EXHIBIT 10.11
VICTORIA STATION MIAMI, INC.
AND
XXXX MANAGEMENT CORPORATION
STOCK AND ASSET PURCHASE AGREEMENT
THIS STOCK AND ASSET PURCHASE AGREEMENT (hereinafter referred to as the
"Agreement") is made and entered into this 29th day of September, 1997, by and
between Carnegie International Corporation, a Corporation of the State of
Colorado (hereinafter referred to as "Carnegie"), Talidan USA, Inc., a
Corporation of the State of Maryland (hereinafter referred to as "Talidan")
Xxxxx Xxxxxxx, Individually (hereinafter referred to as "Saltoun"), Victoria
Station Miami, Inc. (hereinafter referred to as the "Victoria"), a Corporation
of the State of Florida, Xxxx Management Corporation (hereinafter referred to as
"Xxxx"), a Corporation of the State of Florida and A.S. Management Corporation
(hereinafter referred to as "A.S."), a Corporation of the State of Connecticut.
Talidan and Carnegie shall hereinafter be collectively referred to as
"Purchaser". Saltoun, A.S. and Xxxx shall hereinafter be collectively referred
to as "Seller". Victoria and Xxxx shall hereinafter be collectively referred to
as the "Companies" or "Company."
EXPLANATORY STATEMENT
Saltoun owns two hundred (200) shares of Common Stock of Victoria,
which represents One Hundred Percent (100%) of the issued and outstanding
Victoria Stock, (hereinafter referred to as the "Shares"). Victoria owns the
lease rights and liquor license relating to Victoria Station Restaurant located
at 0000 Xxxxxxxxx 00' Xxxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxx 00000 (hereinafter
referred to as the "Premises" or "Virginia Gardens location"). Xxxx owns One
Hundred percent (100%) of the assets used in the operation of the Premises
including equipment, furniture, fixtures and the like (hereinafter referred to
as the "Assets"), but excluding the real property owned by a Third Party as well
as the assets specifically enumerated herein as being owned by Victoria and A.S.
and except for assets (See Exhibit A list) provided by and owned by certain
vendors. A.S. owns all proprietary interests related to Trademarks and Service
Marks for Victoria Station Restaurants, including those attributable to the
Premises, which A.S. shall hereby grant a license for same to Victoria,
simultaneous with Carnegie's acquisition of Victoria, for use outside of certain
New England states (hereinafter referred to as the "Marks") as provided in a
License Agreement of even date. The Shares, Marks and Assets shall hereinafter
be collectively referred to as the "Property".
Talidan shall purchase the Assets from Xxxx and Carnegie shall purchase
the Stock from Saltoun, together with such relative rights, preferences and
limitations as appertain to said Property, as are hereinafter provided by this
Agreement. Xxxx and Saltoun shall issue, sell, transfer and deliver said
Property to Carnegie and Talidan, respectively, upon the terms and conditions
provided by this Agreement.
NOW, THEREFORE, in consideration of the Explanatory Statement, which
shall constitute a substantive part of this Agreement, and the mutual covenants,
promises, agreements,
representations and warranties hereinafter set forth, the receipt and
sufficiency of which are hereby acknowledged, Purchaser, Seller and Company do
hereby covenant, promise, agree, represent and warrant as follows:
1. Closing; Purchase of Shares and Assets:
1.1. The closing (hereinafter referred to as the "Closing") of the
purchase of the Property provided by this Agreement shall take place
simultaneously with the execution of this Agreement, or on such other day as
Purchaser and Seller shall agree in writing, at the law offices of Xxxxxxxxx and
Pearl, LLP and Murai Wald Xxxxxx & Xxxxxx, respectively, through an escrow
arrangement agreeable to the parties unless the place and means of closing is
changed pursuant to a writing signed by all parties hereto (hereinafter, such
day shall be referred to as the "Closing Date", and such law offices shall be
referred to as the "Closing Place.")
1.2. On the Closing Date and at the Closing Place, Saltoun shall
issue, sell, transfer and deliver to Carnegie the Shares, which Shares shall in
each instance be represented by one or more stock certificates of Victoria duly
registered in the name of Carnegie (a copy of which is attached hereto as
Exhibit A1), and Xxxx shall sell, transfer and deliver all the Assets of Xxxx
pursuant to a Xxxx of Sale (a copy of which is attached hereto as Exhibit A2)
and List of Assets (a copy of which is attached hereto as Exhibit A3).
1.2.1. Cut-Off Date: The Parties hereby agree that for
purposes of calculating income, expenses, assets, liabilities, accounts
receivable and accounts payable, the effective date of all such calculations
shall be 12:00 A.M., August 18, 1997 (the "Cut-Off Date"), regardless of the
date of completion of this Agreement.
1.2.2. Post Closing-Adjustments: Seller and Purchaser agree
that a representative of Purchaser shall visit Seller's premises where books and
records are maintained to reconcile said books for the purpose of determining
the total Virginia Gardens location revenue and expenses earned and incurred,
respectively, after the Cut-Off Date until the date that revenue begins to be
deposited and expenses begin to be disbursed from a new separate bank account in
Carnegie's or one of its subsidiaries' name. Said visit shall occur within the
later of thirty (30) days after closing or within such reasonable time period
after closing that allows Talidan to become registered to do business in Florida
and open a business bank account in Florida. The cash basis net income/(loss)
after the Cut-Off Date shall be determined by subtracting such expenses after
cut-off from such revenue after cut-off and taking into account and excluding
adjustments made between the parties prior thereto (as reflected on a Schedule
of Closing Adjustment included herewith as Exhibit A4). If there is net income,
such net income shall be transferred to Talidan's new bank account. If there is
a net loss, Talidan shall reimburse Saltoun for same, if it has not already done
so.
1.3. Purchase Price: The purchase price for the Property shall be
Three Hundred and Twenty-Five Thousand Dollars ($325,000) and 25,000 shares of
Carnegie stock to
- 2 -
be paid as follows (plus an amount equal to the cash on hand and in the bank of
the Companies as of the Cut-Off Date, utility deposits and reimbursement for
certain equipment as specified on the Schedule of Closing Adjustments included
herewith as Exhibit A4):
1.3.1. $140,000 which was paid to Saltoun on or before July
18, 1997, vesting in Carnegie on the Cut-Off Date, subject to the provisions of
this Agreement, complete possession, ownership and control of the Shares and the
management and operations of Victoria and its assets and the Marks, vesting in
Talidan complete possession, ownership and control of the Assets of Xxxx,
including but not limited to the leases, equipment, liquor license, trade and
service marks (for use outside of New England), building and other improvements
and assets relating thereto for each such entity (subject to the terms of
Section 1.6). Carnegie shall be responsible for liabilities of Victoria incurred
subsequent to the Cut-Off Date and for financial, license and tax reporting of
Victoria subsequent thereto, except as provided to the contrary herein. Seller
and Victoria shall cooperate in and facilitate the immediate transfer of
possession, ownership and control of the Property including all assets and
operations relating to the Virginia Gardens location, as of the closing date.
1.3.2. $185,000 payable not later than January 15, 1998. Said
Principal balance shall accrue simple interest at the rate of ten percent (10%)
per annum payable monthly on the outstanding balance accruing from the Cut-Off
Date. Carnegie may at its option pay off or pay down the balance before January
15, 1998 with no penalty. A Promissory Note (hereinafter referred to as the
"Note") reflecting this obligation shall be secured by the Shares and by the
Assets, pursuant to a Stock Pledge Agreement (the "Stock Pledge Agreement"),
Security Agreement (the "Security Agreement") and Financing Statement, all in
form and substance satisfactory to Seller and Purchaser consistent with
reasonable industry practice.
1.3.3. In the event Carnegie does not tender the balance of
$185,000 in accordance with Section 1.1.2. above, Saltoun shall retain the One
Hundred Forty Thousand ($140,000) payment under Section 1.3.1., the possession,
and control of the Property shall immediately be given and revert back to the
Seller and Seller shall be entitled to pursue its remedies under the Stock
Pledge Agreement and the Security Agreement. Carnegie shall be responsible to
fund on the Closing Date or by wire transfer within twenty-four (24) hours
thereafter, an operating account based on a reasonable estimate of cash flow
needs, to be agreed upon in writing by the parties hereto. If the initial
deposit in the operating account is not adequate, Carnegie shall provide
additional funding, based on a monthly review of the account by the parties
hereto. The working capital provided by Carnegie shall be returned to Carnegie,
minus losses or plus income after the Cut-Off Date, as the case may be, upon
payment of the balance of the Note. If the balance of the note is not paid,
operating income shall revert to A.S. Management. However, A.S. Management
and/or Saltoun shall reimburse Carnegie for any deposits which Carnegie funded,
replaced or for which Carnegie reimbursed Seller or Victoria.
1.3.4. Adjustments: All expenses and income, accruals,
bonuses, salaries, taxes, insurance, deposits, vacation leave or the like shall
be adjusted as of the Cut-Off
- 3 -
Date, such that Seller shall pay all such expenses and receive all income before
such date, and Carnegie shall be responsible for such expenses and receive all
income on the Closing Date and thereafter. Carnegie shall reimburse Seller on
the Closing Date for all prepaid insurance, property taxes, utility deposits,
licenses, etc., paid or reasonably estimated to be paid by Seller as of the
Cut-off Date. The reimbursement to Seller shall be setoff by outstanding
liabilities of Seller, accrued vacation, taxes, utilities, surcharges, payroll,
payables, or expenses paid after the Cut-Off Date that were incurred prior to
the Cut-Off Date or other similar items as of the Cut-Off Date. All
reimbursements and setoffs are subject to verification by Purchaser through
examination of underlying documentation within fourteen (14) days of Closing.
1.3.5. Seller shall be reimbursed on the Closing Date for
food and beverage inventory as of the Cut-Off Date.
1.3.6. Any income from the Virginia Gardens location prior to
the payment of the outstanding balance of the purchase price shall be placed in
a new bank account approved by Carnegie with sole signatory authority by Saltoun
until such time as the outstanding balance of the Note is paid in full. Saltoun
shall use the income as well as the working capital provided by Carnegie, as
provided in Section 1.3.3 hereof, in the new account to pay all expenses
attributable to the Virginia Gardens location that are incurred subsequent to
Carnegie taking ownership, possession and control thereof. All net income and/or
net cash flow shall remain in the new account until the balance of the Note is
paid, at which time Carnegie only may use such funds. Saltoun shall provide
Carnegie with daily activity reports on a weekly basis indicating details of
income and expense activity. Saltoun shall also provide a statement of income
and expenses on a monthly basis. Upon payment of the outstanding balance of the
purchase price, signatory authority for the new account shall be transferred to
a designee of Carnegie and Saltoun's name and signatory authority shall be
removed.
1.3.7. Carnegie shall cause its designee to transfer 25,000
shares (Exhibit A5) to Saltoun or his designee of Carnegie Common stock without
legend and without current restrictions on or about the Closing Date.
1.3.8. At closing Purchaser shall receive a credit in the
amount of $1,250.00 for repairs or replacements to the air conditioning system
which Purchaser deems necessary.
1.3.9. The Purchase Price shall be allocated as follows:
- 4 -
1) Equipment $175,000
2) Furniture and Fixtures 25,000
3) Leasehold Improvements 25,000
4) Liquor License 60,000
5) Lease 15,000
6) Goodwill 20,000
7) Covenant Not To Compete 5,000
1.4. Purchaser acknowledges that, prior to the execution of this
Agreement, it has conducted a due diligence investigation of the operations of
the Virginia Gardens location and the Assets, including, without limitation, an
investigation of the financial operations of the Virginia Gardens location, the
books and records of Seller relating to the same and the condition of the
Premises and the Assets, and Purchaser is satisfied with the results of the
investigation, except as provided to the contrary herein in Section 1.3.8
hereof. Purchaser has had an opportunity to investigate all matters which
Purchaser has deemed relevant concerning the Shares and the Assets and has had
an opportunity to discuss the same with the officers of the Companies and of
A.S.
1.4.1. PURCHASER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS MAY
OTHERWISE BE SPECIFICALLY AND EXPRESSLY PROVIDED FOR HEREIN, NEITHER SELLER NOR
VICTORIA HAS MADE ANY REPRESENTATIONS, WARRANTIES, OR AGREEMENTS CONCERNING THE
SHARES, THE VIRGINIA GARDENS LOCATION OR THE ASSETS, EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. PURCHASER SHALL ACCEPT THE PREMISES AND THE ASSETS IN THEIR
"AS IS, WHERE IS" CONDITION AS OF THE CLOSING DATE, "WITH ALL FAULTS."
1.5. There shall be no debt of Victoria as of and including the
Cut-Off Date (see Certificate of No Debts included herewith as Exhibit B).
Seller shall pay to Purchaser as an adjustment at closing an amount equal to the
payables, accrued vacation, payroll, taxes and the like of Seller which
Purchaser will pay on behalf of Seller, pursuant to Section 1.3.4. hereof The
Parties agree that Purchaser is not responsible for any debts of Xxxx and all
such debts shall be paid in full by Seller as of the Cut-Off Date.
1.5.1. Anything to this Agreement to the contrary
notwithstanding, all claims of the Companies against insurance companies prior
to the Cut-Off Date, and all proceeds therefrom, shall belong solely to Seller
and shall not be transferred to Purchaser as part of the transactions
contemplated hereby. Prior to the closing, to the extent necessary, Victoria
will assign any such claims made by Victoria to Seller or its designee. All
legal expenses or other expenses in connection with such claims shall be the
sole responsibility of Seller. Purchaser agrees after the closing to execute any
and all documents which may be reasonably necessary to confirm and ratify unto
Seller, or its designee, the ownership of all such insurance claims.
- 5 -
1.6. OPERATION RESTRICTIONS DURING NOTE PERIOD
From the date of closing until the Note has been satisfied,
Carnegie shall own and operate the Companies subject to the following terms:
1.6.1. Saltoun shall manage and control the financial and
accounting component of the Companies' business, including all accounts
receivable and payable in accordance with Section 1.3.6. hereof, in a new
separate bank account in a name or names designated by Carnegie.
1.6.2. Carnegie shall keep the Assets and the Premises in
good repair and working order.
1.6.3. Carnegie shall not until the Note is paid in full
incur any liabilities related to the Virginia Gardens location except in the
ordinary course of business consistent with the past practices of the Virginia
Gardens location.
1.6.4. No changes shall be made to salary levels of
Management or hourly employees that existed as of June 1, 1997.
1.6.5. No changes shall be made to the menu, marketing,
pricing or vendor agreements without the prior approval of the Seller.
1.6.6. No agreements shall be entered for the Virginia
Gardens location accepting any "discount cards" such as IGT, Transmedia, etc.
1.6.7. No changes to the management of the Virginia Gardens
location shall be made without Seller's approval which shall not be unreasonably
withheld.
1.6.8. Carnegie shall keep the Virginia Gardens location and
the Assets insured against all risks for which the Virginia Gardens location and
the Assets are currently insured by Seller and Victoria, including general
liability and all risk property and casualty insurance. Such insurance policies
shall be issued by companies reasonably acceptable to Seller. Such policies
shall provide for coverage in amounts at least as high as currently carried by
Seller and Victoria and with deductibles not higher than those provided under
the policies carried by Seller and Victoria. Seller shall be named as an
additional insured on all such policies.
1.6.9. Victoria shall not issue, sell, pledge, or dispose of
or authorize the issuance, sale, pledge or disposition of any shares of its
stock or any of its assets. Carnegie shall not sell, pledge, dispose of or
encumber any of the Assets.
- 6 -
1.6.10. Carnegie shall operate the Virginia Gardens location
in the ordinary course of business, consistent with past practices, and shall
not permit Victoria to enter into any transactions other than in the ordinary
course of business consistent with past practices. No agreement shall be entered
into by Victoria or by Purchaser with respect to the Virginia Gardens location
which are not cancelable at will, without penalty, other than routine service
contracts for such periods as such service contracts currently provide.
2. Representations and Warranties of the Seller and Victoria
Seller and Victoria represent and warrant to Purchaser as follows:
2.1. Seller is, and as of the Closing Time will be the valid and
legal owner of the Property being transferred hereby and owns the Property free
and clear of any and all liens and encumbrances. The Seller owns all assets of
and relating to Victoria Station Restaurant located at 0000 Xxxxxxxxx 00xx
Xxxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxx 00000 (hereinafter referred to as the
"Virginia Gardens location), including but not limited to the leases, equipment,
liquor license, trade and service marks (for use outside of New England),
building and other improvements and assets relating thereto. More specifically,
Xxxx owns all the assets except for the liquor license and lease rights which
are owned by Victoria, the Marks which are owned by A.S. and the stock of
Victoria which is owned by Saltoun.
Saltoun represents and warrants that he owns one hundred
percent (100%) of the stock of A.S., that A.S. has served as the Management
Company for Victoria and Xxxx and has fairly and accurately in all material
respects reflected and allocated all assets, liabilities, income and expenses
related to both the management and results of operations of the Companies on the
books and records of Xxxx, which has been presented to Carnegie in summary form
for the periods ended December 31, 1995 and December 31, 1996 respectively and
designated as V15 to differentiate the income and expenses relating to
management and operation of the Virginia Gardens location from income and
expenses related to other assets or endeavors that are managed by A.S.
2.2. Seller and Victoria have the requisite and proper authority
to enter into the within agreement and to transfer, assign and sell the Property
in accordance with the terms hereof
2.3. Companies are, and at the Closing Time will be, corporations
duly organized, validly existing and in good standing under the laws of Florida.
Company has, and at the Closing Date will have, the power and authority to own,
lease and operate its properties and to conduct its business as such business is
now being conducted by Company. A complete and correct copy of the appropriate
documents including, but not limited to the certificate of incorporation, as
amended, and the by-laws, as amended, of Company, are attached to this Agreement
collectively as Exhibit C and are incorporated by reference herein, and no
changes therein will be made subsequent to the date hereof and prior to the
Closing Time.
- 7 -
2.4. Victoria has validly authorized, issued, and has outstanding,
and, except as hereinafter set forth in this Section 2.2, on the Closing Date
will have authorized, issued and outstanding, fully paid and non-assessable, Two
Hundred (200) shares of its common stock. Upon issuance, sale, transfer and
delivery of the Shares to Purchaser, the shares of Victoria Common Stock issued
and outstanding will constitute One Hundred Percent (100%) of the issued and
outstanding capital stock of Victoria. Except as hereinafter set forth in this
Section 2.4, Victoria does not have outstanding, and on the Closing Date will
not have outstanding, any options to purchase, or any rights or warrants to
subscribe for, or any securities or obligations convertible into, or any
contracts or commitments to issue or to sell assets or shares of common stock or
any such options, rights, warrants, convertible securities or obligations.
Victoria has not issued, and hereby warrants and represents that it shall not
issue any Stock options (hereinafter referred to as the "Options"), which grant
to the holders thereof the right to purchase in the aggregate any shares of the
Company Common Stock.
2.5. When issued, sold, transferred and delivered to Purchaser
upon payment of the consideration set forth in Section I hereof, the Property
will be fully paid and non-assessable, free and clear of all mortgages, pledges,
liens, security interests, conditional sale agreements, charges, encumbrances
and restrictions of every nature, except for those created pursuant to the terms
of this Agreement.
2.6. Except as set forth on Exhibit D, Company has filed all tax
returns, as appropriate, country wide, state and local, and all related
information required to be filed prior to the date hereof, and at the Closing
Time shall have filed all tax returns, as appropriate, and all related
information required to be filed prior to the Closing Time. To the best
knowledge of Seller and Victoria, the amounts reflected in the Balance Sheet for
taxes are sufficient for the payment of all accrued and unpaid federal, state
and local taxes of all types, including interest and penalties thereon, of
Company for or on account of which Company is or may become liable in any manner
whatsoever for the years noted above and for all prior periods.
2.7. Since July 1, 1997:
2.7.1. The business of Companies have been operated, and
prior to the Closing Date will be operated, only in the ordinary course.
2.7.2. Except as set forth in Exhibit D1, there has been, and
prior to the Closing Date there will be, no material adverse change,
individually or in the aggregate, in Company's condition (financial or
otherwise) or in Company's assets, liabilities or business.
2.7.3. There has been, and prior to the Closing Date there
will be, no damage, destruction or loss to the Company or any of its contracts,
assets, inventory, accounts, or other properties, or other events or conditions
of any character, or any pending or threatened developments, individually or in
the aggregate, which would materially and adversely affect the
- 8 -
Marks of A.S. or the Company's condition (financial or otherwise) or Company's
assets, liabilities or business.
2.8. Except as set forth in Exhibit D I attached hereto and
incorporated by reference herein, there is, and on the Closing Date there will
be, no material action, suit, proceeding or investigation pending or, to the
knowledge of Company, threatened, against or affecting Company or any of its
assets. Company is not, and on the Closing Date will not be, in default under or
with respect to any judgment, order, writ, injunction or decree of any court or
of any federal, state, municipal or other governmental authority, department,
commission, board, agency or other instrumentality. To Seller's knowledge,
Company has, and on the Closing Date will have, complied in all material
respects with all laws, rules, regulations and orders applicable to it and to
its business; has, and on the Closing Date will have, performed in all material
respects all of its material obligations and duties to be performed by it to the
extent required in accordance with their respective terms; and is not, and on
the Closing Date will not be, in default under or in material breach of any
material contract, agreement, commitment or other instrument to which it is
subject or a party or under which it is bound.
2.9. Seller and Victoria have not, and on the Closing Date will
not have, incurred any liability, obligation or duty for any finder's, agents or
broker's fee or commission in connection with this Agreement or the transactions
contemplated hereby.
2.10. The Board of Directors of the Company and A.S., pursuant to
the power and authority legally vested in it, has duly authorized the execution,
sealing and delivery of this Agreement by the Seller and Victoria, Common Stock
of Victoria, Assets of Xxxx, Marks of A.S. and the transactions hereby
contemplated, and no action, confirmation or ratification by any stockholder of
the Company, Seller, or by any other person, entity or governmental authority is
required in connection therewith. The Seller and Victoria have the power and
authority to execute, seal and deliver this Agreement, to consummate the
transactions hereby contemplated and to take all other actions required to be
taken by them pursuant to the provisions hereof. The Seller and Victoria have
taken all actions required by law, the Company's and A.S.'s certificate of
creation or incorporation, as amended, its bylaws, as amended, or otherwise to
authorize the execution, sealing and delivery of this Agreement and the
issuance, sale, transfer and delivery of the Property pursuant to the provisions
hereof. This Agreement is valid and binding upon the Seller and Victoria in
accordance with its terms. Neither the execution, sealing and delivery of this
Agreement nor the consummation of the transactions contemplated hereby will
constitute a violation or breach of the certificate of incorporation, as
amended, or the by-laws, as amended, of the Company or A.S., or any agreement,
stipulation, order, writ, injunction, decree, law, rule or regulation applicable
to Victoria or the Seller.
2.11. Attached hereto as Exhibit E and incorporated by reference
herein is a list of all officers and directors of each Company and all
beneficial owners of the issued and outstanding Company Common Stock, and the
number of shares of the Company Common Stock
- 9 -
owned of record and beneficially by each such officer, director and beneficial
owner. To the best knowledge of Company, the information set forth on Exhibit E
is true and correct.
2.12. To Seller's knowledge neither this Agreement nor any written
information, statement, list or certificate furnished or to be furnished to
Purchaser pursuant to this Agreement or in connection with this Agreement or any
of the transactions contemplated by this Agreement contains or, on the Closing
Date will contain any untrue statement of a material fact or omits or, on the
Closing Date will omit to state a material fact necessary in order to make the
statements contained therein, in light of the circumstances in which they are
made, not misleading.
2.13. Seller's and Victoria's Release. Seller and Victoria hereby
warrant, represent and acknowledge that they shall execute at the time of
closing a release of all claims which reflects Seller and Victoria's complete
release and discharge of any claims it may have against Victoria, both
individually and as an officer or Director of the Company, except for those
considerations due as set forth in this Agreement. Such release shall be
attached hereto and incorporated herein by reference as Exhibit F.
2.14. [Intentionally left blank]
2.15. Seller shall accurately maintain the books of account of
Victoria, Talidan or any other entity operating the Virginia Gardens location on
behalf of Purchaser, pay bills and deposit revenue until the Note is paid in
full. Seller shall indemnify and hold purchaser harmless from any and all losses
due to Seller's intentional misconduct or gross negligence during the period in
which Seller is managing the financial operations of the Virginia Gardens
location as provided in Section 1.6 above.
2.16. No Subsidiaries: The Seller and Victoria hereby acknowledge
that the Company does not have any subsidiaries and does not, directly or
indirectly, own any interest in or control any corporation, partnership, joint
venture or other business entity.
2.17. Licenses; Permits; Related Approvals: Victoria possesses all
licenses, permits, consents, approvals, authorizations, qualifications and
orders (hereinafter collectively referred to as the "Permits") of all
governments and governmental agencies lawfully required for the Company to
conduct its restaurant business in all jurisdictions where business is
conducted. All of the Permits are in full force and effect and no suspension,
modification, or cancellation of any Permits is pending or threatened. A list of
the Permits is attached hereto as Exhibit G and incorporated herein by
reference.
2.18. No Real Property: Except as set forth on Exhibit H attached
hereto and incorporated herein by reference, the Company does not own or have
any interest in any real estate.
- 10 -
2.19. Condition of Personal Property: Attached hereto as Exhibit I
and incorporated by reference herein is a true, correct and complete list of all
personal property, owned by the Company or used by the Company in the conduct of
its business, including, but not limited to, all equipment, machinery and
fixtures, (collectively, the "Personal Property"), indicating whether it is
owned or the manner in which the Personal Property is otherwise utilized by the
Company. The Company has sole and exclusive, good and merchantable title to all
of the Personal Property owned by it, free and clear of all pledges, claims,
liens, restrictions, security interests, charges and other encumbrances.
2.20. Certain Contracts. Attached hereto as Exhibit J and
incorporated by reference herein is a true, correct and complete list and copy
of all contracts under which, the Company is provided or is providing services
(collectively, the "Service Contracts"). To Seller's knowledge, each of the
Service Contracts is in full force and effect, is valid and binding upon each of
the parties thereto and is fully enforceable by the Company against the other
party thereto in accordance with its terms. Neither Seller nor the Company has
any notice of, or any reason to believe that there is or has been any actual,
threatened or contemplated, termination or modification of any of the Service
Contracts. To Seller's knowledge, no party to any of the Service Contracts is in
breach of or in default thereunder, nor has any event occurred which, with the
lapse of time, notice or election, may become a breach or default by the Company
or any other party to or under any of the Service Contracts. All payments
required to be made by Seller pursuant to the Service Contracts have been paid
in full through August 18, 1997.
2.21. Contracts, Licenses, and Other Agreements. Attached hereto
and incorporated by reference herein are the following:
2.21.1. Exhibit K, a true, correct and complete list and copy
(or where they arc oral, true, correct and complete written summaries) of all
leases of the Company relating to real property.
2.21.2. Exhibit L, a true, correct and complete list and copy
(or where they are oral, true, correct and complete written summaries) of all
leases of the Company relating to personal property.
2.21.3. Exhibit M, a true, correct and complete list and copy
(or where they are oral, true, correct and complete written summaries) of all
licenses, franchises, assignments or other agreements of the Company and/or A.S.
relating to trademarks, trade names, patents, copyrights and service marks (or
applications therefor), unpatented designs or styles, know-how and technical
assistance.
2.21.4. Exhibit O, a true, correct and complete list and copy
(or where they are oral, true, correct and complete written summaries) of all
employment, compensation and consulting agreements, contracts, understandings or
arrangements of the Company with any officer, director, employee, broker, agent,
consultant, salesman or other
- 11 -
Person, including the names, starting dates of employment, term of employment,
functions and aggregate compensation (including salary, bonuses, commissions and
other forms of compensation).
2.21.5. Exhibit P, a true, correct and complete list and copy
(or where they are oral, true, correct and complete written summaries) of all
agreements of the Company for the purchase, sale or lease of goods, materials,
supplies, machinery, equipment, capital assets and services having a cost in
excess of Two Thousand Five Hundred Dollars ($2,500.00) in any one instance or
in excess of Ten Thousand Dollars ($10,000.00) in the aggregate.
2.21.6. Exhibit Q, a true, correct and complete list and copy
(or where they are oral, true, correct and complete written summaries) of all
agreements and arrangements of Victoria for the borrowing or lending of money,
on a secured or unsecured basis, or guaranteeing, indemnifying or otherwise
becoming liable for the obligations or liabilities of any other Person or
entity.
2.21.7. Exhibit R, a true, correct and complete list and copy
(or where they are oral, true, correct and complete written summaries) of all
agreements and understandings of the Company other than those listed in Exhibits
O through Q which are material in nature, involve the payment or receipt, in any
twelve (12) month period, of more than Five Thousand Dollars ($5,000.00) or have
a term of more than the twelve (12) months.
To Seller's knowledge, each of the agreements, arrangements
and understandings listed in Exhibits K through R (hereinafter collectively
referred to as the "Commitments") is in full force and effect, is valid and
binding upon each of the parties thereto and is fully enforceable by Victoria
against the other party thereto in accordance with its terms. Neither Seller nor
Victoria has any notice of, or any reason to believe, that there is or has been
any actual, threatened or contemplated termination or modification of any of the
Commitments. To Seller's knowledge, no party to any of the Commitments is in
breach of or in default thereunder, nor has any event occurred which, with the
lapse of time, notice or election, may become a breach or default by the Company
or any other party to or under any of the Commitments. Victoria has the right to
quiet enjoyment of all real properties leased to it for the full term of the
lease thereof All payments required to be made by Victoria and Xxxx pursuant to
any of the Commitments have been paid in full through August 18, 1997.
2.22. Insurance: Attached hereto as Exhibit S and incorporated by
reference herein is a list of all insurance policies of the Company, setting
forth with respect to each policy the name of the insurer, a description of the
policy, the dollar amount of coverages, the amount of the premium, the date
through which all premiums have been paid, and the expiration date. Each
insurance policy relating to the insurance referred to in Exhibit S is in full
force and effect, is valid and enforceable, and the Company is not in breach of
or in default under any such policy. Neither Seller nor the Company have any
notice of or any reason to
- 12 -
believe that there is or has been any actual, threatened, or contemplated
termination or cancellation of any insurance policy relating to the insurance
referred to in Exhibit S.
2.23. Pension Plans: Seller and Victoria hereby acknowledge that
the Company does not maintain any pension, profit sharing, ESOP, stock option,
incentive bonus, hospitalization, major medical, dental, optical, prescription,
drug, health insurance, life insurance, or other benefit plan for the benefit of
any employee as the term "Employee Benefit Plan" is defined in ERISA, Section 3,
except as set forth on Exhibit U.
2.24. Employee Relations and Employment Agreements:
2.24.1. None of the Company's employees is represented by a
labor organization, and no petition for representation has ever been filed with
the National Labor Relations Board. Seller and Victoria are not aware of any
union organizational activity with respect to the Company, and have no reason to
believe that any such activity is being contemplated.
2.24.2. To Seller's knowledge, the Company is not in
violation in any material respect of any applicable equal employment opportunity
laws, wage and hour laws, occupational safety and health laws, federal labor
laws or any other laws of any government or governmental agency relating to
employment.
2.24.3. The Company has not entered into written employment
agreements and all employees can be terminated at will. The Company has no
contractual obligation or special termination or severance arrangements with
respect to any employee.
2.24.4. The Company has paid all wages due including all
required taxes, insurance and withholding thereon, and will continue to do so
through the Cut-Off Date.
2.24.5. Attached hereto as Exhibit V and incorporated herein
by reference, is a list of all accrued vacation, sick leave, and accrued
bonuses, if any, as of the Cut-Off Date.
2.24.6. Seller and the Company shall supply to Purchaser a
list of all employees of the Company, including the date of hire of each,
position, present salary, amount of bonus paid in the last year, and announced
termination date, if any, as Exhibit W.
2.24.7. Patents; Trademarks; Service Xxxx; Related Contracts.
Attached hereto as Exhibit X and incorporated by reference herein, is a true,
correct and complete list of all of A.S's patents, trademarks, tradenames, or
trademark or tradename registrations, service marks, and copyrights or copyright
registrations (the "Proprietary Rights") related to the Companies. To Seller's
knowledge, all of the Proprietary Rights are valid, enforceable, in full force
and effect and free and clear of any and all security interests, liens, pledges
and
- 13 -
encumbrances of any nature or kind. Neither A.S., Seller or Victoria has
licensed, leased or otherwise assigned, transferred or granted any right to use
any of its Proprietary Rights to any other Person or entity, and to Seller's
knowledge, no Person or entity is infringing upon A.S.'s Proprietary Rights.
A.S. and Company have not infringed and are not infringing upon any patent,
trademark, tradename, or trademark or tradename registration, service xxxx,
copyright, or copyright registration of any other Person or entity. Seller and
Victoria have filed all necessary and appropriate documents and paid all
necessary fees to maintain the integrity of the Proprietary Rights until the
year 2002.
2.25. Seller agrees that after closing Seller shall execute any
and all documents which may be reasonably necessary to carry out the terms,
conditions and intention of this agreement and to facilitate the transfer of the
property, to ratify unto Purchaser such property and to facilitate the
operations of Victoria by Purchaser.
2.26. Seller and Victoria shall transfer to Purchaser or
Purchaser's designee all title, rights and interests in any deposits (as
reflected on Exhibit A4) owned by Seller or Victoria related to the Virginia
Gardens location. A letter requesting such transfer shall be prepared by Seller
and or Victoria in order to accomplish the transfer (See Exhibit X).
2.27. There are no bulk transfer laws in Florida applicable to
this transaction (See Opinion Letter of Counsel, Exhibit 2).
2.28. The bonus Agreement for employees as of June 1, 1997, has
not been modified.
2.29. To the best knowledge of such Seller and Victoria, the
issuance, sale, transfer and delivery of the Property pursuant to the provisions
of this Agreement will not constitute a violation or breach of any agreement,
stipulation, order, writ, injunction or decree applicable to the Seller or
Victoria.
3. Representations, Warranties and Covenants of Purchaser.
Purchaser represents, warrants and covenants to Seller as follows:
3.1. Purchaser is, and on the Closing Date will be, a corporation
duly organized, validly existing and in good standing under the laws of the
State of Colorado.
3.2. The Board of Directors of Purchaser, pursuant to the power
and authority legally vested in it, has duly authorized the execution, sealing
and delivery of this Agreement by Purchaser and the transactions hereby
contemplated, and no action, confirmation or ratification by the stockholders of
Purchaser or by any other person, entity or governmental authority is required
in connection therewith. Purchaser has the power and authority to execute, seal
and deliver this Agreement, to consummate the transactions hereby contemplated
and to take
- 14 -
all other actions required to be taken by it pursuant to the provision, hereof.
Purchaser has taken all actions required by law, its articles of incorporation,
its by-laws or otherwise to authorize the execution, sealing and delivery of
this Agreement. This Agreement is valid and binding upon Purchaser in accordance
with its terms. Neither the execution, sealing and delivery of this Agreement
nor the consummation of said transactions will constitute any violation or
breach of the articles of incorporation or the by-laws of Purchaser, or any
agreement, order, writ, injunction, decree, law, rule or regulation applicable
to Purchaser.
3.3. The transfer of 25,000 Shares (Exhibit A5) to Saltoun or his
designee of Carnegie Common Stock without legend and without current
restrictions shall be effected by Carnegie's designee or assignee on or about
the Closing Date.
4. Further Agreements:
4.1. Contingency: This Agreement shall be contingent upon A.S.
executing an assignment or license to Purchaser for all Proprietary Rights
including but not limited to the rights to the Patents, Trademarks, Service
Marks or related intangible proprietary interests existing in connection with
the Company's Business as it relates to Victoria Station in the form of Exhibit
hereto.
4.2. Seller's Agreement Not to Compete: The Parties hereby
acknowledge that Seller shall not establish a restaurant or bar within five (5)
miles of the Virginia Gardens location, directly or indirectly, for a period of
three (3) years from the date of this Agreement.
5. Conditions Precedent to Obligation and Duty of Purchaser to Acquire
the Property:
5.1. The obligation and duty of Purchaser to purchase the Property
from Seller as contemplated by this Agreement are subject to the fulfillment and
satisfaction on the Closing Date of each of the following conditions precedent,
any or all of which may be waived in whole or in part at or prior to the Closing
Date by Purchaser:
5.1.1. All representations and warranties of the Seller and
Victoria contained in this Agreement and expressly made at the Closing Date
shall be true and correct at the Closing Date, in all material respects, and all
of the other representations and warranties of Seller and Victoria contained in
this Agreement shall be true and correct at the Closing Date as though each of
such representations and warranties was made at such time.
5.1.2. Seller and Victoria shall have performed and complied
in all material respects with all covenants and agreements on their part
required by this Agreement in material respects to be performed or complied with
prior to or at the Closing Date.
- 15 -
5.1.3. Purchaser shall have received certificates of the
officers and directors of Company, whose signatures, such as President, shall be
attested by the Secretary of Company or an independent third party if Signatory
and Secretary are the same person, dated as of the Closing Date, in form
reasonably satisfactory to Purchaser, certifying to the fulfillment and
satisfaction of each of the conditions precedent specified in Sections 5.1.1.
and 5.1.2. of this Agreement.
5.1.4. Purchaser shall receive the written opinions of the
legal counsel (See Exhibit B 1) for Seller and Victoria, dated the Closing Date,
expressly stating that:
(a) Victoria and Xxxx are corporations duly organized,
validly existing and in good standing. Victoria and Xxxx have the power and
authority to own, lease and operate its properties and to conduct its business
as such business is now being conducted by them.
(b) Victoria is authorized to issue Two Hundred (200)
shares of Common Stock.
(c) Except as set forth on Exhibit D I to this
Agreement, such counsel does not know of any material action, suit, proceeding
or investigation pending or threatened against Victoria or affecting Victoria or
any of its assets.
(d) The Board of Directors of Company, pursuant to the
powers and authority legally vested in it, has duly authorized the execution,
sealing and delivery of this Agreement by Company, the transactions hereby
contemplated, and no action, confirmation or ratification by the stockholders or
Personal Representatives or Executors of any deceased stockholders of Company or
by any other person, entity or governmental authority is required in connection
therewith which has not been obtained. Seller and Victoria have the power and
authority to execute, seal and deliver this Agreement, to consummate the
transactions hereby contemplated and to take all other actions required to be
taken by or pursuant to the provisions hereof. Company has taken all actions
required by law, its certificate of incorporation, as amended, its by-laws, as
amended, or otherwise to authorize the execution, sealing and delivery of this
Agreement and the issuance, sale, transfer and delivery of the Shares pursuant
to the provisions hereof. This Agreement is valid and binding upon Seller and
Victoria.
(e) There are no Bulk Sales laws in Florida applicable
to this transaction.
5.2. The obligation and duty of Seller to sell the Shares and
Assets to Purchaser as contemplated by this Agreement are subject to fulfillment
and satisfaction on the Closing Date of each of the following conditions
precedent, any or all of which may be waived in whole or in part prior to the
Closing Date by Seller:
- 16 -
5.2.1. All representations and warranties of the Purchaser
contained in this Agreement shall be true and correct in all material respects
at the Closing Date as though each of such representations and warranties was
made at such time.
5.2.2. Purchaser shall have performed and complied in all
material respects with all covenants and agreements on their part required by
this Agreement to be performed or complied with prior to or at the Closing Date.
5.2.3. Purchaser shall have received certificates of the
officers and directors of Purchaser, whose signatures, such as President, shall
be attested by the Secretary of Purchaser or an independent third party if
Signatory and Secretary are the same person, dated as of the Closing Date, in
form reasonably satisfactory to Seller, certifying to the fulfillment and
satisfaction of each of the conditions precedent specified in Section 5.2.1. and
5.2.2. of this Agreement.
5.2.4. Seller shall have received the written opinion of
legal counsel for Purchaser, dated the Closing Date, containing the opinions
with respect to Purchaser which Seller's counsel is required to provide with
respect to the Companies under Section 5.1.4(a) and (d).
6. Indemnification:
6.1. Xxxxxxx, Xxxx, A.S. and Victoria shall each indemnify and
hold harmless Purchaser from and against any and all actions, suits,
proceedings, demands, causes of action, damages, liabilities, claims, losses,
costs and expenses (including reasonable attorneys' and experts' fees) paid or
incurred by Purchaser by reason of or arising out of or in connection with:
6.1.1. The breach by Xxxxxxx, Xxxxxxxx, Xxxx or A.S. of any
representation or warranty contained in this Agreement or in any certificate
delivered to Purchaser pursuant to the provisions of this Agreement.
6.1.2. The failure of Xxxxxxx, Xxxxxxxx, Xxxx or A.S. to
perform or comply with any covenant or agreement required by this Agreement to
be performed or complied with by each such person or entity.
6.1.3. Debts and or liabilities incurred, accruing or arising
prior to the CutOff Date attributable to Xxxxxxx, Xxxxxxxx, Xxxx or A.S.
including, but not limited to, contract liabilities, tort liability and tax
liability, other than those assumed by Purchaser pursuant to the terms of this
Agreement or for which credit has been given to Purchaser. Purchaser shall have
the right to setoff against any and all amounts owed by Purchaser to Seller for
any amounts owed or incurred by Purchaser in connection with any and all
liability imposed by this Section 6. Notwithstanding anything to the contrary
contained in this agreement, this provision 6.1.3 shall be fully enforceable
with no time limitation.
- 17 -
6.2. Carnegie shall indemnify and hold Seller and Victoria
harmless from and against any and all actions, suits, proceedings, demands,
causes of actions, damages, liabilities, claims, losses, costs and expenses
(including reasonable attorneys' and experts' fees) paid or incurred by any of
them by reason of or arising out of in connection with:
6.2.1. The breach by Purchaser of any of the representations
or warranties contained in this Agreement or in any certificate delivered to
Seller pursuant to provisions of this Agreement;
6.2.2. The failure by Purchaser to perform or comply with any
covenant or agreement required by this Agreement to be performed or complied by
Purchaser.
6.2.3. Debts and liabilities incurred or arising after the
Cut-Off Date attributable to Purchaser or Victoria, including, but no limited
to, all liabilities to employees of the Companies for which credit against the
purchase price is given to Purchaser on the Closing Date, except Seller and
Victoria shall be responsible for such debts and liabilities incurred or arising
after the Cut-Off Date due to the negligence of Seller and or Victoria prior to
the Cut-Off Date.
6.3. Xxxxxxx, Xxxxxxxx, Xxxx or A.S. shall not be liable with
respect to any claim, action, suit, liability, loss, damage, or expense as a
result of or arising out of a breach of the representations and warranties set
forth in Section 2 of this Agreement which has not been asserted, threatened,
instituted, incurred or discovered within a period (the "Indemnification
Period') of one (1) year following the Closing Date. Indemnification resulting
from the other matters for which indemnification is provided in this Agreement
shall not be subject to any time limitation, other than the requirement on the
part of the indemnified party to give prompt notice as provided below.
6.4. Purchaser shall not be liable to indemnify Xxxxxxx, Xxxxxxxx,
Xxxx or A.S. with respect to any claim, action, suit, liability, loss, damage or
expense as a result of or arising out of a breach of the representations and
warranties contained in Section 3 of this Agreement which has not been asserted,
threatened, instituted, incurred or discovered within the Indemnification Period
of the later of i) One (1) year following the Closing Date or ii) the date when
the Note is paid in full. Indemnification resulting from the other matters for
which indemnification is provided in this Agreement shall not be subject to any
time limitation, other than the requirement on the part of the indemnified party
to give prompt notice as provided below.
6.5. With respect to any claim, action, suit, liability, loss,
damage or expense asserted, threatened, instituted, paid or incurred or
discovered by or against an indemnified party, within the applicable
Indemnification Period, if any, the obligation to indemnify shall continue
through the final disposition or settlement of any such matter and the full
satisfaction of the indemnification obligation.
- 18 -
6.6. If a party (an "Indemnified Party"), receives notice or has
knowledge of any matter which it believes the other party hereto (the
"Indemnitor") is obligated to provide indemnification pursuant to this Section 6
(a "Claim"), the Indemnified Party will within a reasonable period of time (A)
after receipt of such notice or otherwise first becoming knowledgeable of a
Claim, give the Indemnitor written notice of the assertion of such Claim; and
(B) finnish the Indemnitor with all relevant information and copies of all
pertinent documents relating to the Claim in the Indemnified Party's possession
or control or within a reasonable period of time after the Indemnified Party's
receipt thereof, as the case may be.
6.7. The failure of the Indemnified Party to give notice of the
Claim promptly will not affect the Indemnified Party's rights to indemnification
hereunder, except if, and only to the extent that, the Indemnitor's defense of
such Claim is actually prejudiced by reason of such failure to give timely
notice.
6.8. The Indemnitor will undertake and continuously defend such
Claim with counsel of reputable standing, and the Indemnified Party may
participate in such defense by counsel of its own choosing at its own expense.
6.9. If the Indemnified Party is required to pay any amount with
respect to said Claim, such amount shall be promptly paid by the Indemnitor to
the Indemnified Party upon the Indemnified Party giving the Indemnitor a written
request therefor.
6.10. If the Indemnitor does not timely undertake or continuously
defend any such Claim, then the Indemnified Party will have the right to employ
separate counsel in any such action and to participate in the defense thereof,
and the reasonable fees and expenses of such counsel will be the Indemnitor's
obligation and direct responsibility. Furthermore, the Indemnified Party will
then have the right to defend or dispose of the Claim in such manner as it deems
advisable for Indemnitor's account and risk and for the purpose hereof as if
such defense or disposition had been made or undertaken by the Indemnitor.
6.11. The Indemnitor agrees, unless it timely assumes the defense
of any Claim hereunder, to pay the Indemnified Party's costs of defending any
Claim, including, without limitation, reasonable attorney's and paralegal fees,
accountants' fees, witness fees and court costs, promptly after written demand
therefor is given by the Indemnified Party to the Indemnitor.
6.12. If the Indemnitor timely undertakes the defense of any
Claim, then so long as the Indemnitor, in good faith, is continuously contesting
or defending the Claim: (A) the Indemnified Party shall not admit any liability
with respect thereto, or settle, compromise, pay or discharge the same without
the prior written consent of the Indemnitor; (B) the Indemnified Party shall
cooperate with the Indemnitor in the contest or defense of the Claim; (C) the
Indemnified Party shall accept any settlement of the Claim, provided such
settlement is effected by monetary payment only and adequate arrangements for
such payment, to the Indemnified Party's reasonable satisfaction, are made by
the Indemnitor and the Indemnified Party is provided
- 19 -
with a full release of all Claims made; and (D) the Indemnitor will provide the
Indemnified Party with all information regarding the contest or defense of the
Claim and allow counsel for the Indemnified Party to monitor, at the Indemnified
Party's sole expense, all proceedings in connection with the Claim.
6.13. Neither the Indemnitor nor the Indemnified Party may admit
any liability with respect to any Claim or settle, compromise, pay or discharge
the same without the prior written consent of the other party if such
settlement, compromise, payment or discharge could in any way expose such other
party to the payment of funds which are not subject to a claim of reimbursement
or indemnification from the settling, compromising or paying party.
6.14. The Indemnified Party shall use reasonable efforts to
preserve the status quo, not incur any penalties and not prejudice the
Indemnitor's defense of any Claim prior to the Indemnitor undertaking the
defense of such Claim.
6.15. Anything in this Section 6 to the contrary notwithstanding,
if there is a reasonable probability that an indemnifiable Claim may materially
and adversely affect the Indemnified Party other than as a result of money
damages or other money payments, the Indemnified Party, upon giving the
Indemnitor reasonably prompt written notice thereof, shall have the right to
defend, compromise or settle such indemnifiable Claim; provided, however, that
no compromises or settlement which would result in the payment of money shall be
made, executed or delivered without the prior written consent of the Indemnitor,
which consent shall not be unreasonably withheld.
6.16. Any payment required by an Indemnitor pursuant to this
Section 6 shall be reduced by any insurance proceeds actually recovered
(excluding any deductible or self-insured retention) by the Indemnified Party as
a result thereof from a policy of insurance owned by any person. Any tax benefit
received by the Indemnified Party by reason of any action of the Indemnitor
shall reduce any payment required to be made by the Indemnitor to the
Indemnified Party arising therefrom.
7. Miscellaneous:
7.1. All of the covenants, promises, agreements, representations
and warranties set forth in this Agreement shall survive all closings under this
Agreement for the periods herein provided, and shall be binding and enforceable
notwithstanding any knowledge (other than as specifically herein disclosed) on
the part of a party hereto with respect to the matter involved.
7.2. At any reasonable time upon prior reasonable notice by
Purchaser (whether at or after the Closing Date), Seller and Victoria shall
execute, acknowledge, seal and deliver such further instruments and documents
and take such other actions as Purchaser may reasonably request more effectively
to vest in Purchaser full right, title and interest in and to the
- 20 -
Property as shall be issued, sold, transferred and delivered under this
Agreement, and to secure for Purchaser the full benefits intended to be secured
by this Agreement.
7.3. All writings, notices and other communications under this
Agreement shall be in writing and addressed as follows:
If to Purchaser, to: Carnegie International Corporation
00000 Xxxxxxxxx Xxxxx, Xxxxx 0
Xxxxxx Xxxxx, Xxxxxxxx 00000
With a copy to: Xxxxx X. Xxxxxxx, Esquire
Gershberg and Pearl, LLP
00000 Xxxxxxxxx Xxxxx, Xxxxx 0
Xxxxxx, Xxxxxxxx 00000
If to Seller, to: Xxxxx Xxxxxxx
c/o A.S. Management Corp.
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
with a copy to: Xxxx X. Xxxxx, Esquire
Murai Wald Xxxxxx & Xxxxxx
00 X.X. 0xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Any such writing, notice or communication by telegram shall be deemed given when
received at the address specified above. Any such writing, notice or
communication other than by telegram shall be deemed given when deposited in the
appropriate international or United States mails, postage prepaid, first class,
registered or certified mail, return receipt requested, and addressed as
hereinabove provided. Any such address may be changed by notice to the other
parties to this Agreement as provided in this Section 7.3.
7.4. This Agreement shall be governed by and construed and
enforced in all respects in accordance with the laws of the State of Maryland,
United States of America.
7.5. This Agreement contains the full, complete and exhaustive
agreement between the parties hereto. This Agreement may be amended only by an
instrument in writing executed, sealed and delivered by Seller, Victoria and
Purchaser.
7.6. Nothing expressed or implied in this Agreement is intended or
shall be construed to confer or give any person or entity other than the parties
hereto any rights or remedies under or by reason of this Agreement.
- 21 -
7.7. This Agreement may be executed simultaneously or in
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same instrument.
7.8. Unless the context otherwise requires, the words such as
"herein", "hereinafter", "hereby", "hereto", "hereof" and "hereunder" refer to
this Agreement as a whole and not merely to a Section in which such words
appear. As used herein and unless the context otherwise requires, the singular
shall include the plural and vice-versa, and the masculine gender shall include
the feminine and neuter, and vice-versa.
7.9. This Agreement shall be binding upon and inure to the benefit
of the parties and their respective heirs, legal representatives, successors and
permitted assigns.
7.10. The headings for this Agreement are intended for convenience
of reference only and shall be given no effect in the construction or
interpretation of this Agreement.
7.11. Carnegie shall have the right to assign its rights, title
and interests under this Agreement and to the Property to any of its wholly
owned subsidiaries. This shall not impair any of Carnegie's obligations under
this Agreement.
IN WITNESS WHEREOF, the parties have executed, sealed and delivered
this Agreement the day and year first herein above set forth.
PURCHASER:
ATTEST: CARNEGIE INTERNATIONAL CORPORATION
/s/ By: /s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, President
TALIDAN USA, INC.
By: /s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, Xxxxxxxxx
- 00 -
XXXXXXXX:
ATTEST: VICTORIA STATION MIAMI, INC.
/s/ By: /s/ Xxxxx Xxxxxxx
XXXXX XXXXXXX, President
WITNESS: SELLERS:
/s/ /s/ Xxxxx Xxxxxxx (SEAL)
XXXXX XXXXXXX, Individually
ATTEST: A.S. MANAGEMENT CORPORATION
/s/ By: /s/ Xxxxx Xxxxxxx (SEAL)
XXXXX XXXXXXX, President
ATTEST: XXXX MANAGEMENT CORPORATION
/s/ By: /s/ Xxxxx Xxxxxxx (SEAL)
XXXXX XXXXXXX, President
- 23 -
VICTORIA STATION MIAMI, INC.
AND
XXXX MANAGEMENT CORPORATION
STOCK AND ASSET PURCHASE AGREEMENT
LIST OF EXHIBITS
Section
Nos.
A. List of Assets Owned By Vendors Explanatory
Statement
A1. Stock Certificate of Victoria Station Miami, Inc. in the name of 1.2.
Carnegie International Corporation
A2. Xxxx of Sale for purchase of Assets of Xxxx Management 1.2.
Corporation
A3. List of Tangible Assets of Xxxx Management Corporation 1.2.
excluding the Fixtures and Leasehold Improvements
A4. Schedule of Closing Adjustments 1.2.2.
A5. Letter Acknowledging Initiation of Transfer of 25,000 shares of 1.3.7.
Carnegie International Corporation
B. Certificate of No Debts 1.5.
B1. Opinion Letter of Counsel Relating to Seller and Victoria's 2.2.
Authority to Sell the Property, Enter Into this Agreement and 5.1.(a)
Other Issues Related to this Transaction
C. Certificate of Incorporation and By-Laws of Xxxx and Victoria 2.3.
D. Listing of Exemptions to Filing of Tax Returns 2.6.
D1. Listing of Material Adverse Changes, Suits and Claims 2.7.2.
2.8.
E. List of Officers, Directors and Shareholders of Xxxx and Xxxxxxxx 2.11.
F. Release of Victoria by Seller and Victoria 2.13.
G. List of Permits and Licenses and Related Approvals 2.17.
- 1 -
H. List of Real Property 2.18.
I. List of Personal Property 2.19.
J. List of Service Contracts performed by the Companies 2.20.
K. List of Leases for Real Property 2.21.1.
L. List of Leases for Personal Property 2.21.2.
M. List and copy of Licenses, Franchises, Assignments or 2.21.3.
Agreements relating to Trademarks, Tradenames, Copyrights,
Patents, Service Marks, etc.
0. List and copy of Employment and Consulting Agreements 2.21.4.
P. List of Agreements for Purchase of Goods, Materials and 2.21.5.
Services
Q. List and copy of Notes, Guarantees 2.21.6.
R. Material Contracts in excess of $5,000.00 2.21.7.
S. List of Insurance 2.22.
T. List of Claims 2.8.
U. List of Employee Benefits 2.23.
V. List of Accrued Vacation, Sick Leave, and Bonus 2.24.5.
W. List of Employees 2.24.6.
X. List of Patents and Trademarks 2.24.7.
Y. Letter directing transfer of Deposits 2.26.
- 2 -
