Margrit Eyraud – Debt Exchange Agreement
EXHIBIT
10.1
▇▇▇▇▇▇▇
▇▇▇▇▇▇ – Debt Exchange Agreement
This Debt
Exchange Agreement (“Agreement”) is entered into this June 26, 2009, by and
among Marani Brands, Inc.( the “Company”), and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (“▇▇▇▇▇▇▇”), on
the other hand (the Company and ▇▇▇▇▇▇▇ collectively, the
“Parties”).
WHEREAS,
on or about January 1, 2008, the Company and ▇▇▇▇▇▇▇ entered into in Employment
Agreement (the “Employment Agreement”), pursuant to which ▇▇▇▇▇▇▇ served as
Chief Executive Officer of the Company and its subsidiaries;
WHEREAS,
on or about October 2, 2008, the Company and ▇▇▇▇▇▇▇ entered into in Transition
Agreement and Mutual General Release, (the “Transition Agreement”), pursuant to
which the Employment Agreement terminated;
WHEREAS,
the Transition Agreement provides for the payment by the Company of the sum of
Four Hundred Five Thousand Dollars ($405,000) to ▇▇▇▇▇▇▇, of which Two Hundred Fifty Five Thousand
Dollars ($255,000) remains outstanding (the “Outstanding Obligation”);
and
WHEREAS,
the Company Parties and ▇▇▇▇▇▇▇ desire to provide for the payment of the
Outstanding Obligation by the Company’s issuance of its Common Stock to ▇▇▇▇▇▇▇,
as provided in this Agreement, in exchange for the discharge and release of the
Outstanding Obligation (the “Debt Equity Exchange”).
NOW,
THEREFORE, in connection with the payment of the Outstanding Obligation to be
made by the Company, and the discharge of the Outstanding Obligation to be
provided by ▇▇▇▇▇▇▇ hereunder, the Company and ▇▇▇▇▇▇▇, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
agree as follows:
1. Exchange. Subject to
the terms and conditions set forth herein, on the Closing Date, the Company
shall issue to ▇▇▇▇▇▇▇ One
Million One Hundred Twenty Five Thousand (1,125,000) shares of the Company’s
Common Stock (the “Exchange Shares”) in exchange for the discharge by ▇▇▇▇▇▇▇ of
the Outstanding Obligation. Upon the issuance of the Exchange Shares,
the Outstanding Obligation shall be cancelled, without further action of either
Party. The
consummation of the exchange of the Outstanding Obligation for the Exchange
Shares as described in this Section 1 is hereinafter referred to as the “Debt
Exchange Closing”.
2. Debt Exchange Closing
Deliveries. Upon the Debt Exchange Closing, the Company will deliver or
cause to be delivered, in hand or electronically, to ▇▇▇▇▇▇▇ a certificate (or
electronic transfer) registered in the name of Outstanding Obligation evidencing
the Exchange Shares.
3. Debt Exchange;
Termination. Effective upon the Debt Exchange Closing, the Company’s
monetary obligations under the Outstanding Obligation will be extinguished
immediately and cancelled, and any and all obligations of the Company and in
respect of the Outstanding Obligation shall be terminated and released and be of
no further force and effect. ▇▇▇▇▇▇▇ and the Company (for itself and
on behalf of its predecessors, directors, officers and stockholders) each as to
the other, with effect only from and after the Debt Exchange Closing,
irrevocably waives, releases and forever discharges the other and each of the
other’s subsidiaries, respective successors, predecessors, assigns, affiliates,
subsidiaries and divisions and each and all of their respective directors,
officers, stockholders, employees, representatives and agents (the "Releasees")
from any and all actions, causes of action, suits, claims, demands, proceedings,
orders, judgments, obligations, rights, privileges, covenants, contracts,
agreements, debts, dues, sums of money, deliveries and liabilities whatsoever,
whether known or unknown, suspected or unsuspected, both at law and in equity
(collectively, "Claims") which Claims each party to this Agreement and their
respective heirs, executors, administrators, successors and assigns may then
have, ever will have had or may thereafter have against the Releasees in
connection with, or related directly or indirectly to, the Outstanding
Obligations. Each Party represents and warrants to the other
that it has not assigned or transferred the Claims being released by such
Party.
4. Investment
Purpose. On the Debt Exchange Closing Date ▇▇▇▇▇▇▇ will
purchase the Exchange Shares as principal for her own account for investment
only and not with a view toward, or for resale in connection with, the public
sale or any distribution thereof.
5. Accredited Investor
Status. ▇▇▇▇▇▇▇
is an “accredited investor” as that term is defined in Rule 501(a) of Regulation
D. ▇▇▇▇▇▇▇ is, and will be at the time of the issuance of the
Exchange Shares an accredited investor, as such term is defined in Regulation D
promulgated by the Commission under the Securities Act of 1933 (“1933 Act”), is experienced in
investments and business matters, has made investments of a speculative nature
and has purchased securities of United States publicly-owned companies in
private placements in the past and, with its representatives, has such knowledge
and experience in financial, tax and other business matters as to enable her to
utilize the information made available by the Company to evaluate the merits and
risks of and to make an informed investment decision with respect to the
proposed purchase, which represents a speculative investment. ▇▇▇▇▇▇▇
has a pre-existing personal or business relationship with the Company or its
officers, directors or controlling persons, or by reason of her business or
financial experience, or the business or financial experience of her
professional advisors who are unaffiliated with and who are not compensated by
the Company, directly or indirectly, has the capacity to protect her own
interests in connection with the purchase of the Exchange
Shares. ▇▇▇▇▇▇▇ has the authority and is duly and legally qualified
to purchase and own the Securities. ▇▇▇▇▇▇▇ is able to bear the risk
of such investment for an indefinite period and to afford a complete loss
thereof.
6. Information». ▇▇▇▇▇▇▇
and its advisors, if any, have been furnished with or has had access at the
▇▇▇▇▇ Website of the Commission to the Company’s Form 10-KSB for the year ended
June 30, 2008 as filed with the Commission, together with all subsequently filed
Forms 10-Q, Forms 8-K, and other reports and filings subsequently made with the
Commission and made available at the ▇▇▇▇▇ website (hereinafter referred to
collectively as the “Reports”), all materials relating to the business, finances
and operations of the Company and materials relating to the offer and sale of
the Exchange Shares that have been requested by ▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇ and
her advisors, if any, have been afforded the opportunity to ask questions of the
Company. In addition, ▇▇▇▇▇▇▇ has received in writing from the
Company such other information concerning its operations, financial condition
and other matters as she has requested, and considered all factors she deems
material in deciding on the advisability of investing in the Exchange
Shares. ▇▇▇▇▇▇▇ understands that her investment in the Exchange
Shares involves a high degree of risk. ▇▇▇▇▇▇▇ has sought such
accounting, legal and tax advice as she has considered necessary to make an
informed investment decision with respect to her acquisition of the Exchange
Shares.
7. No Governmental
Review». ▇▇▇▇▇▇▇
understands that, except as may otherwise be provided in this Agreement, no
Governmental Entity has passed on or made any recommendation or endorsement of
the Exchange Shares or the fairness or suitability of an investment in the
Exchange Shares nor have such authorities passed upon or endorsed the merits of
the offering of the Exchange Shares. As used in this Agreement,
“Governmental Entity” means the government of the United States or any other
nation, or any political subdivision thereof, whether state, provincial or
local, or any agency (including any self-regulatory agency or organization),
authority, instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administration powers or functions of or pertaining to government over the
Company, or any of its respective properties, assets or
undertakings.
8. Reliance on
Representations. ▇▇▇▇▇▇▇ represents that the foregoing
representations and warranties set forth in Sections 4, 5, 6 and 7 of this
Agreement are true and correct as of the date hereof, will be relied upon by the
Company is issuing the Exchange Shares to ▇▇▇▇▇▇▇, and, unless ▇▇▇▇▇▇▇ otherwise
notifies the Company prior to the Closing Date shall be true and correct as of
the Closing Date.
9. The Exchange
Shares. In order to induce ▇▇▇▇▇▇▇ to enter into this
Agreement and engage in the Debt Equity Exchange, the Company represents and
warrants to ▇▇▇▇▇▇▇ that the Exchange Shares upon issuance:
(i) are,
or will be, free and clear of any security interests, liens, claims or other
encumbrances, subject to restrictions upon transfer under the 1933 Act and State
securities laws;
(ii) have
been, or will be, duly and validly authorized and on the date of issuance, fully
paid and nonassessable and if registered pursuant to the 1933 Act and resold
pursuant to an effective registration statement will be free trading and
unrestricted;
(iii) will
not have been issued or sold in violation of any preemptive or other similar
rights of the holders of any securities of the Company;
(iv) will
not subject the holders thereof to personal liability by reason of being such
holders; and
(v) assuming
the representations and warranties of ▇▇▇▇▇▇▇ as set forth in Section 3 of this
Agreement are true and correct, will not result in a violation of Section 5
under the 1933 Act.
10. Survival. Except
as may be expressly limited by the terms of this Agreement, the foregoing
representations and warranties shall survive the Debt Exchange Closing
Date.
11. Debt Exchange Closing. The
consummation of the transactions contemplated herein shall take place at the
offices of the Company not later than the second business day following receipt
by the Company of a “Submission Notification” of the Company’s filing of its
Form S-8 Registration Statement, with respect to the registration of the
Exchange Shares.
12. S-8 Registration
Statement. The company agrees to keep the S-8 Registration
status that covers the Exchange Shares, continuously effective for a period of
not less than one year from the date the exchange shares may be first sold
thereafter. If the S-8 Registration is not effective for the entire
one year period, the release granted hereunder by ▇▇▇▇▇▇▇ shall be rescinded,
and ▇▇▇▇▇▇▇ shall be entitled in her discretion, to return the Exchange Shares
not sold by ▇▇▇▇▇▇▇ under the S-8 Registration Statement for a demand note
issued by the Company in the principle amount to such number of
Exchange Shares multiplied by $0.20
13. Entire Agreement;
Assignment. This Agreement represents the entire agreement
between the Parties hereto with respect to the subject matter hereof and may be
amended only by a writing executed by both parties. No right or
obligation of either party shall be assigned by that party without prior notice
to and the written consent of the other party.
14. Counterparts/Execution. This
Agreement may be executed in any number of counterparts and by the different
signatories hereto on separate counterparts, each of which, when so executed,
shall be deemed an original, but all such counterparts shall constitute but one
and the same instrument. This Agreement may be executed by facsimile
signature and delivered by facsimile transmission or by a PDF electronic
transmission.
15. Law Governing this
Agreement. This Agreement shall be governed by the laws of
California without regard to the principals of choice of law or conflicts of law
of that state or of any other jurisdiction. Any dispute or claim
under this Agreement (including, without limitation, any action to enforce this
Agreement) shall be exclusively determined by binding arbitration conducted in
accordance with the rules and procedures of the American Arbitration
Association. (the "AAA"). The arbitration shall take place in Los
Angeles, California, and shall be before a single arbitrator mutually acceptable
to the Company and ▇▇▇▇▇▇▇, or if the Company and ▇▇▇▇▇▇▇ are unable to agree
upon one arbitrator, the Company and ▇▇▇▇▇▇▇ shall each appoint one arbitrator
and the two arbitrators shall each appoint a third arbitrator, The determination
of the arbitrator(s) (which shall be in writing) shall be conclusive and binding
on the parties and not subject to judicial review. If there are three
arbitrators, the determination of a majority of the arbitrators shall be
controlling. Theprevailing party in any proceedings brought in connection with
this Agreement shall be entitled to recover its reasonable attorneys' fees and
costs incurred in such proceedings. The determination of the arbitrator(s) shall
be entitled to be enforced in any court of competent jurisdiction.
16. Confidentiality. The
Parties agree to keep the negotiations concerning this Agreement completely
confidential and not to disclose any of them to any third party, except as
required or compelled by law or legal or Administrative process, or with the
prior written consent of all Parties. Notwithstanding the foregoing,
the Parties may disclose this Agreement to the Parties’ respective legal counsel
and financial and tax advisors and government regulators, and may disclose this
Agreement in connection with the anticipated From S-8 Registration Statement to
be filed by the Company to register the Exchange Shares, or as otherwise
required by applicable law
[Signature
Pages Follow]
IN WITNESS WHEREOF, the
Company and ▇▇▇▇▇▇▇ have caused this Exchange Agreement to be duly executed as
of the date first written above.
| MARANI BRANDS, INC. | |||
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By:
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s/s ▇▇▇ ▇▇▇▇▇▇▇▇▇ | |
| ▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| Chief Executive Officer | |||
|
Director
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| ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
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s/s
▇▇▇▇▇▇▇
▇▇▇▇▇▇
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| ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||