STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of February 4, 1997,
between CLARION FINANZ AG (the "Purchaser") and SOULFOOD CONCEPTS, INC. (the
"Company").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Company desires to issue 100,000 unregistered
shares (the "Shares") of its common stock, par value $.003 per share (the
"Common Stock"), and a warrant (the "Warrant") to purchase up to 10,000 shares
of Common Stock (the "Warrant Shares"), to the Purchaser, and the Purchaser
desires to purchase the Shares and Warrant from the Company, for an aggregate
purchase price of $100,000.
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein set forth, the parties hereto agree as follows:
ARTICLE I
Sale and Exchange
2 Sale of the Shares. The Company hereby sells, conveys, transfers and delivers
to the Purchaser, and the Purchaser hereby purchases and accepts, the Shares and
Warrant, in accordance with the terms hereof. The Warrant shall entitle the
Purchaser to purchase the Warrant Shares at an exercise price of $1.00 per
share, and shall be substantially in the form of warrant attached hereto as
Exhibit A.
2.1 Consideration. In reliance upon the representations,
warranties, covenants and agreements contained herein, subject to the terms and
conditions hereof (including, without limitation, full performance by the
Company of its obligations pursuant to Section 1.4), and in consideration of the
sale, conveyance, transfer and delivery of the Shares and the Warrant pursuant
to Section 1.1, the Purchaser shall deliver to the Company at the Closing
described in Section 1.3 hereof $100,000 in immediately available funds.
2.2 Closing. The closing of the purchase of the Shares (the
"Closing") shall take place simultaneously with the execution hereof, unless the
parties shall otherwise agree, at the offices of Xxxx Xxxxxxx, P.C., 0000 Xxxxxx
xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 on February 4, 1997 at 10:00 A.M. or
at such other place or time as the parties may agree (the "Closing Date").
2.3 Deliveries by the Company. At the Closing, the Company
shall deliver to the Purchaser (a) a stock certificate representing the Shares,
(b) the Warrant, (c) a certificate of good standing of the Company from the
Secretary of State of the State of Delaware, and (d) an officer's certificate of
the Company, containing true and accurate copies of the resolutions adopted by
the Company authorizing the transactions contemplated hereby.
2.4 Deliveries by the Purchaser. At the Closing, the Purchaser
shall deliver to the Company $100,000 in immediately available funds.
2.5 Further Assurances. In addition to the other obligations
required to be performed by the Company and the Purchaser hereunder, each of the
Company and the Purchaser agrees that it shall, at the Closing and at any time,
and from time to time thereafter, without cost to the other, execute,
acknowledge and deliver such instruments and documents, and take such other
actions, as may reasonably be requested of it by the other in order to
effectively vest in the Purchaser good and marketable title to the Shares and
Warrant, free and clear of all liens, pledges, or encumbrances.
ARTICLE II
Purchaser's Representations and Warranties
The Purchaser hereby represents and warrants to the Company that:
3 Binding Agreement. The Purchaser has full power, authority and legal capacity
to (i) execute, deliver and perform this Agreement and (ii) consummate the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by the Purchaser. This Agreement constitutes the legal, valid and
binding obligation of the Purchaser enforceable against it in accordance with
its terms.
3.1 Acquisition of Shares for Own Account; Restrictions on
Transfer. The Purchaser is acquiring the Shares and the Warrant for investment
and not with a view to the sale or distribution thereof, and is acquiring such
Shares and Warrant for its own account and not on behalf of others and has not
granted any other person any right or option or any participation or beneficial
interest in any of the Shares or the Warrant. The Purchaser acknowledges its
understanding that the Shares and the Warrant constitute restricted securities
within the meaning of Rule 144 of the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act"), and that none of such Shares or the Warrant may be sold except pursuant
to an effective registration statement under the Securities Act or in a
transaction exempt from registration under the Securities Act, and acknowledges
that it understands the meaning and effect of such restriction. The Purchaser
has sufficient knowledge and experience in financial and
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business matters so that it is capable of evaluating the risks and merits of the
acquisition of the Shares and the Warrant. The Purchaser is aware of and has
investigated the Company's business, management and financial condition, has had
a satisfactory opportunity to ask questions of, and receive answers from, agents
and employees of the Company concerning the business of the Company and the
terms and conditions of this transaction and has had access to such other
information about the Company as the Purchaser deemed necessary or desirable to
reach an informed and knowledgeable decision to purchase the Shares and the
Warrant hereunder. The Purchaser further acknowledges that the Company is not
currently subject to the reporting requirements of the Securities Exchange Act
of 1934, as amended.
3.2 Accreditation. The Purchaser is an accredited investor
within the meaning of Rule 501 of the rules and regulations of the Commission
promulgated under the Securities Act, and has the financial ability to bear the
economic risk of its acquisition of the Shares and the Warrant.
ARTICLE III
Company's Representations and Warranties
The Company hereby represents and warrants to the Purchaser that:
4 Validity and Binding Agreement. The Company has full power, authority and
legal capacity to (i) execute, deliver and perform this Agreement and (ii)
consummate the transactions contemplated hereby. This Agreement has been duly
executed and delivered by the Company. This Agreement constitutes the legal,
valid and binding obligation of the Company, enforceable against it in
accordance with its terms.
4.1 Organization and Standing; Corporate Power. The Company is
a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware. The Company has the corporate power and authority
to own and operate its properties, to carry on its business as now conducted and
to enter into this Agreement and carry out the transactions contemplated hereby.
4.2 Capitalization.
(i) On the date of this Agreement, the authorized capital
stock of the Company consists of 14,500,000 shares of Common Stock, of which
3,139,816 shares are issued and outstanding and 500,000 shares of preferred
stock, par value $.003 per share, none of which are issued and outstanding.
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(ii) The Shares, when issued, sold and delivered in
accordance with the terms of this Agreement, will be duly and validly issued,
fully paid and non-assessable. The Warrant Shares are duly reserved for
issuance, and upon issuance thereof in accordance with the terms and provisions
of the Warrant, the Warrant Shares will be duly and validly issued, fully paid
and non-assessable.
ARTICLE IV
Registration Rights
5 Demand Registration Rights. Beginning on January 1, 1998, the Company, upon
written demand of the Purchaser, agrees to register on two occasions, all or any
portion of the Shares or the Warrant Shares (collectively, the "Registrable
Shares"). Purchaser has the right to request in writing that the Company effect
the registration under the Securities Act of the Registrable Shares, and the
Company shall, as expeditiously as possible, use its best efforts to effect the
registration, on a form of general use under the Securities Act, of all the
Registrable Shares which the Company has been requested to register.
Notwithstanding the foregoing, if the Company shall furnish to the Purchaser
requesting a registration under this Section 4.1 a certificate signed by the
Chief Executive Officer of the Company stating that in the good faith judgment
of the Board of Directors of the Company it would be detrimental to the Company
and its shareholders for such registration statement to be filed and it is
therefore essential to defer the filing of such registration statement, the
Company shall have the right to defer taking action with respect to such filing
for a period of not more than 90 days after receipt by the Purchaser of such
certificate; provided, however, that the Company may not utilize this right more
than once in any 12-month period. In addition, the Company shall not be
obligated to effect, or to take any action to effect, any registration pursuant
to this Section 4.1 during the period starting with the date 30 days prior to
the Company's good faith estimate of the date of filing of, and ending on a date
120 days after the effective date of, a registration subject to Section 4.2
hereto; provided that the Company is actively employing in good faith its best
efforts to cause such registration statement to be filed and thereafter to
become effective.
5.1 "Piggyback" Registration Rights. At any time after the
Closing Date, the Company shall, at least thirty (30) days prior to the filing
of any registration statement under the Securities Act (other than a
registration statement on Form S-8 or Form S-4 or any successor forms) relating
to the public offering of its Common Stock by the Company or any of its security
holders, give written notice of such proposed filing and of the proposed date
thereof to the Purchaser, and if, on or before the twentieth (20th) day
following the date on which such notice is given, the Company shall receive a
written request from the Purchaser requesting that the Company include among the
securities covered by such registration statement some or all of the
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Registrable Shares held by the Purchaser, the Company shall, subject to Section
4.3 hereof, include such the Registrable Shares in such registration statement,
if filed, so as to permit such Registrable Shares to be sold or disposed of in
the manner and on the terms of the offering thereof set forth in such request.
5.2 Terms and Conditions of Registration. Except as otherwise
provided herein, in connection with any registration statement filed pursuant to
Sections 4.1 or 4.2 herein, the following provisions shall apply:
(i) If such registration statement shall be filed pursuant
to Section 4.2 hereof and if the managing underwriter advises the Company in
writing that the inclusion in such registration of some or all of the
Registrable Shares sought to be registered by the Purchaser creates a
substantial risk that the proceeds or price per share that will be derived from
such registration will be reduced or that the number of shares to be registered
at the insistence of the Purchaser, plus the number of shares of Common Stock
sought to be registered by the Company and any other stockholders of the Company
is too large a number to be reasonably sold, then, in such event, the number of
shares sought to be registered for the Company, the other stockholders of the
Company having registration rights, and such Purchasers, as applicable, shall be
reduced, pro rata in proportion to the number of shares sought to be registered
to the number of shares recommended be sold by the managing underwriter. In no
event will any securities to be sold by the Company be excluded from such
registration by reason of any underwriters' cut-backs unless the Company has
agreed thereto with the underwriter.
(ii) If requested by the Purchaser in connection with a
registration statement filed pursuant to Section 4.1, the Company will enter
into an underwriting agreement with the underwriters for such offering, such
agreement to be reasonably satisfactory in form and substance to the Company,
the Purchaser and the underwriters, and to contain such representations,
warranties and covenants by the Company and such other terms as are customarily
contained in such agreements used by the managing underwriter, including,
without limitation, restrictions of sales of Common Stock or other securities by
the Company as may be reasonably agreed to between the Company and such
underwriters, and indemnities and rights to contributions to the effect and to
the extent provided in Sections 4.4 and 4.5 hereof. The Purchaser shall be a
party to any underwriting agreement relating to an underwritten sale of its
Registrable Shares and may, at its option, require that any or all of the
representations, warranties and covenants of the Company to or for the benefit
of such underwriters, shall also be made to and for the benefit of the
Purchaser. All representations and warranties of the Purchaser shall be made to
or for the benefit of the Company.
(iii) The Company shall provide a transfer agent and
registrar (which may be the same entity) for the Registrable Shares, not later
than the effective date of such registration.
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(iv) All expenses in connection with the preparation and
filing of a registration statement filed pursuant to Sections 4.1 or 4.2 shall
be borne solely by the Company, except for any transfer taxes payable with
respect to the disposition of such Registrable Shares, and any underwriting
discounts and selling commissions applicable solely to such sales of Registrable
Shares, which shall be paid by the Purchaser.
(v) The Company shall use its best efforts to cause all of
the shares of Common Stock covered by such registration statement to be listed
on NASDAQ or on such other securities exchange as such shares may then be
listed, on which similar shares are listed for trading, if the listing of such
registered shares is permitted by such exchange.
(vi) Following the effective date of such registration
statement, the Company shall, upon the request of the Purchaser, forthwith
supply such number of prospectuses (including exhibits thereto and preliminary
prospectuses and amendments and supplements thereto) meeting the requirements of
the Securities Act and such other documents as are referred to in the prospectus
as shall be reasonably requested by the Purchaser to permit the Purchaser to
make a public distribution of its Registrable Shares.
(vii) The Purchaser may select the underwriter or
underwriters, if any, who are to undertake any offering and distribution of the
Registrable Shares to be included in a registration statement filed under the
provisions of Section 4.1 hereof, subject to the Company's prior approval of the
underwriter, which approval shall not be unreasonably withheld.
(viii) The Company shall use its best efforts to register
the Registrable Shares covered by any such registration statements filed
pursuant to Section 4.1 or 4.2 under such securities or Blue Sky laws in
addition to those in which the Company would otherwise sell Registrable Shares,
as the Purchaser shall request, except that neither the Company nor the
Purchaser shall for any such purpose be required to execute a general consent to
service of process or to qualify to do business as a foreign corporation in any
jurisdiction where it is not so qualified. The fees and expenses incurred in
connection with such registration shall be borne by the Company.
(ix) The Purchaser shall cooperate fully with the Company
and provide the Company with all information reasonably requested by the Company
for inclusion in the registration statement or as necessary to comply with the
Securities Act. The Company shall cooperate fully with any underwriters selected
by the Purchaser and counsel to such underwriters, and shall provide reasonable
and customary access to the Company's books and records (upon receipt from such
underwriters of customary confidentiality agreements) in order to facilitate
such underwriters' review and examination of the Company in connection with such
underwriting.
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(x) The Company shall notify the Purchaser, at any time
after effectiveness when a prospectus relating thereto is required to be
delivered under the Securities Act, of the happening of any event as a result of
which the prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of circumstances then existing (and upon receipt of such
notice and until a supplemented or amended prospectus as set forth below is
available, the Purchaser shall not offer or sell any securities covered by such
registration statement and shall return all copies of such prospectus to the
Company if requested to do so by it), and at the request of the Purchaser
prepare and furnish the Purchaser as promptly as practicable, but in any event
within 30 days, a reasonable number of copies of a supplement to or an amendment
of such prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such shares, such prospectus shall not include an 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 not misleading in light of
the circumstances then existing.
(xi) The Company shall furnish to the Purchaser at the time
of the registration of the Registrable Shares, a signed copy of an opinion of
the Company's regular in- house or outside general counsel, or other counsel of
the Company's selection reasonably acceptable to, and which opinion shall be
reasonably satisfactory in form and substance to, the Purchaser to the effect
that: (a) a registration statement covering the Registrable Shares has been
filed with the Commission under the Securities Act and has been declared
effective by order of the Commission, (b) said registration statement and
prospectus contained therein comply as to form in all material respects with the
requirements of the Securities Act, and nothing has come to such counsel's
attention (after due inquiry) which would cause such counsel to believe that
either said registration statement or such prospectus (other than the financial
statements contained therein, as to which such counsel need not express any
opinion) contains any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein (in the case of such prospectus, in light of the circumstances under
which they were made) not misleading, (c) after due inquiry such counsel knows
of no legal or governmental proceedings required to be described in such
registration statement or prospectus which are not described as required, or of
any contracts or documents of a character required to be described in such
registration statement or such prospectus to be filed as an exhibit to such
registration statement or to be incorporated by reference therein which are not
described and filed as required and (d) to such counsel's knowledge, no stop
order has been issued by the Commission suspending the effectiveness of such
registration statement; it being understood that such opinion may contain such
qualifications and assumptions as are customary in the rendering of similar
opinions, and that such counsel may rely, as to all factual matters treated
therein, on certificates of the Company (copies of which shall be delivered to
the Purchaser).
(xii) The Company will use its best efforts to comply with
the reporting requirements of Sections 13 and 15(d) of the Securities Exchange
Act of 1934, as amended, to the
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extent it shall be required to do so pursuant to such sections, and at all times
while so required shall use its best efforts to comply with all other public
information reporting requirements of the Commission (including reporting
requirements which serve as a condition to utilization of Rule 144 promulgated
by the Commission under the Securities Act) from time to time in effect and
relating to the availability of an exemption from the Securities Act for the
sale of any of the Company's Common Stock held by the Purchaser. The Company
will also cooperate with the Purchaser in supplying such information and
documentation as may be necessary for the Purchaser to complete and file any
information reporting forms presently or hereafter required by the Commission as
a condition to the availability of an exemption from the Securities Act for the
sale of any of the Company's Common Stock held by the Purchaser.
5.3 Indemnification.
(i) In the event of the registration of any
Registrable Shares of the Company under the Securities Act pursuant to the
provisions of Sections 4.1 or 4.2, the Company agrees to indemnify and hold
harmless the Purchaser, each underwriter, broker or dealer, if any, and their
respective directors, officers and employees, of such Registrable Shares, and
each other person, if any, who controls the holders of the Registrable Shares
(or a permitted assignee thereof), such underwriter, broker or dealer within the
meaning of the Securities Act, from and against any and all losses, claims,
damages or liabilities (or actions in respect thereof), joint or several, to
which the Purchaser (and as applicable) its directors, officers or employees, or
such underwriter, broker or dealer or controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact contained
in any registration statement under which the Registrable Shares were registered
under the Securities Act, any preliminary prospectus or final prospectus
relating to such Registrable Shares, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, or any violation by the Company of any rule
or regulation under the Securities Act applicable to the Company or relating to
any action or inaction required by the Company in connection with any such
registration and will reimburse the Purchaser, each such underwriter, broker or
dealer and controlling person, and their respective directors, officers or
employees, for any legal or other expenses reasonably incurred by the Purchaser
or such underwriter, broker or dealer or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement, such preliminary prospectus, such
final prospectus or such amendment or supplement thereto in reliance upon and in
conformity with written information furnished to the Company by the Purchaser
and as applicable, such Purchaser's directors, officers or employees, or such
underwriter, broker, dealer or controlling
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person for use in the preparation thereof. Such indemnity shall remain in full
effect irrespective of any investigation by any person indemnified above.
(ii) In the event of the registration of any
Registrable Shares of the Purchaser under the Securities Act for sale pursuant
to the provisions of this Agreement, the Purchaser agrees to indemnify and hold
harmless the Company, its directors, officers and employees, from and against
any losses, claims, damages or liabilities, joint or several, to which the
Company, its directors, officers or employees, may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any registration statement under which such Registrable Shares were registered
under the Securities Act, any preliminary prospectus or final prospectus
relating to such Registrable Shares, or any amendment or supplement thereto, or
arise out of or are based upon omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, which untrue statement or alleged untrue statement or
omission or alleged omission was made therein in reliance upon and in conformity
with written information furnished to the Company by the Purchaser for use in
the preparation thereof. Such indemnity shall remain in full effect irrespective
of any investigation by any person indemnified above.
(iii) Promptly after receipt by a person entitled to
indemnification under this Section 4.4 (for purposes of this Section 4.4, an
"Indemnified Party") of notice of the commencement of any action or claim
relating to any registration statement filed under Sections 4.1 or 4.2 or as to
which indemnity may be sought hereunder, such Indemnified Party will, if a claim
for indemnification hereunder in respect thereof is to be made against any other
party hereto (for purposes of this Section 4.4, an "Indemnifying Party"), give
written notice to such Indemnifying Party of the commencement of such action or
claim, but the failure to so notify the Indemnifying Party will not relieve it
from any liability which it may have to any Indemnifying Party otherwise than
pursuant to the provisions of this Section 4.4 and shall also not relieve the
Indemnifying Party of its obligations under this Section 4.4, except to the
extent that the Indemnifying Party is damaged solely as a result of the failure
to give timely notice. In case any such action is brought against an Indemnified
Party, and it notifies an Indemnifying Party of the commencement thereof, the
Indemnifying Party will be entitled (at its own expense) to participate in and,
to the extent that it may wish, jointly with any other Indemnifying Party
similarly notified, to assume the defense with counsel satisfactory to such
Indemnified Party, of such action and/or to settle such action and, after notice
from the Indemnifying Party to such Indemnified Party of its election so to
assume the defense thereof, the Indemnifying Party will not be liable to such
Indemnified Party for any legal or other expenses subsequently incurred by such
Indemnified Party in connection with the defense thereof, other than the
reasonable cost of investigation; provided, however, that no Indemnifying Party
and no Indemnified Party shall enter into any settlement
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agreement which would impose any liability on such other party or parties
without the prior written consent of such other party or parties.
(iv) Notwithstanding the foregoing provisions of this
Section 4.4, in no event shall the Purchaser be liable for an amount in excess
of the net proceeds received by the Purchaser from the sale of the Registrable
Shares.
5.4 Contribution. If the indemnification provided for in
Section 4.4 hereof is unavailable to the Indemnified Party in respect of any
losses, claims, damages or liabilities referred to herein, then each such
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages or liabilities (i) as between the Company and
the Purchaser on the one hand and the underwriters on the other, in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Purchaser on the one hand and the underwriters on the other from
the offering of the shares of Common Stock, or if such allocation is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company and the
Purchaser on the one hand and of the underwriters on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations and (ii)
as between the Company on the one hand and the Purchaser on the other, in such
proportion as is appropriate to reflect the relative fault of the Company and of
the Purchaser in connection with such statements or omissions, as well as any
other relevant equitable considerations.
In no event shall the obligation of any Indemnifying Party
to contribute under this Section 4.5 exceed the amount that such Indemnifying
Party would have been obligated to pay by way of indemnification if the
indemnification provided for under Section 4.4 hereof had been available under
the circumstances.
The amount paid or payable by an Indemnified Party as a result
of the losses, claims, damages and liabilities shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses incurred
by such Indemnified Party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 4.5, no
underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Registrable Shares purchased by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
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5.5 Survival. The indemnity and contribution agreements
contained in Sections 4.4 and 4.5 shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement or any underwriting
agreement, (ii) any investigation made by or on behalf of any Indemnified Party
or by or on behalf of the Company and (iii) the consummation of the sale or
successive resales of the Registrable Shares.
5.6 Future Registration Rights. Until such time as the
registration statement has been declared effective by the Commission, the
Company shall not grant to any third party any registration rights equal to or
more favorable than those contained in this Article 4; provided, however, that
the foregoing prohibition shall not prevent the Company from granting to a third
party specific registration rights that are equal to those contained in this
Article 4, as long as all of the registration rights granted to such third
party, taken as a whole, are less favorable to the third party that those
granted to the Purchaser herein. In the event that the registration statement
shall fail to remain effective (or a stop order shall be entered with respect
thereto) while any of the Registrable Shares remain unsold, the provisions of
this Section 4.7 shall become applicable once again.
ARTICLE V
Conditions to Closing
6 Conditions to the Purchaser's Obligations to Close. The Purchaser's
obligations to close hereunder shall be subject to the following condition: (a)
all of the documents required to be delivered by the Company to the Purchaser
pursuant to Section 1.4 hereof shall have been delivered to the Purchaser.
6.1 Conditions to the Company's Obligation to Close. The
Company's obligation to close hereunder shall be subject to the following
condition: (a) the purchase price for the Shares and the Warrant required to be
delivered by the Purchaser to the Company pursuant to Section 1.5 hereof shall
have been delivered to the Company.
ARTICLE VI
Amendments
7 Amendments. This Agreement may not be amended or modified orally and no waiver
of compliance with any provision or condition hereof shall be effective unless
evidenced
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by an instrument in writing duly executed by the party hereto sought to be
charged with such amendment, modification or waiver.
ARTICLE VII
Legend
8 Legend. The following legend shall be noted conspicuously on all certificates
representing the Shares issued to the Purchaser pursuant to the terms of this
Agreement:
"THE SHARES OF COMMON STOCK REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAWS. SUCH SHARES HAVE BEEN ACQUIRED FOR
INVESTMENT AND MAY NOT BE SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE
OF A PRIOR EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR A PRIOR
OPINION OF COUNSEL TO THE COMPANY OR SUCH OTHER
COUNSEL AS SHALL BE SATISFACTORY TO THE COMPANY
STATING THAT REGISTRATION IS NOT REQUIRED UNDER SAID
ACT OR STATE SECURITIES LAWS."
ARTICLE VIII
Notices
9 Notices. Any notice, demand, waiver, or consent required or permitted
hereunder shall be in writing and shall be given personally or by registered or
certified mail, with return receipt requested, or by facsimile transmission,
addressed as follows:
If to the Company:
Soulfood Concepts, Inc.
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000 Xxxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xx. Xxxxx Xxxxxxxxxxx
If to the Purchaser:
Clarion Finanz AG
Xxxxxxxxxxxxxx 000
Xxxxxxxx, 0000
Xxxxxx, Xxxxxxxxxxx
Fax: 000-000-000-0000
Attention: Xx. Xxxxx Xxxxxxx
A given notice shall be deemed received upon the date of
delivery if given personally or by facsimile transmission (with delivery of a
copy by registered or certified mail), or, if given by registered or certified
mail, on the fifth day after the day on which it is deposited in the mails
properly addressed with postage prepaid as herein provided. Any party may change
his or her address for the purpose of notice by giving notice in accordance with
the provisions of this Section 8.1.
ARTICLE IX
Miscellaneous
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Miscellaneous. This Agreement sets forth the entire
understanding of the parties and supersedes any and all prior agreements,
arrangements and understandings relating to the subject matter hereof, and no
representation, promise, inducement or statement of intention has been mae by
any party, which is not embodied herein and no party shall be bound by, or be
liable for, any alleged representation, promise, inducement or statement of
intention not embodied herein. This Agreement shall be binding upon and inure to
the benefit of the parties and their respective successors and assigns. This
Agreement may be executed in any number of counterparts, and all such
counterparts shall constitute one and the same instrument. Facsimile copies
shall be deemed valid and binding. The parties hereto acknowledge that Xxxx
Xxxxxxx, P.C. has in the past and may continue in the future to represent either
or both of the parties hereto, and each party hereby waives any conflict of
interest that may result therefrom, and consents to any such representation by
Xxxx Xxxxxxx, P.C. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to its
conflict of laws rules.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
SOULFOOD CONCEPTS, INC.
By: /s/ Xxxxx Hinchchliffe
------------------------------
Name: Xxxxx Hinchchliffe
Title: President
CLARION FINANZ AG
By: /s/ Xxxxx Xxxxxxx
------------------------------
Name: Xxxxx Xxxxxxx
Title: President
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