Exhibit 10.63
R E S T A T E D
GLOBAL AGREEMENT FOR
PURCHASE AND SALE
THIS RESTATED GLOBAL AGREEMENT FOR PURCHASE AND SALE ("Global
Agreement") is entered into with an effective date as of the 6th day of
October, 1999 ("Effective Date"), by and between VENTURI TECHNOLOGIES, INC.,
a Nevada corporation ("VTI"), having its principal offices at 763 North 530
East, Orem, Utah 84097 and various Seller Entities as described herein.
WHEREAS, VTI is interested in purchasing the issued and outstanding
corporate stock of those certain corporate entities known as MARTIN &
PETERMAN, INC., a Colorado corporation, dba MPI, INC. (hereinafter
"MPI/Colorado"), MPI OF FLORIDA, INC., a Florida corporation (hereinafter
"MPI/Florida"), MPI OF OREGON, INC., an Oregon corporation (hereinafter
"MPI/Oregon") and 565876 B.C. LTD., dba "Sunburst Carpet Services," a British
Columbia corporation ("MPI/BC") (the foregoing corporations are hereinafter
collectively referred to as the "Corporate Entities", and the outstanding and
issued capital stock thereof shall hereinafter collectively be referred to as
the "Corporate Shares").
WHEREAS, VTI is also interested in purchasing certain assets, both
personal and intangible, currently owned by MPI OF ARIZONA, an Arizona
general partnership ("MPI/Arizona"), MPI OF GEORGIA, a Georgia general
partnership ("MPI/Georgia"), MPI OF WASHINGTON, a Washington general
partnership ("MPI/Washington"), MPI OF NORTHERN FLORIDA, a Colorado general
partnership ("MPI/No. Fla."), MPI OF SOUTHERN FLORIDA, a Colorado general
partnership ("MPI/So. Fla."), and MPI OF NEVADA, a Colorado general
partnership ("MPI/Nevada"); (hereinafter the collective and combined assets
as associated with the foregoing entities shall be referred to as the
"Business Assets").
WHEREAS, a preliminary Global Agreement for the Purchase and Sale was
executed by the parties on October 6, 1999 with the caveat that it would be
revised and replaced by this document, and the parties intend to cancel the
preliminary agreement.
NOW, THEREFORE, in consideration of the mutual understandings as set
forth herein, the undersigned parties hereby agree as follows:
1. PURCHASE OF CORPORATE SHARES. It is the intent of the parties
to enter into separate Stock Purchase Agreements for the sale to and
acquisition by VTI of the Corporate Shares, and accordingly, for each of the
Corporate Entities to assign, transfer, convey and vest in VTI all their
right, title and interest as associated therewith. Specific Corporate Shares
for a specific entity such as MPI of Oregon, Inc. shall be correspondingly
identified as "Corporate Shares/MPI Oregon", etc.
2. PURCHASE OF BUSINESS ASSETS. It is the intent of the parties
hereto that VTI acquire all right, title and interest in and to the Business
Assets by entering into separate Asset Purchase
Agreements with the appropriate conveying partnerships. Those Business
Assets for a particular, segregated portion of the Business will hereinafter
be annotated with a specific locale to differentiate the Business Assets
affected. For example, the Business Assets associated with the Las Vegas,
Nevada operation shall be referred to as the "Business Assets/Nevada", while
those associated with the Jacksonville, Florida operation shall be referred
to as "Business Assets/North Florida," etc.
3. BUSINESS LOCATIONS. VTI recognizes that the Business Assets
and Corporate Shares deal with assets and business operations located at
numerous sites throughout the continental United States and are owned by
various affiliated individuals and/or entities (hereinafter collectively the
"Seller Entities"). The parties also acknowledge that it will require a
period of time for VTI to assimilate and take over operations at each
location.
4. TIMING OF CLOSINGS. In light of the time period required by
VTI to assimilate control and continue operations at the various locales, the
parties hereto have agreed to a consummation of the Purchase Agreements
("Closings") pursuant to a phased closing schedule. Said Closing schedule is
set out within Exhibit A hereto. The parties agree to close the first four
(4) locales in calendar year 1999, at the frequency set forth in Schedule A.
The balance of the locales will be closed simultaneously on or before January
25, 2000 ("Closing Deadline Date"). However, should a breach of this Global
Agreement or any of the Purchase Agreements occur prior to the Closing
Deadline Date, all unclosed transactions will be suspended until the
"Dispute" is settled by the parties or resolved pursuant to Paragraph 10
hereof.
5. PAYMENT OF PURCHASE PRICE.
5.1 CASH. Each Purchase Agreement will require a cash
payment at Closing in the amount of twenty percent (20%) of the Purchase
Price, except in the instance of the British Columbia transaction, which will
be all cash. The specific cash amounts are itemized within the Schedule
comprising Exhibit A hereto.
5.2 PROMISSORY NOTES. Each Closing (except for British
Columbia) will also require the execution and delivery by VTI of its
corporate promissory note for forty percent (40%) of the purchase price, with
interest to accrue at the rate of nine percent (9%) per annum, 15 year
amortization, providing for monthly payments of principal and interest, with
the initial installment due on the first day of the calendar month following
Closing and with all principal and accrued interest due thirty-six (36)
months from the date of the first installment.
5.3. VTI STOCK. The VTI stock comprising forty percent (40%)
of the purchase price (except for British Columbia) shall be in an amount
equivalent to the number of shares of $.001 par value unissued common stock
for VTI valued for purposes of this transaction at $4 per share, which shares
shall be delivered to the Escrow Agent pursuant to the terms of a companion
Global Escrow Agreement, dated October 19, 1999.
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6. ESCROW. The terms of the Global Escrow Agreement shall provide
for the appointment of Colorado Business Bank - Boulder to function as escrow
agent ("Escrow Agent"). The VTI shares shall be held by Escrow Agent
pursuant to the terms of the Global Escrow Agreement.
a. ESCROW LEGEND. The stock certificates representing the
VTI Shares shall contain, for so long as the VTI Shares are held in Escrow, a
legend in substantially the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO FORFEITURE AND ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER, INCLUDING AN AGREEMENT
BETWEEN THE COMPANY AND THE ORIGINAL HOLDER OF THE
SHARES REPRESENTED BY THIS CERTIFICATE THAT THE
SHARES MAY NOT BE OFFERED OR SOLD FOR A CERTAIN
PERIOD OF TIME AFTER THE DATE OF ISSUANCE.
b. RESTRICTED STOCK. The VTI Shares have not been
registered with the Securities and Exchange Commission, nor have they been
qualified under the securities laws of any state. The selling party
acknowledges that the VTI Shares are subject to the following restriction
which will be printed in the following form on the certificates representing
the VTI Shares:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT") OR QUALIFIED UNDER THE
SECURITIES LAWS OF ANY STATE (THE "LAW"). SUCH
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND
NEITHER SAID SHARES NOR ANY INTEREST THEREIN MAY BE
SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SHARES
UNDER THE ACT AND QUALIFICATION UNDER THE LAW OR AN
OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION
THAT SUCH REGISTRATION AND QUALIFICATION ARE NOT
REQUIRED AS TO SAID SALE OR OFFER.
c. REPRESENTATIONS. The Seller Entities make the following
representations to VTI in order to establish exemptions from registration
under Federal and state securities laws. The Seller Entities are acquiring
the VTI Shares for their own account, for investment, and not for resale in
connection with any distribution thereof. The Seller Entities have such
knowledge and experience in business and financial matters that they are
capable of evaluating the risks of acquiring the VTI
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Shares. The Seller Entities understand the speculative nature of the VTI
Shares. The Seller Entities have adequate net worth and means to provide for
their respective current needs and to sustain a complete loss of their
respective investment. The Seller Entities have no need of liquidity of
their investment. The Seller Entities understand that at present only a
limited public market exists, and that a more general public market may never
exist, for the VTI Shares and that the VTI is under no obligation to provide
a market for the VTI Shares.
d. CONSENT TO DILUTION. The parties understand that VTI
plans to acquire other businesses and assets by issuing stock, and that VTI
may issue shares of its stock for other reasons in the future. The Seller
Entities understand and consent that future issuances of stock will dilute
the Seller Entities' proportionate ownership of VTI.
7. EMPLOYMENT OF PRINCIPALS. As partial consideration for the
Purchase Agreements, VTI shall enter into separate employment agreements
("Employment Agreements") with Mitchell J. Martin and Lloyd E. Peterman,
which Employment Agreements shall be in a form acceptable to Peterman, Martin
and VTI.
8. CLOSING BONUS. In the event that all Closings itemized in
Exhibit A occur on or before January 25, 2000, the Closing Deadline Date, VTI
has agreed to transfer and deposit 12,500 additional shares of VTI Stock
with the Escrow Agent to be held and disbursed pursuant to the terms of the
Global Escrow Agreement.
9. NOTICES. Any notices described under this Restated Global
Agreement shall be in writing and shall be deemed given when personally
delivered or mailed by first class registered mail, return receipt requested,
addressed to the parties at the addresses set forth within Exhibit B,
attached hereto and incorporated herein by this reference.
10. ARBITRATION.
10.1 Any action, dispute, controversy or claim between or
among the parties, whether sounding in contract, tort, or otherwise
("Dispute") shall, at the request of any party, be finally resolved by
arbitration as set forth below, and shall include any Dispute arising out of
or relating to this Agreement or any agreements or instruments relating to
this Agreement or delivered in connection with this Agreement. Any such
Dispute shall be determined by arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration Association. The arbitration
proceedings shall be conducted in Denver, Colorado. The arbitrator(s) shall
have the qualifications set forth in Section 10.2. All defenses and statutes
of limitation which would otherwise be applicable in a judicial action
brought by a party shall apply to any arbitration proceeding under this
Agreement.
10.2 The arbitrator(s) shall be selected in accordance with
the rules of the American Arbitration Association from panels maintained by
the Association. A single arbitrator shall be knowledgeable in the subject
matter of the arbitration proceeding. If more than one arbitrator is
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selected, at least one of the arbitrators must be knowledgeable in the
subject matter of the Dispute and at least one of whom must be a practicing
attorney. If more than one arbitrator is selected, the controversy shall be
decided by a majority vote of the arbitrators. The arbitrator(s) may award
recovery of all costs and fees (including attorneys' fees, administrative
fees, arbitrators' fees, and court costs) to the prevailing party. The
arbitrator(s) also may grant provisional or ancillary remedies such as, for
example, injunctive relief, attachment, or the appointment of a receiver,
either during the pendency of the arbitration proceeding or as part of the
arbitration award.
10.3 Notwithstanding the applicability of other law to any
agreements or instruments between or among the Parties, the Federal
Arbitration Act, 9 U.S.C. Sec. 1 ET SEQ. shall apply to the construction and
interpretation of this Agreement.
10.4 The Parties acknowledge that they have read and
understand the following disclosures:
ARBITRATION IS FINAL AND BINDING ON THE PARTIES.
THE PARTIES ARE WAIVING THEIR RIGHT TO LITIGATE IN COURT,
INCLUDING THEIR RIGHT TO A JURY TRIAL.
PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED AND
DIFFERENT FROM COURT PROCEEDINGS.
ARBITRATORS' AWARDS ARE NOT REQUIRED TO INCLUDE FACTUAL
FINDINGS OR LEGAL REASONING AND ANY PARTY'S RIGHT TO APPEAL
OR TO SEEK MODIFICATION OF RULINGS BY ARBITRATORS IS
STRICTLY LIMITED.
11. LEGAL AND OTHER COSTS. In the event that any party defaults in
its obligations under this Agreement and, as a result thereof, another party
seeks to legally enforce its rights hereunder against the defaulting party,
then, in addition to all damages and other remedies to which the
non-defaulting party is entitled by reason of such default, the defaulting
party shall be liable for and shall promptly pay to the non-defaulting party
an amount equal to all costs and expenses (including reasonable attorneys'
fees) paid or incurred by the non-defaulting party in connection with such
enforcement to the extent awarded by arbitration.
12. MISCELLANEOUS.
12.1 This Restated Global Agreement and the agreements
referred to herein contain the entire agreement of the parties concerning the
subject matter hereof and they may not be amended or terminated except by a
written agreement signed by all the Parties. This Restated Global Agreement
restates and replaces in its entirety the Global Agreement executed by some
of the parties
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on or about October 6, 1999 ("Preliminary Global Agreement"), and the
Preliminary Global Agreement is hereby canceled in its entirety.
12.2 No waiver of any default is valid unless in writing and
signed by the waiving party, and no such waiver shall be deemed a waiver of
any subsequent default.
12.3 This Restated Global Agreement shall be binding upon and
inure to the benefit of each corporate party, each limited liability company,
their successors and assigns, and each individual party hereto and his/her
heirs, personal representatives, successors and assigns.
12.4 The paragraph headings are for the purposes of
convenience only and are not intended to define or limit the contents of the
paragraphs.
12.5 Each party shall cooperate and take such further action
as may be reasonably requested by any other party to carry out the provisions
and purposes of this Restated Global Agreement.
12.6 This Restated Global Agreement may be executed in one or
more counterparts, all of which taken together shall be deemed one original.
12.7 This Restated Global Agreement, the Purchase Agreements,
the Bills of Sale and Assignments, the Liabilities Undertakings, the
Employment Agreements, the Promissory Notes, the Global Escrow Agreement, and
any amendments shall be governed by and construed in accordance with laws of
the State of Colorado.
12.8 Any information revealed pursuant to this Restated
Global Agreement or previously in the course of negotiations shall be held in
confidence and solely for the purpose of consummating the Purchase Agreements
in allowing the parties to exercise prudent care. If the Purchase Agreements
are not consummated, no further use shall be made of such information (except
to the extent such information was already known prior to this Agreement) and
the parties may be held accountable for any unauthorized use. If the
Purchase Agreements are not consummated, the parties shall return all
documents received from any party in connection therewith. If the Purchase
Agreements are consummated, neither party shall disclose any information
concerning the other party's business or the terms except (i) as approved by
the other party, (ii) as necessary for the conduct of the current businesses
owned and operated by either TI or the Seller Entities, (iii) as required by
law, or (iv) as is ascertainable from public information.
12.9 Each provision of this Restated Global Agreement shall
be interpreted in such a way as to be valid under all laws, but in case any
of the provisions shall be held to be illegal or unenforceable, such
illegality or unenforceability shall not affect any other provision and this
Restated Global Agreement shall be interpreted as if the invalid provision
was not included unless the absence of such provision would make completing
the transactions contemplated hereby unreasonable.
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12.10 Either party shall have ten (10) days from receipt of a
written notice to cure any default hereunder.
12.11 VTI has agreed to enter into a lease agreement for the
premises currently owned by ALL FOURS II, LLC, a Colorado limited liability
company, and located at 6295 E. 56th Avenue, Commerce City, Colorado, for the
primary term of two (2) years at the triple net rate of $9,000/month. A more
definitive lease agreement will be drafted by Seller's counsel and submitted
to VTI for its review and approval prior to the Closing Deadline Date.
12.12 VTI counsel and staff have agreed to cooperate with the
Selling Party's counsel whenever possible in generating the closing documents
necessary to timely close the Purchase and Sale transactions pursuant to
Exhibit A prior to the Closing Deadline Date.
12.13 The Selling Parties are responsible to pay legal and
accounting fees to Fenton A. Bain, P.C. and Kreisman, Wolach & Williams,
P.C., respectively. However, the Selling Parties and VTI have agreed to
equally allocate the fees and costs incurred by said professional entities
with respect to this VTI/MPI transaction.
12.14 The parties expressly agree that, upon written
instructions by the Escrow Agent, payments on the respective Notes may be
made by Venturi directly to such parties as the Escrow Agent may designate.
VTI shall promptly send to the Escrow Agent a copy of any checks or wire
transfer so paid.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
signed as of the date first written above.
SELLER:
MARTIN AND PETERMAN, INC., MPI OF ARIZONA, an Arizona
a Colorado corporation, General Partnership
dba "MPI"
By: /s/ Lloyd E. Peterman By: ALL FOURS DISTRIBUTING, INC.,
--------------------------- a Colorado corporation
Lloyd E. Peterman
By: /s/ Mitchell J. Martin By: /s/ Lloyd E. Peterman
--------------------------- -----------------------------------
Mitchell J. Martin Lloyd E. Peterman
By: /s/ Mitchell J. Martin
-----------------------------------
Mitchell J. Martin
By: B&K MANAGEMENT, INC.
By:
-----------------------------------
Brian Ritter, President
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565876 B.C. LTD., MPI OF FLORIDA, INC.,
dba "SUNBURST CARPET SERVICES" a Florida corporation
By: ALL FOURS DISTRIBUTING, INC., By: /s/ Lloyd E. Peterman
a Colorado corporation ----------------------------------
Lloyd E. Peterman
By: /s/ Lloyd E. Peterman
------------------------ By: /s/ Mitchell J. Martin
Lloyd E. Peterman ----------------------------------
Mitchell J. Martin
By: /s/ Mitchell J. Martin
------------------------
Mitchell J. Martin
By: DUPUIS ENTERPRISES, INC.
By:
-------------------------------
Jason Dupuis, President
MPI of GEORGIA, a Georgia MPI OF NORTHERN FLORIDA,
General Partnership a Colorado general partnership
By: ALL FOURS DISTRIBUTING, INC., By: ALL FOURS DISTRIBUTING, INC.,
a Colorado corporation a Colorado corporation
By: /s/ Lloyd E. Peterman By: /s/ Lloyd E. Peterman
------------------------ ----------------------------------
Lloyd E. Peterman Lloyd E. Peterman
By: /s/ Mitchell J. Martin By: /s/ Mitchell J. Martin
------------------------ ----------------------------------
Mitchell J. Martin Mitchell J. Martin
By: MCNAMARA ENTERPRISES, INC. By: MCNAMARA ENTERPRISES, INC.
By: By:
------------------------------- ----------------------------------
Lanny McNamara, President Lanny McNamara, President
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MPI OF NEVADA, a Colorado MPI OF WASHINGTON, a Washington
general partnership general partnership
By: ALL FOURS DISTRIBUTING, INC., By: ALL FOURS DISTRIBUTING, INC.,
a Colorado corporation a Colorado corporation
By: /s/ Lloyd E. Peterman By: /s/ Lloyd E. Peterman
------------------------ ------------------------
Lloyd E. Peterman Lloyd E. Peterman
By: /s/ Mitchell J. Martin By: /s/ Mitchell J. Martin
------------------------ ------------------------
Mitchell J. Martin Mitchell J. Martin
By: DUPUIS ENTERPRISES, INC. By: DELABARRE ENTERPRISES, INC.
By: By:
----------------------- -------------------------
Jason Dupuis, President Russel J. Delabarra,
President
MPI OF SOUTHERN FLORIDA, a MPI OF OREGON,
Colorado general partnership an Oregon corporation
By: ALL FOURS DISTRIBUTING, INC., By: ALL FOURS DISTRIBUTING, INC.,
a Colorado corporation a Colorado corporation
By: /s/ Lloyd E. Peterman By: /s/ Lloyd E. Peterman
------------------------ ------------------------
Lloyd E. Peterman Lloyd E. Peterman
By: /s/ Mitchell J. Martin By: /s/ Mitchell J. Martin
------------------------ ------------------------
Mitchell J. Martin Mitchell J. Martin
By: EIKOV ENTERPRISES, INC. By:
By: By:
------------------------ ------------------------
Matt Eikov, President
"VTI"
VENTURI TECHNOLOGIES, INC.,
a Nevada corporation
By: /s/ Gaylord Karren
-------------------------
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