EXHIBIT 2.1
THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "1933 ACT"), NOR REGISTERED UNDER ANY
STATE SECURITIES LAW, AND ARE "RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN
RULE 144 UNDER THE 1933 ACT. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD OR
OTHERWISE TRANS FERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE 1933 ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933
ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE SATISFAC TION OF THE
COMPANY.
AGREEMENT FOR THE EXCHANGE OF COMMON STOCK
AGREEMENT made this 29th day of September, 2001, by and between FBI Fresh
Burgers International, a California corporation, (the "ISSUER") and for the
benefit of the individual shareholders, (the "SHAREHOLDERS"), which SHAREHOLDERS
own of all the issued and outstanding shares of F&F Equipment, Inc. a Florida
corporation. ("F&F")
In consideration of the mutual promises, covenants, and representations
contained herein, and other good and valuable consideration,
THE PARTIES HERETO AGREE AS FOLLOWS:
1. EXCHANGE OF SECURITIES. Subject to the terms and conditions of this
Agreement, ISSUER agrees to issue to SHAREHOLDERS, a total of 21,000,000 shares
of the common stock of ISSUER, $0.001 par value (the "Shares"), in exchange for
all the issued and outstanding shares of F&F, such that F&F shall become a
wholly owned subsidiary of the ISSUER.
2. REPRESENTATIONS AND WARRANTIES. ISSUER represents and warrants to
SHAREHOLDERS and F&F the following:
i. Organization. ISSUER is a corporation duly organized, validly existing,
and in good standing under the laws of California, and has all necessary
corporate powers to own properties and carry on a business, and is duly
qualified to do business and is in good standing in California. All actions
taken by the Incorporators, directors and shareholders of ISSUER have been valid
and in accordance with the laws of the State of California.
ii. Capital. The authorized capital stock of ISSUER consists of 300,000,000
shares of common stock, $0.001 par value, of which 8,827,200 (postsplit) are
issued and outstanding. All outstanding shares are fully paid and nonassessable,
free of liens, encumbrances, options, restrictions (with the exception of Rule
144 requirements) and legal or equitable rights of others not a party to this
Agreement. Following this closing, there shall be a total of 29,827,200
(postsplit) shares of common stock of ISSUER issued and outstanding and there
will be no outstanding subscriptions, options, rights, warrants, convertible
securities, or other agreements or commitments obligating ISSUER to issue or to
transfer from treasury any additional shares of its capital stock. None of the
outstanding shares of ISSUER are subject to any stock restriction agreements.
All of the shareholders of ISSUER have valid
title to such shares and acquired their shares in a lawful transaction and in
accordance with the laws of California.
iii. Financial Statements. The financial statements of the Company have
been prepared in accordance with generally accepted accounting principles
consistently followed by ISSUER throughout the periods indicated, and fairly
present the financial position of ISSUER as of the date of the balance sheet and
the financial statements, and the results of its operations for the periods
indicated. ISSUER is current in its filings with the Securities and Exchange
Commission.
iv. Absence of Changes. Since the date of the financial statements filed
with the Securities and Exchange Commission, there has not been any change in
the financial condition or operations of ISSUER, except changes in the ordinary
course of business, which changes have not in the aggregate been materially
adverse.
v. Liabilities. ISSUER does not have any debt, liability, or obligation of
any nature, whether accrued, absolute, contingent, or otherwise, and whether due
or to become due, that is not reflected on the ISSUERS' financial statement.
ISSUER is not aware of any pending, threatened or asserted claims, lawsuits or
contingencies involving ISSUER or its common stock. There is no dispute of any
kind between the ISSUER and any third party, and no such dispute will exist at
the closing of this Agreement. At closing, ISSUER will be free from any and all
liabilities, liens, claims and/or commitments.
vi. Ability to Carry Out Obligations. ISSUER has the right, power, and
authority to enter into and perform its obligations under this Agreement. The
execution and delivery of this Agreement by Issuer and the performance by ISSUER
of its obligations hereunder will not cause, constitute, or conflict with or
result in (a) any breach or violation or any of the provisions of or constitute
a default under any license, indenture, mortgage, charter, instrument, articles
of incorporation, bylaw, or other agreement or instrument to which ISSUER or its
shareholders are a party, or by which they may be bound, nor will any consents
or authorizations of any party other than those hereto be required, (b) an event
that would cause ISSUER to be liable to any party, or (c) an event that would
result in the creation or imposition or any lien, charge or encumbrance on any
asset of ISSUER or upon the securities of ISSUER to be acquired by SHAREHOLDERS.
vii. Full Disclosure. None of the representations and warranties made by
the ISSUER, or in any certificate or memorandum furnished or to be furnished by
the ISSUER, contains or will contain any untrue statement of a material fact, or
omit any material fact the omission of which would be misleading.
viii. Contract and Leases. ISSUER is not currently carrying on any business
and is not a party to any contract, agreement or lease. No person holds a power
of attorney from ISSUER.
ix. Compliance with Laws. ISSUER has complied with, and is not in violation
of any federal, state, or local statute, law, and/or regulation pertaining to
ISSUER. ISSUER has complied with all federal and state securities laws in
connection with the issuance, sale and distribution of its securities.
x. Litigation. ISSUER is not (and has not been) a party to any suit,
action, arbitration, or legal, administrative, or other proceeding, or pending
governmental investigation. To the best knowledge of the ISSUER, there is no
basis for any such action or proceeding and no such action
or proceeding is threatened against ISSUER and ISSUER is not subject to or in
default with respect to any order, writ, injunction, or decree of any federal,
state, local, or foreign court, department, agency, or instrumentality.
xi. Conduct of Business. Prior to the closing, ISSUER shall conduct its
business in the normal course, and shall not (1) sell, pledge, or assign any
assets (2) amend its Articles of Incorporation or Bylaws, (3) declare dividends,
redeem or sell stock or other securities, (4) incur any liabilities, (5) acquire
or dispose of any assets, enter into any contract, guarantee obligations of any
third party, or (6) enter into any other transaction.
xii. Documents. All minutes, consents or other documents pertaining to
ISSUER to be delivered at closing shall be valid and in accordance with the laws
of California.
xiv. Title. The Shares to be issued to SHAREHOLDERS will be, at closing,
free and clear of all liens, security interests, pledges, charges, claims,
encumbrances and restrictions of any kind, shall be issued pursuant to
Regulation D, Section 506 and 4(2)of the Act and shall bear a Rule 144 legend.
None of such Shares are or will be subject to any voting trust or agreement. No
person holds or has the right to receive any proxy or similar instrument with
respect to such shares, except as provided in this Agreement, the ISSUER is not
a party to any agreement which offers or grants to any person the right to
purchase or acquire any of the securities to be issued to SHAREHOLDERS. There is
no applicable local, state or federal law, rule, regulation, or decree which
would, as a result of the issuance of the Shares to SHAREHOLDERS, impair,
restrict or delay SHAREHOLDERS' voting rights with respect to the Shares.
3. SHAREHOLDERS and F&F represent and warrant to ISSUER the following:
i. Organization. F&F is a corporation duly organized, validly existing, and
in good standing under the laws of Florida, has all necessary corporate powers
to own properties and carry on a business, and is duly qualified to do business
and is in good standing in Florida. All actions taken by the Incorporators,
directors and shareholders of F&F have been valid and in accordance with the
laws of Florida.
ii. Shareholders and Issued Stock. Exhibit A annexed hereto sets forth the
names and share holdings of 100% of F&F shareholders.
iii. General Obligations. Following the closing, ISSUER shall comply with
applicable federal and state securities laws.
iv. Counsel. SHAREHOLDERS and F&F represent and warrant that prior to
Closing, that they are represented by independent counsel or have had the
opportunity to retain independent counsel to represent them in this transaction.
4. INVESTMENT INTENT. SHAREHOLDERS agree that the shares being issued
pursuant to this Agreement may be sold, pledged, assigned, hypothecate or
otherwise transferred, with or without consideration (a "Transfer"), only
pursuant to an effective registration statement under the Act, or pursuant to an
exemption from registration under the Act, the availability of which is to be
established to the satisfaction of ISSUER. SHAREHOLDERS agree, prior to any
transfer, to give written notice to ISSUER expressing his desire to effect the
transfer and describing the proposed transfer.
5. CLOSING. The closing of this transaction shall take place at the offices
of the Company.
6. DOCUMENTS TO BE DELIVERED AT CLOSING.
i. By the ISSUER
(1) Board of Directors Minutes authorizing the issuance of a
certificate or certificates for 21,000,000 Shares, registered in the names
of the SHAREHOLDERS equal to their pro-rata holdings in F&F. All
certificates shall be delivered promptly after closing.
(2) The resignation of all officers of ISSUER.
(3) A Board of Directors resolution appointing such person as
SHAREHOLDERS designate as a director(s) of ISSUER.
(4) The resignation of all the directors of ISSUER, except that of
SHAREHOLDER'S designee, dated subsequent to the resolution described in 3,
above.
(5) Current SEC filings of the ISSUER, which shall include a current
balance sheet and statements of operations, stockholders equity and cash
flows for the twelve (12) month period then ended.
(6) All of the business and corporate records of ISSUER, including but
not limited to correspondence files, bank statements, checkbooks, savings
account books, minutes of shareholder and directors meetings, financial
statements, shareholder listings, stock transfer records, agreements and
contracts.
(7) Such other minutes of ISSUER's shareholders or directors as may
reasonably be required by SHAREHOLDERS.
(8) An Opinion Letter from ISSUER's Attorney attesting to the validity
and condition of the ISSUER.
ii. By SHAREHOLDERS AND F&F:
(1) Delivery to the ISSUER, or to its Transfer Agent, a Resolution
cancelling the issued and outstanding stock of F&F.
(2) Consents signed by Xxxxxx Xxxxxxxxx, Xxxxxx X. Xxxx, Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxx, Xxxxx X. Xxxxxxxxx, Xxx Xxxx and Xxxxxx
Xxxxxxx, and the remaining shareholders consenting to the terms of this
Agreement.
7. REMEDIES.
i. Arbitration. Any controversy or claim arising out of, or relating to,
this Agreement, or the making, performance, or interpretation thereof, shall be
settled by arbitration in Palm Beach, Florida in accordance with the Rules of
the American Arbitration Association then existing, and
judgment on the arbitration award may be entered in any court having
jurisdiction over the subject matter of the controversy.
8. MISCELLANEOUS.
i. Captions and Headings. The Article and paragraph headings throughout
this Agreement are for convenience and reference only, and shall in no way be
deemed to define, limit, or add to the meaning of any provision of this
Agreement.
ii. No oral change. This Agreement and any provision hereof, may not be
waived, changed, modified, or discharged orally, but only by an agreement in
writing signed by the party against whom enforcement of any waiver, change,
modification, or discharge is sought.
iii. Non Waiver. Except as otherwise provided herein, no waiver of any
covenant, condition, or provision of this Agreement shall be deemed to have been
made unless expressly in writing and signed by the party against whom such
waiver is charged; and (I) the failure of any party to insist in any one or more
cases upon the performance of any of the provisions, covenants, or conditions of
this Agreement or to exercise any option herein contained shall not be construed
as a waiver or relinquish ment for the future of any such provisions, covenants,
or conditions, (ii) the acceptance of performance of anything required by this
Agreement to be performed with knowledge of the breach or failure of a covenant,
condition, or provision hereof shall not be deemed a waiver of such breach or
failure, and (iii) no waiver by any party of one breach by another party shall
be construed as a waiver with respect to any other or subsequent breach.
iv. Time of Essence. Time is of the essence of this Agreement and of each
and every provision hereof.
v. Entire Agreement. This Agreement contains the entire Agreement and
understanding between the parties hereto, and supersedes all prior agreements
and understandings.
vi. Counterparts. This Agreement may be executed simultaneously in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
vii. Notices. All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given on the date of service if served personally on the party to whom notice is
to be given, or on the third day after mailing if mailed to the party to whom
notice is to be given, by first class mail, registered or certified, postage
prepaid, and properly addressed, and by fax, as follows:
ISSUER: Xxxxxxx X. Xxxx, Esq.
000 Xxxxx Xxxxxx, Xxxxx 00
Xxxxx Xxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
F&F: Xxxxxx X. Xxxxxxxx, Esq.
Mintmire & Associates
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
Phone:(000) 000-0000
Fax: (000) 000-0000
IN WITNESS WHEREOF, the undersigned has executed this Agreement this 29th
day of September 2001.
FBI Fresh Burgers International
By: /s/ Artem Gotov
-------------------------
Artem Gotov, President
F&F Equipment, Inc.
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------
Xxxxxx Xxxxxxxxx, President
EXHIBIT A
Name AA Shares Consented To
------------------------ ----------- ---------------------------------------
X.X. Xxxxxxxxx, Xx. 5,569,200 /s/ X.X. Xxxxxxxxx, Xx.
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Xxxxxx X. Xxxxxxxxx 4,281,900 /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx 4,281,900 /s/ Xxxxxx Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx 840,000 /s/ Xxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxx 504,000 /s/ Xxxxxx X. Xxxx
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Xxx X. Xxxx 168,000 /s/ Xxx X. Xxxx
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Xxxxxxx X. Xxxxxxx 105,000 /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxx Xxxxxxxxx 42,000 /s/ Xxxxxx Xxxxxxxxx
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Xxxxxxxx Xxxxxx Xxxx Xxxxxx 42,000 /s/ Xxxxxxxx Xxxxxx Xxxx Xxxxxx
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Xxxxxxxx Xxxxx 21,000 /s/ Xxxxxxxx Xxxxx
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Xxxxx X. Xxxxxxxxx, Trustee 945,000 /s/ Xxxxx X. Xxxxxxxxx, Trustee
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A. Xxxx Xxxxxxx, Fr. 84,000 /s/ A. Xxxx Xxxxxxx, Xx.
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Xxxxxx X. Xxxxxxxx 1,050,000 /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxxxx 105,000 /s/ Xxxxxxx X. Xxxxxxxxxx
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Kissimmul, Inc. 1,050,000 /s/ Peitre Xxxxxx XxXxxx
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Xxxxxx X. Xxxx 21,000 /s/ Xxxxxx X. Xxxx
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Xxxx Xxxxxxxx 1,050,000 /s/ Xxxx Xxxxxxxx
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Xxxx X. Xxxxxxxx 420,000 /s/ Xxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx 420,000 /s/ Xxxxx X. Xxxxxxxx
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