EXHIBIT 10.77
EXTENSION AND EXCHANGE AGREEMENT
This EXTENSION AND EXCHANGE AGREEMENT ("Agreement") made this 29th day
of August, 2003 ("Effective Date"), by and among XXXXXXX X. XXXXXXX ("CB"),
XXXXXXXX X. XXXXXXX ("MB"), both residents of the State of Indiana (CB and MB
sometimes being referred to collectively as "Beasleys"), SYNDICATED FOOD SERVICE
INTERNATIONAL, INC., a Florida corporation ("SYFS"), XXXXXXX FOOD SERVICE, INC.,
a Delaware corporation ("BFS") and SYNDICATED BLOOMINGTON I, LLC, a Delaware
limited liability company ("Syndicated");
WITNESSETH:
WHEREAS, Beasleys hold 458,716 shares of the common capital stock of
SYFS ("Shares") and an installment promissory note dated December 31, 2001 in
the principal amount of $1,226,420 ("Note");
WHEREAS, Beasleys acquired the Shares and the Note pursuant to the
terms of an Agreement and Plan of Merger and Reorganization, dated November 27,
2001 ("Merger Agreement");
WHEREAS, pursuant to the terms of Section 2(a) to the First Amendment
to Agreement and Plan of Merger and Reorganization, dated December 31, 2001
("First Amendment"), SYFS extended to Beasleys the right to put the Shares to
SYFS ("Put Right") for the price of $4.36 per share effective as of June 30,
2003, continuing through July 20, 2003 ("Put Period");
WHEREAS, Beasleys exercised the Put Right by letter dated July 7, 2003
("Put Notice"); and SYFS has not performed its obligations under Put Right;
WHEREAS, SYFS has failed to pay certain sums due under the Note on a
timely basis; and
WHEREAS, subject to the completion of certain conditions and delivery
of certain consideration, Beasleys have agreed to rescind the Put Notice, to
exchange the Shares for other securities of SYFS and to defer declaring the Note
in default and exercising remedies available to them;
NOW THEREFORE, in consideration of the premises and the mutual
covenants and promises contained in this Agreement, the receipt and legal
sufficiency of which are acknowledged and agreed to, the parties agree as
follows:
SECTION 1. SCOPE AND PURPOSE; DEFINITIONS. This Agreement serves
as a binding agreement covering the terms specifically set forth below. This
Agreement amends the Merger Agreement and the First Amendment as provided below.
Except as provided below or in the other agreements and documents referred to
in, or contemplated by, this Agreement, the Merger Agreement, the First
Amendment and the other agreements and instruments between SYFS and its
affiliates on the one hand and Beasleys or CB on the other hand remain in full
force and effect. Capitalized terms defined in the Merger Agreement and the
First Amendment have the same meanings in this Agreement unless a different
definition is established in this Agreement or the context clearly indicates
another meaning should obtain.
SECTION 2. PUT RIGHT-RESCISSION OF EXERCISE. Beasleys hereby
rescind their exercise of the Put Right and agree that the letter attached as
Exhibit 2.1 shall be deemed cancelled and of no further force or legal effect.
SECTION 3. PUT RIGHT-EXTENSION OF PUT PERIOD. The Put Period is
extended through and including November 30, 2003, so that the Expiration Date as
provided in Section 2(a) of the First Amendment is November 30, 2003, and,
subject to the terms and conditions of this Agreement and performance by SYFS of
its obligations under this Agreement, Beasleys may not exercise the Put Right at
any time before November 1, 2003.
SECTION 4. STANDSTILL PENDING PERFORMANCE. Beasleys agree that the
Put Date provided in Section 2(a) of the First Amendment will be November 1,
2003; provided however, that the Put Date will be accelerated to
September 16, 2003, if SYFS does not complete the conditions precedent set forth
in Section 5 below ("Filing Conditions"). If the Filing Conditions are not
satisfied, Beasleys may immediately exercise the Put Right, and SYFS shall be
required to perform as provided in the First Amendment.
SECTION 5. SEC REPORTING AND DISCLOSURE. Noncompliant behavior of
former management has caused SYFS to be delinquent in the filing of a series of
required reports and disclosures with United States Securities and Exchange
Commission ("SEC"). A list of delinquent filings is attached as Schedule 5.1
("Delinquent Filings"). Current management of SYFS has commenced preparation of
the information necessary to complete all forms required to be filed with the
SEC by SYFS and to bring SYFS current in its SEC filings so that its shares may
be traded in the public securities markets in accordance and compliance with
Securities Laws. SYFS undertakes to complete all delinquent filings to the
satisfaction of Beasleys on or before September 15, 2003 ("Compliance Date").
SYFS will provide Beasleys (through counsel) with drafts of all proposed SYFS
filings with the SEC at least 48 hours before filing the same. Beasleys will
review and provide SYFS with comments to all drafts as soon as practical.
Beasleys will be deemed to have accepted any proposed filing if the same has not
been objected to or commented upon within 48 hours of receipt by Beasleys.
SECTION 6. PRIVATE PLACEMENT OF SYFS SHARES. SYFS is in process of
completing a Private Placement Memorandum to cover the proposed sale of
4,000,000 to 8,000,000 shares of its common capital stock for $0.25 per share. A
copy of a current draft of the Private Placement Memorandum is attached as
Exhibit 6.1 ("PPM"). Beasleys consent to the issuance of shares of SYFS on the
terms specified in the PPM, subject to the specific provisions of Section 13.1
below relative to uses and application of the proceeds of the proposed offering
under the PPM. If SYFS successfully closes the sale of at least 4,000,000 shares
at a minimum price of $0.25 per share pursuant to the PPM on or before November
30, 2003 ("PPM Closing"), Beasleys agree to convert the Shares to SYFS Series A
Preferred Shares pursuant to the terms of Section 7 below.
SECTION 7. CONVERSION AND EXCHANGE OF SHARES. Simultaneous with
the PPM Closing but subject to satisfaction of all conditions specified in this
Agreement and performance by SYFS of all of its obligations and covenants
specified in this Agreement, the Shares will be converted into Series A
Preferred Shares of SYFS ("A Shares") on the following terms;
(a) Stated Value. The Stated Value of the A Shares will
be $2,000,000, subject to increase pursuant to Section 7(g) below
("Stated Value").
(b) Number of A Shares. 100,000 A Shares will be issued
to Beasleys.
(c) Voting Rights. Each A Shares will have ten (10) votes
on all matters to be voted upon by the common shares of SYFS. Voting as
a class the A Shares will have the right to approve or reject the
following types of transactions or actions by SYFS:
(i) any merger, consolidation or amalgamation of SYFS
with any other corporation;
(ii) any revision to or amendment of the Articles of
Incorporation of SYFS which would reduce or change to the
number of votes per share of common stock in any manner
resulting in a change in the relationship of votes per A Share
to common share from that which is provided under this Section
7(c); or
(iii) any issuance of debt securities by SYFS in an
aggregate original principal amount of $ 1,000,000 or more
which pay a stated interest rate more than nine percent (9%).
(d) Conversion Rights. Each A Share will, at the election
of the holder, be convertible at the Stated Value per share of the A
Shares into common shares of SYFS at a conversion price equal to the
greater of $1.00 per common share or a discount of 20% from the average
trading price for SYFS common shares for the ten (10) trading days
immediately preceding the exercise of the conversion right ("Conversion
Rate"). The Conversion Rate will be adjusted to reflect any changes in
capitalization of
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SYFS so that the holder of the A Shares will be entitled to receive the
amount of common shares the holder would have been entitled to receive
but for the capital change, it being understood that the foregoing is
designed to ensure that Beasleys will receive an adjustment in the
number of shares to reflect stock dividends, splits, conversions,
reverse splits. No adjustments to the Conversion Rate will be made for
issuances of common shares of SYFS for fair value in arms length
transactions, be they private placements or public offerings.
(e) Dividend Rate. The A Shares will have right to
receive a seven percent (7%) cumulative annual dividend on the Stated
Value of the A Shares from the date of issuance until the A Shares are
redeemed or converted ("A Dividend"). The A Dividend will accrue
whether or not declared and whether or not there is profit, surplus or
assets available for the payment of dividends. A Dividends will be
cumulative so that all accrued and unpaid A Dividends will be fully
paid or declared with funds set aside irrevocably for payment before
any dividend, distribution or payment may be made with respect to any
other class or series of equity security of SYFS. The date of issuance
of the A Shares will be the Closing Date regardless of the number of
times SYFS or its transfer agent may record a transfer or reissuance of
the A Shares and regardless of the date specified on any certificates
reflecting the A Shares.
(f) Liquidation Preference. Upon any liquidation,
dissolution or winding up of SYFS, each A Share then outstanding shall
be entitled to be paid, before any distribution or payment of any kind
is made to the holders of any other equity securities of SYFS by reason
of ownership, an amount in cash per A Share equal to the Stated Value
per A Shares plus all accrued and unpaid dividends.
(g) Redemption Rights. The A Shares may be redeemed by
SYFS at any time for an amount equal to their Stated Value plus any
accrued and unpaid A Dividends. Beginning on December 1, 2004, and on
each February 1, May 1, August 1 and December 1 thereafter, the Stated
Value will increase by 2.5% cumulatively on each A Share then
outstanding. Beginning on December 1, 2004, if the A Shares have not
then been redeemed, SYFS will establish a sinking fund in which 25% of
its EBITDA (earnings before interest, taxes and depreciation) for the
preceding twelve (12) months less interest expense will be irrevocably
set aside to fund A Share redemption; on December 1, 2005, the
percentage set aside will increase from 25% to 50%.
(h) Other Terms. The Articles of Incorporation of SYFS
will be amended to incorporate the above terms and additional
procedures regarding notice and timing on terms approved by Beasleys
after investors subscribe to acquire a minimum of $1 million of SYFS
common shares. Upon completion the terms of the A Preferred Shares will
be added to this Agreement as Exhibit 7.1. Any SYFS common shares
received by Beasleys upon conversion of A Shares will be entitled to
"piggyback" rights in connection with any registration statement filed
by SYFS.
SECTION 8. DEFERRAL OF EXERCISE OF RIGHTS UNDER NOTE AND SECURITY
AGREEMENT. SYFS has failed to make timely payments due under the Note. Beasleys
agree not to exercise their rights to call the Note into default and agree not
to realize on the security for the Note until the Put Right becomes exercisable
under Section 5 above and, if SYFS makes all of its Delinquent Filings and
causes its common shares to become eligible for trading on or before the
Compliance Date, Beasleys agree to further defer exercise of rights under the
Note or the Security Agreement pending SYFS's efforts to close on the sale of
shares under the PPM. If a PPM Closing occurs and all amounts of interest and
principal now due under the Note are paid at the PPM Closing, Beasleys agree to
waive any defaults then outstanding. Any defaults in the payment of any future
installment of interest or principal under the Note or any other Event(s) of
Default under the Note or the Security Agreement are not affected by the
deferral or the potential waiver under this Section 8.
SECTION 9. ADDITIONAL CONSIDERATION. As additional consideration
for the forbearances of Beasleys and for entering into this Agreement, it is
agreed effective for all purposes as of the Effective Date, as follows:
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(a) Release from Indemnification Obligations. SYFS, for
itself and for BFS, BTS and Syndicated, releases and acquits Beasleys
from further liability or responsibility for the indemnification
provisions of Section 6.5(a) of the Merger Agreement.
(b) Release from Rights of First Refusal and Scrubbing of
Certificate(s). SYFS and Beasleys agree that the provisions of Section
6.7 of the Merger Agreement and the restrictions therein provided are
cancelled effective as of the date of this Agreement. Upon request,
SYFS will reissue the Shares to Beasleys with all restrictive legends
removed.
(c) Cancellation of Pledge and Escrow Agreement. The
Pledge and Escrow Agreement pursuant to which the Shares are subject is
deemed cancelled and of no further force or effect effective as of the
date of this Agreement. The Escrow Agent under the Pledge and Escrow
Agreement is released from all further obligations under that Agreement
upon delivery of the Shares to be Beasleys for tender to SYFS against
reissuance as contemplated in Section 9(b) above.
(d) Issuance of Additional Shares. SYFS will, as soon as
practical following the Effective Date but in any event no later than
August 25, 2003, issue to Beasleys 229,358 shares of its common capital
stock ("Additional Shares"). The Additional Shares will have the same
registration rights as provided for common shares following conversion
of Preferred Shares under Section 7 above.
(e) Junior Security Interest. Subject to consent by Old
National Bank ("ONB") if performing under this Section 9(e) would cause
the breach of any covenant in any agreement between BFS or any
Affiliate and ONB, BFS will grant and extend to Beasleys as additional
security for the Note a second or junior security interest in all of
its assets subject and subordinate to the position of ONB under the
Subordination Agreement dated February 27, 2003.
(f) Second Mortgage. Subject to consent by Old National
Bank ("ONB") if performing under this Section 9(f) would cause the
breach of any covenant in any agreement between Syndicated or any
Affiliate and ONB, Syndicated will grant and extend to Beasleys as
additional security for the Note a second or mortgage interest in the
Real Estate subject and subordinate to the position of ONB under the
Subordination Agreement dated February 27,2003.
(g) Expense Reimbursement. SYFS will reimburse Beasleys
for all costs and expenses, including legal fees, incurred by Beasleys
in connection with this Agreement and the negotiations and analysis
leading up to this Agreement. The obligation of SYFS to reimburse
Beasleys for any such expenses is not contingent upon the occurrence or
non-occurrence of any future event. SYFS will cause BFS to make any
reimbursement covered by this Section 9(g) promptly upon demand.
(h) Cancellation of Terms. Sections 3 and 4 of the First
Amendment are cancelled and of no further force or effect.
(i) Modification of Principal Payment Date. The Five
Hundred Thousand Dollar ($500,000) principal payment due under the
terms of the Note on January 4,2004 will not be due until March 31,
2004 if a PPM Closing occurs on or before November 30, 2003.
SECTION 10. REPRESENTATIONS AND WARRANTIES OF SYFS. SYFS represents
and warrants to Beasleys that the statements contained in this Section 10 are
correct and complete as of the date of this Agreement.
(a) Organization, Qualification, and Corporate Power.
SYFS is a corporation duly organized, validly existing and in good
standing under the jurisdiction of its organization. SYFS is duly
authorized to conduct business and is in good standing under the laws
of each jurisdiction where such qualification is required. SYFS has
full power and authority and all licenses, permits, and authorizations
necessary to carry out the terms and conditions of this Agreement.
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(b) Authorization of Transaction. SYFS has full power and
authority to execute and deliver this Agreement and the other documents
referenced herein and to perform its obligations hereunder and
thereunder. This Agreement constitutes the valid and legally binding
obligation of SYFS, enforceable in accordance with its terms and
conditions. No notice to, filing with, or authorization, consent, or
approval of any governmental authority is required of SYFS for the
parties to consummate the transactions contemplated by this Agreement.
(c) No Conflicts. Neither the execution and delivery nor
the performance of this Agreement nor the consummation of the
transactions contemplated hereby will (i) conflict with, violate, or
result in a breach of any of the terms, conditions or provisions of any
law, regulation, order, writ, injunction, decree, permit,
determination, or award of any court, governmental department, board,
agency or instrumentality, domestic or foreign, or any arbitrator; or
(ii) result in a breach by SYFS of any contractual obligations it may
have with any third party.
(d) Legal Compliance. SYFS has complied in all material
respects with all applicable laws (including rules, regulations, codes,
plans, injunctions, judgments, orders, decrees, rulings, and charges
thereunder) of all governmental authorities, and, except as may be
implicated in any matter included in the Disclosure Schedule attached
as Exhibit 10.1 ("Disclosure Schedule"), no action, suit, proceeding,
hearing, investigation, charge, complaint, claim, demand, or notice has
been filed or commenced against SYFS alleging any failure so to comply.
(e) Approval. No registration, declaration, filing,
consent, approval, license, permit or other authorization or order not
obtained by SYFS from any governmental or regulatory authority,
domestic or foreign, is required for the execution, delivery, and
performance by SYFS under this Agreement.
(f) Litigation. Except as referenced in Section 10(f) of
the Disclosure Schedule, There are no actions, suits, proceedings, or
investigations pending or, to the knowledge of SYFS, threatened,
against or affecting SYFS or any of its properties, assets or
businesses in any court, any governmental department, board, agency or
instrumentality, domestic or foreign, or any arbitration which, if
adversely determined (or, in the case of an investigation, could lead
to any action, suit or proceeding, which if adversely determined),
could reasonably be expected to materially impair its ability to
perform its obligations under this Agreement or to have a material
adverse effect on his financial condition; and SYFS has not received
any notice of any default, nor does any default exist, under any
applicable order, writ, injunction, decree, permit, determination, or
award of any court, any governmental department, board, agency, or
instrumentality, domestic or foreign, or any arbitrator which could
reasonably be expected to materially impair its ability to perform
obligations under this Agreement or to have a material adverse effect
on its financial condition.
(g) Disclosure. The representations and warranties
contained in this Section 10 do not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements and information contained in this Section 10 not
misleading.
SECTION 11. REPRESENTATIONS AND WARRANTIES OF BEASLEYS. Beasleys
represent and warrant to SYFS that the statements contained in this Section 11
are correct and complete as of the date of this Agreement.
(a) Authority. Beasleys have full power and authority to
execute and deliver this Agreement and the other documents referenced
herein and to perform obligations under this Agreement This Agreement
constitutes the valid and legally binding obligation of Beasleys,
enforceable in accordance with its terms and conditions. No notice to,
filing with, or authorization, consent, or approval of any governmental
authority is required of Beasleys for the parties to consummate the
transactions contemplated by this Agreement.
(b) No Conflicts. Neither the execution and delivery nor
the performance of this Agreement nor the consummation of the
transactions contemplated hereby will (i) violate any constitution,
statute, law, regulation, rule, injunction, judgment, order, decree,
writ, permit, ruling,
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charge, award, determination or other restriction of any governmental
authority to which Beasleys are subject; or (ii) result in a breach by
Beasleys of any contractual obligations they may have with any third
party.
(c) Litigation. There are no actions, suits, proceedings,
or investigations pending or, to the knowledge of Beasleys, threatened,
against or affecting Beasleys or any of their properties, assets or
businesses in any court, any governmental department, board, agency or
instrumentality, domestic or foreign, or any arbitration which, if
adversely determined (or, in the case of an investigation, could lead
to any action, suit or proceeding, which if adversely determined),
could reasonably be expected to materially impair their ability to
perform obligations under this Agreement or to have a material adverse
effect on their financial condition; and they have not received any
notice of any default, nor does any default exist, under any applicable
order, writ, injunction, decree, permit, determination, or award of any
court, any governmental department, board, agency, or instrumentality,
domestic or foreign, or any arbitrator which could reasonably be
expected to materially impair their ability to perform obligations
under this Agreement or to have a material adverse effect on their
financial condition.
SECTION 12. CLOSING OF SHARE CONVERSION AND EXCHANGE. Simultaneous
with the PPM Closing, the Shares will be converted into the Preferred Shares
("Exchange Closing"). At the Exchange Closing, the following events will take
place and the following documents will be executed and delivered:
(a) Conditions Precedent to Closing. The following
conditions shall be satisfied on or before the Exchange Closing date:
(i) SYFS shall have performed in all material
respects each obligation and agreement, and complied with each
covenant to be performed and complied with by it, under this
Agreement prior to the date of the Exchange Closing, including
but not limited to the following matters:
(A) SYFS shall have delivered to
Beasleys the additional 229,358 shares and, if
requested by Beasleys, revised certificates with all
restrictive legends removed for the Shares;
(B) SYFS and BFS shall have obtained
the consent of ONB and secured for Beasleys a second
priority security interest in the property of BFS and
a second mortgage for Beasleys on the Real Estate;
(C) SYFS shall have reimbursed, or
caused BFS to reimburse, Beasleys for any costs or
expenses to be reimbursed under Section 9(g) of this
Agreement that were submitted for payment prior to
the date of the Exchange Closing; and
(D) SYFS shall have taken any and all
actions necessary to create and approve the Series A
Preferred Shares and shall have filed with the
Secretary of State of the State of Florida any
necessary statement of the designations, powers,
preferences and relative rights, qualifications,
limitations and restrictions of the Series A
Preferred Shares;
(ii) The representations and warranties of SYFS
set forth in Section 10, and the representations and
warranties of Beasleys set forth in Section 11, shall be true
and correct in all material respects as of the date of the
Exchange Closing;
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(iii) All consents by third party or governmental
or regulatory agencies or otherwise that are required to be
obtained by SYFS for the consummation of the transactions to
be effected at the Exchange Closing shall have been obtained;
and
(iv) No action or proceeding before any court or
governmental body will be pending or threatened wherein a
judgment, decree, injunction or order would prevent any of the
transactions described herein or cause such transactions to be
declared unlawful or rescinded.
(b) Closing Deliveries. On the date of the Exchange
Closing, the parties shall make the following deliveries:
(i) Beasleys shall make the following deliveries
to SYFS:
(A) Certificate or certificates
representing the Shares, accompanied by duly executed
stock powers or otherwise duly endorsed and in proper
form for transfer to SYFS;
(B) Certificate executed on behalf of
Beasleys stating that the representations and
warranties set forth in Section 11 are true and
correct as of the date of the Exchange Closing; and
(C) Any other documents that SYFS may
reasonably request in connection with the
transactions to be effected at and as of the date of
the Exchange Closing.
(ii) SYFS shall make the following deliveries to
Beasleys:
(A) Certified copy of any filing or
filings made with the Secretary of State of the State
of Florida to document the relative rights and
preferences of the Series A Preferred Shares;
(B) Certificate or certificates
representing all the Series A Preferred Shares to be
issued to the Beasleys upon conversion of the Shares;
(C) Certificate of good standing for
SYFS issued by the Secretary of State of the State of
Florida as of a recent date acceptable to Beasleys;
(D) Certified resolutions adopted by
its Board of Directors authorizing and approving the
relative rights and preferences of the Series A
Preferred Shares and the consummation of all the
transactions contemplated to be effected at the
Exchange Closing;
(E) Certificate executed on behalf of
SYFS stating that the representations and warranties
set forth in Section 10 are true and correct as of
the date of the Exchange Closing and stating that the
conditions set forth in Section 12(a) of this
Agreement have been satisfied;
(F) Any other documents that Beasleys
may reasonably request in connection with the
transactions to be effected at and as of the date of
the Exchange Closing;
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(G) Payment of all amounts due under
the Note by cash or other good funds acceptable to
Beasleys; and
(H) Payment of expenses incurred by
Beasleys in connection with this Agreement by cash or
other good funds as directed by Beasleys.
(c) Contingent Share Issuances. If at the PPM Closing the
gross proceeds received for common share issuance are between $1
million and $1.5 million, SYFS will issue to Beasleys an additional
44,000 shares of SYFS common stock; if gross proceeds from share
issuances at the PPM Closing are $1.5 million or more, no shares will
be issuable under this Section 13(c).
SECTION 13. ADDITIONAL COVENANTS OF SYFS. In addition to the
covenants elsewhere set forth in this Agreement and until the Preferred Shares
are redeemed or converted into common shares and the Note is paid in full, SYFS
covenants and agrees as follows:
(a) Application of Closing Proceeds. Proceeds of closing
on the sale common shares pursuant to the PPM, will be applied as
provided in Exhibit 13.1 attached.
(b) Expense Controls. SYFS will implement the Cost
Control Program set forth in Exhibit 13.2 attached.
(c) Executive Employment Agreements and Executive
Compensation. No Executive Employment Agreements or compensation
programs will be entered into or made effective on any terms which
would cause the Executive Employee to be compensated at a higher rate
(whether in the form or salary, bonus, incentive or contingent
compensation, benefits or otherwise as reportable to the employee as
compensation income on IRS Form W-2 or as reportable for GAAP
accounting purposes) without the express written consent of CB to the
agreement or plan under which the compensation is payable.
SECTION 14. FURTHER ASSURANCES. If at any time further action is
necessary or desirable to carry out the purposes of this Agreement, the parties
will take such further action (including the execution and delivery of such
further instruments and documents) as any other party may reasonably request,
without further consideration.
SECTION 15. MISCELLANEOUS.
(a) Press Releases and Public Announcements. No party
shall issue any press release or make any public announcement relating
to this Agreement without the prior written approval of the other
parties; provided, however, that any party may make any public
disclosure it believes in good faith is required by applicable law.
(b) No Third-Party Beneficiaries. This Agreement shall
not confer any rights or remedies upon any person other than the
parties and their respective successors and permitted assigns.
(c) Entire Agreement. This Agreement (including the
documents referred to herein) constitutes the entire agreement among
the parties and supersedes any prior understandings, agreements, or
representations by or among the parties, written or oral, to the extent
they related in any way to the subject matter hereof.
(d) Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties named herein and
their respective successors and permitted assigns. Except as otherwise
specifically provided above, no party may assign either this Agreement
or any of its rights, interests, or obligations hereunder without the
prior written approval of all the parties.
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(e) Counterparts. This Agreement and any other agreement
referenced in this Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of
which together will constitute one and the same instrument.
(f) Headings. Section headings contained in this
Agreement are inserted for convenience only and shall not affect in any
way the meaning or interpretation of this Agreement.
(g) Notices. All notices, requests, demands, claims, and
other communications under this Agreement will be in writing. Any
notice, request, demand, claim, or other communication shall be deemed
duly given if it is sent by courier and addressed to the intended
recipient at the address indicated below. Any party may send any
notice, request, demand, claim, or other communication hereunder to the
intended recipient using any other means (including personal delivery,
expedited courier, messenger service, telecopy, telex, or electronic
mail), but no such notice, request, demand, claim, or other
communication shall be deemed to have been duly given unless and until
it actually is received by the intended recipient. Any party may change
the address to which notices, requests, demands, claims, and other
communications hereunder are to be delivered by giving the other
parties notice.
If to SYFS: Xxxxxx X. Xxxxx, Xx.
Chief Executive Officer
Syndicated Food Service International, Inc.
X.X. Xxx 0000
Xxxxx Xxxxx, XX 00000
With a copy to: Xxxxx X. Xxxxxxxxxxxx, Esq.
Hill, Xxxxxxxxx & Xxxxxx, LLP
Riverwood
0000 Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
If to Beasleys: Xxxxxxx X. Xxxxxxx
Xxxxxxxx X. Xxxxxxx
0000 Xxxxxx Xxx
Xxxxxxxxxxx, XX 00000
With a copy to: Xxxx X. Xxxx, Esq.
Xxxxxx & Xxxxxxxxx
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
(h) Governing Law; Jurisdiction and Venue. This Agreement
shall be governed by and construed in accordance with the domestic laws
of the United States of America and the State of Indiana without giving
effect to any choice or conflict of law provision or rule (whether of
the State of Indiana or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the United
States of America and the State of Indiana.
(i) Amendments and Waivers. No amendment of any provision
of this Agreement shall be valid unless the same shall be in writing
and signed by the parties hereto. No waiver by any party of any
default, misrepresentation, or breach of warranty or covenant
hereunder, whether intentional or not, shall be deemed to extend to any
prior or subsequent default, misrepresentation, or breach of warranty
or covenant hereunder or affect in any way any rights arising by virtue
of any prior or subsequent such occurrence.
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(j) Severability. Any term or provision of this Agreement
that is invalid or unenforceable in any situation in any jurisdiction
shall not affect the validity or enforceability of the remaining terms
and provisions hereof or the validity or enforceability of the
offending term or provision in any other situation or in any other
jurisdiction.
(k) Expenses. Except as provided in Section 9(g) above,
each party will bear its own costs and expenses (including legal fees
and expenses) incurred in connection with this Agreement and the
transactions contemplated by this Agreement.
(l) Construction. The parties have participated jointly
in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties and
no presumption or burden of proof shall arise favoring or disfavoring
any party by virtue of the authorship of any of the provisions of this
Agreement. Any reference to any domestic federal, state or local
statute or law, or to any foreign statute or law, shall be deemed also
to refer to all rules and regulations promulgated thereunder, unless
the context requires otherwise. The word "including" shall mean
including without limitation. The parties intend that each
representation, warranty, and covenant in this Agreement to have
independent significance. If any party has breached any representation,
warranty, or covenant contained herein in any respect, the fact that
there exists another representation, warranty, or covenant relating to
the same subject matter (regardless of the relative levels of
specificity) which the party has not breached shall not detract from or
mitigate the fact that the party is in breach of the first
representation, warranty, or covenant.
(m) Incorporation of Exhibits and Schedules. The Exhibits
and Schedules identified in this Agreement are incorporated by this
reference and made a part of this Agreement.
(n) Specific Performance. Each party acknowledges and
agrees that the other would be damaged irreparably in the event any of
the provisions of this Agreement are not performed in accordance with
their specific terms or otherwise are breached. Accordingly, each party
agrees that the other parties shall be entitled to an injunction or
injunctions to prevent breaches of the provisions of this Agreement and
to enforce specifically this Agreement and the terms and provisions
hereof in any action instituted in any court of the United States or
any state thereof having jurisdiction over the parties and the matter
(subject to the provisions set forth in Section 16(o) below), in
addition to any other remedy to which they may be entitled, at law or
in equity.
(o) Submission to Jurisdiction. Each of the parties
submits to the jurisdiction of any state or federal court sitting in or
for Monroe County, Indiana, in any action or proceeding arising out of
or relating to this Agreement and agrees that all claims in respect of
the action or proceeding may be heard and determined in any such court.
Each of the parties waives any defense of inconvenient forum to the
maintenance of any action or proceeding so brought and waives any bond,
surety, or other security that might be required of any other party
with respect thereto. Any party may make service on any other party by
sending or delivering a copy of the process to the party to be served
at the address and in the manner provided for the giving of notices in
Section 13(g) above. Each party agrees that a final judgment in any
action or proceeding so brought shall be conclusive and may be enforced
by suit on the judgment or in any other manner provided by law or at
equity.
(p) Cooperation. The parties shall cooperate with each
other and their respective attorneys, accountants and other agents, and
do such other acts and things in good faith as may be reasonable,
necessary or appropriate in order to timely effectuate the intents and
purposes of this Agreement and the consummation of the transactions
contemplated hereby.
(q) Survival of Representations, Warranties and
Covenants. The representations, warranties and covenants of the parties
contained in this Agreement shall survive the execution of this
Agreement and the Effective Date.
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IN WITNESS WHEREOF, the parties have executed this Extension and
Exchange Agreement as of the date set forth above.
XXXXXXX X. XXXXXXX
_______________________________________
XXXXXXXX X. XXXXXXX
_______________________________________
SYFS
Syndicated Food Service International, Inc.
By_____________________________________
Xxxxxx X. Xxxxx, President
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EXHIBITS TO EXTENSION AND EXCHANGE AGREEMENT
EXHIBIT # ITEM
---------------------------------------------
2.1 Put Letter
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5.1 Delinquent SEC Filings
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6.1 Private Placement Memorandum
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7.1 Terms of Series A Preferred
---------------------------------------------
9.1 Junior Security Agreement
---------------------------------------------
9.2 Second Mortgage
---------------------------------------------
10.1 Disclosure Schedule
---------------------------------------------
13.1 Application of Proceeds
---------------------------------------------
13.2 Expense Controls
---------------------------------------------
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