EXHIBIT 10(c)
American Business Corporation
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477 Madison Avenue, 12th Floor
New York, NY 10022
(212) 308-8700
(212) 308-3997 fax
July 12, 2004
Robert C. and Patricia D. Lau
160 East 83rd Street
New York, NY 10028
Re: Letter of Intent for Acquisition of Clayton, Dunning and
Company, Inc.
Dear Mr. and Mrs. Lau:
This letter of intent (the "Letter") sets forth the principal terms
pursuant to which American Business Corporation f/k/a Logistics
Management Resources, Inc., a publicly owned and traded Colorado
corporation ("AMBC"), Kenneth E. Sidler, residing at 149 Linden Avenue,
Emerson, NJ 07630 ("Sidler"), Ara Proudian, residing at 93 Berian Road,
New Rochelle, NY 10804 ("Proudian") and Chris Messalas residing at 20
Carlton Place, Staten Island, NY 10301 ("Messalas") propose to acquire
control of Clayton, Dunning and Company, Inc., a Florida corporation (the
"Firm") and a broker dealer registered with the National Association of
Securities Dealers, Inc. ("NASD"). AMBC, Sidler, Proudian and Messalas
are hereinafter collectively referred to as the "Buyers". In a step
transaction, the Buyers shall purchase an aggregate of 1,000 issued and
outstanding shares of the Firm's common stock, $.001 par value per share,
(the "Shares") from Robert C. Lau and Patricia D. Lau, as Tenants by the
Entirety (collectively the "Sellers"). In addition, AMBC shall: (i)
make available to the Firm a short term loan of a maximum of $125,000
(the "Pre-Closing Facility"); and (ii) make a $125,000 capital
contribution to the Firm (the "Contribution"). The Sellers shall: (i)
grant to the Buyers the exclusive and irrevocable right to nominate and
appoint such number of directors to the Firm's Board of Directors as
shall equal 65% thereof; (ii) covenant and agree to vote their shares of
the Firm's common stock in favor of the Buyers' nominees; and grant to
AMBC a security interest in the Shares as collateral for the Pre-Closing
Facility. The foregoing matters are hereinafter collectively referred to
as the "Transaction." This Letter will serve to confirm our current
mutual understanding regarding the principal business points of the
Transaction. The definitive terms of the Transaction will be set forth
in the Definitive Agreements (as that term is defined in Section 4 of
this Letter). The initial drafts of the Definitive Agreements will be
prepared by AMBC and will contain the following provisions:
1. Purchases of the Shares and the Put Shares. Pursuant to the terms and
conditions set forth below, AMBC will purchase 350 Shares from the
Sellers for $35.00, Sidler, Proudian and Messalas (collectively the
"Employees") shall collectively purchase 300 Shares from the Sellers for
$30.00, and the Firm shall purchase the remaining 350 Shares (the "Put
Shares") from the Sellers at their fair market value as hereinafter
described. The Shares and the Put Shares shall collectively represent
100% of the issued and outstanding shares of voting, common stock of the
Firm.
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The purchase of the Shares shall take place at stepped closings
(collectively the "Closing") at the offices of AMBC as follows: (i)
within three days after the Firm's settlement with Eric M. Westbury as
provided in Section 9.B, AMBC shall purchase 200 Shares by tendering
$20.00 to the Sellers and the Employees shall purchase 300 Shares by
tendering $30.00 to the Sellers; and (ii) within three days after the
Transaction has been approved by the NASD, AMBC shall purchase 150
Shares by tendering $15.00 to the Sellers.
The purchase of the Put Shares shall take place at the offices of AMBC on
the earlier of: (i) the death or disability of Robert C. Lau ("Lau");
(ii) upon Lau's or his estate's written demand; or (iii) the expiration
of five years from the date of this Letter by the furnishing of written
notice (the "Put Exercise Notice"). The purchase price for the Put
Shares shall be equal to the fair market value thereof as determined by
a professional independent third party appraiser reasonably acceptable
to AMBC, the Employees and the Sellers (the "Appraiser") whose
determination shall be binding. The Put Exercise Notice shall set a
closing date (the "Put Closing Date") not more than six months after the
date of the Put Exercise Notice and shall set a time and date between
ten and 30 days after the date of the Put Exercise Notice, when AMBC,
the Employees and the Sellers shall meet to choose the Appraiser. In
the event of the failure to agree upon the Appraiser, the selection of
the Appraiser shall be submitted to and settled by binding arbitration
in New York City as provided in Section14. At the Put Closing date, the
Firm shall purchase the Put Shares from the Sellers via certified,
cashier's check or Federal wire transfer.
The purchases of the Shares and the Put Shares are and shall be
explicitly conditioned upon:(i) the Firm's settlement with Eric M.
Westbury as provided in Section 9.B; (ii) the execution of the
Definitive Agreements as provided in Section 4.; and (iii) the execution
of the Employment Agreements and the Consulting Agreement as provided in
Section 9.A (the "Closing").
2. The Escrow. The Shares and the Put Shares shall have been deposited
in escrow with Snow Becker Krauss, Esqs., 605 Third Avenue, New York, NY
(the "Escrowee"), pursuant to the terms of an Escrow Agreement among the
Sellers, the Escrowee and the Firm, which is attached to a Loan Agreement
dated July 12, 2004 among the Sellers, the Firm and AMBC. The Shares
and the Put Shares shall be delivered to the respective recipients out
of escrow by the Escrowee at the Closing and the Put Closing.
3. The Pre-Closing Facility. Simultaneously with the execution of this
Letter, AMBC shall make the Pre-Closing Facility available to the Firm
as follows: (i) $50,000 on the date this Letter is executed by all of
the signatories hereto, and $75,000 on the second business day thereafter.
The Pre-Closing Facility shall be represented by a written Loan Agreement
among AMBC, the Firm and the Sellers as Co-Makers with an attached 10%
secured promissory note and escrow agreement with the Sellers' counsel
(collectively the "Loan Agreement"). The obligation of the Firm to repay
the Pre-Closing Facility shall be secured by all of the Sellers' right,
title and interest in the Shares and the Option Shares.
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4. Definitive Agreement. As hereinafter enumerated in Section 8, the
Transaction is subject to and conditioned upon: (i) the negotiation,
execution and delivery of (i) a definitive stock purchase agreement,
option agreement, and escrow agreement (collectively the "Definitive
Agreements"); (ii) the Employees' and Lau's respective execution of the
Employment Agreements and the Consulting Agreement defined in Section 9.N;
(iii) Firm's satisfactory resolution of any obligation it may have under
an agreement with Eric M. Westbury including the exchange of general
releases and the return of Mr. Westbury's shares of the Firm's common
stock representing a 20% equity interest in the Firm which shall be
delivered into escrow with the Escrowee as additional collateral for the
Pre-Closing Facility; (iv) the Firm's negotiation, execution and delivery
of a definitive stockholders agreement among the Employees, AMBC and Lau;
(v) the approval of the Transaction by the NASD; and (vi) the other
conditions precedent enumerated in Section 9.N. The first five
conditions precedent enumerated above are hereinafter collectively
referred to as the "Major Conditions". The Definitive Agreements shall
contain the basic terms and conditions set forth herein, together with
such other representations, warranties, covenants, terms, indemnities,
and conditions as would be usual and customary for transactions of the
nature contemplated and which are mutually agreeable to the parties,
including, without limitation, the making of all necessary filings and
the obtaining of all necessary approvals or consents from third parties
required to consummate the proposed Transaction. The execution and
delivery of the Definitive Agreements by AMBC and the Firm shall be
subject to the approval of their respective boards of directors.
Furthermore, the closing of the Transaction shall be subject to the
approval of and all regulatory authorities, including the NASD. In the
event that the Definitive Agreements are not executed on or before
August 31, 2004 (unless otherwise extended by the parties), this Letter
shall be deemed terminated and of no further force and effect. The
termination of this Letter shall not have any effect upon AMBC's rights
under the Loan Agreement. In the event the NASD does not approve of the
Transaction, AMBC and the Firm shall have the right and option of
assigning their respective rights hereunder to a third party or parties
reasonably acceptable to a majority of the Employees and Lau as a group.
5. The Contribution. The obligation of AMBC to make the Contribution
shall be contingent upon the due execution and delivery of the
Definitive Agreements and the full and faithful compliance by the
relevant parties with the Major Conditions. The Contribution shall be
made within three business days after: (i) the date that the Firm shall
have settled with Eric M. Westbury as provided in Section 9.B (ii) the
due execution and delivery of the Definitive Agreements; and (iii) the
full and faithful compliance by the relevant parties with each of the
other Major Conditions and AMBC's purchase of the 150 Shares.
6. Due Diligence Investigations. Both the Sellers and the Buyers shall
have initiated, conducted and concluded, at their own expense, their
respective due diligence investigations into the business, financial,
and legal affairs of the other party prior to the execution of the
Definitive Agreements. From the date hereof until the execution of
Definitive Agreements, each party shall provide the other with reasonable
access during ordinary business hours to its personnel, facilities and
systems, in order to enable such party to examine and evaluate said
products and services. Any party
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undertaking such an evaluation shall use its best efforts to minimize
any business disruption resulting there from.
7. Standstill. For a period of thirty (30) days commencing on the
execution date of this Letter, the Buyers, the Sellers, and the Firm
(and their officers, directors, shareholder, employees, registered
representatives or affiliates) will not directly or indirectly, (i)
solicit, initial or encourage submission of proposals or offers from any
person relating to (x) any acquisition or purchase of all or a
substantial portion of the assets of, or any equity interest in, the Firm,
or any merger, consolidation, business combination or similar transaction
with such parties, or (y) any other transaction incompatible with the
proposed Transaction, or (ii) participate in any discussions or
negotiations regarding, or furnish to any other person any confidential
information with respect to, or otherwise cooperate in any way with, or
participate in, facilitate or encourage, any effort or attempt by the
Firm or any other person to do or seek any of the foregoing, and will
promptly terminate any such pending discussions and will promptly notify
AMBC if the Firm receives any indications of interest or offer or
request for information with respect to any of the foregoing.
8. No Public Announcement. The Transaction contemplated in this Letter
shall not be the subject of any press release or other public
announcement unless and until the consent and timing of the same shall
be approved by in writing by the Sellers and the Buyers. Except as
otherwise required by law, such as by the rules and regulations of the
NASD, no party shall issue or make any such public statement without the
prior written consent of the other party.
9. Conditions Precedent to the Buyer's Obligation. The Buyers'
obligation to proceed with the Transaction and to execute the Definitive
Agreements is subject to the performance by the Sellers' and/or the Firm
of the following conditions precedent:
A. Employment Agreements and Consulting Agreement. Prior to the
Closing, the Firm shall have entered into five year written employment
agreements with the Employees containing non-competition restrictions
(the "Employment Agreements"). In addition, and prior to the Closing,
the Firm shall have entered into a five year written consulting agreement
in form and substance reasonably satisfactory to the Buyers with Lau as
the Firm's Chairman, Chief Executive Officer and Director of Investment
Banking (the "Consulting Agreement");
B. Retirement of Outstanding Shares. As soon as possible following the
execution of this Letter, and pursuant to an agreement that shall be
deemed effective as of June 30, 2004, the Sellers' shall cause Eric M.
Westbury
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and/or Charleston Capital, LLC to surrender to the Firm a certificate or
certificates representing an aggregate of 200 issued and outstanding
shares of the Firm's common stock, $.001 par value per share and obtain
a general release from Mr. Westbury. Such certificate(s) shall be in
transferable form endorsed in blank with Medallion signature guaranteed
or with irrevocable stock power attached and endorsed in blank with
Medallion signature guaranteed. In the event the shares are owned of
record by Charleston Capital, LLC, the certificate(s) shall be
accompanied by certified resolutions of the Manager(s) of Charleston
Capital, LLC;
C. Focus Reports. Within five days from the execution of this Letter,
the Sellers and/or the Firm shall have prepared and shall have delivered
to the Buyers a copy of all Focus Reports filed with the NASD since
January 1, 2003 through the termination of this Letter or the Closing;
D. Form BD. Within five days from the execution of this Letter, the
Sellers and/or the Firm shall have prepared and shall have delivered to
the Buyers a copy of the Firm's Form BD as filed with the NASD, together
with all amendments thereto through the termination of this Letter or
the Closing;
E. Membership Agreement. Within five days from the execution of this
Letter, the Sellers and/or the Firm shall have prepared and shall have
delivered to the Buyers a copy of the Firm's Membership Agreement with
the NASD, together with all amendments thereto through the termination
of this Letter or the Closing;
F. Clearing Agreement. Within five days from the execution of this
Letter, the Sellers and/or the Firm shall have prepared and shall have
delivered to the Buyers a copy of the Firm's fully disclosed Clearing
Agreement with The First Southwest Company, Inc.;
G. Form U-4. Within five days from the execution of this Letter, the
Sellers and/or the Firm shall have prepared and shall have delivered to
the Buyers a copy of the Form U-4 filed with the NASD by each registered
individual employed by the Firm together with all amendments thereto
through the termination of this Letter or the Closing;
H. Financial Statements. Within five days from the execution of this
Letter, the Sellers and/or the Firm shall have prepared and shall have
delivered to the Buyers a copy of: (i) the audited financial statements
and notes thereto covering the three most recent fiscal years as filed
with the NASD (the "Firm Audited Financial Statements"); and (ii)
unaudited financial statements for the three months ended March 31, 2004
(the "Firm Unaudited Financial Statements"). The Firm Audited Financial
Statements and the Firm Unaudited Financial Statements shall be prepared
in accordance with generally accepted accounting principles consistently
applied and the subject of an unqualified opinion of a recognized firm
of independent certified public accountants
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reasonably acceptable to the Buyers, and shall conform to all applicable
requirements of the NASD;
I. Government Correspondence. Within five days from the execution of
this Letter, the Sellers and/or the Firm shall have delivered to the
Buyers a copy of any and all correspondence between the Firm, and/or the
Sellers and the NASD or the Securities and Exchange Commission (the "SEC")
through the termination of this Letter or the Closing;
J. No Material Adverse Change. From the date of this Letter through the
Closing, there shall have been no material adverse change to the
financial affairs or business condition of the Firm;
K. No Common Stock Equivalents. From the date of this Letter through
the Closing, the Firm shall not have any Common Stock Equivalents issued
or outstanding. For the purposes of the foregoing, the phrase "Common
Stock Equivalents" shall mean any subscriptions, warrants, options or
other rights or commitments of any character to subscribe for or
purchase from the Firm, or obligating the Firm to issue, any shares of
common stock or any securities convertible into or exchangeable for such
shares;
L. No Additional Liabilities. From the date of this Letter through the
Closing, the Firm will have no liabilities other than those incurred in
the normal course of business and set forth in the Firm Audited or
Unaudited Financial Statements,
M. Third Party Consents. From the date of this Letter through the
Closing, the Firm shall have obtained any third-party consents deemed
necessary by the Buyers to effectuate the Transaction, including, without
limitation, from government agencies, lenders, creditors, vendors,
lessors and licensors. In this regard, and as soon as practicable
following the execution of this Letter, the Firm shall notify the New
York District Office of the NASD of the parameters of the Transaction
and inquire whether the same constitutes a material event within the
context of the Firm's Membership Agreement;
N. Due Diligence. On the Closing, the Buyers shall have completed to
their satisfaction a due diligence review and investigation into the
business and affairs of the Firm, and the Sellers;
O. Capitalization. From the date of this Letter through the Closing,
the Firm shall have an authorized capitalization comprised of 1,000
shares of common stock, $.001 par value per share, of which all 1,000
shares shall be issued and outstanding. The Firm shall not have any
other class of authorized or issued securities, nor shall it have any
issued or outstanding Common Stock Equivalents. All issued and
outstanding shares of the Firm shall be converted or exchanged for an
equivalent interest in the limited liability company discussed in
Subparagraph S. below;
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P. Accounting. Within five days from the execution of this Letter, the
Sellers and/or the Firm shall have delivered to the Buyers an accounting
of all monies contributed to the Firm and/or the Sellers by Eric M.
Westbury, the use and application thereof by the Firm and/or the Sellers
and all monies due and owing to Mr. Westbury. This accounting shall
determine the financial parameters of the Firm's obligation to reacquire
the Westbury Shares;
Q. Licenses. Within five days from the execution of this Letter, the
Sellers and/or the Firm shall have delivered to the Buyers copies of all
NASD licenses held by the Firm's executive officers and principals, which
licenses shall be in full force and effect on the Closing;
R. Minimum Working Capital. Between the date of this Letter and the
Closing, the Sellers shall covenant and agree to maintain the Firm's
working capital at 50% of the amount of the Pre-Closing Facility;
S. No Material Changes. In the Definitive Agreements, the Sellers shall
covenant and agree not to vote for or initiate any material change in the
business and affairs of the Firm or the manner in which the Firm conducts
business without the prior written consent of the Buyers, which consent
shall not be unreasonably withheld. For the purposes of this Letter, the
initiation of trading for its own behalf and the making of markets in
securities shall be deemed to be material changes;
T. Conversion to LLC. In the Definitive Agreements, the Sellers shall
covenant and agree that as soon as practicable following the Firm's
settlement with Eric M. Westbury, the Sellers shall cause the Firm to
convert from an S Corporation to a limited liability company (the "LLC").
Each shareholder of the Firm shall become a member of the LLC and each
member of the Firm's Board of Directors shall become a manager of the
LLC;
U. General Release. On the Closing, the Sellers shall cause Eric M.
Westbury and/or Charleston Capital, LLC to have delivered a duly executed
form of general release to the Firm and the Sellers in such form as shall
be reasonably acceptable to counsel for the Buyers.
10. Conditions Precedent to the Seller's Obligation. The obligation of
the Sellers to proceed with the Transaction and to execute the Definitive
Agreements is subject to the performance by the Buyers with the following
conditions precedent;
A. Purchase Price. Upon the execution of this Letter, AMBC shall have
paid the initial advance of $50,000 due as the Pre-Closing facility by
cash, wire, or certified check; and shall thereafter timely complete the
second advance of $75,000;
B. Due Diligence. On the Closing, the Seller's shall have completed to
their satisfaction a due diligence review and investigation into the
business and affairs of the Buyers; and
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C. Loan Agreement. Simultaneously with the execution of this Letter,
the Sellers shall have executed the Loan Agreement, the annexed 10%
secured promissory note, and delivered the Shares and the Put Shares to
the Escrowee (as that term is defined in the Escrow Agreement annexed to
the Loan Agreement as Exhibit B).
11. Confidentiality. The parties acknowledge that in the course of
creating Definitive Agreements relating to the subject matter hereof,
each party (for purposes hereof, the "Disclosing Party") may consider it
necessary or appropriate to furnish to the other (the "Receiving Party")
proprietary and/or non-public information regarding the business, affairs
or operations of the Disclosing Party. All information and data so
acquired by the Receiving Party under this letter agreement or in
contemplation of the creation of the definitive agreements shall be and
shall remain the exclusive property of the Disclosing Party. The
Receiving Party shall keep, and shall use its best efforts to have its
employees and agents keep, any and all such information and data
confidential, and shall not copy or publish or disclose it to others, or
authorize its employees, agents or anyone else to copy, publish or
disclose it to others, without the Disclosing Party's prior written
approval. The Receiving Party shall return all tangible confidential
information to the Disclosing Party at the request of the Disclosing
Party. The foregoing obligations of confidentiality shall not apply to
information which (i) is received from a third party who is not subject
to confidentiality obligations with respect to such information, (ii) is
or becomes part of public or industry knowledge through no action or
omission of the Receiving Party, or (iii) is required to be disclosed
pursuant to law or judicial process. The obligations set forth in this
Paragraph 9 shall survive until the later of (i) the second anniversary
of the date of execution of this Letter or (ii) two years from the date
of execution of the Definitive Agreements.
12. Expenses. Each of the Buyers, AMBC and the Sellers will bear their
own expenses and fees for lawyers and other professionals related to the
Transaction contemplated hereby.
13. Acceptance. This letter must be accepted by the Sellers by delivery
to the Buyers and AMBC of a signed counterpart of this letter on or
before 5:00 p.m., New York City time, on July 12, 2004.
14. Binding Arbitration. It is expressly agreed and understood that in
the event AMBC, the Employees and Lau are unable to agree upon an
Appraiser as enumerated in Section 1, the selection of the Appraiser
shall be settled by binding arbitration according to the Commercial
Arbitration Rules of the American Arbitration Association located in the
City of New York before a single arbitrator. The decision of the
arbitrator will be final and shall be enforceable in any court of
competent jurisdiction. AMBC, the Employees and Lau agree and consent
that service of process in any such arbitration proceeding outside the
City of New York shall be tantamount to service in person within City of
New York and shall confer personal jurisdiction on the American
Arbitration Association. In resolving all disputes between AMBC, the
Employees and Lau, the arbitrator will apply the law of the State of New
York. The arbitrator is, by this
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Agreement, directed to conduct the arbitration hearing no later than
three (3) months from the service of the statement of claim and demand
for arbitration unless good cause is shown establishing that the hearing
cannot fairly and practically be so convened. The arbitrator will
resolve any discovery disputes by such pre-hearing conferences as may be
needed. AMBC, the Employees and Lau hereby agree and consent that the
arbitrator and any counsel of record to the proceeding will have the
power of subpoena process as provided by law.
15. Commitment. This Letter, while not a contract, nevertheless
memorializes the negotiations and agreements of the Sellers', the
Employees and AMBC as to all of the principal terms and conditions
comprising the Definitive Agreements. Accordingly, no additional
material term or condition shall be added to the definitive Agreements
without the consent of all of the parties to this Letter. In addition,
the provisions of the Sections 6, 7, 11 and 12 hereof shall constitute a
binding agreement between the parties hereto. This Letter supersedes all
prior negotiations, understandings and agreements, if any, whether
written or oral, between the parties hereto with respect to the matters
described herein.
If the foregoing correctly sets forth our understanding and agreement,
please indicate your acceptance by signing the enclosed copy of this
Letter in the space indicated below and return the same to the
undersigned at your earliest convenience.
Very truly yours,
Buyers:
American Business Corporation
BY: /s/ Anthony R. Russo, President
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Anthony R. Russo, President
/s/ Kenneth E. Sidler
- ---------------------------------------------
Kenneth E. Sidler
/s/ Chris Messalas
- ---------------------------------------------
Chris Messalas
/s/ Ara Proudian
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Ara Proudian
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AGREED TO AND ACCEPTED:
Sellers:
/s/ Robert C. Lau
- ---------------------------------------------
Robert C. Lau
/s/ Patricia D. Lau
- ---------------------------------------------
Patricia D. Lau
Clayton, Dunning & Company Inc.
By: /s/ Robert C. Lau
- ---------------------------------------------
Robert C. Lau, Chairman and
Chief Executive Officer
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