FORM OF EXCHANGE AGREEMENT
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THIS EXCHANGE AGREEMENT (this "Agreement") is dated as of March 31,
2000 and is by and between Universal Beverages Holdings Corporation, a Florida
corporation ("UBHC") and Universal Beverages, Inc., a Florida corporation
("UBHC") which is a wholly owned subsidiary of UBHC (collectively, UBHC and UBI
shall be referred to as "Universal") and Bridge Bank, Ltd., a Bahamian
corporation ("Note Holder").
WHEREAS, the Note Holder advanced approximately $541,000 to Universal
and the Note Holder has the right to receive certain loan payments including
accrual but unpaid interest (all such sums due and owing shall be referred to as
the "Loan"), from Universal and this right is evidenced in an agreement between
UBI and the Note Holder entered into in 1997 (the "Loan Agreement");
WHEREAS, the Loan Agreement and any other agreements between Universal
and the Note Holder relating directly or indirectly to the Loan, whether
guaranty agreements pledge, agreements security, interests or agreement of any
other type, shall be referred to collectively as the "Loan Documents";
WHEREAS, in exchange for receiving 700,000 shares (the "Shares") of
UBHC's common stock, the Note Holder has agreed (i) to forgive any indebtedness
that Universal owes under the loan, including all accrued but unpaid interest
and (ii) to release Universal from any and all obligations under the Loan and
each the Loan Documents
NOW, THEREFORE in consideration of the premises and the mutual
representations, warranties, covenants and agreements herein contained, the
parties hereto agree a follows:
1. Exchange Agreement
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1.1 In exchange for receiving 700,000 shares of the Company's common
stock, the Note Holder has agreed (i) to forgive any indebtedness that Universal
owes undo the Loan plus any and all accrued interest and (ii) to release
Universal from any and all obligation under the Loan and each of the Loan
Documents and release any and all security interest that it may have in
Universal's property.
1.2 Effective as of the date of this Agreement, the Note Holder hereby
agrees and acknowledges that all sums due and owing under the Loan are hereby
extinguished and canceled. The Note Holder also agrees that the Loan and each of
the Loan Documents is deemed to be null void and of no further force and effect.
If necessary the Note Holder agrees that it will file UCC-3 Termination
Statements with the Florida Department of State and any other filings offices to
terminate any security interests that it may have in Universal's assets.
1.3 In order to evidence the cancellation of indebtedness under the
Note, the Note Holder agrees that it will write "PAID IN FULL" on the original
promissory note, if located, and initial such phrase and return the original
promissory note to Universal. The Note Holder also agrees that it will handwrite
"CANCELED" on each of the original Loan Documents, initial such phrase and
return each of the original Loan Documents to Universal.
2. Registration Rights
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2.1 If UBHC files a registration statement with, the Securities and
Exchange Commission during the next five (5) years, the common stock will have
"piggyback" rights to be included in the registration statement. If UBHC in good
faith or an underwriter determines that the inclusion of these shares would hurt
the public offering, UBHC will not have to include these shares in the
registration statement: however, UBHC will use its best efforts to include these
shares in the next registration statement that it files during said time period.
3. Mutual Releases and Covenant Not to 8uc.
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3.1 The Note Holder hereby releases UBHC, UBI and each and every one or
their respective directors officers employees, representatives, legal counsel.
agents, subsidiaries, or affiliates (collectively, the "Affiliates") from all
claims, causes of action, damages, judgments, agreements and demands whatsoever,
whether liquidated or unliquidated, contingent or fixed, determined or
undetermined, known or unknown, at law or in equity, which it has had, now has,
or may hereinafter have against UBIC, UBI or its Affiliates for any matter
whatsoever arising directly or indirectly out of or relating to this Agreement
arising from the beginning of the world to the end of the world. The Note Holder
further agrees never to institute or cause to be instituted any suit of any form
or action or proceeding of any kind or nature against UBHC, UBI or its
Affiliates by reason of or in connection with any of the actions or matters
released hereinabove and that this Release shall be construed broadly to protect
UBHC and UBI and their Affiliates.
3.2 Universal releases the Note Holder and each and every one of its
respective directors, officers, employees, representatives, legal counsel,
agents, subsidiaries, or affiliates (collectively, the "Affiliates") from all
claims, causes of action, damages, judgements, agreements and demands
whatsoever, whether liquidated or unliquidated contingent or fixed, determined
or undetermined, known or unknown, at ********************[ILLEGIBLE] which it
has had [ILLEGIBLE] hereinafter have against the Note Holder or its Affiliates
for any matter whatsoever arising directly or indirectly out of or Relating to
this Agreement arising from the beginning of the world to the end of the world.
Universal agrees never institute or cause to be instituted any suit or any form
or action or proceeding of kind or nature against the Note Holder or its
Affiliates by reason of or in connection with any of the actions or matters
released hereinabove and that thin Release shall be construed broadly to protect
the Note Holder and its affiliates.
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4. Representations, Warranties, and Agreements of the Note Holder. In
connection with UBHC's agreement to issue the Shares pursuant to the terns of
this Agreement, the Note Holder hereby make the following representations,
warranties and agreements and confirms the following understandings.
4.1 Investment Purpose. The Note Holder, or its designees, is acquiring
the Shares for its own account and for investment purposes only, within the
meaning of the Securities Act of 1933, as amended (the "Securities Act"), with
no intention of assigning any participation or interest therein and no view to
the distribution thereof.
4.2 Unregistered Offering. The Note Holder understands that the sale of
the Shares is not being registered, on the basis that the issuance of the Shares
is exempt from registration under the Securities Act and rules and regulations
promulgated thereunder, as a transaction by an issuer not involving any public
offering (the "Offering"), and that reliance on such exemption is predicated, in
part, on the Note Holder's representations and warranties contained in this
Agreement.
4.3 Limitations on Disposition. The Note Holder understand that there
are substantial restrictions on the transferability of the Shares: the Shares
will contain a restrictive legend; the investors in UBHC have no rights to
require that the Shares be registered under the Securities Act and there is not
expected to be a market for the resale of the Shares. Accordingly, the
undersigned may have to hold the Shares for a substantial period of time and it
may not be possible for the undersigned to liquidate its investment in UBHC.
4.4 Absence of Official Evaluation. The Note Holder has had the
opportunity to conduct a due diligence review of Universal and ask
representatives of Universal questions about Universal's business and financial
condition and the terms of this exchange offer and relating restructuring, and
has had access to material books, records and contracts of Universal. The Note
Holder has had the opportunity to conduct a due diligence review of Universal
and ask representatives of Universal questions about Universal's business and
financial condition and the terms of this exchange offer and related
restructuring, and has had access to material books, records and contracts of
Universal.
5. Indemnification.
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5.1 Each party agrees to indemnify and hold harmless the other party
and its [MISSING LINE OF TEXT]************ liability, claim, damage, deficiency,
and all actions, suits, proceedings, demands, assessments, judgments, costs and
expenses whatsoever (including, but not limited to, any and all expenses
whatsoever, including attorneys' fees, reasonably incurred in investigating,
preparing, or defending against any litigation commenced or threatened or any
claim whatsoever through all appeals) arising out of or based upon any false
representation or breach or failure by the other party to comply with any
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covenant or agreement made by it heroin or in any ocher document furnished by
its in connection with his subscription.
6. Governing Law
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6.1 This Agreement has been entered into and shall be construed and
enforced in accordance with the laws of the State of Florida, without reference
to the choice of law principles thereof. This Agreement shall be subject to the
exclusive jurisdiction of the courts of the State of Florida located in Xxxxx
County. Florida or the United States District Court for the Southern District of
Florida. The parties to this Agreement agree that any and oil causes of action
or claims arising out of or relating to this Agreement shall be governed by and
construed in accordance with the laws of the State of Florida and irrevocably
and expressly agree to submit to the jurisdiction of the courts of the State of
Florida for the purpose of resolving any and all disputes relating to this
Agreement. The parties irrevocably waive to the fullest extent permitted by law,
any objection which they may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement or any
judgment or permanent or temporary injunction entered by any court in respect
hereof brought in Xxxxx County, Florida and further irrevocably waive any claim
that my suit, action or proceeding brought in Xxxxx County. Florida has been
brought in an inconvenient forum.
6.2 If either party institutes legal proceedings against the party, the
parties agree that, except as provided below, each party shall serve process by
process server upon the other party at the address listed in Section 7.5 hereof.
Each party shall notify the other party in writing of any change in residence
address within ten (10) calendar days of the change. If a party fails to do so,
each party agrees that the other party may serve process by: (a) serving copies
of the summons and complaints by certified U.S. Mail the other party's street
known address gives pursuant to Section 7.5, and (b) placing a public notice in
a newspaper of general circulation in the geographic areas of the other party's
last's known residence address for a period of two consecutive weeks following
commencement (i.e. filing) of the proceedings.
7. General Provisions
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7.1 This Agreement and the agreements, instruments schedules exhibits
and other writings referred to in this Agreement, constitute the entire
understanding of the parties with respect to subject matter of this Agreement.
This Agreement supersedes all prior agreements and understandings between the
parties with respect to its subject matter. This Agreement may be amended only
by means of a written instrument duly executed by all of the parties hereto.
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7.7 The Preliminary Recitals set forth in the Preamble are hereby
incorporated and made part of this Agreement. Section headings are inserted for
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement. The Exhibits and Schedules
identified in this Agreement and incorporated herein by reference are made a
part hereof.
7.8 The parties agree to execute and deliver all such further
documents, agreements, and instruments and take such other and further action as
may be necessary or appropriate to carry out the purposes and intent of this
Agreement.
7.9 This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original and all of which, taken together,
shall constitute one and the same document. Any facsimile copy of a manually
executed original shall be deemed a manually executed original.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first written above.
UNIVERSAL BEVERAGES HOLDING
CORPORATION
/s/ Xxxxxxxx Xxxxx
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Xxxxxxxx Xxxxx, Chief Executive Officer
UNIVERSAL BEVERAGES INC.
/s/ Xxxxxxxx Xxxxx
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Xxxxxxxx Xxxxx, Chief Executive Officer
BRIDGE BANK, LTD.
/s/ Xxxxxx X. Xxxxxxxxxxxx
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Xxxxxx X. Xxxxxxxxxxxx
Counsel for Bridge Bank, Ltd.
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