Attached files
| file | filename |
|---|---|
| 8-K - FLORHAM CONSULTING CORP | v186685_8k.htm |
| EX-10.1 - FLORHAM CONSULTING CORP | v186685_ex10-1.htm |
| EX-10.3 - FLORHAM CONSULTING CORP | v186685_ex10-3.htm |
EXHIBIT
10.2
MEMBERSHIP INTEREST PURCHASE
AGREEMENT
THIS MEMBERSHIP INTEREST PURCHASE
AGREEMENT (the
"Agreement") is made and
entered into as of the 21st day
of May 2010 (the “Agreement
Date”), by and among FLORHAM CONSULTING CORP., a
Delaware corporation, to be renamed OAK TREE EDUCATIONAL GROUP,
INC. ("Oaktree");
EDUCATIONAL TRAINING INSTITUTE,
INC., a New York corporation ("ETI"); CULINARY TECH CENTER LLC, a
New York limited liability company (“CTC”) and PROFESSIONAL CULINARY INSTITUTE
LLC, a New York limited liability company (“PCI”), JOSEPH MONACO, Jr., an
individual (“Monaco”);
and HAROLD KAPLAN, an
individual (“Kaplan,”
together with Monaco, the “Members”).
Recitals
A. As
used in this Agreement: (a) Oaktree, ETI and the Members are hereinafter
sometimes individually referred to as a “Party” and collectively
referred to as the “Parties.”
B. The
Members are the owners of 100% of the membership equity interests (the “Membership Interests”) in each
of CULINARY TECH CENTER
LLC, a New York limited liability company (“CTC”) and PROFESSIONAL CULINARY INSTITUTE
LLC, a New York limited liability company (“PCI”).
C. Oaktree
desires that ETI, as a wholly-owned subsidiary of Oaktree, purchase all, and not
less than all, of the Membership Interests in each of CTC and PCI, and the
Members have agreed to sell to ETI and Oaktree all, and not less than all, of
such Membership Interests, all upon the term and subject to the conditions set
forth in this Agreement.
Agreement
NOW, THEREFORE, in
consideration of the premises and of the mutual covenants contained herein, the
Parties agree as follows:
ARTICLE
I. -– SALE AND PURCHASE OF MEMBERSHIP INTERESTS
1.1 Transfer of Membership
Interests. On
the Closing Date (as defined), Oaktree shall cause ETI to purchase from each of
Monaco and Kaplan 100% of the Membership Interests of each of PCI and
CTC. Such Membership Interests shall be certificated and certificates
evidencing 100% ownership of all Membership Interests in each of PCI and CTC
shall be delivered on the Closing Date by the Members to ETI duly endorsed for
transfer in a manner acceptable to counsel for Oaktree.
1.2 Closing Purchase
Price. At
the closing of the purchase of the Membership Interests of PCI and CTC (the
“Closing”), Oaktree
shall cause ETI to pay to Monaco and Kaplan the aggregate sum of Three Million
($3,000,000) Dollars (in equal $1,500,000 amounts), (the “Closing Purchase
Price”). Such Closing Purchase Price shall be payable on the
“Closing Date”
(hereinafter defined) in cash by wire transfer of immediately available funds to
a bank account designated by each of Monaco and Kaplan.
- 1 -
1.3 Operating
Agreement. The operating agreements of each of CTC and PCI as
in effect immediately following the Closing Date shall be in such form and
content as shall be determined by ETI; provided, that the same shall be
consistent with the terms and conditions of this Agreement.
1.4 Board of
Managers. The entire members of the Board of Managers of each
of CTC and PCI immediately prior to the Closing Date shall resign as at the
Closing Date. From and after the Closing Date, the new Board of
Managers of each of CTC and PCI shall consist of Monaco, Kaplan, Joseph J.
Bianco, Anil Narang and Dov Perlysky. Such Persons shall hold office
as the members of such Board of Managers until the earlier of their resignation
or removal or until their respective successors are duly elected and qualified,
as the case may be.
1.5 Officers. The
officers of each of CTC and PCI immediately prior to the Closing Date shall
constitute all of the officers of such entities following the Closing Date until
the earlier of their resignation or removal or until their respective successors
are duly elected and qualified, as the case may be.
1.6 Contingent
Payments. As additional purchase price for the
Membership Interests, the Parties hereto agree that the Members shall be
entitled to receive the following contingent payments.
(a) Contingent Purchase
Price. After
the final determination of the “Culinary Group Pre-Tax Income”
(as hereinafter defined) for the “2010 Fiscal Year” or the
“2011 Fiscal Year” (as
defined), if either the “2010
Target Income” or the “2011 Target Income” (as
defined) was achieved by the “Culinary Group” (as
hereinafter defined), not later than twenty (20) business days after the final
determination that the applicable Target Income was achieved, Oaktree shall
cause ETI to pay to Monaco and Kaplan (in equal $250,000 amounts) the aggregate
sum of Five Hundred Thousand ($500,000) Dollars (the “Contingent Purchase
Price”). If payable, such Contingent Purchase Price shall be
paid to the Members by a date which shall be not later than twenty (20) days
following the determination of the Culinary Group Pre-Tax Income for the 2010
Fiscal Year or the 2011 Fiscal Year, as applicable. If payable, such
payment shall be paid in cash by wire transfer of immediately available funds to
a bank account designated by each of Monaco and Kaplan.
(b) Additional
Earn-out. In the event that the Culinary Group secures an
additional New York State Agency Agreement in 2010 that provides the Culinary
Group with (i) an ongoing contract term of not less than five (5) years, (ii)
minimum guaranteed revenue of not less than $1.5 million per year (i.e., $7.5
million in aggregate) commencing in 2010, and (iii) an incremental $450,000 in
2010 Pre-Tax Income, and as result thereof, the Pre-Tax Income for the 2010
Fiscal Year shall be greater
than $2,100,000, then and in such event Oaktree shall pay or shall cause ETI to
pay to Monaco and Kaplan (in equal $375,000 amounts), as additional Purchase
Price for the Membership Interests, the aggregate sum of Seven Hundred and Fifty
Thousand ($750,000) Dollars (the “Earn-Out”). If
payable, such Earn-Out shall be paid in cash by wire transfer of immediately
available funds by a date which shall be not later than December 31, 2011 (the
“Earn Out
Payment”). In the event that the Culinary Group does not
secure an additional New York State Agency Agreement in 2010 that meets the
criteria set forth in this Section 1.6(b), no Earn Out Payment shall be payable
to Monaco and/or Kaplan at any time in the future.
- 2 -
1.7 Calculation of Pre-Tax
Income.
(a) The
Pre-Tax Income of the Culinary Group shall be determined by Oaktree and
confirmed in writing by the auditors of Oaktree engaged to audit the
consolidated financial statements of Oaktree for each of the 2009 Fiscal Year,
the 2010 Fiscal Year and 2011 Fiscal Year, as applicable (the “Final Pre-Tax Income
Notice”). The Final Pre-Tax Income Notice shall be delivered
to Oaktree and to the Members (a) by not later than 60 days prior to the Closing
Date (as to the 2009 Fiscal Year) and (b) by not later than April 15, 2011 (as
to the 2010 Fiscal Year) or April 15, 2012 (as to the 2011 Fiscal Year) as
applicable (each such delivery date, an “Income Delivery
Date”).
(b) The
calculation of the Pre-Tax Income of the Culinary Group for each of the 2010
Fiscal Year and the 2011 Fiscal Year (against which the Contingent Purchase
Price shall be payable), shall be subject to written confirmation by the Oaktree
independent auditors as set forth in the Final Pre-Tax Income
Notice. Subject to Section 1.7(c) and absent manifest error, such
calculation shall be final and binding upon all Parties hereto. If
earned, the delivery of the Contingent Purchase Price shall be made to the
Members not later than thirty (30) days after the Income Delivery Date for the
applicable 2010 Fiscal Year or 2011 Fiscal Year (the “Date of
Determination”).
(c) In
case the Members dispute the calculation of the Final Pre-Tax Income contained
in the Final Pre-Tax Income Notice, the Members shall notify Oaktree as soon as
possible (but in no event later than five (5) business days after receipt of the
Final Pre-Tax Income Notice) of such disagreement. Not later than
three (3) business days after receipt written notice of such disagreement from
the Members, Oaktree and the Members shall meet and attempt to resolve the
dispute in good faith. If the Members and Oaktree are unable to agree
upon the calculation of the Final Pre-Tax Income within three (3) business days
of such meeting, then either Oaktree or the Members may thereafter submit via
facsimile the disputed calculation to an independent, outside accountant that is
either (i) mutually agreed to by all the parties, or (ii) failing such
agreement, to an independent auditing firm selected by the American Arbitration
Association in New York City. Oaktree shall use its best efforts to
cause the independent accountant so selected to perform the calculations and
notify Oaktree and the Members of the results as soon as practicable from the
time it receives the disputed calculations. Such independent
accountant's calculation shall be binding upon all parties absent manifest
error. The reasonable expenses of such independent accountant in
making such determination shall be paid by Oaktree, in the event the Members'
calculation was correct, or by the Members, in the event Oaktree’s calculation
was correct, or equally by Oaktree and the Members in the event that neither
Oaktree’s or the Members’ calculation was correct. The period of time
in which Oaktree is required to distribute the Contingent Purchase Price shall
be tolled pending resolution of any dispute by Oaktree made in good faith and in
accordance with this Section 1.7(c).
1.8 Closing. The
closing of the transactions contemplated by this Agreement (the “Closing”) will take place at
the offices of Hodgson Russ LLP, counsel to ETI, at its office in New York, New
York, within ten days following the delivery of satisfaction or
waiver of the conditions precedent set forth in Section V or at such other date
as Oaktree and the Members shall agree (the “Closing Date”), but in no
event shall the Closing Date occur later than September 30, 2010 , unless such date shall
be extended by mutual agreement of Oaktree and the Members to not later than
December 31, 2010 (the “Outside
Closing Date”). Notwithstanding the foregoing, no Party who is
in breach of its obligations, covenants or commitments under this Agreement may
unilaterally postpone or terminate the Closing of the transactions contemplated
hereby.
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ARTICLE II - CERTAIN
DEFINITIONS
In
addition to the terms defined in the Recitals, in Article I above or elsewhere
in this Agreement, wwhen used in this Agreement, the following terms shall have
the meanings set forth below:
“Applicable Law” means any
domestic or foreign law, statute, regulation, rule, policy, guideline or
ordinance applicable to the businesses of the Parties.
“Affiliate” means any one or
more Person controlling, controlled by or under common control with any other
Person or their affiliate.
“Business Day” shall mean any
day, excluding Saturday, Sunday and any other day on which national banks
located in New York, New York shall be closed for business.
“Closing Date” shall have the
meaning set forth in Section 1.8.
“CTC” shall mean Culinary Tech Center LLC, a
New York limited liability company.
“Culinary Group” means the
collective reference to ETI, PCI and CTC.
“Culinary Group Owners” means
the collective reference to the Members and the owners of 100% of the membership
equity interests in each of PCI and CTC.
“Culinary LLCs” means the
collective reference to PCI and CTC.
“Dollar” and “$” means lawful money of the
United States of America.
“Employment Agreements” shall
mean the employment agreements with between ETI and each of Monaco and Kaplan in
the form of Exhibit A-1
and Exhibit A-2 annexed
hereto.
“ETI” means Educational Training Institute,
Inc., a New York corporation.
“Exchange Act” means the
Securities Exchange Act of 1934, as amended.
“GAAP” means generally accepted
accounting principles in the United States of America as promulgated by the
American Institute of Certified Public Accountants and the Financial Accounting
Standards Board or any successor Institutes concerning the treatment of any
accounting matter.
“Knowledge” means the knowledge
of the Person in question, after reasonable inquiry.
“Lien” means, with respect to
any property or asset, any mortgage, lien, pledge, charge, security interest,
encumbrance or other adverse claim of any kind in respect of such property or
asset.
“Material Adverse Effect” with
respect to any Person or group of Persons means any event, change or effect that
has or would have a materially adverse effect on the financial condition,
business or results of operations of such entity or group of entities, taken as
a consolidated whole.
- 4 -
Oaktree” shall mean Florham
Consulting Corp., a Delaware corporation, the name of which has been, or prior
to the Closing Date will be, changed to Oak Tree Educational Group,
Inc.
“Oaktree Common Stock” shall
mean all shares of common stock of Oaktree, $0.0001 par value per share, as may
be authorized for issuance pursuant to its certificate of incorporation, as the
same may hereafter be amended or modified.
“Oaktree Financing” shall mean
a debt or equity financing providing Oaktree with sufficient net proceeds to
enable it or ETI to pay the Closing Purchase Price for the Membership Interests
of PCI and CTC, and provide PCI and CTC with adequate working
capital. The final terms and conditions of such Oaktree Financing
shall be satisfactory to the board of directors of Oaktree.
“PCI” shall mean Professional Culinary Institute
LLC, a New York limited liability company.
“Person” means any individual,
corporation, partnership, trust or unincorporated organization or a government
or any agency or political subdivision thereof.
“Pre-Tax Income” means the
combined or consolidated net income before federal or state income taxes of the
Culinary Group for the applicable 2009 Fiscal Year, 2010 Fiscal Year or 2011
Fiscal Year (each, a “Fiscal
Year”), after deduction of all expenses from net revenues and as prepared
in accordance with generally accepted accounting principles, consistently
applied (“GAAP”); provided,
however, that for purposes of determining such Pre-Tax Income in the applicable
Fiscal Year:
(i) irrespective
of the actual amount (if any) of any remuneration, dividends, distributions,
salaries or bonuses (collectively, “Compensation”) paid or payable
to any of the Members or other Culinary Group Owners in any Fiscal Year in
question, for the 2009 Fiscal Year and the 2010 Fiscal Year such Compensation
shall be deemed to be $300,000;
(ii) there
shall be excluded from income or expense: (i) any amount paid or accrued for the
account of ETI or any other member of the Culinary Group for the cost of the
audits of the Culinary Group financial statements through and including the
Closing Date, and (ii) any extraordinary or non-recurring items, including
Compensation paid or payable in excess of the amounts set forth in Clause (i)
above; and
(iii) all
inter-company payments, receipts or other transactions among the members of the
Culinary Group shall be eliminated.
“Tax” (and, with correlative
meaning, “Taxes” and
“Taxable”)
means:
(i) any
income, alternative or add-on minimum tax, gross receipts tax, sales tax, use
tax, ad valorem tax, transfer tax, franchise tax, profits tax, license tax,
withholding tax, payroll tax, employment tax, excise tax, severance tax, stamp
tax, occupation tax, property tax, environmental or windfall profit tax, custom,
duty or other tax, impost, levy, governmental fee or other like assessment or
charge of any kind whatsoever together with any interest or any penalty,
addition to tax or additional amount imposed with respect thereto by any
governmental or Tax authority responsible for the imposition of any such tax
(domestic or foreign), and
- 5 -
(ii) any
liability for the payment of any amounts of the type described in clause (i)
above as a result of being a member of an affiliated, consolidated, combined or
unitary group for any Taxable period, and
(iii) any
liability for the payment of any amounts of the type described in clauses (i) or
(ii) above as a result of any express or implied obligation to indemnify any
other person.
“Tax Return” means any return,
declaration, form, claim for refund or information return or statement relating
to Taxes, including any schedule or attachment thereto, and including any
amendment thereof.
“2009 Fiscal Year” means the
fiscal year of the Culinary Group ended December 31, 2009.
“2010 Fiscal Year” means the
fiscal year of the Culinary Group ending December 31, 2010.
“2011 Fiscal Year” means the
fiscal year of the Culinary Group ending December 31, 2011.
ARTICLE III -
REPRESENTATIONS AND WARRANTIES
OF THE MEMBERS.
The Members hereby, jointly and
severally, represent and warrant to Oaktree as
follows:
3.1 Organization and Good
Standing: Ownership of Shares. Each of the Culinary LLCs is a
limited liability company duly organized and validly existing under the laws of
the State of New York. There are no outstanding subscriptions,
rights, options, warrants or other agreements obligating the Culinary LLCs to
issue, sell or transfer any stock or other securities of the Culinary
LLCs.
3.2 Corporate
Authority. Each of the Members individually has the power and
authority, and each of the Culinary LLCs has the power and authority to enter
into this Agreement and to perform their respective obligations
hereunder. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by the Board of Managers of the Culinary LLCs and has been duly authorized by
all of the Members. The execution and performance of this Agreement
will not constitute a breach of any agreement, indenture, mortgage, license or
other instrument or document to which either the Culinary LLCs or any of the
Members is a party and will not violate any judgment, decree, order, writ, rule,
statute, or regulation applicable to either of the Culinary LLCsany of the
Members or their respective properties. The execution and performance
of this Agreement will not violate or conflict with any provision of the
operating agreements of either of the Culinary LLCs.
3.3 Capitalization.
(a) As
at the Agreement Date and as at the Closing Date, the Members are and shall be
the owners of record and beneficially of 100% of the Membership Interests of the
Culinary LLCs. All issued and outstanding Membership Interests of the
Culinary LLCs are owned by the Members free and clear of all rights,
claims, liens and encumbrances, and have not been sold, pledged, assigned or
otherwise transferred except pursuant to this Agreement.
(b) As
at the Closing Date, there shall be Membership Interests or other securities of
the Culinary LLCs issuable upon conversion of any outstanding notes or other
securities or upon exercise of any rights, options or warrants to purchase or
otherwise receive the Culinary LLCs Membership Interests or other the Culinary
LLCs securities.
- 6 -
3.4 Financial Statements, Books
and Records.
(a) The
Culinary LLCs have furnished to Oaktree all balance sheets, income statements,
statements of cash flows and statements of stockholders equity and notes thereto
of the Culinary LLCs for each of the two fiscal years ended December 31, 2008
and December 31, 2009 (the “Financial
Statements”). The Financial Statements fairly represent the
financial position of the Culinary LLCs as at such dates and the results of
their operations for the periods then ended. The Financial Statements
were prepared in accordance with generally accepted accounting principles
applied on a consistent basis with prior periods except as otherwise stated
therein and except that the unaudited Financial Statements may not include all
footnotes normally included under such generally accepted accounting
principles. The books of account and other financial records of the
Culinary LLCs are in all respects complete and correct in all material respects
and are maintained in accordance with good business and accounting
practices.
(b) The
Financial Statements of the Culinary LLCs have been or are capable of being
audited in accordance with generally accepted accounting principles and
Regulation S-X, as promulgated under the Securities Act of 1933, as
amended.
(c) ETI
has no subsidiaries and does not own any interest in any other
entity.
3.5 Access to
Records. All of the corporate financial records, minute books
and other documents and records of the Culinary LLCs have been made available to
Oaktree prior to the Closing hereof.
3.6 No Material Adverse
Changes. Except for distributions of cash by the Culinary LLCs
to enable the Members to pay their 2009 federal, state and local income taxes,
or as otherwise described on Schedule 3.6 hereto,
since December 31, 2009, there has not been, and neither of the Culinary LLCs
has or will have:
(a) any
material adverse change in the financial position of either of the Culinary
LLCs, except changes arising in the ordinary course of business, which changes
will in no event materially and adversely affect the financial position of the
Culinary LLCs;
(b) any
damage, destruction or loss materially affecting the assets, prospective
business, operations or condition (financial or otherwise) of the Culinary LLCs
whether or not covered by insurance;
(c) any
declaration, setting aside or payment of any dividend or distribution with
respect to any redemption or repurchase of the Culinary LLCs
equity;
(d) any sale
of an asset (other than in the ordinary course of business) or any mortgage or
pledge by the Culinary LLCs of any properties or assets;
(e) adoption
or amendment of any pension, profit sharing, retirement, stock bonus, stock
option or similar plan or arrangement;
(f) incurred
or assumed any indebtedness or liability for borrowed money, except in the
ordinary course of their business;
- 7 -
(g) declared
or paid any dividend or declared or made any distribution of any kind to any
shareholder, or made any direct or indirect redemption, retirement, purchase or
other acquisition of any shares in its capital stock;
(h) made any
loan or advance to any shareholder, officer, director, employee, consultant,
agent or other representative or made any other loan or advance otherwise than
in the ordinary course of business;
(i) disposed
of any assets of the Culinary LLCs except in the ordinary course of business;
or
(j) increased,
terminated, amended or otherwise modified any plan for the benefit of employees
of the Culinary LLCs.
3.7 Taxes. Except
as set forth on Schedule 3.7, as of December 31, 2009 and as of the Closing
Date, the Culinary LLCs have (or will have) filed all material tax, governmental
and/or related forms and reports (or extensions thereof) due or required to be
filed and have (or will have) paid or made adequate provisions for all taxes or
assessments which had become due as of each such date, and there are no
deficiency notices outstanding.
3.8 Compliance with
Laws. The Culinary LLCs have complied with all federal, state,
county and local laws, ordinances, regulations, inspections, orders, judgments,
injunctions, awards or decrees applicable to them or their business which, if
not complied with, would have a Material Adverse Effect on the business of the
Culinary LLCs.
3.9 No
Breach. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby will
not:
(a) violate any provision of
the Operating Agreements of the Culinary LLCs;
(b)
violate, conflict with or result in the breach of any of the terms of, result in
a material modification of, otherwise give any other contracting party the right
to terminate, or constitute (or with notice or lapse of time, or both
constitute) a default under any contract or other agreement to which either of
the Culinary LLCs is a party or by or to which it or any of its assets or
properties may be bound or subject;
(c) violate any order,
judgment, injunction, award or decree of any court, arbitrator or governmental
or regulatory body against, or binding upon, either of the Culinary LLCs or upon
the properties or business of the Culinary LLCs; or
(d) violate
any statute, law or regulation of any jurisdiction applicable to the
transactions contemplated herein which could have a Material Adverse Effect on
the business or operations of the Culinary LLCs.
3.10 Actions and
Proceedings. Neither of the Culinary LLCs are a party to
any material pending litigation or, to its knowledge, any governmental
investigation or proceeding not reflected in the Financial Statements, and to
its best knowledge, no material litigation, claims, assessments or governmental
proceedings are threatened against either of the
Culinary LLCs.
- 8 -
3.11 Disclosure. The
Culinary LLCs have (and at the Closing will have) disclosed in writing to
Oaktree all events, conditions and facts materially affecting the business,
financial conditions or results of operation of the Culinary LLCs all of which
have been set forth herein. The Culinary LLCs have not now and will
not have, at the Closing, withheld disclosure of any such events, conditions,
and facts which they have knowledge of or have reasonable grounds to know may
exist.
3.12 Authority to Execute and
Perform Agreements. Each of the Culinary LLCs has the full
legal right and power and all authority and approval required to enter into,
execute and deliver this Agreement and to perform fully its obligations
hereunder. This Agreement has been duly executed and delivered and is
the valid and binding obligation of the Culinary LLCs and each of the Members
enforceable in accordance with its terms, except as may be limited by
bankruptcy, moratorium, insolvency or other similar laws generally affecting the
enforcement of creditors' rights. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby and the
performance by the Culinary LLCs and each of the Members of this Agreement, in
accordance with its respective terms and conditions will not:
(a) require
the approval or consent of any governmental or regulatory body or the approval
or consent of any other person;
(b) conflict
with or result in any breach or violation of any of the terms and conditions of,
or constitute (or with any notice or lapse of time or both would constitute) a
default under, any order, judgment or decree applicable to either of the
Culinary LLCs or any of the Members, or any instrument, contract or other
agreement to which either of the Culinary LLCs is a party or by or to which
either of the Culinary LLCs or any of the Members is bound or subject;
or
(c) result
in the creation of any lien or other encumbrance on the assets or properties of
either of the Culinary LLCs or any of the Members.
3.13 Brokers or
Finders. No broker's or finder's fee will be payable by the
Culinary LLCs or any of the Members in connection with the
transactions contemplated by this Agreement, nor will any such fee be incurred
as a result of any actions by the Culinary LLCs or any of the
Members, or ETI members or managers..
3.14 Tangible
Assets. Each of the Culinary LLCs has full ownership or
leasehold title and interest in all machinery, equipment, furniture, leasehold
improvements, fixtures, projects, owned or leased by the Culinary LLCs, any
related capitalized items or other tangible property material to the business of
the Culinary LLCs (the "Tangible
Assets"). Except as disclosed in the Financial Statements, the
Culinary LLCs hold all rights, title and interest in all the Tangible Assets
owned or leased by them, free and clear of all liens, pledges, mortgages,
security interests, conditional sales contracts or any other
encumbrances. All of the Tangible Assets are in good reasonable
condition and repair and are usable in the ordinary course of business of the
Culinary LLCs.
3.15 Insurance. Each
of the Culinary LLCs maintains adequate insurance required for the operation of
its business.
3.16 Full
Disclosure. No representation or warranty by the Culinary
LLCs or the Members in this Agreement or in any document or schedule to be
delivered by them pursuant hereto, and no written statement, certificate or
instrument furnished or to be furnished by the Culinary LLCs or the Members
pursuant hereto or in connection with the negotiation, execution or performance
of this Agreement contains or will contain any untrue statement of a material
fact or omits or will omit to state any fact necessary to make any statement
herein or therein not materially misleading or necessary to a complete and
correct presentation of all material aspects of the business of the Culinary
LLCs.
- 9 -
ARTICLE IV
- REPRESENTATIONS AND WARRANTIES OF FLORHAM
Oaktree hereby represents and warrants
to the Members, as follows:
4.1 Organization and Good
Standing. Oaktree is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware. Oaktree has the corporate power to own its own property and
to carry on its business as now being conducted and is duly qualified to do
business in any jurisdiction where so required except where the failure to so
qualify would have no material negative impact.
4.2 Corporate
Authority. Oaktree has the corporate power to enter into this
Agreement and to perform their respective obligations hereunder. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by the Board of
Directors of Oaktree as required by Delaware law. The execution and
performance of this Agreement will not constitute a material breach of any
agreement, indenture, mortgage, license or other instrument or document to which
Oaktree is a party and will not violate any judgment, decree, order, writ, rule,
statute, or regulation applicable to Oaktree or its properties. The
execution and performance of this Agreement will not violate or conflict with
any provision of the Certificate of Incorporation or by-laws of
Oaktree.
4.3 Oaktree Financial
Statements; Capitalization.
(a) The
Form 10K-A of Oaktree for the fiscal year ended December 31, 2009 (the “Oaktree 2009 Form 10-K”)
includes the audited balance sheet, statement of operations and statement of
cash flows of Oaktree as at December 31, 2009 and for the fiscal year then ended
(the “Oaktree 2009 Audited
Financial Statements”). Except as set forth on the Oaktree
Balance Sheet as at December 31, 2009 or otherwise disclosed on Schedule 4.3, as at
December 31, 2009 and for all periods subsequent thereto, Oaktree has no other
material assets and has incurred no other material liabilities, debts or
obligations, whether fixed, contingent or otherwise required to be set forth on
a balance sheet prepared in accordance with GAAP. The books of
account and other financial records of Oaktree are in all respects complete and
correct in all material respects and are maintained in accordance with good
business and accounting practices.
(b) The
Oaktree 2009 Form 10-K-A and Schedule 4.3 annexed
hereto sets forth the capitalization of Oaktree as at December 31, 2009,
including all shares of capital stock issued and outstanding and all convertible
securities, options, warrants and other rights to receive shares of Oaktree
capital stock. Except as set forth on Schedule 4.3, since December
31, 2009, no additional shares of Oaktree capital stock or any convertible
securities, options, warrants and other rights to receive shares of Oaktree
capital stock have been issued.
4.5 No Material Adverse
Changes. Except
as set forth in Schedule 4.5, since
December 31, 2009:
(a) except
for indebtedness and other liabilities not to exceed $100,000 in the aggregate
that will be outstanding as at the Closing Date, there have not been any
liabilities or other indebtedness incurred by Oaktree;
(b) there
has not been any material adverse changes in the financial position of Oaktree
except changes arising in the ordinary course of business, which changes will in
no event materially and adversely affect the financial position of Oaktree, and
will be consistent with the representations made by Oaktree
hereunder.
- 10 -
(c) there
has not been any damage, destruction or loss materially affecting the assets,
prospective business, operations or condition (financial or otherwise) of
Oaktree whether or not covered by insurance;
(d) there
has not been any declaration setting aside or payment of any dividend or
distribution with respect to any redemption or repurchase of Oaktree capital
stock;
(e) there
has not been any sale of an asset (other than in the ordinary course of
business) or any mortgage pledge by Oaktree of any properties or assets;
or
(f) there
has not been adoption or modification of any pension, profit sharing,
retirement, stock bonus, stock option or similar plan or
arrangement.
(g) there
has not been any loan or advance to any shareholder, officer, director,
employee, consultant, agent or other representative or made any other loan or
advance otherwise than in the ordinary course of business;
(h) there
has not been any increase in the annual level of compensation of any executive
employee of Oaktree;
(i) except
in the ordinary course of business, Oaktree has not entered into or modified any
contract, agreement or transaction; and
(j) Oaktree
has not issued any equity securities or rights to acquire equity
securities.
4.6 Taxes. Oaktree
has timely filed all material tax, governmental and/or related forms and reports
(or extensions thereof) due or required to be filed and has paid or made
adequate provisions for all taxes or assessments which have become due through
December 31, 2009 and as of the Closing Date, and there are no deficiencies
outstanding.
4.7 Compliance with
Laws. Oaktree has complied with all federal, state, county and
local laws, ordinances, regulations, inspections, orders, judgments,
injunctions, awards or decrees applicable to it or its business, which, if not
complied with, would materially and adversely affect the business of Oaktree or
the trading market for the Oaktree Shares and specifically, Oaktree has complied
with provisions for registration under the Securities Act of 1933 and all
applicable blue sky laws in connection with its public stock offering and there
are no outstanding, pending or threatened stop orders or other actions or
investigations relating thereto.
4.8 Actions and
Proceedings. Oaktree is not a party to any material pending
litigation or, to its knowledge, any governmental proceedings are threatened
against Oaktree
4.9 Periodic Reports; Listing of
Shares.
(a) Oaktree
is a reporting company under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”) and
since becoming a reporting company has been current in the filing of all forms
or reports with the Securities and Exchange Commission (“SEC”). All such
reports and statements filed by Oaktree with the SEC (collectively, “SEC Reports”) did not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstance under which they were made, not
misleading.
- 11 -
(b) The
shares of Oaktree Common Stock are listed for trading on the FINRA OTC Bulletin
Board stock exchange under the symbol “FHMS”. No stop order,
suspension notice or other communications or notice from FINRA or other
governmental agency or authority has been received by Oaktree or its Affiliates,
which could reasonably be expected to result in the possibility that such shares
of Oaktree Common Stock could be delisted from trading on such stock
exchange.
4.10 Disclosure. Oaktree
has (and at the Closing it will have) disclosed in writing to ETI all events,
conditions and facts materially affecting the business, financial conditions or
results of operation of Oaktree all of which have been set forth
herein. Oaktree has not now and will not have, at the Closing,
withheld disclosure of any such events, conditions, and facts which they have
knowledge of or have reasonable grounds to know may exist.
4.11
Access to
Records. The corporate financial records, minute books, and
other documents and records of Oaktree will have been made available to ETI
prior to the Closing hereof.
4.12 No
Breach. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby will
not:
(a) violate
any provision of the Articles of Incorporation or By-Laws of
Oaktree;
(b) violate,
conflict with or result in the breach of any of the terms of, result in a
material modification of, otherwise give any other contracting party the right
to terminate, or constitute (or with notice or lapse of time or both constitute)
a default under, any contract or other agreement to which Oaktree is a party or
by or to which it or any of its assets or properties may be bound or
subject;
(c) violate
any order, judgment, injunction, award or decree of any court, arbitrator or
governmental or regulatory body against, or binding upon, Oaktree or upon the
securities, properties or business to Oaktree;
or
(d) violate
any statute, law or regulation of any jurisdiction applicable to the
transactions contemplated herein.
4.14 Brokers or
Finders. Except for broker’s fees payable in connection with
the Oaktree Financing, no broker's or finder's fee will be payable by Oaktree in
connection with the transactions contemplated by this Agreement, nor will any
such fee be incurred as a result of any actions of Oaktree.
4.15 Authority to Execute and
Perform Agreements. Oaktree has the full legal right and power
and all authority and approval required to enter into, execute and deliver this
Agreement and to perform fully its obligations hereunder. This
Agreement has been duly executed and delivered and is the valid and binding
obligation of Oaktree enforceable in accordance with its terms, except as may be
limited by bankruptcy, moratorium, insolvency or other similar laws generally
affecting the enforcement of creditors' rights. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby and the performance by Oaktree of this Agreement, in accordance with its
respective terms and conditions will not:
- 12 -
(a) require
the approval or consent of any governmental or regulatory body or the approval
or consent of any other person;
(b) conflict
with or result in any breach or violation of any of the terms and conditions of,
or constitute (or with any notice or lapse of time or both would constitute) a
default under, any order, judgment or decree applicable to Oaktree, or any
instrument, contract or other agreement to which Oaktree is a party or by or to
which Oaktree is bound or subject; or
(c) result
in the creation of any lien or other encumbrance on the assets or properties of
Oaktree.
4.16 Full
Disclosure. No representation or warranty by Oaktree in this
Agreement or in any document or schedule to be delivered by them pursuant
hereto, and no written statement, certificate or instrument furnished or to be
furnished by Oaktree pursuant hereto or in connection with the negotiation,
execution or performance of this Agreement contains or will contain any untrue
statement of a material fact or omits or will omit to state any fact necessary
to make any statement herein or therein not materially misleading or necessary
to complete and correct presentation of all material aspects of the business of
Oaktree.
ARTICLE V - CONDITIONS
PRECEDENT
5.1 Conditions Precedent to the
Obligations of the Culinary LLCs and the Members. All
obligations of the Culinary LLCs and the Members under this Agreement are
subject to the fulfillment, prior to or as of the Closing Date, as indicated
below, of each of the following conditions; any one of which may be waived at
Closing by the Members.
(a) The
representations and warranties by or on behalf of Oaktree contained in this
Agreement or in any certificate or document delivered pursuant to the provisions
hereof shall be true in all material respects at and as of Closing Date as
though such representations and warranties were made at and as of such
time.
(b) Oaktree
shall have performed and complied in all material respects, with all covenants,
agreements, and conditions set forth in, and shall have executed and delivered
all documents required by this Agreement to be performed or complied with or
executed and delivered by it or him prior to or at the Closing.
(c) On
the Closing Date, an executive officer of Oaktree shall have delivered to the
Members a certificate, duly executed by such Person and certifying, that to the
best of such Person’s knowledge and belief, the representations and warranties
of Oaktree set forth in this Agreement are true and correct in all material
respects.
(d) On
or before the Closing, the Department of Education of the State of New York
shall have approved the transactions contemplated by this
Agreement.
(e) On
or prior to the Closing, Oaktree shall have consummated the Oaktree
Financing.
(f) At
the Closing, all instruments and documents delivered to the Members pursuant to
provisions hereof shall be reasonably satisfactory to legal counsel for the
Members.
- 13 -
(g) At
the Closing, all conditions and obligations on the part of Oaktree to be
performed in order to consummate the transactions contemplated by this Agreement
shall have been fulfilled or satisfied to the reasonable satisfaction of the
Members.
(h) At
the closing, Oaktree shall have completed the wire transfer instructions
regarding the Closing Purchase Price to be paid to the Members.
(i) At
the Closing, Oaktree shall have executed and delivered the Employment
Agreements.
(j) There
shall not have occurred any material adverse change in the businesses,
prospects, financial condition, assets or results of operations of
Florham.
5.2 Conditions Precedent to the
Obligations of Oaktree. All
obligations of Oaktree under this Agreement are subject to the fulfillment,
prior to or at Closing, of each of the following conditions (any one of which
may be waived at Closing by Oaktree):
(a) The
representations and warranties by ETI and the Members contained in this
Agreement or in any certificate or document delivered pursuant to the provisions
hereof shall be true in all material respects at and as of the Closing as though
such representations and warranties were made at and as of such
time;
(b) ETI
and the Members shall have performed and complied with, in all material
respects, with all covenants, agreements, and conditions set forth in, and shall
have executed and delivered all documents required by this Agreement to be
performed or complied or executed and delivered by them prior to or at the
Closing;
(c) On
or before the Closing, Oaktree shall have confirmed that:
(i) the
Culinary Group’s revenues and Pre-Tax Income for the 2009 Fiscal Year are at
least $3,800,000 and $1,200,000, respectively,
(ii) the
Culinary Group has adequate liquidity and working capital at Closing to enable
it to conduct its business in the ordinary course,
(iii) the
Culinary Group will be debt free, except for ordinary course trade obligations,
and that any and all shareholder loans/contributions will have been converted to
equity or extinguished prior to the Closing; and
(iv) the
Culinary Group shall have a positive combined net worth (stockholders’ equity
and members equity) as of the Closing.
(d) On
or before the Closing, each of Monaco and Kaplan shall have executed and
delivered the Employment Agreements and shall have terminated the Monaco
Consulting Agreement.
(e) On
or before the Closing, all conditions and obligations on the part of the
Culinary LLCs and the Members to be performed in order to consummate the
transactions contemplated by this Agreement shall have been fulfilled or
satisfied to the reasonable satisfaction of Oaktree.
(f) On
or before the Closing, ETI shall have delivered to Oaktree the Financial
Statements specified in Section 6.4 of this Agreement.
- 14 -
(f) On
the Closing Date, ETI shall have delivered to Oaktree a certificate,
duly executed by it President or Chief Financial Officer and certifying, that to
the best of such Person’s knowledge and belief, the representations and
warranties of ETI set forth in this Agreement are true and correct in all
material respects.
(g) There
shall not have occurred any material adverse change in the businesses,
prospects, financial condition, assets or results of operations of the Culinary
Group, either individually or when taken as a consolidated group.
(h) At
the Closing, all instruments and documents to be delivered to Oaktree, including
the ETI Common Stock, pursuant to the provisions hereof shall be reasonably
satisfactory to legal counsel for Oaktree.
(i) On
or before the Closing, the Department of Education of the State of New York
shall have approved the transactions contemplated by this Agreement, and any
other consent required to effectuate the transactions contemplated by this
Agreement shall have been obtained.
(j) On
or prior to the Closing, Oaktree shall have consummated the Oaktree Financing on
terms and conditions satisfactory to the board of directors of
Oaktree.
ARTICLE VI
- COVENANTS
6.1 Corporate Examinations and
Investigations. Prior to the Closing Date, the Parties
acknowledge that they have been entitled, through their employees and
representatives, to make such investigation of the assets, properties, business
and operations, books, records and financial condition of the other as they each
may reasonably require. No investigations, by a party hereto shall,
however, diminish or waive any of the representations, warranties, covenants or
agreements of the party under this Agreement.
6.2 Further
Assurances. The Parties shall execute such documents and other
papers and take such further actions as may be reasonably required or desirable
to carry out the provisions hereof and the transactions contemplated
hereby. Each such party shall use its best efforts to fulfill or
obtain the fulfillment of the conditions to the Closing, including, without
limitation, the execution and delivery of any documents or other papers, the
execution and delivery of which are necessary or appropriate to the
Closing.
6.3 Confidentiality. In
the event the transactions contemplated by this Agreement are not consummated,
Oaktree, the Members and the Culinary LLCs
agree to keep confidential any information disclosed to each other in connection
therewith for a period of three (3) years from the date hereof; provided,
however, such obligation shall not apply to information which:
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(i)
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at
the time of the disclosure was public
knowledge;
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(ii)
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is
required to be disclosed publicly pursuant to any applicable federal or
state securities laws;
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(iii)
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after
the time of disclosure becomes public knowledge (except due to the action
of the receiving party);
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- 15 -
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(iv)
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the
receiving party had within its possession at the time of disclosure;
or
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(v)
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is
ordered disclosed by a Court of proper
jurisdiction.
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6.4 Culinary Group Financial
Statements.
(a) Prior
to the Closing Date, the Culinary Group shall prepare and deliver to Oaktree an
audit of the Culinary Group’s combined financial statements prepared by the
auditor regularly engaged by Oaktree or another accounting firm certified by the
Public Company Accounting Oversight Board (“PCAOB”) to audit the
financials of public reporting companies in the United States for the two (2)
fiscal years ended December 31, 2008 and December 31, 2009 (the “PCAOB Audit”). In
addition, the Culinary Group shall furnish to Oaktree the unaudited combined
balance sheets and statements of operations for such interim fiscal periods in
2009 and 2010 as may be required under Regulation S-X promulgated under the
Securities Act of 1933, as amended.
(b) The
PCAOB Audits referred to above shall be conducted by the existing auditors for
Oaktree.
(c) The
parties hereto agree that the Culinary Group shall be responsible to pay the
first $35,000 of such PCAOB Audit fees and Oaktree shall be responsible for any
amounts in excess of $35,000. Notwithstanding the foregoing, in the
event that the Transactions contemplated hereby are not consummated, solely as
a result of a breach of any material representation and warranty on the part of
Oaktree, or the failure of Oaktree to perform any material covenant and
agreement set forth herein, in such event, Oaktree shall be obligated to
reimburse the Culinary Group for all actual expenditures made by the Culinary
Group in connection with such PCAOB Audit; such reimbursement to be paid in full
by a date which shall be not later than thirty (30) days following the
termination of the Transactions contemplated hereby.
6.5 Expenses. It
is understood and agreed that following the execution of this Agreement, any and
all expenses with respect to any filings, documentation and related matters with
respect to the consummation of the transactions contemplated hereby, including
all filings required to be made to obtain the Department of Education of the
State of New York’s approval of this transaction, shall be the sole
responsibility of Oaktree, and neither the Culinary LLCs nor the Members shall
be responsible for any such expenses or fees associated with such filings;
provided, however, that the Members shall fully cooperate and execute all
required documents as indicated.
6.6 Specific
Performance.
(a) Each
of the Culinary LLCs and the Members acknowledge and agree that, absent only
a breach by Oaktree of their representations and warranties or the
failure on the part of Oaktree to perform any of their covenants and
agreements contained herein, if the Culinary LLCs or the Members shall fail or
refuse to timely perform any of its covenants and agreements contained herein
that would make it impossible or impracticable for Oaktree to consummate by the
Outside Closing Date the transactions contemplated hereby and thereby, Oaktree
would have no adequate remedy at law.
(b) Accordingly,
each of the Culinary LLCs and the Members, on the other hand, do hereby agree
that, in addition to any other remedies available to it or them at law or in
equity, Oaktree or its legal representatives, may seek and obtain from any
federal or state court of competent jurisdiction in New York, New York, specific
performance of this Agreement. Each of Parties do hereby consent to
the jurisdiction of such federal or state court of competent jurisdiction in New
York, New York.
- 16 -
6.7 Change of PCI Corporate
Name. On or as soon as practicable following the Closing Date, the
corporate name of PCI shall be changed to another name acceptable to the Members
and reasonably acceptable to Oaktree. Each of PCI and Oaktree shall
use their collective best efforts to comply with this post-closing covenant as
soon as is reasonably practicable, if not performed on the Closing
Date.
ARTICLE
VII - TERMINATION.
7.1 Termination by the
Parties. If
the Closing has not occurred by the close of business on the Outside Closing
Date, then any Party hereto may thereafter terminate this Agreement by written
notice to such effect, to the other Parties hereto, without liability of or to
any Party to this Agreement or any shareholder, director, officer, employee or
representative of such Party, except for expenses contemplated by Section
6.4(c), unless the reason for Closing having not occurred is:
(a) such
terminating Party’s breach of its obligations, covenants, or commitments under
this Agreement, or
(b) if
all of the conditions to such terminating Party’s obligations set forth in
Section 5.1 and Section 5.2, as the case may be, have been satisfied or waived
in writing by the date scheduled for the Closing, and, notwithstanding such
satisfaction or waiver, such terminating Party fails or refuses to close the
transactions contemplated by this Agreement.
ARTICLE VIII
- SURVIVAL OF REPRESENTATIONS AND WARRANTIES
8.1 Notwithstanding
any right of either Party to investigate the affairs of the other party and its
Shareholders, each Party has the right to rely fully upon representations,
warranties, covenants and agreements of the other Parties contained in this
Agreement or in any document delivered to one by the other or any of their
representatives, in connection with the transactions contemplated by this
Agreement.
ARTICLE IX - DISPUTE
RESOLUTION; NON-COMPETITION.
9.1 Resolution of
Disputes. Except
as otherwise provided in Section 6.6 above or in Section 9.2 below, any dispute
arising under this Agreement which cannot be resolved among the Parties shall be
submitted to final and binding arbitration in accordance with the then
prevailing rules and regulations of the American Arbitration Association (the
“AAA”), located in New
York, New York. There shall be three arbitrators, one selected by the
claimant, one selected by the respondent and the third arbitrator selected by
the AAA. The decision and award of the arbitrators shall be final and
binding upon all Parties and may be enforced in any federal or state court of
competent jurisdiction. Service of process on any one or more
Parties in connection with any such arbitration may be made by registered or
certified mail, return receipt requested or by email or facsimile
transmission. Costs of arbitration shall allocated by the
arbitrators, and in the absence of any such allocation, shall be paid by the
losing party
9.2 Non-Competition,
Non-Solicitation and Non-Disclosure.
(a) General. In
order to induce Oaktree to enter into this Agreement and to consummate the
transactions contemplated hereby, each the Members hereby acknowledges that he
or his affiliates is a beneficiary of the Oaktree Common Stock, and the Members
do hereby, jointly and severally, covenant and agree as
follows:
- 17 -
(i) Each
of Monaco and Kaplan and their respective Affiliates shall not for a period of
four (4) years from and after the Closing Date: (A) directly or indirectly
acquire or own in any manner any interest in any person, firm, partnership,
corporation, association or other entity which engages or plans to engage in a
business that competes with the business conducted by any member of the Culinary
Group as conducted on the Closing Date or during such three (3) year period (the
“Business”) in any State
of the United States which any member of the Culinary Group conducts its
Business (the “Territory”); (B) be employed
by or serve as an employee, agent, officer, director of, or as a consultant to,
any person, firm, partnership, corporation, association or other entity which
competes or plans to compete in any way with the Business; (C) utilize his or
its special knowledge of the Business and his or its relationships with
customers, suppliers and others to compete with the Business conducted by the
Culinary Group; provided,
however, that nothing herein shall be deemed to prevent any either Member
or his Affiliates from acquiring through market purchases and owning, solely as
an investment, less than five (5%) percent in the aggregate of the equity
securities of any class of any issuer whose shares are registered under §12(b)
or 12(g) of the Securities Exchange Act of 1934, as amended, and are listed or
admitted for trading on any United States national securities exchange or are
quoted on the National Association of Securities Dealers Automated Quotation
System, or any similar system of automated dissemination of quotations of
securities prices in common use, so long as such Member or his Affiliates is not
a member of any “control group” (within the meaning of the rules and regulations
of the United States Securities and Exchange Commission) of any such
issuer.
Each of
the Members acknowledges and agrees that (a) the covenants provided for in this
Section 9.2(a) are reasonable and necessary in terms of time, area and line of
business to protect the Culinary LLCs’ good will and trade secrets, (b) such
covenants are reasonable and necessary in terms of time, area and line of
business to protect the legitimate business interests of each of Oaktree and the
Culinary Group, which include their interests in protecting their (x) valuable
confidential business information, (y) substantial relationships with clients,
supplier and customers, and (z) customer goodwill associated with the ongoing
Business. The Members and their Affiliates expressly authorizes the
enforcement of the covenants provided for in this Section 9.2(a) by (A) Oaktree,
(B) any member of the Culinary Group, and (C) any successors to the Business of
Oaktree or the Culinary Group. To the extent that the covenants
provided for in this Section 9.2(a) may later be deemed by a court to be too
broad to be enforced with respect to its duration or with respect to any
particular activity or geographic area, the court making such determination
shall have the power to reduce the duration or scope of the provision, and to
add or delete specific words or phrases to or from the provision. The
provision as modified shall then be enforced.
(ii) The
Members and their Affiliates shall not for a period of four (4) years from the
Closing Date, directly or indirectly, for themselves or for any other person,
firm, corporation, partnership, association or other entity (including the
Members), (i) attempt to employ or enter into any contractual arrangement with
any employee or former employee of the Business then being conducted by the
Culinary Group, unless such employee or former employee has not been employed by
the Business then being conducted by the Culinary Group for a period in excess
of one year, and/or (ii) call on or solicit any of the actual or targeted
prospective customers or clients of the Business, nor shall the Members or his
or its Affiliates make known the names and addresses of such customers or any
information relating in any manner to any member of the Culinary Group’s trade
or business relationships with such customers.
- 18 -
(iii) The
Members and their Affiliates shall not at any time (except internally among the
Members) divulge, communicate, use to the detriment of Oaktree or the Culinary
Group, or for the benefit of any other Person or Persons, or misuse in any way,
any “Confidential
Information” (as hereinafter defined) pertaining to the
Business. Any Confidential Information or data now known or hereafter
acquired by the Members or their Affiliates with respect to the Business shall
be deemed a valuable, special and unique asset of Oaktree and the Culinary Group
and is received by the Members in confidence and as a fiduciary, and the Members
and their Affiliates shall remain a fiduciary to Oaktree and the Culinary Group
with respect to all of such information. As used herein the term
“Confidential Information” shall mean all information or material that has or
could have commercial value or other utility in the Business of Oaktree and its
subsidiaries. Confidential Information also includes all information
of which unauthorized disclosure could be detrimental to the interests of
Company or its subsidiaries or affiliates whether or not such information is
identified as confidential information by Oaktree and its
subsidiaries. By example and without limitation, Confidential
Information includes, but is not limited to, any and all information of the
following or similar nature, whether or not reduced to writing: customer lists,
customer and supplier identities and characteristics, agreements, marketing
knowledge and information, sales figures, pricing information, marketing plans
and business plans, strategies, forecasts, financial information, budgets,
software, research papers, projections, procedures, routines, quality control
and manufacturing procedures, processes, formulas, trade secrets, innovations,
inventions, discoveries, improvements, research or development and test results,
specifications, data, know-how, formats, plans, sketches, specifications,
drawings, models, and any other information or procedures that are treated as or
designated secret or confidential by Oaktree and its subsidiaries or its
customers or potential customers. Notwithstanding the foregoing,
“Confidential Information” shall not mean or include information that: (a) was
in the recipient’s possession prior to its being furnished to the recipient
under the terms of this Agreement, provided the source of that information was
not known by the recipient to be bound by a confidentiality agreement with or
other continual, legal or fiduciary obligation of confidentiality to Oaktree and
its subsidiaries; (b) is now, or hereafter becomes, through no act or failure to
act on the part of recipient, generally known to the public; (c) is rightfully
obtained by the recipient from a third party, without breach of any obligation
to Oaktree or its subsidiaries; or (d) is independently developed by Recipient
without use of or reference to the Confidential Information.
(b) Injunction. It
is recognized and hereby acknowledged by the Parties hereto that a breach or
violation by any Members or any of its or his Affiliates of any or all of the
covenants and agreements contained in this Section 9.2 may cause irreparable
harm and damage to Oaktree in a monetary amount which may be
virtually impossible to ascertain. As a result, the Members
recognizes and hereby acknowledges that Oaktree or any one or more member of the
Culinary Group shall be entitled to an injunction from any court of competent
jurisdiction enjoining and restraining any breach or violation of any or all of
the covenants and agreements contained in this Section 9.2 by such Member and/or
any of his or its Affiliates, and that such right to injunction shall
be cumulative and in addition to whatever other rights or remedies that Oaktree
or any member of the Culinary Group may possess hereunder, at law or in
equity. Nothing contained in this Section 9.2 shall be construed to
prevent Oaktree or the Culinary Group from seeking and recovering from a Member
or its or his Affiliates damages sustained by it as a result of any breach or
violation by such Member or its or his Affiliates of any of the covenants or
agreements contained herein.
ARTICLE X
- MISCELLANEOUS
10.1 Waivers. The
waiver of a breach of this Agreement or the failure of any party hereto to
exercise any right under this Agreement shall in no way constitute waiver as to
future breach whether similar or dissimilar in nature or as to the exercise of
any further right under this Agreement.
10.2 Amendment. This
Agreement may be amended or modified only by an instrument of equal formality
signed by the Parties or the duly authorized representatives of the respective
Parties.
- 19 -
10.3 Assignment. This
Agreement is not assignable except by operation of law.
10.4 Notice. Until
otherwise specified in writing, the mailing addresses, email addresses, and fax
numbers of the Parties of this Agreement shall be as follows:
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To:
Oaktree::
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Oak
Tree Educational Group, Inc.
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845
Third Avenue
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Sixth
Floor
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New
York, NY 10022
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Attn:
Anil Narang, President
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Fax:
203-222-9226
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Email:
anarang1@aol.com
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with
a copy to:
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Stephen
A. Weiss, Esq.
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Hodgson
Russ, LLP
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1540
Broadway
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24th
Floor
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New
York, NY 10036
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(212)
751-4300
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email: sweiss@hodgsonruss.com
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and
to :
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Jonathan
Turkel, Esq.
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44
Wall Street, 2nd
floor
|
||
|
New
York, NY 10005
|
||
|
Fax:
(212) 785 3294
|
||
|
Email:
jonathanturkel@hotmail.com
|
||
|
To:
the
Members:
|
||
|
Professional
Culinary Institute LLC
|
||
|
c/o Educational
Training Institute, Inc
|
||
|
424
West 33rd
Street
|
||
|
New
York, NY 10001
|
||
|
Attn:
|
Joseph
Monaco, Jr. and Harold Kaplan
|
|
|
Fax:
|
(212)
__-____
|
|
|
Email:
|
jmonaco@edtraining.com
|
|
|
hkaplan@edtraining.com
|
||
|
with
a copy to:
|
Louis
Taubman, Esq.
|
|
|
Rachael
Schmeirer, Esq.
|
||
|
Hunter
Leser Taubman & Taubman, LLC
|
||
|
17
State Street
|
||
|
20th
Floor
|
||
|
New
York, NY 10004
|
||
|
Fax:
|
(212)
202-6380
|
|
|
email:
|
lou@lhttlaw.com
|
|
- 20 -
Any
notice or statement given under this Agreement shall be deemed to have been
given 3 business days after delivery to the US mail system if sent by registered
mail, one business day after delivery, if sent by recognized overnight courier,
or when given if sent by facsimile (with receipt retained), addressed or faxed
to the other party at the address or facsimile number indicated above or at such
other address or facsimile number which shall have been furnished in writing to
the addressor in the manner set forth in this Section 10.4.
10.5 Governing
Law. This Agreement shall be construed, and the legal
relations between the Parties determined, in accordance with the laws of the
State of New York, thereby precluding any choice of law rules which may direct
the application of the laws of any other jurisdiction.
10.6 Publicity. No
publicity release or announcement concerning this Agreement or the transactions
contemplated hereby shall be issued by any Party hereto at any time from the
signing hereof without advance approval in writing of the form and substance by
the other Parties.
10.7 Entire
Agreement. This Agreement (including the Schedules to be
attached hereto) and the collateral agreements executed in connection with the
consummation of the transactions contemplated herein contain the entire
agreement among the Parties with respect to the transactions contemplated
hereby, and supersedes all prior agreements, written or oral, with respect
hereof.
10.8 Headings. The
headings in this Agreement are for reference purposes only and shall not in any
way affect the meaning or interpretation of this Agreement.
10.9 Severability of
Provisions. The invalidity or unenforceability of any term,
phrase, clause, paragraph, restriction, covenant, agreement or provision of this
Agreement shall in no way affect the validity or enforcement of any other
provision or any part thereof.
10.10 Counterparts. This
Agreement may be executed in any number of counterparts, each of which when so
executed, shall constitute an original copy hereof, but all of which together
shall consider but one and the same document.
10.11 Facsimile and PDF
Signatures. This Agreement may be executed and delivered by
facsimile and/or electronic pdf signatures; each of which shall have the same
effect as an original signature.
10.12 Binding
Effect. This Agreement shall be binding upon the Parties
hereto and inure to the benefit of the Parties, their respective heirs,
administrators, executors, successors and assigns.
[the
balance of this page intentionally left blank – signature pages
follow]
- 21 -
IN WITNESS WHEREOF, the
Parties have executed this Agreement on the date first above
written.
|
ATTEST:
|
FLORHAM
CONSULTING CORP.
|
||
|
(to
be renamed OAKTREE
|
|||
|
EDUCATIONAL
GROUP,, INC.)
|
|||
|
(a
Delaware corporation)
|
|||
|
|
|||
|
Jonathan
Turkel
|
By:
|
|
|
|
Assistant
Secretary
|
Anil
Narang, President
|
||
|
ATTEST:
|
EDUCATIONAL
TRAINING INSTITUTE, INC.
|
||
|
(a
New York corporation)
|
|||
|
|
By:
|
|
|
|
Secretary
|
Joseph
Monaco, Jr., President
|
||
|
ATTEST:
|
CULINARY
TECH CENTER LLC
|
||
|
(a
New York limited liability company)
|
|||
|
|
By:
|
|
|
|
Secretary
|
Joseph
Monaco,
|
||
|
Member
and Manager
|
|||
|
ATTEST:
|
PROFESSIONAL
CULINARY INSTITUTE LLC
|
||
|
(a
New York limited liability company)
|
|||
|
|
By:
|
|
|
|
Secretary
|
Harold
Kaplan,
|
||
|
Member
and Manager
|
|||
|
THE
MEMBERS:
|
|||
|
|
|||
|
JOSEPH
MONACO
|
|||
|
|
|||
|
HAROLD
KAPLAN
|
|||
- 22 -