ASSET PURCHASE AGREEMENT
This
Asset Purchase Agreement (“Agreement”) is made as of September _____, 2004 by
and among Low Carb Centre, Inc., (LCC) Low Carb Bakery, Inc., (“LCB”) and XxXxxx
and Associates, Inc., (“MNA”) all British Columbia corporations (collectively
hereinafter referred to as the “Seller”) and Global Golf Holdings, Inc., a
Delaware corporation (the “Buyer”).
RECITALS
A. WHEREAS,
LCC is engaged in the business of e-commerce and retail sales of low
carbohydrate food products and related items. Sales are generated from the LCC
website on the World Wide Web and four retail stores located in Canada. LCB is a
Bakery engaged in the business of producing food products for the LCC retail
market, LCB has a retail and manufacturing facility located at: _______________.
MNA are in the business of managing and supervising the daily operation of LCC
and LBC. (the “Business”).
B. WHEREAS,
Seller desires to sell to Buyer, and Buyer desires to purchase from Seller, the
assets and property described in herein and referred to as the Business.
C.
WHEREAS,
as a condition to the Agreement, Buyer agrees to assume all any and all
outstanding Convertible Promissory Notes (the “Notes”) issued by the Seller in
contemplation of this Agreement. Buyer shall assume the Notes under the terms
and conditions thereof.
AGREEMENTS
Therefore,
for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1.
Transaction. Upon
the Closing hereof (as defined in Section 7 below) hereof, the Seller shall
transfer and deliver to the Buyer all of the issued and outstanding common stock
of LCC, LCB and MNA and all of the other Assets of Seller, whether tangible,
intangible, real, personal or mixed, in exchange for which the Buyer shall
deliver to the Seller consideration consisting of certificates representing duly
issued and outstanding shares of common stock of the Buyer (''Purchase
Price'').
2.
Purchased
Assets. The
term “Purchased Assets” shall mean all assets of the Business, including, but
not limited to the following:
(a)
Seller’s
suppliers, customer and vendor lists and records pertaining thereto;
(b)
The trade
names “Low Carb Centre,” “Low Carb Bakery” and “XxXxxx and
Associates.”
(c) All
registered and unregistered trademarks, service marks, sales marks, colors,
names and slogans relating to the Business, and all applications for any of the
foregoing, together with all of the Seller’s rights to use all of the foregoing
forever, and all goodwill associated with the foregoing;
(d)
The
existing phone number(s) and web-sites of the Business;
(e) All
assets referred to or referenced within any audited financial statements of the
Business in preparation or consideration of the Closing (as defined herein) of
this transaction.
(f)
Any and
all recipes, trade secrets, trade practices, décor, goodwill, clients,
equipment, furniture, assets, machinery, trade fixtures, miscellaneous supplies,
inventory, existing contracts and tangible personal property including without
limitation those items set forth on Exhibit
A,
attached hereto and incorporated herein by this reference.
3.
Liabilities. Any and
all liabilities recorded on the pre-transaction balance sheet of the Seller
shall not be the responsibility of the Buyer following the Closing (as defined
below) of the Buyer.
4.
Purchase
Price. Upon
the terms and conditions contained herein, the Purchase Price to be paid by the
Buyer to Seller for the sale, transfer, assignment, conveyance and delivery of
the Purchased Assets free and clear of all liens and encumbrances, shall be the
sum total of fourteen million two hundred seventy three thousand one hundred
ninety-nine (14,743,199) shares of the Buyer’s common stock.
5.
Manner
of Payment of the Purchase Price. Buyer
is paying the Purchase Price by delivering common share certificates to the
Seller equal to 14,743,199 common shares of the Company.
6.
The
Closing. The
term “Close,” “Closing,” “Closes” or “Closed” shall refer to the Closing of the
various transactions contemplated hereby, all of which shall be deemed
consummated when, and only when, the terms and conditions as set forth herein
have been fully complied with and the purchase by the Buyer of the Seller has
transpired and is effective within 90 days (“Closing Period”) from the date of
execution of this Agreement. Conversely, if the various transactions proposed
and/or discussed herein do not Close within the prescribed Closing Period, the
various transactions contemplated herein will have failed, and the Notes shall
be converted into Failed Transaction Shares under the terms of the Note and this
Agreement.
7.
Conduct
and Transactions of Seller Prior to the Closing. Between
the date of this Agreement and the Closing, the executive officers and Board of
Directors of the Seller shall retain full control of the management and business
thereof. In order to assure protection and preservation of the Seller's assets,
properties and businesses as well as the Seller's performance of its obligations
under and related to this Agreement, the Seller agrees that from the date of
this Agreement up to and including the Closing:
(a)
The
Seller shall preserve, or cause to be preserved substantially intact, its
business organization, except such changes as may be required, with the Buyer's
consent, to effect the transactions contemplated hereby, and the Seller shall
use its best efforts to keep available the services of its present officers and
principal employees, and to preserve its existing business relationships.
(b)
The
Seller agrees that prior to Closing it will not, without the prior written
consent of the Buyer (which consent will not be unreasonably withheld)
to:
(i)
Redeem
directly or indirectly or agree to redeem, purchase, or otherwise acquire any of
its capital stock or other ownership interest;
(ii)
Effect a
split or reclassification of its capital stock, liquidate, recapitalize, or
reorganize itself except as contemplated herein;
(iii)
Merge or
consolidate, or sell all or substantially all of its assets or enter into any
agreement for such merger, consolidation, or sale of assets, except as required
by the transactions contemplated by this Agreement;
(iv)
Change
the character of its business;
(v)
Except in
the ordinary course of business, waive any contractual rights of substantial
value;
(vi)
Breach
any agreement to which the Seller is a party if such breach would have a
material adverse effect on the business of the Seller.
(c)
The
Seller will exert its best efforts to fulfill in a timely manner all objectives
and conditions to permit consummation of the transactions as contemplated and
execute and deliver to the Buyer any and all documents necessary, in the
reasonable opinion of its counsel, to consummate the transactions contemplated
by this Agreement, and cause the Subsidiaries to do the same.
8.
Conduct
and Transactions by the Buyer Prior to Closing. Between
the date of this Agreement and the Closing, the Buyer shall use its best efforts
to fulfill in a timely manner all objectives and conditions to permit
consummation of the transactions as contemplated herein and execute and deliver
to the Seller any and all documents necessary, in the reasonable opinion of its
counsel, to consummate the transactions contemplated by this Agreement, and to
cause its subsidiaries to do the same. In order to assure the continuity of the
Buyer's business, financial condition, assets and properties as well as the
Buyer's performance of its obligations under and related to this Agreement, the
Buyer agrees as follows:
(a)
From the
date of this Agreement up to the Closing, the Buyer will operate its business in
the ordinary course and shall preserve, or cause to be preserved substantially
intact, its business organization, except for such changes as may be required to
effect the transactions contemplated by this Agreement.
(b)
From the
date of this Agreement up to and including the Closing, the Buyer will notify
the Seller promptly of any material changes in the business, assets, financial
condition or properties of the Buyer.
(c)
The Buyer
hereby undertakes and agrees to use its best efforts to ensure that all of the
Buyer's Common Stock deliverable pursuant to Section 2.01(d) hereof, the
Warrants deliverable pursuant to Section 2.01(c) hereof and the Buyer's Common
Stock acquirable upon the exercise of such Warrants, when issued, shall be duly
authorized and validly issued by the Buyer, fully paid and non-assessable, and
shall not be issued in violation of, and shall otherwise be free of, pre-emptive
rights.
9.
Conditions
Precedent.
(a) Seller
shall have prepared audited financial statements concerning Seller’s Business.
Said audited financial statements shall be prepared in accordance with the rules
and regulations as promulgated by the Securities and Exchange Commission (“SEC”)
and delivered to Buyer prior to the Closing. The Seller shall be responsible for
any and all costs and fees associated with the preparation of the audited
financial statement.
(b)
Neither
the Buyer nor the Seller shall have (i) made a general assignment for the
benefit of creditors, (ii) filed a petition in bankruptcy, or been adjudicated a
bankrupt or insolvent, (iii) filed a petition seeking any reorganization,
arrangement, imposition, readjustment, liquidation, dissolution or similar
relief under any present or future bankruptcy or similar statute, law or
regulations, (iv) filed an answer admitting or not contesting the material
allegations of a petition against it in any such proceeding, or (v) sought or
consented to or acquiesced in the appointment of any trustee, receiver, or
liquidator of any material part of its properties.
(c)
There
shall not be pending any suit or action seeking to enjoin the transactions
contemplated by this Agreement nor shall any judgment, temporary restraining
order, injunction or similar relief restraining or inhibiting such transaction
have been issued by any court or governmental agency (other than any suit or
action with respect to which it is not reasonable to believe that the
transactions contemplated by this Agreement may be enjoined). If any request for
an injunction in connection with the transactions contemplated by this Agreement
is scheduled to be heard, the Closing shall not take place until after the
disposition of such request. If an injunction is granted, either party may
terminate this Agreement.
10. Closing
Deliveries. On the
date hereof the parties are executing and/or delivering such documents as are
reasonably required in order to effectuate the consummation of the transaction
contemplated hereby.
11. Taxes. The
parties hereto have been advised and have agreed to seek independent counsel
regarding the tax consequences and liabilities that may arise upon the Closing
of this Agreement.
12. Further
Assurances. The
parties shall execute such further documents, and perform such further acts, as
may be necessary to transfer and convey the Purchased Assets to Buyer, on the
terms herein contained, and to otherwise comply with the terms of this Agreement
and to consummate the transaction contemplated hereby.
13. Miscellaneous.
a Entire
Agreement. This
Agreement and the instruments to be delivered by the parties pursuant to the
provisions hereof constitute the entire agreement between the
parties.
b.
Survival;
Nonwaiver. All
representations and warranties shall survive the consummation of the transaction
contemplated herein and for a period of two (2) years following the date hereof
(and none shall merge into any instrument of conveyance) regardless of any
investigation or lack of investigation by any of the parties hereto. The failure
in any one or more instances of a party to insist upon performance of any of the
terms, covenants or conditions of this Agreement, to exercise any right or
privilege in this Agreement conferred, or the waiver by said party of any breach
of any of the terms, covenants or conditions of this Agreement, shall not be
construed as a subsequent waiver of any such terms, covenants, conditions, right
or privileges, but the same shall continue and remain in full force and effect
as if no such forbearance or waiver had occurred. No waiver shall be effective
unless it is in writing and signed by an authorized representative of the
waiving party.
c.
Applicable
Law. This
Agreement shall be governed and controlled as to validity, enforcement,
interpretation, construction, effect and in all other respects by the internal
laws of the State of Delaware applicable to contracts made in that State,
without regard to any conflict of law principles of the State of Delaware. Buyer
and Seller irrevocably consent and submit to the exclusive jurisdiction of any
local, state or federal court State of Delaware for enforcement of this
Agreement. Buyer and Seller irrevocably waive any objection they may have to
venue in the defense of an inconvenient forum to the maintenance of such actions
or proceedings to enforce this Agreement.
d.
Binding
Effect. This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their successors and permitted assigns. Nothing in this Agreement, express
or implied, is intended to confer on any person other than the parties hereto,
and their respective successors and permitted assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
e.
Amendments. This
Agreement shall not be modified or amended except pursuant to an instrument in
writing executed and delivered on behalf of each of the parties
hereto.
f.
Headings. The
headings contained in this Agreement are for convenience of reference only and
shall not affect the meaning or interpretation of this Agreement.
g.
Severability.
Whenever possible, each provision of this Agreement shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be invalid, illegal or unenforceable in any respect
under any applicable law or rule in any jurisdiction, such invalidity,
illegality or unenforceability shall not affect any other provision or any other
jurisdiction, and this Agreement shall be reformed, construed and enforced in
such jurisdiction so as to best give effect to the intent of the parties under
this Agreement.
h.
Counterparts. This
Agreement may be executed in separate counterparts, each of which is deemed to
be an original and all of which taken together constitute one and the same
agreement.
i.
No
Strict Construction. The
parties hereto jointly participated in the negotiation and drafting of this
Agreement. The language used in this Agreement shall be deemed to be the
language chosen by the parties hereto to express their collective mutual intent,
this Agreement shall be construed as if drafted jointly by the parties hereto,
and no rule of strict construction shall be applied against any person or
entity.
j.
Interpretation.
Whenever the term “include” or “including” is used in this Agreement, it shall
mean “including, without limitation,” (whether or not such language is
specifically set forth) and shall not be deemed to limit the range of
possibilities to those items specifically enumerated. The words “hereof”,
“herein” and “hereunder” and words of similar import refer to this Agreement as
a whole and not to any particular provision. Terms defined in the singular have
a comparable meaning when used in the plural and vice versa.
k.
Attorneys'
Fees. In the
event that either party hereto brings an action or proceeding against the other
party to enforce or interpret any of the covenants, conditions, agreements or
provisions of this Agreement, the prevailing party in such action or proceeding
shall be entitled to recover all costs and expenses of such action or
proceeding, including, without limitation, reasonable attorneys' fees, charges
and disbursements actually incurred, and the reasonable fees and costs of expert
witnesses actually incurred.
IN
WITNESS WHEREOF, the
parties have executed this Asset Purchase Agreement on the date first
above
written.
LOW
CARB CENTRE, INC.
GLOBAL GOLF HOLDINGS, INC.
_____________________________ _____________________________
By:
Xxxxx-Xxxx XxXxxx By: Ford
Sinclair
Its:
President Its:
Chief Executive Officer
LOW
CARB BAKERY, INC.
_____________________________
By:
Xxxxx-Xxxx XxXxxx
Its:
President & Co-Owner
LOW
CARB BAKERY, INC.
_____________________________
By: Xxxxx
Xxxx Chow
Its:
Co-Owner
LOW
CARB BAKERY, INC.
_____________________________
By: Chizn
Moi Wu (Xxxxxx Xxxx)
Its:
Co-Owner
XXXXXX
AND ASSOCIATES, INC.
_____________________________
By:
Xxxxx-Xxxx XxXxxx
Its:
President
