EXCHANGE AGREEMENT
Exhibit 10.2
THIS EXCHANGE AGREEMENT (the “Agreement”), dated as of September 18, 2012, is made by and between Vanity Events Holding, Inc., a Delaware corporation (“Company”), and IBC Funds, LLC (“Holder”).
WHEREAS, subject to the terms and conditions set forth in this Agreement and pursuant to Section 3(a)(9) of the Securities Act of 1933, as amended (the “Securities Act”), the Company desires to exchange with the Holder, and the Holder desires to exchange with the Company, securities of the Company as more fully described in this Agreement.
WHEREAS, on August 7, 2012, the Holder purchased a promissory note, dated January 28, 2011, in the aggregate principal amount of $10,000 and on August 1, 2012 a promissory note, dated March 23, 2011, in the aggregate principal amount of $11,500 (collectively, the “Notes”) from the holders in accordance with the terms of those certain Assignment Agreements, dated August 1, 2012 (the “Assignment Agreements”);
WHEREAS, Company and Holder wish to exchange the Notes for a Convertible Promissory Note (as defined below), of the Company;
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt and adequacy of which are hereby acknowledged, the Company and Holder agree as follows:
1. Terms of the Exchange. The Company and Holder hereby agree that as of September 18, 2012, the outstanding principal balance (including all interest due and payable) of the Notes is equal to $21,500. The Company and Holder further agree that the Holder will exchange the Notes and will relinquish any and all other rights he may have under the Notes in exchange for a convertible promissory note, due September 18, 2013, in the aggregate principal amount of $21,500 convertible into shares of the Company’s common stock at a ninety percent (90%) discount of the average closing bid price of the Company’s common stock during the five (5) trading days immediately preceding the conversion date, provided, however, that in no event shall the Conversion Price be an amount that is lower than $0.001, substantially in the form annexed hereto as Appendix A (the “New Note”).
2. Closing. Upon satisfaction of the conditions set forth herein, a closing shall occur at the principal offices of the Company, or such other location as the parties shall mutually agree. At closing, Holder shall deliver its Notes to the Company and the Company shall deliver to such Holder the New Note in the name and amount as indicated on Schedule A annexed hereto. Upon closing, any and all obligations of the Company to Holder under the Notes shall be fully satisfied, the Notes shall be terminated and marked "paid in full", and Holder will have no remaining rights, powers, privileges, remedies or interests under the Notes.
3. Further Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as any other party may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.
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4. Representations and Warranties of the Holder. The Holder represents and warrants as of the date hereof and as of the closing to the Company as follows:
a. Authorization; Enforcement. The Holder has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of this Agreement by the Holder and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Holder and no further action is required by the Holder. This Agreement has been (or upon delivery will have been) duly executed by the Holder and, when delivered in accordance with the terms hereof, will constitute the valid and binding obligation of the Holder enforceable against the Holder in accordance with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.
b. Tax Advisors. Such Holder has reviewed with its own tax advisors the U.S. federal, state, local and foreign tax consequences of this investment and the transactions contemplated by this Agreement. With respect to such matters, such Holder relies solely on such advisors and not on any statements or representations of the Company or any of its agents, written or oral. The Holder understands that it (and not the Company) shall be responsible for its own tax liability that may arise as a result of this investment or the transactions contemplated by this Agreement.
5. Representations and Warranties of the Company. The Company hereby makes the following representations and warranties to the Holder:
a. Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of this Agreement by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Company and no further action is required by the Company, the Board of Directors of the Company or the Company’s stockholders in connection therewith. This Agreement has been (or upon delivery will have been) duly executed by the Company and, when delivered in accordance with the terms hereof, will constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.
6. Release by the Holder. In consideration of the foregoing, Holder releases and discharges Company, Company’s officers, directors, principals, control persons, past and present employees, insurers, successors, and assigns (“Company Parties”) from all actions, cause of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims, and demands whatsoever, in law, admiralty or equity, which against Company Parties ever had, now have or hereafter can, shall or may, have for, upon, or by reason of any matter, cause or thing whatsoever, whether or not known or unknown, arising under the Notes.
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7. Miscellaneous
a. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns.
b. Governing Law; Jurisdiction; Waiver of Jury Trial. This Agreement shall be governed by and construed under the laws of the State of New York without regard to the choice of law principles thereof. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the State of New York located in The City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or therewith or with any transaction contemplated hereby or thereby, and hereby irrevocably waives any objection that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
c. Severability. If any provision of this Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability of any provision of this Agreement in any other jurisdiction.
d. Counterparts/Execution. This Agreement may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party. In the event that any signature is delivered by facsimile transmission or by an e-mail which contains an electronic file of an executed signature page, such signature page shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or electronic file signature page (as the case may be) were an original thereof.
e. Notices. Any notice or communication permitted or required hereunder shall be in writing and shall be deemed sufficiently given if hand-delivered or sent (i) postage prepaid by registered mail, return receipt requested, or (ii) by facsimile, to the respective parties as set forth below, or to such other address as either party may notify the other in writing.
| If to the Company, to: | Vanity Events Holding, Inc. | ||
| 0000 Xxxx Xxxxxxxxx, Xxxxx 000 | |||
| Xxx Xxxxxx Xxxxxxx, XX 00000 | |||
| Attention: CEO | |||
| If to Holder, to: | IBC Funds, LLC | ||
| 0000 Xxxxx Xxxxx Xxxxx 000 | |||
| Xxx Xxxxx, XX 00000 | |||
| Attention: Xxxxxx Xxxxxx |
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f. Expenses. The parties hereto shall pay their own costs and expenses in connection herewith.
g. Entire Agreement; Amendments. This Agreement constitutes the entire agreement between the parties with regard to the subject matter hereof and thereof, superseding all prior agreements or understandings, whether written or oral, between or among the parties. This Agreement may be amended, modified, superseded, cancelled, renewed or extended, and the terms and conditions hereof may be waived, only by a written instrument signed by all parties, or, in the case of a waiver, by the party waiving compliance. Except as expressly stated herein, no delay on the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any party of any right, power or privilege hereunder preclude any other or future exercise of any other right, power or privilege hereunder.
h. Headings. The headings used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.
(Signature Pages Follow)
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the day and year first above written.
| VANITY EVENTS HOLDING, INC. | ||||
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By: /s/Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
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Title: Interim CEO
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| HOLDER | ||||
| IBC FUNDS LLC | ||||
| By: /s/Xxxxxx Xxxxxx | ||||
| Name: Xxxxxx Xxxxxx | ||||
| Title: Managing Member | ||||
| Address: 0000 Xxxxx Xxxxx, Xxxxx 000 | ||||
| Xxx Xxxxx, XX 00000 |
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SCHEDULE A
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Name and Address
of Holder
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Principal Amount of Outstanding on Notes
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Principal Amount of New Note to be issued
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IBC Funds LLC
0000 Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
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$21,500
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$21,500
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