EXHIBIT 10.8
INTEREST PURCHASE AGREEMENT
THIS AGREEMENT is dated for reference the 31st day of March, 1999 between
Heritage Alternatives Inc., a company incorporated under the laws of the State
of California (the "Purchaser") and the limited partners as described in
Schedule "A" and in Schedule "E" attached to this Agreement (collectively, the
"Vendors") of Heritage Alternatives, L.P., a limited partnership under the laws
of the State of California (the "Partnership"), Lari Acquisition Company, Inc.,
a company incorporated under the laws of the State of California ("Lari Co.")
and Lari Corp., a company incorporated under the laws of the State of Florida
("Lari").
WHEREAS:
A. The Purchaser is the general partner and a 50% owner of the Partnership;
B. Each of the Vendors is the registered and beneficial owner of those number
limited partnership units in the Partnership as set forth beside each of their
names in Schedule "A" and in Schedule "E" (collectively, the "Interests");
C. The Partnership has been established pursuant to limited partnership
agreement (the "Partnership Agreement") which sets forth, among other things,
the manner in which the Interests may be sold, assigned or transferred;
D. The Purchaser is being purchased by Lari Co and Lari pursuant to two
purchase agreements dated March 3 1, 1999 (the "Share Purchase Agreements"); and
E. The Vendors have agreed to sell their respective Interests to the Purchaser
and the Purchaser has agreed to purchase the Interests from the Vendors.
NOW THEREFORE, in consideration of the mutual covenants and agreements contained
in this Agreement and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. PURCHASE AND SALE OF INTERESTS
Each of the Vendors hereby sells and transfers to Lari through the Purchaser,
and Lari through the Purchaser hereby purchases and acquires from each of the
Vendors, all of each of the Vendors' right, title and interest in and to the
Interests.
2. PURCHASE PRICE
The Purchaser hereby agrees to pay to the Vendors $663,648.00 (the "Purchase
Price") for the Interests.
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3. PAYMENT OF PURCHASE PRICE
3.1 The Purchaser will pay the Purchase Price on March 31, 1999, or such
other date as the parties may agree (the "Closing Date"), as follows:
(a) the sum of $27,439.00 by way of wire transfer to City National
Bank, 400 North Roxbury Drive, Beverly Hills, CA, 90210 (the "Escrow Agent"), in
trust for the Vendors (the "Escrow Agent");
(b) 22,976 shares of common stock of Lari (the "Lari Shares") issued
by Lari to each of the Vendors and delivered to the Escrow Agent, in trust for
the Vendors; and
(c) the sum of $521,329.00 by way of an undivided 2.7438368% interest
to the Vendors in a promissory note ("Note"), in the form attached as Schedule
"B" to this Agreement, delivered to the Escrow Agent, in trust for the Vendors.
3.2 The Purchase Price payable to each of the Vendors is set out in
Schedule "A" and Schedule "E" of this Agreement.
4. ACKNOWLEDGMENT UNDER THE PARTNERSHIP AGREEMENT
The parties acknowledge that all conditions required in the Partnership
Agreement for the sale, assignment or transfer of the Interests as contemplated
herein, including, but not limited to, any right of first refusal offerings and
any consents, have been satisfied or hereby waived and that any sale, assignment
or transfer of the Interests as contemplated herein does not violate any
provision of the Partnership Agreement
5. VENDORS' WARRANTIES AND REPRESENTATIONS
5.1 Each of the Vendors represent, warrant and covenant on behalf of each
of themselves only and on behalf of no other partners, limited or general, to
the Purchaser, Lari and Lari Co. as follows:
(a) each of the Vendors is the registered and beneficial owner of
those number of limited partnership units of the Partnership as set forth beside
each of their names in Schedule "A" and Schedule "E";
(b) all of the Interests are validly issued and outstanding as fully
paid and non-assessable in the limited partnership units of the Partnership and
are free and clear of all liens, charges and encumbrances;
(c) the Purchaser is not indebted to any of the Vendors and none of
the Vendors is indebted to the Purchaser;
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(d) each of the Vendors has good and sufficient right and authority to
enter into this Agreement and to transfer legal and beneficial title and
ownership of the Interests to the Purchaser;
(e) none of the Vendors has previously entered into a binding
agreement for the sale of, or the granting of an option to purchase their
respective Interests;
(f) none of the Vendors has relied on any representations,
understandings or other inducements not expressly set forth in this Agreement;
(g) each of the Vendors has been fully advised by independent legal
counsel concerning the terms and effect of this Agreement;
(h) each of the Vendors enter into this Agreement voluntarily, without
duress or undue influence;
(i) each of the Vendors has the legal capacity, power and authority to
hold the Lari Shares and the Note to be owned by them on the Closing Date (the
"Securities");
(j) each of the Vendors acknowledge that Lari Co. and Lari are newly
formed companies which were formed in part for the purpose of acquiring the
Interests and that the Vendors have not been provided with any offering
memorandum or similar disclosure document, including financial information, in
respect of the current or proposed business activities of Lari Co. and Lari,;
(k) each of the Vendors is accepting the Securities as the Purchase
Price as set out in subsection 3 only for investment purposes on their own
account and not for the purpose of selling the Securities in connection with any
distribution of the Securities. Each of the Vendors acknowledge that the
Securities are subject to resale restrictions and, for this reason, the
Securities shall display the legend, substantially in the form as follows:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING SUCH
SECURITIES, AGREES FOR THE BENEFIT OF THE CORPORATION THAT SUCH
SECURITIES MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO
THE CORPORATION, (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE
904 OF REGULATION S UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED
STATES IN ACCORDANCE WITH RULE 144A UNDER THE SECURITIES ACT OR RULE
144 UNDER THE SECURITIES ACT, IF APPLICABLE, OR (D) IN A TRANSACTION
THAT IS OTHERWISE EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT
AND APPLICABLE STATE SECURITIES LAWS, PROVIDED THAT
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PRIOR TO SUCH SALE THE CORPORATION SHALL HAVE RECEIVED AN OPINION OF
COUNSEL OF RECOGNIZED STANDING, IN FORM AND SUBSTANCE SATISFACTORY TO
IT, AS TO THE AVAILABILITY OF AN EXEMPTION."
(1) each of the Vendors acknowledge that the Securities to be received
by them on the Closing Date were not advertised in printed media of general and
regular paid circulation, radio or television;
(m) each of the Vendors is an "accredited investor" as such term is
defined in Rule 501 of Regulation D promulgated by the Securities and Exchange
Commission under the Securities Act of 1933, as amended (U.S.); and
(n) the Vendors are resident at the addresses set forth beside their
names in Schedule "A" and Schedule "E".
5.2 Each of the Vendors indemnify the Purchaser against any loss or damage
sustained by the Purchaser, directly or indirectly, by reason of a breach of
their respective warranties or representations (and not the warranties and
representations of others) set forth in this Section 5. Each of the Vendors
acknowledge that the Purchaser has entered into this Agreement relying on the
warranties and representations and other terms and conditions of this Agreement
and that no information which is now known or which may hereafter become known
to the Purchaser or its professional advisers will limit or extinguish the
obligation to indemnify hereunder.
5.3 The respective representations, warranties, covenants and agreements of
the parties hereto, which are contained in this Agreement and in any
certificates and documents delivered in connection herewith will be true at and
as of the Closing Date and will survive the Closing Date, the purchase and sale
contemplated herein and any re-organization or amalgamation of any party hereto
6 CONDITIONS OF CLOSING
The obligation of the Purchaser, Lari Co. and Lari to complete the sale and
purchase of the Interests is subject to the following terms and conditions for
the exclusive benefit of the Purchaser, Lari Co and Lari, to be fulfilled or
performed at or prior to the Closing Date or said terms and conditions may be
waived by the Purchaser, Lari Co. and Lari at their sole discretion:
(a) The transactions contemplated in the Share Purchase Agreements
have been completed and Lari Co is the registered and beneficial owner of all
the issued and outstanding shares of the Purchaser;
(b) Each of the Vendors has entered into an escrow arrangement with
the Escrow Agent on terms and conditions which are satisfactory to the
Purchaser, Lari Co. and Lari;
(c) Each of the Vendors has executed a Certificate of Accredited
Investor in the form attached as Schedule "C" to this Agreement, and
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(d) Each of the Vendors listed in Schedule "A" has executed a release
agreement in the form attached as Schedule "D" to this Agreement.
(e) Each of the Vendors listed in Schedule "E" has executed release
agreements attached as Schedule "F" to this Agreement.
7 MISCELLANEOUS
7.1 This Agreement shall be governed by and construed in accordance with
the laws of the State of California. Any dispute arising out of or in connection
with this Agreement, including any question regarding its existence, validity or
termination, shall be referred to and finally resolved by arbitration under the
rules of the American Arbitration Association which rules are deemed to be
incorporated by reference into this clause. The number of arbitrators shall be
one. The place of arbitration shall be Los Angeles. The language of arbitration
shall be English. This provision is not intended to apply to any award of
arbitration costs to a party to compensate for dilatory or bad faith conduct in
the arbitration pursuant to this paragraph. The prevailing parties shall also be
entitled to an award of reasonable attorneys' fees. Any such arbitration shall
permit, and the parties hereto expressly reserve their rights to conduct
discovery pursuant to and in accordance with the discovery rules set forth in
the California Code of Civil Procedure and other applicable state laws, to the
same extent as if the parties were not agreeing to arbitration.
7.2 The Vendors will execute and deliver all such further documents and
instruments and do all acts and things the Purchaser may require to carry out
the full intent and meaning of this Agreement and to assure the Purchaser the
transfer of the Interests.
7.3 This Agreement, and other written agreements associated herewith,
constitute the entire agreement and understanding of the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
understandings of the parties with respect to the subject matter hereof
7.4 This agreement will be binding upon and inure to the benefit of and be
enforceable by, the parties hereto and their respective permitted, where
applicable, successors, assigns, heirs, executors and administrators.
7.5 The Vendors will not assign their rights or obligations provided by
this Agreement without the prior written consent of the Purchaser. Prior to
payment of the Purchase Price in full, the Purchaser will not be entitled to
assign any of its respective rights and obligations provided by this Agreement
without prior written consent of the Vendors.
7.6 Any notice or other communication required or permitted to be given
hereunder shall be in writing and delivered or sent by telefax and, if
telefaxed, shall be deemed to have been received on the next business day
following transmittal and acknowledgment of receipt by the recipient's telefax
machine or if delivered by hand shall be deemed to have been received at the
time it is delivered. Notices addressed to an individual shall be validly given
if left on the premises indicated
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below. Notice of change of address shall also be governed by this Subsection
7.6. Notices shall be delivered or addressed as follows:
If to the Purchaser, Lari Co. and Lari, to:
2424 North Federal Highway
Boca Raton, Florida 33431
Fax: (561) 367-9763
If to the Vendors:
At the addresses set forth in Schedule "A" and Schedule "E"
With a copy to:
Keith Zimmet, Esq.
Lewitt, Hackman, Hoefflin
Shapiro, Marshall & Harlan
16633 Ventura Blvd, Eleventh Floor
Encino, CA 91436-1870
Fax (818) 981-4764
7.7 In the event that any one or more of the provisions of this Agreement
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein will
not in any way be affected or impaired thereby.
7.8 Time will be of the essence of this Agreement.
7.9 The captions and headings of the sections and the subsections in this
Agreement have been inserted as a matter of convenience and reference only.
7.10 Whenever the singular or the masculine are used in this Agreement the
same will be deemed to include the plural or the feminine or the corporate where
the context or the parties so require.
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7.11 This Agreement may be executed in any number of counterparts, each of
which will be treated as an original but all of which, collectively, will
constitute a single instrument. This Agreement will be binding once signed and
delivered and a signature by facsimile, will be deemed to be execution and
delivery.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first herein above written.
LARI ACQUISITION COMPANY, INC.
Per: /s/ Suzanne L. Wood
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Authorized Signatory
LARI CORP.
Per: /s/ Suzanne L. Wood
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Authorized Signatory
HERITAGE ALTERNATIVES, INC.
Per: /s/ Suzanne L. Wood
--------------------------------
Authorized Signatory
/s/ Emanuel Weintraub
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EMANUEL WEINTRAUB as attorney-in-fact
for each of the Vendors listed in
Schedule "A" Attached hereto
/s/ Marvin Falikoff
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MARVIN FALIKOFF (an individual)
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