note by
BLAI to TTSB contemplated herein, TTSB will be the sole beneficial
owner of the WLAI Note and, upon the consummation of the
Transactions contemplated by Section I (b) hereof, Leibstone will
be vested with good and valid title to the WLAI Note, free and
clear of any and all claims, liens, pledges or encumbrances of any
kind. TTSB has not entered into any agreement (other than as
contemplated by this Agreement) which would grant any other
persons any rights or claims under the Guaranty, the Leibstone
Pledge Agreement or the Leibstone Stock.
(f) TTSB will be the sole beneficial owner of the
collateral pledged under the TTSB Pledge Agreement and owns such
collateral free and clear of any and all claims, liens, pledges or
encumbrances of any kind.
SECTION 5. Conditions to BIAl's Obligation at the Closing.
The obligation of BLAI to consummate the transactions described in
Section 1, hereof at the Closing shall be subject to the
satisfaction as of the Closing of the following conditions:
(a) The representations and warranties of TTSB set forth
in Section 4 hereof shall be true and correct.
(b) TTSB shall have delivered to BLAI a duly executed
original of the TTSB Note.
(c) TTSB shall have delivered to BLAI a duly executed
original Pledge Agreement, together with all certificates
representing the collateral pledged thereunder and any stock powers
reasonably requested by BLAI.
(d) Leibstone shall have made the Leibstone Loan to
BLAI.
SECTION 6. Conditions to TTSB's Obligations at the Closing.
The obligation of TTSB to consummate the transactions contemplated
by Section I hereof at the Closing shall be subject to the
satisfaction as of the Closing of the following conditions:
(a) The representations and warranties of BLAI set forth
in Section 3 hereof shall be true and correct.
(b) BLAI shall have delivered to TTSB the original WLAI
Note duly endorsed for transfer to TTSB.
(c) BLAI shall have delivered to TTSB the original
Leibstone Guaranty and the original Leibstone Pledge Agreement
(and the Leibstone Stock pledged thereunder) together with such
documents or instruments of assignment as are requested by TTSB to
assign BLAI's rights therein to TTSB.
(d) Leibstone shall have absolutely assigned Five
Hundred Six Thousand (506,000) shares of the Leibstone Stock to
TTSB.
SECTION 7. Conditions to Leibstone Obligations at the
Closing. The obligation of Leibstone to make the Leibstone Loan
to BLAI at the Closing shall be subject to the satisfaction, as of
the Closing, of the following conditions:
(a) The representations and warranties of BLAI and TTSB
set for the Sections 3 and 4 hereof shall be true and correct.
(b) TTSB shall have delivered to Leibstone the original
WLAI Note, duly endorsed for transfer to Leibstone.
(c) TTSB shall have delivered to Leibstone the original
Guaranty and the original Leibstone Pledge Agreement (and 594,000
shares of the Leibstone Stock pledged thereunder), together with
such documents or instruments of assignment as are requested by
Leibstone to assign TTSB's rights therein to Leibstone.
(d) BLAI shall have delivered to Leibstone the original
BLAI Note.
SECTION 8. Agreement of Leibstone. Leibstone covenants and
agrees with BLAI that he shall sell no more than (a) Forty Four
Thousand (44,000) shares of the Leibstone Stock.for the first
sixty period commencing after the Closing; and (b) Three Hundred
Nineteen Thousand (319,000) shares (including any shares sold in
compliance with clause (a) hereof) of the Leibstone Stock during
the period commencing sixty (60) days after the Closing through the
date that is one hundred twenty (120) days after the Closing.
Leibstone shall be permitted to sell any or all of the Leibstone
Stock beginning on the date that is one hundred twenty (120) days
after the Closing. Nothing contained in this Agreement shall in
any way limit or prohibit Leibstone from selling any shares (other
than the Leibstone Stock) of BLAI common stock owned by Leibstone.
SECTION 9. Miscellaneous.
(a) Entire Agreement. This Agreement sets forth all of
the promises, covenants agreements, conditions and understandings
between the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements,
understandings, inducements or conditions, expressed or implied,
oral or written, except as herein contained. No changes of or
modifications or additions to this Agreement shall be valid unless
the same shall be in writing and signed by the parties hereto.
(b) Counteparts. This Agreement and any amendments
hereto may be executed in one or more counterparts, each of which
shall be deemed an original and all of which together will
constitute one and the same instrument.
(c) Governing Law. This Agreement shall be construed in
accordance with the laws of the State of Florida and any
proceeding arising between the parties in any manner pertaining or
related to this Agreement shall, to the extent permitted by law, be
held in Broward County, Florida.
(d) Notice. All notices, requests, demands and other
communications hereunder shall be deemed to have been duly given
if the same shall be in writing and shall be delivered personally
or sent by registered or certified mail, postage prepaid, and
addressed as set forth below.
If to BLAI: Xxxxxxxxx Leibstone Associates, Inc.
0000 Xxxxxxxxx Xxx
Xxxxx 000
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
If to TTSB: TTSB, Ltd.
00000 Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
If to WLAI or
Leibstone: Xxxxxxx Leibstone Associates, Inc.
0000 Xxxxx Xxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
(e) Further Assurances. The parties hereto will execute
and deliver such further instruments and do such futher acts and
things as may be reasonably required to carry out the intent and
purposes of this Agreement.
(f) No Third Party Beneficiary. This Agreement is made
solely and specifically between and for the benefit of the parties
hereto, and their respective successors and assigns, subject to
the express provisions hereof relating to successors and assigns,
and no other person shall have any rights, interest or claims
hereunder or be entitled to any benefits under or on account of
this Agreement as a third party beneficiary or otherwise.
(g) Successors and Assigns. This Agreement shall be
binding upon the parties hereto, their heirs, administrators,
successors and assigns.
(h) Prevailing Party. If any party hereto is required to
engage in litigation against any other party hereto, either as a
plaintiff or as defendant, in order to enforce or defend any rights
under this Agreement and such litigation results in a final
judgment in favor of such party ("Prevailing Party"), then the
party or parties against whom said final judgment is obtained shall
reimburse the Prevailing Party for all direct, indirect or
incidental expenses incurred including, but not limited to all
attorney's fees, paralegals' fees, court costs and other expenses
incurred throughout all negotiations, trials or appeals undertaken
in order to enforce the Prevailing Party's rights hereunder.
[Left Intentionally Blank]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date and year set forth above,
XXXXXXXXX LEIBSTONE ASSOCIATES, INC.
By: /s/ Xxxxxxx Pterreson
Xxxxxxx Xxxxxxxx, Chief Executive
Officer
TTSB, LTD.
By: /s/ Xxxxxxx Xxxxxxxx
Xxxxxxx Xxxxxxxx, Member
XXXXXXX LEIBSTONE ASSOCIATES INC.
By: /s/ Xxxxxxx Leibstone
Xxxxxxx Leibstone, President
/s/ Xxxxxxx Leibstone
XXXXXXX LEIBSTONE
