CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreeiment") is made this 1st day of September,
1998 and shall be effective the first day the Services (as defined below) were
first rendered by and between Xxxxxx Consulting Group Inc., a Nevada corporation
("Consultant") and Premier Brands, Inc., a Utah corporation and FD Import &
Export Corp., a New York corporation (collectively "Client").
WHEREAS, Consultant and Consultant's personnel have substantial experience
'in locating merger or acquisition candidates, effecting reorganizations, and
settling creditors; and
WHEREAS, Client desires to retain Consultant, and Consultant desires to
provide the Services (as defined below) for Client on the terms and conditions
set forth below.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of Which is hereby acknowledged, Client and Consultant
agree as follows:
1. Engagement
Client hereby engages Consultant to provide Client the Services, and Consultant
accepts such engagement.
2. Scope of Services to be Provided
Consultant, subject to the control, direction and supervision of Client's
Board of Directors, shall use its best efforts to provide the following
services ("Services"):
(A) Consultant shall assist Client in the specific acquisition
contemplated by the Client (see "Exhibit A, Acquisition Agreement"),
wherein FD Import & Export Corp. shall be required by Preim'er Brands,
Inc. Consultant shall assist effecting this reorganization and use its
best efforts to settle Premier Brands' creditors (see "Exhibit B,
Billing Invoice")
It is mutually understood and agreed that the advice and services shall
expressly exclude all legal or other advise or services which require
licenses or certification which Consultant does not have.
3. Term
This Agreement shall have an initial term of one (1) year (the "Initial
Advisory Period"), with an effective date of August 1, 1998. At the
conclusion of the Initial Advisory Period, this Agreement can be extended
on a month to month basis (the "Extension Period") if the Client serves
written notice on the Consultant; provided, however, that Consultant and
Client shall agree in writing as to Consultant's continuing compensation
dui-hig any Extension Period.
This Agreement shall fully replace and supercede any and all iiisttmnelits
which may have been contemplated or were previously negotiated, and to
specifically apply to the Agreement dated April 21, 1998 between Consultant
and Premier Brands, Inc.(see "Exhibit C, Stock Acquisition Agreement").
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4. Time and Effort of Consultant
Consultant shall cause Consultant's personnel to devote that amount of time
necessary, on a weekly basis, to fulfilling Consultant's obligations under
this Agreement. The particular amount of time may vary from day to day or
week to week. Consultant unconditionally agrees that Consultant's
personnel, or his replacement, will at all times, faithfully and to the
best of his experience, ability, and talents, perform all the duties
required of Consultant under this Agreement.
5. Compensation
Client agrees to pay Consultant the following (collectively, the
"Consideration") for the Services rendered hereunder
(A) The Services. The Client shall pay to the Consultant, as compensation
for the Services rendered, 150,000 post-reverse shares of Premier
Brands, Inc. common stock, issued pursuant to Section 4(2) and exempt
from registration pursuant to Rule 144 of the Securities Act of 1933
upon Client signing a Definitive Acquisition or Merger Agreement.
(B) Expenses . Costs related to facilities famished by, expenses paid by,
and any additional out of pocket expenses advanced by the Consultant
shall be 100 % reimbursed by the Client upon execution of this
Agreement.. At the execution of this Agreement, Client shall also
deliver to Consultant 50% of any and all funds representing amounts
preserved to the Client by the Consultant with respect to any
reduction in the amount actually paid to creditors on outstanding
debts of the Client as reflected in Client's most current Balance
Sheet.
The parties acknowledge that the consideration for Clients shares to be
delivered to Consultant shall consist of the Services rendered to
Client, and that Consultant is accepting payment ill shares as ail
accommodation to Client. Client shall pay consultant within 5 days of
consummating any merger, acquisition, or other business combination.
6. Role of Consultant
The Consultant, and any person controlled by or under common control with
the Consultant, shall be free to render similar services to others and
engage in other activities, so long as the Services rendered to the Client
are not impaired.
Except as otherwise required by the Investment Company Act of 1940 ( the
"1940 Act"), any of the shareholders, directors, officers and employees of
the Client may be a shareholder, trustee, director, officer or employee of,
or be otherwise interested in, the Consultant, and in any person controlled
by or under common control with the Consultant, and the Consultant and any
person controlled by or under common control with the Consultants may have
an interest in the Client.
Except as otherwise agreed, in the absence of willful misfeasance, bad
faults negligence or 2
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reckless disregard of obligations or duties hereunder on the part of the
Consultant or Consultant's personnel, Consultant shall not be subject to
liability to the Client, or to any shareholder of the Clients for any act
or omission in the course of, or connected with, rendering set-vices
hereunder or for any losses that may be sustained in the purchase,
management, holding or sale of ,any asset of or security issued by Client.
8. Client's Shares
No later than ten (10) days following the date of an event giving use to
the obligation by Client to issue additional Fee Shares, Client will file a
Form D with the Securities and Exchange Commission.
9. Costs and Expenses
All third party and out-of-pocket expenses, filing fees, copy, and mailing
expenses incurred by Consultant in the performance of the Services under
this Agreement are the responsibility of Client and shall be paid by
Client, or reimbursed to Consultant, within ten (10) days, of receipt of
written notice by Consultant.
10. Place of Services
The Services provided by Consultant hereunder will be performed primarily
at Consultant's offices except as otherwise mutually agreed by Consultant
and Client. It is understood and expected that Consultant may make contacts
with persons and entities and perform the Services 'in other locations as
deemed appropriate by Consultant,
11. Independent Contractor
Consultant and Consultant's personnel will act as an independent contractor
in the performance of its duties under this Agreement. Accordingly,
Consultant will be responsible for payment of all federal, state, and local
taxes on compensation paid under this Agreement, including income and
social security taxes, unemployment insurance, and any other taxes due
relative to Consultant's personnel, and any and all business license fees
as may be required.
12. No Agency Express or Implied
This Agreement creates neither an expressed nor implied relationship of
principal and agent between Client and Consultant, or Employee and Employer
as between Consultant's personnel and Client. Neither Consultant's
personnel nor Consultant are authorized to enter into any agreements on
behalf of Client. Consultant expressly retains the right to approve, in its
sole discretion, each and every transaction introduced to Client and to
make all rural decisions with respect to activities undertaken by
Consultant or Consultant's personnel related to this Agreement.
13. Termination
(A) Termination for Disability. If during the Initial Consulting Period,
Consultant or Consultant's personnel shall be unable to provide the
Services as set forth under this Agreement for 120 consecutive
business days because of illness, accident or other incapacity, Client
shall have the
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(C) Termination for Cause. The Client may, at its option, terminate this
Agreement by giving written notice of termination to Consultant
without prejudice to any other remedy to which the Client may be
entitled either at law, in equity, or under this Agreement, if
Consultant:
(i) Willfully breaches or neglects the duties that Consultant is
required to perform under the terms of its Agreement;
(ii) Fails to promptly comply with and xxxx out all directives of
Client's Board of Directors;
(iii)Commits any dishonest or unlawful act, in the judgement of
Clients Board of Directors;
(iv) Engages 'in any conduct which disrupts the business of Client or
any entity affiliated with Client; or
(D) Termination Other Than For Cause. This Agreement shall terminate
immediately on the occurrence of any one of the following events:
(i) The occurrence of circumstances, in th judgment of Clients Board
of Directors, that make it impracticable for Client to continue
its present line(s) of business;
(ii) The decision of and upon notice by Consultant to voluntarily
terminate this Agreement;
(iii)If Client files a petition in a court of bankruptcy or is
adjudicated a bankrupt;
(iv) If Client institutes, or has institute against it any bankruptcy
proceeding for reorganization for rearrangement of its financial
affairs;
(v) If Client has a receiver of its assets or property appointed
because of insolvency;
(vi) If Client makes a general assignment for the benefit of
creditors; or
(vii)If either party otherwise becomes insolvent or unable to timely
satisfy its obligations in the ordinary course of business.
(E) Effect of Termination on Compensation, In the event of the Termination
Other Than For Cause prior to the completion of the Initial Consulting
Period, Consultant shall be, entitled to the full Compensation and any
unpaid portion of the Consideration and expenses which remains
outstanding.
14. Representations and Warranties of Client Client represents and warrants to
Consultant that:
(A) Corporate Existence. Clients are both corporation duly organized,
validly existing, and in good standing under the laws of the State of
New York and the State of Utah, respectively, with the corporate power
to own property and carry on its business as it is now being
conducted.
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(B) Financial Information. Client has or will caus to be delivered
concurrently with the execution of this Agreement, copies of the
Disclosure Documents which accurately set forth the financial
condition of Client as of the respective dates of such documents.
(C) No Conflict. This Agreement has been duly executed by Client and the
execution and performance of this Agreement will not violate, or
result in a breach of, or constitute a default in any agreement,
instrument, judgement, decree or order to which Client is a party or
to which Client is subject, nor will such execution and performance
constitute a violation or conflict of any fiduciary duty to Which
Client is subject.
(D) Full Disclosure. The information concerning
Client provided to Consultant pursuant to
this Agreement is, to the best of Clients knowledge and belief,
complete and 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.
(E) Date of Representations and Warranties. Each o the representations and
warranties of Client set forth in this Agreement is true and correct
at and as of the date of execution of this Agreement.
15. Indemnification
Client and Consultant agree to indemnify, defen and hold each other
harmless from and against all demands, claims, actions, losses,
damages, liabilities, costs and expenses, including without
limitation, interest penalties and attorneys' fees and expenses
asserted against or imposed or incurred by either party by reason of
or resulting from a breach of any representation, warranty, covenant,
condition, or agreement of the other party to this Agreement.
16. Specific Performance
Consultant and Client acknowledge that in the event of a breach of this
Agreement by either party, money damages would be 'inadequate and the
non-breaching party would have no adequate remedy at law. Accordingly,
in the event of any controversy concerning the rights or obligations
under this Agreement, such rights or obligations shall be enforceable
in a court of equity by a decree of specific performance. Such remedy,
however, shall be cumulative, and non-exclusive and shall be in
addition to any other remedy to which the parties may be entitled.
17. Miscellaneous
(A) Subsequent Events. Consultant and Client each agree to notify the
other party if, subsequent to the date of this Agreement, either party
incurs obligations which could compromise its efforts and obligations
under this Agreement.
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(B) Amendment. This Agreement may be amended or modified at any time and
in any manner only by an instrument in writing executed by the parties
hereto.
(C) Further Actions and Assurances. At anytime and from time to time, each
xxxxx agrees, at its or their expense, to take actions and to execute
and deliver documents a may be reasonably necessary to effectuate the
purposes of this Agreement.
(D) Waiver. Any failure of any party to this Agreement to comply with any
of its obligations, agreements, or conditions hereunder may be waived
in writing by the party to whom such compliance is owed. The failure
of any xxxxx to this Agreement to enforce at any time any of the
provisions of this Agreement shall in no way be construed to be a
waiver of any such provision or a waiver of the night of such party
thereafter to enforce each mid every such provision. No waiver of any
breach of or noncompliance with this Agreement shall be held to be a
waiver of any other or subsequent breach or noncompliance.
(E) Assignment. Neither this entire Agreement nor any right created by it
shall be assignable by either party without the prior written consent
of the other.
(F) Notices. Any notice or other communication required or permitted by
this Agreement must be in writing and shall be deemed to be properly
given when delivered in person to an officer of the other xxxxx, when
deposited in the United States mails for transmittal by certified or
registered mail, postage prepaid, or when deposited with a public
telegraph company for transmitting, or when sent by facsimile
transmission charges prepared, provided that the communication is
addressed:
(i) in the case of Client:
Premier Brands, Inc.
000 Xxxx 000 Xxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (801) 575\8092
FD Import & Export Corp.
00 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
(ii) in the case of Consultant and Consultant's personnel, to
Xxxxxx Consulting Group Inc.
000 Xxxx 000 Xxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Telephone: (000) 000-0000
Telefax: (000) 000-0000
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or to such other person or address designated by Client or Consultant to receive
notice.
(G) Headings. The section and subsection headings in this agreement are
inserted for convenience only and shall not affect 'in miy way the
meaning or interpretation of this Agreement.
(H) Counterparts. This Agreement may be executed simultaneously in two or
more counterparts each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
(I) Governing Law. This Agreement was negotiated and is being contracted
for in the State of Utah, and shall be governed by the laws of the
State of Nevada, notwithstanding any conflict-of-law provision to the
contrary.
(J) Binding Effect. This Agreement shall be binding upon th parties hereto
and inure to the benefit of the parties, their respective heirs,
administrators, executors, successors, and assigns.
(K) Entire Agreement. This Agreement contains tile entire agreement
between the parties hereto and supersedes ally and all prior
agreements, arrangements, or understandings between the parties
relating to the subject matter of this Agreement. No oral
understandings, statements, promises, or inducements contrary to the
terms of this Agreement exist. No representations, warranties,
covenants, or conditions, express or implied, other than as set forth
herein, have been made by any party.
(L) Severability. If any part of this Agreement is deemed t be
unenforceable the balance of the Agreement shall remain in full force
and effect.
(M) Facsimile Counterparts. A facsimile, telecopy, or other reproduction
of this Agreement may be executed by one or more parties hereto and
such executed copy may be delivered by facsimile of similar
instantaneous electronic transn3ission device pursuant to",Ilich the
signature of or on behalf of such party car be seen, and such
execution and delivery shall be considered valid, binding and
effective for all purposes. At the request of any party hereto, all
parses agree to execute an original of this Agreement as well as any
facsimile, telecopy or other reproduction hereof
(N) Termination of Any Prior Agreements. Effective the date hereof, all
prior rights of Consultant relating to tile accrual or payment of any
form of compensation or other benefits from Client based upon any
agreements other than this Agreement, whether written or oral, entered
into prior to the date hereof, are hereby terminated.
(0) Consolidation or Merger. Subject to the provisions of Paragraph 7
hereof, in the event of a sale of the stock, or substantially all of
the stock, of Client, or consolidation or merger of Client with or
into another corporation or entity, or the sale of substantially all
of the operating assets of the Client to another corporation, entity
or individual, Client may assign its rights and obligations under this
Agreement to its successor-in-interest and such successor-in-interest
shall be deemed to have acquired all rights and assumed au obligations
of Client hereunder; provided, however, that in no event shall the
duties and
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Services of Consultant provided for in Paragraph 2 hereof, or the
responsibilities, authority or powers commensurate therewith, change
in any material respect as a result of such sale of stock,
consolidation, merger or sale of assets.
(P) Time is of the Essence. Time is of the essence of this Agreement and
of each and every provision hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date above written.
"Consultant"
Xxxxxx Consulting Group Inc., a Nevada corporation
By:
Name: Xxxxxxx Xxxxxx
Title: President
FD Import-Export
By:
Name:
Title:
Premier Brands, Inc.
By:
Name:
Title: President
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INDEX TO EXHIBITS
Exhibit No. Description
A Acquisition agreement
B Invoice
C Stock Acquisition Agreement
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[EXHIBIT A]
ACQUISITION AGREEMENT
BETWEEN
PREMIER BRANDS, INC.
AND
FD IMPORT & EXPORT CORP.
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ACQUISITION AGREEMENT
TABLE OF CONTENTS
Purchase and Sale..............................................................2
Purchase Price.................................................................2
Warranties and Representations of FD and Sellers...............................2
Warranties and Representations of PBI..........................................5
Term...........................................................................9
The PBI Shares.................................................................9
Conditions Precedent to Closing................................................9
Termination...................................................................10
Exhibits......................................................................10
Miscellaneous Provisions......................................................10
Closing.......................................................................10
Post-Closing: Form 10 or Form 10-SB...........................................10
Governing Law.................................................................11
Counterparts..................................................................11
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ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT dated September 1, 1998, by, between and
among Premier Brands, Inc., a Utah corporation ("PBI"), and FD Import & Export
Corp., 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 now and
as of the closing date of this Agreement (the "Sellers").
WHEREAS, the Sellers own a total of 200 shares of common stock, with no
par value, of FD Common Stock, said shares being one hundred (100%) percent of
the issued and outstanding common stock of FD; and
WHEREAS, the Sellers desire to sell and PBI desires to purchase one
hundred (100%) percent of such shares;
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties herein contained, the parties hereby agree as
follows:
I. Purchase and Sale. The Sellers hereby agree to sell, transfer, assign
and convey to PBI and PBI hereby agrees to purchase and acquire from
the Sellers, one hundred (100%) percent of FD's issued and outstanding
common stock (the "FD Common Shares"), in a reorganization pursuant to
Section 368 (a)(1)(B) of the Internal Revenue Code.
II. Purchase Price. The aggregate purchase price to be paid by PBI for the
FD Common Shares shall be 10,000,000 (post-reverse split) shares of PBI
$ .001 par value voting common stock, (the "PBI Common Shares"). The
PBI Common Shares will be issued to the individual Sellers in
accordance with Exhibit "A" attached hereto. No fractional shares of
PBI Common Stock will be issued; in lieu thereof, the number of shares
of PBI Common Stock to be issued to each Seller will be rounded up to
the next whole share. Each of the Sellers hereby agree to the terms of
this Agreement (the "Agreement").
III. 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 with 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. Attached hereto as Exhibit "B" are true
and correct copies of FD's Certificate of Incorporation,
amendments thereto and all current By laws of FD. No changes
thereto will be made in any of the Exhibit "B" documents before
the Closing.
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B. Capitalization. As of the Closing Date, FD's entire authorized
equity capital consists of 200 shares of Common Stock, of which
200 shares of Common Stock will be outstanding as of the Closing.
As of the Closing Date, there will be no other voting or equity
securities authorized or issued, nor any authorized or issued
securities convertible into voting stock, and no outstanding
subscriptions, warrants, calls, options, rights, commitments or
agreements by which any of the Sellers are bound, calling for the
issuance of any additional shares of common stock of any other
voting or equity security. The FD Common Shares constitute one
hundred (100%) percent of the equity capital of FD, which
includes, inter alia, one hundred (100%) percent of FD's voting
power, right to receive dividends, when, as and if declared and
paid, and the right to receive the proceeds of liquidation
attributable to common stock, if any.
C. Ownership of the FD Shares As of the Date hereof, the Sellers are
the sole owners of the FD Common Shares, free and clear of all
liens, encumbrances and restrictions of any nature whatsoever,
except by reason of the fact that the FD Common Shares will not
have been registered under the "33 Act, or and applicable State
Securities laws.
D. Taxes. FD has filed all federal, state and local income or other
tax returns and reports that it is required to file with all
governmental agencies, wherever situate, and has paid or accrued
for payment all taxes as shown on such returns, such that a
failure to file, pay or accrue will not have a material adverse
effect on FD.
E. Pending Actions. There are no material legal actions, lawsuits,
proceedings of investigations, either administrative of judicial,
pending of threatened, against or affecting FD, or against the
Sellers that arise out of their operation of FD, except as
described in Exhibit "C" attached hereto. FD is not in violation
of any law, material ordinance or regulation of any kind
whatever, including, but not limited to laws, rules and
regulations governing the sale of its products, the '33 Act, the
Securities Exchange Act of 1934, as amended (the "34 Act") the
Rules and Regulations of the U.S. Securities and Exchange
Commission ("SEC"), or the Securities Laws and Regulations of any
state.
F. Governmental Regulation. FD holds the licenses and registrations
set forth on Exhibit "D" hereto from the jurisdictions set forth
therein, which licenses and registrations are all of the licenses
and registrations necessary to permit FD to conduct its current
business. All of such licenses and registrations are in full
force and effect, and there are no proceedings, hearings or other
actions pending that may affect the validity of continuation of
any of them. No approval of any other trade or professional
association or agency of government other than as set forth on
Exhibit "D" is required for any of the transactions effected by
this Agreement, and the completion of the transactions
contemplated by the Agreement will not, in and of themselves,
affect or jeopardize the validity or continuation of any of them.
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G. Ownership of Assets. Except as set forth in Exhibit "E", FD has
good, marketable title, without any liens or encumbrances of any
nature whatever, to all of the following, if any: its assets,
properties and rights of every type and description, including,
without limitation, all cash on hand and in banks, certificates
of deposit, stocks, bonds, and other securities, good will,
customer lists, its corporate name and all variants thereof,
trademarks and trade names, copyrights and interests thereunder,
licenses and registrations, pending licenses and permits and
applications therefore, inventions, processes, know-how, trade
secrets, real estate and interests therein and improvements
thereto, machinery, equipment, vehicles, notes and accounts
receivable, fixtures, rights under agreements and leases,
franchises, all rights and claims under insurance policies and
other contracts of whatever nature, rights in funds of whatever
nature, books and records and all other property and rights of
every kind and nature owned or held by FD as of this date, and
will continue to hold such title on and after the completion of
the transactions contemplated by the Agreement; nor, except in
the ordinary course of its business, has FD disposed of any such
asset since the date of the most recent balance sheet described
in Section III (O) of this agreement.
H. No Interest in Suppliers, Customers, Landlords or Competitors.
Neither the Sellers nor any member of their families have any
interest of any nature whatever in any supplier, customer,
landlord or competitor of FD.
I. No Debt Owed by FD to Sellers. Except as set forth in Exhibit "F"
FD does not owe any money, securities, or property to either the
Sellers or any member of the families or to any company
controlled by such a person, directly or indirectly. To the
extent that FD may have any undisclosed liability to pay any sum
or property to any such person or entity or any member of their
families such liability is hereby forever irrevocably released
and discharged.
J. Corporate Records. All of FD's books and records, including,
without limitation, its books of account, corporate records,
minute book, stock certificate books and other records of FD are
up-to-date, complete and reflect accurately and fairly the
conduct of its business in all material respects since its date
of incorporation.
K. No Misleading Statements of Omissions. Neither the Agreement nor
any financial statement, exhibit, schedule or document attached
hereto or presented to PBI in connection herewith, contains any
materially misleading statement, or omits any fact of statement
necessary to make the other statements or facts therein set forth
not materially misleading.
L. 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, except to the extent limited by applicable bankruptcy,
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reorganization, insolvency, moratorium or other laws relating to
or effecting generally the enforcement of creditors rights. 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, or constitute a default under or violate FD's
Certificate of Incorporation or document of undertaking, oral or
written, to which FD of the Sellers 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; and the business now conducted by FD can continue to be so
conducted after completion of the transaction contemplated
hereby, with FD as a wholly- owned subsidiary of PBI.
M. 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 creditors rights and that at the time of such
execution and delivery, PBI will have acquired title in and to
the FD Common Shares free and clear of all claims, liens and
encumbrances.
N. Access to Books and Records. PBI will have full and free access
to FD's books during the course of this transaction prior to
Closing, during regular business hours.
O. FD's Financial Statements. FD's Balance Sheet and Profit and Loss
statement for the quarter ended June 30, 1998, attached hereto as
Exhibit "G", accurately describe FD's financial position as of
the dates thereof. Within 90 days after the Closing. FD will
provide PBI with certified financial statements for the necessary
periods to file a Form 10 or Form 10SB, if required. These
financial statements shall be prepared in accordance with
generally accepted accounting principles in the United States
("GAAP") (or as permitted by regulation S-X, S-B and/or the rules
promulgated under the '33' act and the 34' act and certified by
independent certified public accountants with substantial SEC
experience.)
P. F &D's Corporate Summary, attached hereto as Exhibit "H",
accurately describes FD's business, assets, proposed operations
and management as of the date thereof; since the date of the
Corporate Summary, there has been no material change in the
Business Plan.
IV. 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:
A. Organization and Standing. PBI is a corporation duly organized,
validly existing
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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. Capitalization PBI's entire authorized equity capital consists of
2,374,314 shares of voting common stock, $.001 par value and
24,000 shares of preferred stock, $.001 par value. As of the
Closing, after giving effect to the proposed reverse split of
PBI's remaining outstanding shares, PBI will have 100,000,000
shares Common Stock, $.001 par value, authorized, of which 39,572
shares of voting common stock of PBI will be issued and
outstanding, which does not include the 10,000,000 shares being
issued to Sellers hereunder pursuant to Section 4(2) of the '33
Act of the issuance at closing. Upon issuance, all of the PBI
Common Stock will be validly issued fully paid and
non-assessable. The relative rights and preferences of PBI's
equity securities are set forth in the Articles of Incorporation,
as amended and PBI's By-Laws (Exhibit "I" hereto). Except as set
forth above, there are no voting or equity securities convertible
into voting stock, and no outstanding subscriptions, warrants,
calls, options, rights, commitments or agreements by which PBI is
bound, calling for the issuance of any additional shares of
common stock or any other voting or equity security. The By-Laws
of PBI provide that a simple majority of the shares voting at a
stockholders' meeting at which a quorum is present may elect all
of the directors of PBI. Cumulative voting is not provided for by
the By-Laws or Articles of Incorporation of PBI. Accordingly, as
of the Closing the 10,000,000 shares being issued to and acquired
by the Sellers will constitute approximately (99%) percent of the
Common Shares of PBI which will then be issued and outstanding,
which includes inter alia, that same percentage of PBI's voting
power, right to receive dividends, when, as and if declared and
paid, and the right to receive the proceeds of liquidation
attributable to common stock, if any.
C. Ownership of Shares. By PBI's issuance of the PBI 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 PBI shares
will not have been registered under the '33 Act.
D. Significant Agreements. PBI is not and will not at Closing be
bound by any of the following, unless specifically listed in
Exhibit "J" hereto:
1. Employment advisory or consulting contract;
2. Plan providing for employee benefits of any nature;
3. Lease with respect to any property or equipment;
77
4. Contract of commitment for any future expenditure in
excess of $100.
5. Contract or commitment pursuant to which it has
assumed, guaranteed, endorsed, or otherwise become
liable for any obligation of any other person, firm or
organization;
6. Contract, agreement, understanding, commitment or
arrangement, other than in the normal course of
business, not fully disclosed or set forth in the
Agreement;
7. Agreement with any person relating to the dividend,
purchase or sale of securities, that has not; been
settled by the delivery of payment of securities when
due, and which remains unsettled upon the date of the
Agreement.
E. Sale of Business. PBI will have sold its existing business prior
to closing.
F. Taxes. PBI has filed all federal, state and local income or other
tax returns and reports that it is required to file with all
governmental agencies, wherever situate, and has approximately
$87,172 in taxes as shown on such returns. All of such returns
are true and complete.
G. Liabilities. At and as of the Closing Date, PBI will have a total
of approximately $148,954 in liabilities, exclusive of the costs,
including legal and accounting fees and other expenses, in
connection with this transaction.
H. No Pending Actions. There are no legal actions, lawsuits,
proceedings of investigations, either administrative or judicial,
pending or threatened, against affecting PBI, or against any of
PBI's officers or directors and arising out of their operation of
PBI. PBI has been in compliance with, and has not received notice
of violation of any law, ordinance of regulation to any kind
whatever, including, but not limited to, the '33 Act, the '34
Act, the Rules and Regulations of the SEC or the Securities Laws
and Regulations of any state. PBI is not now and never has been
required to file reports under the '33 Act or the '34 Act.
I. Corporate Records. All of PBI's books and records, including
without limitation, its book of account, corporate records,
minute book, stock certificate books and other records are
up-to-date, complete and reflect accurately and fairly the
conduct of its business in all respects since its date of
incorporation: all of said books and records will be delivered to
PBI's new management at the Closing.
J. No Misleading Statements or Omissions. Neither the Agreement nor
any financial statement, exhibit, schedule or document attached
hereto or presented to FD's counsel in connection herewith
contains any materially misleading statement, or
78
omits any fact or statement necessary to make the other stats of
facts therein set forth not materially misleading.
K. Validity of the Agreement. All corporate and the 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, or constitute a
default under or 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.
L. 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 PBI Common
Shares acquired pursuant hereto, free and clear of all liens and
encumbrances.
M. Access to Books and Records. FD and Sellers will have full and
free access to PBI's books and records during the course of this
transaction prior to and at the Closing.
N. PBI Financial Stats. At or before the Closing, PBI will provide
FD with recent audited financial statements, which will be
certified in accordance with GAAP by independent certified public
accountants with substantial SEC experience.
O. PBI Financial Condition. As of the Closing, PBI will have no
assets and $148,954 liabilities.
P. Stockholder Approval. Immediately upon the signing of the
Agreement, PBI will submit to its stockholders by meeting or
consent the matters described in section VII(B)(1) herein, if
required to do so under Utah Corporate Law. Xxxxxx Consulting
Group, Inc. agrees that it will vote all of its PBI shares in
favor of all items submitted to PBI stockholders in accordance
with the Agreement.
V. Term. All representations, warranties, covenants and agreements made herein
and in the exhibits attached hereto shall survive the execution and
delivery of the Agreement and payment pursuant thereto.
VI. The PBI Shares. All o f the PBI Common Shares shall be validly issued,
fully-paid and non-assessable shares of PBI Common Stock, with full voting
rights, dividend rights, and
79
the right to receive the proceeds of liquidation, if any, as set forth in
the respective Articles of Incorporation.
VII. Conditions Precedent to Closing.
A. The obligations of FD and Sellers under the Agreement shall be
and are subject to fulfillment, prior to or at the Closing of
each of the following conditions:
1. That PBI and its management representations and
warranties contained herein shall be true and correct
at the time of closing date as if such representations
and warranties were made at such time;
2. That PBI and its management shall have performed or
complied with all agreements, terms and conditions
required by the Agreement to be performed or complied
with by them prior to or at the time of Closing;
3. That PBI's stockholders, by proper and sufficient vote,
shall have properly approved all of the matters
described in Section VII(B)(1) herein, if required to
do so under Utah Corporate Law; and
B. The obligations of PBI under the Agreement shall be and are
subject to fulfillment, prior to, at the Closing or subsequent to
the Closing of each of the following conditions:
1. That PBI stockholders, if necessary by proper and
sufficient vote of its stockholders, shall have
approved the Agreement and the transactions
contemplated hereby and will have approved such other
changes as are consistent with the Agreement for
submission to PBI stockholders, if required to do so
under Utah Corporate Law;
2. That FD's and Sellers' representations and warranties
contained herein shall be true and correct at the time
of Closing as if such representations and warranties
were made at such time; and
3. That FD and Sellers shall have performed or complied
with all agreements, terms and conditions required by
the Agreement to be performed or complied with by them
prior to or at the time of Closing.
4. That Sellers, individually, and PBI, jointly and
severally indemnify and hold harmless PBI's former
officers, directors, agents and affiliates against any
claims or liabilities, including reasonable attorney's
fees and other reasonable defense costs incurred in
defending such claims or liabilities, resulting from
any claims or liabilities asserted against them to any
material misrepresentation or omissions in the
Agreement made by PBI or Sellers.
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VIII. Termination. The Agreement may be terminated at any time before or; at
Closing, by:
A. The mutual agreement of the parties;
B. Any party if:
1. Any provision of the Agreement applicable to a party
shall be materially untrue or fail to be accomplished.
2. Any legal proceeding shall have been instituted or
shall be imminently threatening to delay, restrain or
prevent the consummation of the Agreement.
Upon termination of the Agreement for any reason, in accordance with the terms
and conditions set forth in this paragraph, each said party shall bear all costs
and expenses as each party has incurred and no party shall be liable to the
other.
IX. Exhibits. All Exhibits attached hereto are incorporated herein by this
reference as it they were set forth in entirety.
X. Miscellaneous Provisions. This Agreement is the entire agreement between
the parties in respect of the subject matter hereof, and there are no other
agreements, written or oral, nor may the Agreement be modified except in
writing and executed by all of the parties hereto. The failure to insist
upon strict compliance with any of the terms, covenants or conditions of
the Agreement shall not be deemed a waiver or relinquishment of such right
or power at any other time or times.
XI. Closing. The Closing of the transactions contemplated by the Agreement
("Closing") place at 1:00 P.M. on the first business day after the
stockholders of PBI approve this transaction, if approval is required or on
September 8, 1998, whichever is sooner, if shareholder approval is not
required or can be obtained subsequent to closing by shareholder
ratification. The Closing shall occur at the offices of
__________________________________ or such other date and place as the
parties hereto shall agree upon. At the Closing, all of the documents and
items referred to herein shall be exchanged.
XII. Post-Closing: Form 10 or Form 10-SB. As soon as practical after Closing and
after PBI meets the initial listing requirements for the NASDAQ Small Caps
market, PBI will prepare, file and use its best efforts to have declared
effective a Form 10 or Form 10-SB Registration Statement with the
Securities and Exchange Commission.
XIII.Governing Law. The Agreement shall be governed by and construed in
accordance with the internal laws of the State of Utah.
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XIV. Counterparts. The Agreement may be executed in duplicate facsimile
counterparts, each of which shall be deemed an original and together shall
constitute on and the same binding Agreement, with one counterpart being
delivered to each party hereto.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals
as of the date and year above first written.
Premier Brands, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------
Xxxxxxx X. Xxxxxx
Its: President
FD Import & Export Corp.
By: /s/ Xxxx Xxxxxx
------------------------
Xxxx Xxxxxx
Its: President
SELLERS:
/s/ Xxxx Xxxxxx
-----------------------
Xxxx Xxxxxx
/s/ Xxxxxxxxx X. Dyablo
-----------------------
Xxxxxxxxx X. Dyablo
/s/ Xxxxxxxxxx Xxxxxx
-----------------------
Xxxxxxxxxx Xxxxxx
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[EXHIBIT B]
[INVOICE]
FD Import & Export Corp.
Invoice submitted to:
Premier Brands, Inc.
September 1, 1998
TOTAL CASH DUE TO XXXXXX $199,672
SEE SCHEDULE BELOW FOR BREAK DOWN OF TOTAL AMOUNT
TOTAL STOCK DUE TO XXXXXX 150,000 SHARES
Administrative and Reimbursable Expenses
Xxxxxx Consulting Group, Inc. ("Xxxxxx") $12,225
Xxxxxx for payments made to stock transfer agent $1,139
Xxxxxx for expedited listing in Standard & Poor's $ 5,000
Xxxxxx for printing and issuance of stock certificates $1,000
(Estimated)
Xxxxxx for obtaining new CUSIP Number $ 100
Xxxxxx for overnight delivery service (11 @ $14.00) $ 154
--------
Total Administrative and Reimbursable Expenses $19,618
Professional Services Rendered
Consummation of Acquisition/Merger between Premier
Brands, Inc. and FD Import & Export Corp. 150,000 shares
--------
Total Restricted Common Stock 150,000
Professional Consulting Fees Reimbursable to Xxxxxx
Xxxx Xxxxxxxx $2,800
--------
(netted down from $5,000 for payment of indemnity bond
premium)
Total $2,800
Xxx Xxxxxxxx $7,500
------
Total $7,500
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Statement of Current Liabilities
Name Amount
------
Xxxxxx & Xxxxxxxx, Auditor $20,800
Current Liabilities
Accounts payable, including Notes owing to
Xxxxx Xxxxx and Xx. Xxxxxx X. Xxxxx for
$5,000 each $23,375
Settlement payable $25,000
Payroll taxes payable $87,172
Accrued expenses $12,607
Income taxes payable 1,800
---------
Total Current Liabilities $169,754 Xxxxxx will receive 50%
of any savings effected on the current liabilities
and the remaining 50% will be re turned to the
company.
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[EXHIBIT C]
STOCK ACQUISITION AGREEMENT
This Stock Acquisition Agreement ("Agreement") is made effective this
21st day of April, 1998 by and between, Xxxxxx Consulting Group, Inc.
("Xxxxxx"), a Nevada corporation, and Premier Brands, Inc. a Utah Corporation,
the Client ("Client"), with respect to the following:
RECITALS
WHEREAS, Xxxxxx is in the business of providing general business
consulting services to privately held and publicly held corporations; and
WHEREAS, Client desires to transfer 913,060 shares of common stock in
Premier Brands to Xxxxxx to obtain advice relative to corporate and seek to
resolve various corporate obligations through utilizing Xxxxxx'x business
consulting services.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, covenants, and
agreements contained herein, and for other good and valuable consideration, the
receipt and adequacy of which is expressly acknowledged, Client and Xxxxxx agree
as follows:
15. Engagement of Xxxxxx
Xxxxxx agrees to use its best efforts to assist Client in:
a. achieving the techniques and preparing the documents for raising
capital through a placement of Premier's stock or investment
units under the rules and regulations of the Securities and
Exchange Commission (SEC) promulgated pursuant to the Securities
Act of 1933, as amended (the "Act"), including but not limited to
strategy and logistics or preparation of necessary documentation
to complete a offering in compliance with the applicable federal
and state rules and regulations, preparation of a due diligence
file, and delivery of the necessary forms to the SEC with the
requisite number of copies, funds to be raised are to be not less
than $65,000 nor more than $200,000;
b. The parties agree that any shares offered or transferred under
paragraph (a) above shall be at the price of $0.10 per share.
c. notifying market makers in order to develop a market for Clients'
stock;
d. notifying appropriate public relations and investor relations
services;.
All of the foregoing services collectively are referred to herein as
the "Consulting Services."
85
16. Compensation
Client shall compensate Xxxxxx for consulting services ("Consulting
Services") rendered pursuant to this Agreement as follows:
a. Upon completion of the initial offering and generation of not
less than $65,000, that shall be used to pay tax obligations of
Premier, Client shall transfer 913,060 shares of common stock of
Premier to Xxxxxx or its designees, at the option of Xxxxxx.
b. In addition to the above, client shall pay Xxxxxx a fee of ten
percent of the amount raised from the date of the Agreement and
during the term hereof under any subsequent private offering in
excess of $65,000 up to $200,000.
c. Any shares issued pursuant to this Agreement shall be issued in
compliance with the rules and regulations of the Act, as amended.
If Xxxxxx receives restricted shares under the Act, such shares
shall have "piggy back" registration rights with any registration
statement, such statement filed at such time as Client, in its
sole discretion, deems advisable.
d. Client shall at Xxxxxx'x request appoint new officers and
directors of Premier as designated by Xxxxxx.
e. Within 20 days of the execution hereof, Client shall deliver the
stated number of shares, with all signatures and documents
necessary to complete the transfer thereof, to a mutually agreed
upon third party to hold in trust until funds of not less than
$60,000 have been delivered to the same party, upon receipt of
the funds, the shares shall be delivered to Xxxxxx and the funds
used to satisfy the tax obligation of Premier, up to that amount.
17. Expenses.
--------
x. Xxxxxx agrees to assume and promptly pay all costs associated
with the completion of the services contemplated herein.
18. Nondisclosure of Confidential Information
a. In consideration for entering into this Agreement, the parties
herein mutually agree that the following items used in the
parties' respective businesses are secret, confidential, unique,
and valuable, and were developed by the parties at great cost and
over a long period of time, and disclosure of any of the items to
anyone other than officers, agents, or authorized employees of
the Client and Xxxxxx which may result in irreparable injury:
i. non-public financial information, accounting information,
plans of operations, possible mergers, or acquisitions prior
to the public announcement;
ii. customer lists, call lists, and other confidential customer
data;
iii. memoranda, notes, records concerning technical processes
conducted by either party;
iv. sketches, plans, drawings, and other confidential research
and development data; v. manufacturing processes, chemical
formula, and/or the composition of products; or
86
vi. any and all technology and/or computer generated programs,
including, but not limited to, hardware or software.
x. Xxxxxx shall have no liability to Client with respect to the use or
disclosure to others not party to this Agreement, of such information
as Xxxxxx can establish to:
i. have been publicly known;
ii. have become known, without fault on the part of Xxxxxx,
subsequent to disclosure by Client of such information to
Xxxxxx;
iii. have been otherwise known by Xxxxxx prior to communication
by the Client to Xxxxxx of such information; or
iv. have been received by Xxxxxx at any time from a source other
than Client lawfully having possession of such information.
19. Term of Agreement
Xxxxxx and client agree that the transfers contemplated herein shall
take place within 60 days of the execution of this Agreement. Extensions hereof
shall be by the mutual consent of the parties and shall be in writing.
20. Non-Circumvention
Client agrees that they will not enter into any transaction involving a
business opportunity or asset introduced to the Client by Xxxxxx, without
compensating Xxxxxx pursuant to this Agreement. Nor will the Client terminate
this Agreement solely as a means to avoid paying Xxxxxx compensation earned or
to be earned, or in any other way attempt to circumvent Xxxxxx or this Stock
Acquisition Agreement.
21. Due Diligence
Client shall supply and deliver to Xxxxxx all information as may be
reasonably requested, including business plans, officer questionnaires and due
diligence questionnaires to enable Xxxxxx to make an investigation of the Client
and its business prospects, and they shall make available to Xxxxxx names,
addresses, and telephone numbers as Xxxxxx may need to verify or substantiate
any such information provided.
22. Clients' Representations
Client represents, warrants, and covenants to Xxxxxx that each of the
following are true and complete as of the date of this Agreement:
a. Corporate Existence. Client is a corporation duly organized,
validly existing, and in good standing under the laws of the
state of its incorporation, with full corporate power and
authority and all necessary governmental authorization to own,
lease and operate property, and carry on its business as it is
now being conducted. Client is duly qualified to do business in
and is in good standing in every jurisdiction in which the nature
of its business or the property owned or leased by it makes such
qualifications necessary.
b. Clients' Authority for Agreement. The execution and delivery of
this Agreement and the consummation of the transactions
contemplated herein have been duly authorized by the Client. This
Agreement has been duly executed and delivered by Client, and
87
constitutes the valid and legally binding obligation of Client
enforceable in accordance with its terms, except to the extent
that enforceability may be subject to or limited by bankruptcy,
insolvency, reorganization, moratorium, or other similar laws
affecting creditor rights generally. The execution and delivery
of this Agreement and the consummation of the transactions
contemplated herein will not conflict with or result in any
violation of any provision of Clients' Articles of Incorporation
or Bylaws. To the best of Clients' knowledge, after due inquiry,
the execution and delivery of this Agreement and the consummation
of the transactions contemplated herein will not conflict with
any mortgage, indenture, lease, contract, commitment, agreement,
or other instrument, permit, concession, grant, franchise,
license, judgement, order, decree, statute, law, ordinance, rule,
or regulation applicable to Client or any of its properties or
assets.
c. Consents and Authorizations. Any consent, approval, order or
authorization of, or registration, declaration, compliance with
or filing with any governmental or regulatory authority required
in connection with the execution and delivery of this Agreement
to permit the consummation by Client and Xxxxxx of the
transactions contemplated herein shall be accomplished in a
timely manner and in accordance with federal and/or state laws
where applicable.
d. Litigation There are no judicial or administrative actions,
suits, proceedings or investigations pending, or to the knowledge
of the Client, threatened which may result in any liability on
the part of the Client other than what has already been disclosed
to Xxxxxx.
e. Involvement in Proceedings or Investigations by Securities
Regulatory Authorities The Client, its officers, 10%
shareholders, and any entity which Client or its affiliates or
officers control, has not been previously involved in any
litigation, investigations or proceedings with the SEC or any
other State or Foreign Securities Regulatory organization, and is
not presently indicted and/or was never convicted of fraud or any
similar crime involving any allegation of dishonesty or theft,
nor found guilty or is currently involved in legal proceedings of
such conduct in a civil context, other than as disclosed and with
full and complete details attached hereto.
f. Minute Books. The minute books of Client contain full and
complete minutes of all annual, special and other meetings (or
written consents in lieu thereof) of the directors and committees
of directors and shareholders of Client; the signatures on such
minutes and written consents are the true signatures of the
persons purporting to have signed them; and the stock ledger of
Client with respect to shares of Client' common stock issued or
transferred is complete and no documentary stamp taxes are
required to be affixed and canceled in connection with the
transfer or issuance of the shares.
g. Disclosure Documents. Client has or will cause to be delivered,
concurrent with the execution of this Agreement, copies of its
entity records as requested to effectuate any transaction
contemplated herein. Documents which Client agrees to provide to
Xxxxxx shall include but not be limited to audited financial
statements for the past three years of Clients' operations or as
long as the Client has been in operation, whichever is less,
which have been audited by a SEC peer approved financial auditor,
any entity resolutions and any and all other documents which may
in any way relate to the transactions contemplated in this
Agreement.
88
h. Nature of Representations. No representation or warranty made by
Client in this Agreement, nor any document or information
furnished or to be furnished by Client to Xxxxxx in connection
with this Agreement, contains or will contain any untrue
statement of material fact, or omits or will omit to state any
material fact necessary to make the statements contained therein
not misleading, or omits to state any material fact relevant to
the transactions contemplated by this Agreement.
23. Independent Legal and Financial Advice
Xxxxxx is not a law firm; neither is it an accounting firm. Xxxxxx
does, however, employ professionals in those capacities for its sole benefit.
Client represent that they have not nor will they construe any of Xxxxxx'x
representations to be statements of law. Each entity has and will continue to
seek the independent advice of legal and financial counsel regarding all
material aspects of the transactions contemplated by this Agreement, including
the review of all documents provided by Xxxxxx to Client and all opportunities
Xxxxxx introduces to Client. Further, Xxxxxx is not a broker/dealer, and does
not represent itself to be such. All advice given, all filings and all other
services provided to Client by Xxxxxx shall be complete, timely and in
compliance with current applicable Federal and State laws, rules and
regulations.
24. 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 proposals, prior negotiations and agreements,
whether oral or written, between the parties hereto in connection with the
subject matter 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.
25. Xxxxxx is not an Agent or Employee of Client.
Obligations of Xxxxxx under this Agreement consist solely of the
Services described herein. In no event shall Xxxxxx be considered to act as an
employee or agent of Client or otherwise represent or bind Client. For the
purposes of this Agreement, Xxxxxx is an independent contractor. All final
decisions with respect to acts of Client whether or not made pursuant to or in
reliance on information or advice furnished by Xxxxxx hereunder, shall be those
of Client or its affiliates and Xxxxxx, its employees or agents shall under no
circumstances be liable for any expense incurred or loss suffered by Client as a
consequence of such action or decisions.
26. 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 only by an
instrument in writing executed by 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.
89
e. Assignment.
i. The rights and obligations of Xxxxxx 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 Xxxxxx.
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.
d. Notices. Any notice or other communication required or permitted
by this Agreement must be in writing and shall be deemed to be
properly given when delivered in person to an officer of the
other party, when deposited in the United States mails for
transmittal by certified or registered mail, postage prepaid, or
when deposited with a public telegraph Corporation for
transmittal or when sent by facsimile transmission, charges
prepaid provided that the communication is addressed:
i. In the case of Xxxxxx to:
Xxxxxx Consulting Group, Inc.
000 Xxxx 000 Xxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
(000) 000-0000
(000) 000-0000 (fax)
Attention: Xxxxxxx Xxxxxx, President
In the case of Client to:
Premier Brands, Inc.
000 Xxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxxxx 00000
FAX (000) 000-0000
Attention: Xxxxx Xxxxxxxx
or to such other person or address designated by the parties in
writing to receive notice.
f. 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.
g. 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.
h. 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.
90
i. 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. The parties exclude any and all statutes,
law and treaties which would allow or require any dispute to be
decided in another forum or by other rules of decision than
provided in this Agreement.
j. Attorney 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 reasonable attorney
fees, court costs, and other costs incurred in proceeding with
the action from the other party. The attorney 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 fees, court
costs, or other costs. Should either party be represented by
in-house counsel all parties agree that party may recover
attorney fees incurred by that in-house counsel in an amount
equal to that attorney's reasonable fees for similar matters, or,
should that attorney not normally charge a fee, by the reasonable
rate charged by attorneys with similar background in that legal
community, considering all relevant factors including but not
limited to the specialty or specializations, if any, of the legal
subjects required.
k. Time is of the Essence. Time is of the essence of this Agreement
and of each and every provision hereof.
l. 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.
m. Indemnification. Client and Xxxxxx agree to indemnify, hold
harmless and defend the other from and against all demands,
claims, actions, losses, damages, liabilities, costs and
expenses, including without limitation, interest, penalties,
court fees, and attorney fees and expenses asserted against or
imposed or incurred by either party by reason of or resulting
from a breach of any representation, warranty, covenant condition
or agreement of the other party to this Agreement. Neither party
shall be responsible to the other party for any consequential or
punitive damages.
n. 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.
o. 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. Further, this Agreement may be executed in
counterparts.
91
IN WITNESS WHEREOF, the parties have executed this Agreement on the
dates indicated below.
Xxxxxx Consulting Group, Inc.
_____________________________ Date: ______________________
By:
Client
Premier Brands, Inc.
Date:
-------------------------------------------------------------------------------
By:
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