EXHIBIT 10.27.2
MEMBERSHIP ACQUISITION AGREEMENT
This agreement (this "Agreement") is made as of the 20th day of
September, 2006, by and between Life & Death, LLC (the "Company"), a limited
liability company organized under Xxxxxxx Xxxxxx Act of California, (California
Corporations Code ss.ss.17000 ET SEQ., hereinafter referred to as the "Act"),
and consisting of Xxxxxxxx Xxxxxx and Alexandre Caugant (the "Existing
Members"), located at 0000 Xxxxx Xxxxxxx Xxxxxx, Xxx Xxxxxxx, XX 00000, and Blue
Holdings, Inc. (the "Purchaser"), located at 0000 X. Xxxxxxx Xxxxxx, Xxxxxxxx,
XX 00000.
RECITALS
A. The Company was duly formed and organized under the Act upon the
filing of Articles of Organization with the Secretary of State of California on
May 4, 2006, as amended by the filing of a Certificate of Amendment with the
Secretary of State of California on August 21, 2006.
B. An Operating Agreement has existed since August 21, 2006 among the
Existing Members (the "Operating Agreement"), under which the Company has
acquired assets consisting of personal property, and has established and
equipped, and is now operating a business at 0000 X. Xxxxxxx Xxxxxx, Xxxxxxxx,
XX 00000, consisting of the design, development, manufacturing and wholesale
distribution of knit apparel bearing the "Life & Death" trademark (the
"Trademark").
C. Purchaser desires to purchase an undivided interest in the Company
and all of its assets, and to participate in the operation of the business with
the Existing Members in accordance with the management rights afforded to all
members in the Operating Agreement.
1. SALE OF INTEREST.
The Company agrees to sell and transfer to Purchaser an undivided fifty
percent (50%) interest in the Company and in all its assets, in consideration of
the sum of One Hundred Eighty Six One Hundred Forty-Two Dollars and 73/100 (
$186,142.73), payable upon execution and delivery of this Agreement. Company
represents and warrants to Purchaser that all required consents of the Existing
Members have been obtained and that upon completion of the transactions referred
to herein the Purchaser shall be deemed to be a member of the Company with all
rights associated therewith as may be provided in the Act and in the Operating
Agreement.
2. PURCHASE OF INTEREST.
Purchaser agrees to pay as a purchase price for an undivided fifty
percent (50%) interest in the Company the amount set out in Paragraph 1, on the
terms stated in that paragraph.
3. INTERESTS OF MEMBERS.
Upon completion of the transactions described herein, the interests of
the Purchaser and the Existing Members in the profits, losses and capital of the
Company will be as follows:
Xxxxxxxx Xxxxxx 25%
Alexandre Caugant 25%
Blue Holdings, Inc. 50%
4. AUDIT OF COMPANY BOOKS.
An audit of the assets and liabilities of the Company will be taken as
of the date of this Agreement, and the books of account of such Company will be
closed. The books of account will then be adjusted to show the assignment to
Purchaser of an undivided fifty percent (50%) interest in the Company.
5. APPLICATIONS OF PROCEEDS OF SALE OF INTEREST.
The Company agrees to apply the entire sum paid by the Purchaser for
its interest in the Company, toward the reduction of indebtedness of the
Company, to the current expenses of the Company, and as working capital.
6. OPERATING AGREEMENT. A copy of the Amended and Restated Operating
Agreement is attached to this Agreement and incorporated herein by this
reference. Upon execution of this Agreement, the Amended and Restated Operating
Agreement will be in full force and effect and all of the members shall be bound
by the terms of such Amended and Restated Operating Agreement.
7. OPERATION OF BUSINESS.
The business of the Company will be operated without interruption, in
the manner provided by the attached Amended and Restated Operating Agreement.
8. INVESTMENT INTENT.
Purchaser represents and warrants t the Company and the Existing
Members that the Purchaser is acquiring the interest in the Company under this
Agreement for investment and not with a view to distribution. The Purchaser
further represents and warrants to the Company and the Existing Members that the
Purchaser understands that: (a) the interest in the Company being purchased and
sold under this Agreement has not been registered under the Federal Securities
Act of 1933, as amended (the "Securities Act") in reliance upon an exemption
from registration, (b) the interest must be held indefinitely, unless it is
later registered under the Securities Act or unless an exemption from
registration is otherwise available, and (c) the Company has no obligation to
register the interest. The Purchaser agrees that the interest will not be
offered, sold, transferred, pledged, or otherwise disposed of without
registration under the Securities Act and applicable state securities laws or an
opinion of counsel acceptable to the manager(s) of the Company that such
registration is not required.
9. MISCELLANEOUS PROVISIONS.
9.1 CONSTRUCTION AND INTERPRETATION. This Agreement shall be construed
and interpreted in accordance with the substantive and procedural laws of the
State of California, including the Act, without reference to the principles of
conflict of laws of such state.
9.2. DESCRIPTIVE HEADINGS. The descriptive headings of the several
articles and sections contained in this Agreement are included for convenience
only and shall not control or affect the meaning or construction of any of the
provisions hereof.
9.3 ENTIRE AGREEMENT. This Agreement, together with the Exhibits and
Schedules hereto, the certificates, documents, instruments and writings that are
delivered pursuant hereto, constitutes the entire agreement and understanding of
the parties hereto in respect of its subject matters and supersedes all prior
understandings, agreements, or representations, by or among the parties hereto,
written or oral, to the extent they relate in any way to the subject matter
hereof or the transactions contemplated hereby.
9.4 ATTORNEY'S FEES. In the event that any suit or action is
instituted to enforce any provision in this Agreement, the prevailing party in
such dispute shall be entitled to recover from the losing party all fees, costs
and expenses of enforcing any right of such prevailing party under or with
respect to this Agreement, including without limitation, such reasonable fees
and expenses of attorneys and accountants, which shall include, without
limitation, all reasonable fees, costs and expenses of appeals.
9.5 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original but all of which together
will constitute one and the same instrument.
9.6 AMENDMENTS AND WAIVERS. This Agreement may not be amended or
modified, and no provisions hereof may be waived, without the written consent of
the Company and the parties hereto. No action taken pursuant to this Agreement,
including without limitation, any investigation by or on behalf of any party,
shall be deemed to constitute a waiver by the party taking such action of
compliance with any representation, warranty, covenant or agreement contained
herein. The waiver by any party hereto of a breach of any provisions of this
Agreement shall not operate or be construed as a further or continuing waiver of
such breach or as a waiver of any other or subsequent breach. No failure on the
part of any party to exercise, and no delay in exercising, any right, power or
remedy hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of such right, power or remedy by such party preclude any other
or further exercise thereof or the exercise of any other right, power or remedy.
All remedies hereunder are cumulative and are not exclusive of any other
remedies provided by law.
9.7 SEVERABILITY. The provisions of this Agreement will be deemed
severable and the invalidity or unenforceability of any provision hereof will
not affect the validity or enforceability of the other provisions hereof;
provided that if any provision of this Agreement, as applied to any Party or to
any circumstance, is adjudged by a court or governmental body to be
unenforceable in accordance with its terms, the parties agree that the court or
governmental body making such determination will have the power to modify the
provision in a manner consistent with its objectives such that the provision is
enforceable, and/or to delete specific words or phrases, and then it its reduced
form such provision will be enforceable.
9.8 TITLES AND SUBTITLES. The article and section headings contained
in this Agreement and in the Exhibits and Schedules hereto are inserted for
convenience only and will not affect in any way the meaning or interpretation of
this Agreement.
9.9 CONSTRUCTION. The parties hereto have jointly participated in
the negotiation and drafting of this Agreement. If an ambiguity or question of
intent or interpretation arises, this Agreement will be construed as if drafted
jointly by the parties hereto and presumption or burden of proof will arise
favoring or disfavoring any party hereto because of the authorship of any
provision of this Agreement. Any reference to any federal, state, local or
foreign law will also be deemed to refer to such law as amended and all rules
and regulations promulgated thereunder, unless the context otherwise requires.
The word "including" means "including, without limitation". Pronouns in
masculine, feminine and neuter genders will be construed to include any other
gender, and words in the singular form will be construed to include the plural
and vice versa, unless the context otherwise requires. The words "This
Agreement", "herein", "hereof", "hereby", "hereunder" and words of similar
import refer to this Agreement as a whole and not to any particular subdivision
unless expressly so limited. The parties hereto intend that each representation,
warranty and covenant contained herein will have independent significance. If
any party hereto has breached any representation, warranty or covenant contained
herein in any respect, the fact that there exists another representation,
warranty or covenant relating to the same subject matter (regardless of the
relative levels of specificity) which such party has breached, will not detract
from or mitigate the fact that such party is in breach of the first
representation, warranty or covenant.
9.10. EFFECTIVE DATE. For all purposes hereof, this Agreement shall be
deemed effective as of the date first mentioned above.
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IN WITNESS WHEREOF, the parties hereto have executed this Membership
Acquisition Agreement as of the day and year first above written.
COMPANY: LIFE & DEATH, LLC
By: /s/ Xxxxxxxx Xxxxxx
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Its:
EXISTING MEMBERS: /s/ Alexandre Caugant
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Alexandre Caugant
/s/ Xxxxxxxx Xxxxxx
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Xxxxxxxx Xxxxxx
PURCHASER: BLUE HOLDINGS, INC.
By: /s/ Xxxxxxx Xxxx
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Its: CFO
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