AGREEMENT FOR THE PURCHASE OF STOCK
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is entered into this
16th day of January, 2008, by and between Xxxx Xxxxxxx, ("Xxxx Xxxxxxx"), Xxxxx
Xxxxxxx ("Xxxxx Xxxxxxx"), Kamaneal Investments Pty Ltd ATF The Xxxxxxx Family
Trust ("Kamaneal" and together with Xxxx Xxxxxxx and Xxxxx Xxxxxxx, the
"Sellers"), Route 32, LLC, a New York limited liability company (the
"Purchaser"), and Fit For Business International, Inc., a Nevada corporation
("Fit For Business" or the "Company"), setting forth the terms and conditions
upon which the Sellers will sell Eighty Four Million Eighty Thousand
(84,080,000) shares of Common Stock of Fit For Business (the "Shares"), owned by
them, to Purchaser.
In consideration of the mutual promises, covenants, and representations
contained herein, THE PARTIES HERETO AGREE AS FOLLOWS:
WITNESSETH:
WHEREAS, the Sellers, Purchaser, and the Company have appointed Xxxxxx
& Jaclin, LLP, Attorneys At Law ("Xxxxxx & Xxxxxx"), and Xxxxx Xxxxxx,
Principally, to act as the Escrow Agent ("Escrow Agent") for this transaction
and to receive and hold all consideration received from the Purchaser for the
sale of the Shares and all documents, stock certificates, stock powers and
corporate records of the Company incident to the Shares, in the Xxxxxx & Xxxxxx
Attorney Trust Account, pursuant to the terms of that certain Escrow Agreement
of even date herewith (the "Stock Purchase Escrow Agreement"), a copy of which
is attached hereto as Exhibit C.
WHEREAS, the Purchaser, Sellers and Xxxxxx & Jaclin, acting as the
Escrow Agent, have previously entered into an Escrow Agreement dated December
21, 2007, as extended, which covers the terms under which the Purchaser paid a
Fifty Thousand Dollar ($50,000) deposit into escrow. The deposit will remain in
escrow after the execution of this Agreement and be governed by the terms of the
Stock Purchase Escrow Agreement.
NOW THEREFORE, in consideration of the mutual promises, covenants and
representations contained herein, the parties herewith agree as follows:
ARTICLE I
SALE OF SECURITIES
1.01 Sale of the Shares. Subject to the terms and conditions of this
Agreement the Sellers agree to sell the Shares, which represent 85.55% of the
issued and outstanding common stock and voting rights of the Company, in the
amounts listed on Exhibit A, to the Purchaser for a total of Five Hundred
Thousand Dollars (U.S.) ($500,000) (the "Purchase Price"). This is a private
transaction between the Sellers and Purchaser.
1.02 Stock Purchase Escrow Agreement. As further set forth in the Stock
Purchase Escrow Agreement, the Sellers and Purchaser appointed Xxxxxx & Xxxxxx
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to act as the Escrow Agent as to the delivery of the Purchase Price received
from the Purchaser for the sale of the Shares and delivery of the Shares and
documents of the Company held in the Escrow Account.
1.03 Deposit. It is understood that a Deposit in the amount of Fifty
Thousand U.S. Dollars ($50,000) has been wired on or before December 21, 2007,
to the Xxxxxx & Jaclin COLTAF Trust Account ("Escrow Account") as a deposit on
the sale of the Shares being sold by the Sellers, and will be held in the Escrow
Account until Closing or until the termination of the Stock Purchase Escrow
Agreement, according the terms of the Stock Purchase Escrow Agreement.
1.04 Balance to Be Paid. It is agreed that the entire balance of the
Purchase Price, Four Hundred Fifty Thousand U.S. Dollars ($450,000) will be wire
transferred to the Escrow Account on or before the Closing Date, and that the
Closing will take place contemporaneous with such payment, subject to
satisfaction or waiver of the conditions to Closing set forth herein, unless a
delay is agreed to by the parties signing this Agreement. It is agreed that the
Certificates representing the Shares being purchased, and Corporate Documents
shall remain in the Escrow Account until the full amount of $500,000 has been
paid, after which the Closing on the sale of the Shares shall take place and all
stock certificates shall be delivered to the Purchaser along with all documents
listed in paragraphs 2.14 and 4.02 below, as provided for in the Stock Purchase
Escrow Agreement.
1.05 Shares To Be Issued to the Sellers. It is agreed that if, within
one year from the Closing, the Company merges with another company and undergoes
a reverse stock split then the Sellers will be issued Two Hundred Fifty Thousand
(250,000) shares of the Company's common stock in the name of the individual,
Xxxx Xxxxxxx, post merger and post reverse stock split, to be issued after any
restructuring of the Company. It is understood that these shares will be
restricted in accordance with Rule 144 and could only be disposed of pursuant to
either (i) an effective registration statement under the Act, or (ii) an
exemption from the registration requirements of the Act. It is further
understood that any legal opinion required by the Sellers to sell such shares
shall be generated by the Company's counsel within three (3) business days of
the Sellers request. It is agreed that if these shares are issued the stock
certificate(s) representing these shares will be delivered to The Lebrecht
Group, APLC, as escrow agent, to be held pursuant to the terms of a separate
escrow agreement of even date herewith (the "Subsidiary Acquisition Escrow
Agreement"), a copy of which is attached hereto as Exhibit D.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
The Sellers and the Company hereby, jointly and severally, represent
and warrant to the Purchaser the following:
2.01 Organization. Fit For Business is a Nevada corporation duly
organized, validly existing, and in good standing under the laws of that state,
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 the state of
Nevada and in each state, nation or other jurisdiction wherein the character of
the business transacted by it makes such qualification necessary. All actions
taken by the incorporators, directors and/or shareholders of the Company have
been valid and in accordance with the laws of the state of Nevada. The Company
is a reporting company under the Securities Exchange Act of 1934 (the "1934
Act"), is currently traded on the Over-The-Counter Bulletin Board ("OTCBB"), and
at Closing will be current in its 1934 Act reporting requirements and be traded
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on the OTCBB. After the Purchase of the Shares and after Closing, the Purchaser
will file the appropriate filings, if required, disclosing the acquisition of
the Shares by the Purchaser ("Disclosure Document"). After the Purchase of the
Shares and after Closing, the Purchaser will file any other documents relating
to the transaction that is the subject of this Agreement that might be required
with the Securities and Exchange Commission ("SEC") and/or the State of Nevada.
2.02 Capital. The authorized capital stock of Fit For Business consists
of 100,000,000 shares of Common Stock, $0.001 par value, of which 98,280,006
shares are issued and outstanding. There are 10,000,000 shares of preferred
stock authorized, $0.001 par value, none of which are issued or outstanding. All
issued and outstanding shares, including the Shares, are duly authorized, fully
paid and non-assessable, and are free of liens, encumbrances, options,
restrictions and legal or equitable rights of others not a party to this
Agreement. At the Closing, there will be no outstanding subscriptions, options,
rights, warrants, convertible securities, or other agreements or commitments
obligating the Company to issue or to transfer from treasury any additional
shares of its capital stock. None of the outstanding shares of the Company,
including the Shares, are subject to any stock restriction agreements,
stockholder agreements, options, warrants or equitable interests in favor of any
third party. The Company is not obligated or committed to purchase, redeem or
otherwise acquire any of its equity. All presently exercisable voting rights of
the Company are vested exclusively in its outstanding shares of common stock,
each share of which is entitled to one vote on every matter to come before it's
shareholders, and other than as may be contemplated by this Agreement, there are
no voting trusts or other voting arrangements with respect to any of the
Company's equity securities. Immediately prior to the Closing there will be
approximately 78 shareholders of record of the Company. All of such
shareholders, including the Sellers, have valid title to such Shares and
acquired their Shares in a lawful transaction and in accordance with Nevada
corporate law and the applicable federal and state securities laws.
2.03 Subsidiaries. "Subsidiary" or "Subsidiaries" means all
corporations, trusts, partnerships, associations, joint ventures or other
Persons, as defined below, of which a corporation or any other Subsidiary of
such corporation owns not less than twenty percent (20%) of the voting
securities or other equity or of which such corporation or any other Subsidiary
of such corporation possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies, whether through ownership of
voting shares, management contracts or otherwise. "Person" means any individual,
corporation, trust, association, partnership, proprietorship, joint venture or
other entity. Fit For Business currently has one Subsidiary, namely Fit For
Business (Australia) Pty Limited ("FFB Australia").
2.04 Financial Statements. Fit For Business is a reporting company
under the 1934 Act and financials can be found within the SEC's XXXXX database.
As of their respective dates, the financial statements of the Company included
in the SEC Documents (as defined herein) complied as to form in all material
respects with applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto. Such financial statements have been
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prepared in accordance with generally accepted accounting principles,
consistently applied, during the periods involved (except (i) as may be
otherwise indicated in such financial statements or the notes thereto, or (ii)
in the case of unaudited interim statements, to the extent they may exclude
footnotes or may be condensed or summary statements) and fairly present in all
material respects the financial position of the Company as of the dates thereof
and the results of its operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end audit
adjustments). However, the Company is in the process of amending the 2006
audited financial statements due to an error and shall file an amended Annual
Report on Form 10-KSB/A on or before January 15, 2008 with the SEC for period
ended June 30, 2006. All the Company's financial statements contained in its
reports required under the 1934 Act have been reviewed or audited, as
applicable, as required under the 1934 Act. No other information provided by or
on behalf of the Company to the Purchaser which is not included in the Company's
regulatory filings, contains any untrue statement of a material fact or omits to
state any material fact necessary in order to make the statements therein, in
the light of the circumstance under which they are or were made.
2.05 Filings with Government Agencies. Fit For Business is a reporting
company under the 1934 Act and files annual and quarterly reports with the SEC.
The Company has made all required filings with the SEC and the State of Nevada
that are required (the "Regulatory Documents"). As of their respective dates,
the Regulatory Documents complied in all material respects with the requirements
of the 1934 Act, and all other applicable federal and state securities laws, and
the rules and regulations of the SEC promulgated thereunder applicable to the
Regulatory Documents, and none of the Regulatory Documents, at the time they
were filed with the SEC, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. It is understood that the purchase of the
Shares is contingent upon the Company filing a Quarterly Report on Form 10-QSB
for the period ended December 31, 2007 on or before January 15, 2008. The
Sellers will supply the Purchaser with all information that is currently
available for the Company. The Company will promptly file any required filings
with the SEC that might be due prior to Closing. All filings made by the Company
with the SEC prior to Closing will be true and correct in all material respects.
2.06 Liabilities. It is understood and agreed that the purchase of the
Shares is predicated on the Company not having any liabilities at Closing, and
the Company will not, as of Closing, have any debt, liability, or obligation of
any nature, whether accrued, absolute, contingent, or otherwise. All debts of
the Company are listed on Exhibit B, attached to and made a part of this
Agreement. All debts listed on Exhibit B will be paid directly out of the Escrow
Account and/or paid by the Company before Closing or cancelled, with proper
documentation signed by the holder of such obligation evidencing the fact the
obligation has either been paid in full or has been cancelled prior to Closing.
The Sellers are not aware of any pending, threatened or asserted claims,
lawsuits or contingencies involving the Company or the Shares. To the best of
knowledge of the Sellers, there is no dispute of any kind between the Company
and any third party, and no such dispute will exist at the Closing of this
transaction and at the Closing, the Company will be free from any and all
liabilities, liens, claims and/or commitments. The Sellers agree to indemnify
the Purchaser against any past liabilities pertaining to its conduct of business
that should arise within 12 months of Closing.
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2.07 Liabilities for Subsidiary. Under United States and Australian
law, Fit For Business has no liability, financial or otherwise, for the actions
and/or inactions of FFB Australia, and Fit For Business has not guaranteed any
obligations, financial or otherwise, of FFB Australia.
2.08 Tax Returns. Fit For Business (i) has made or filed all foreign,
federal and state income and all other tax returns, reports and declarations
required by any jurisdiction to which it is subject; (ii) has paid all taxes and
other governmental assessments and charges shown or determined to be due on such
returns, reports and declarations, except those being contested in good faith;
and (iii) has set aside on its books provision reasonably adequate for the
payment of all taxes for periods subsequent to the periods to which such
returns, reports or declarations apply. There are no unpaid taxes in any amount
claimed to be due by the taxing authority of any jurisdiction, and the Sellers
know of no basis for any such claim.
2.09 Ability to Carry Out Obligations. The Sellers and the Company have
the right, power, and authority to enter into, and perform their obligations
under this Agreement. The execution and delivery of this Agreement by the
Sellers, and the Company, and the performance by the Sellers, and the Company,
of their 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 Fit For
Business the officers, directors or Sellers 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 Fit For Business (and/or
assigns) to be liable to any party, or (c) an event that would result in the
creation or imposition of any lien, charge, or encumbrance on any asset of Fit
For Business or upon the Shares to be acquired by the Purchaser.
2.10 Contracts, Leases and Assets. Fit For Business is not a party to
any contract, agreement or lease (unless such contract, agreement or lease has
been assigned to another party or Fit For Business has been released from its
obligations thereunder, which contracts, agreements or leases are disclosed on
Schedule 2.10 attached hereto). No person holds a power of attorney from the
Company or the Sellers. At the Closing, the Company will have no assets or
liabilities.
2.11 Compliance with Laws. Fit For Business has complied in all
respects, with, and is not in violation of any, federal, state, or local
statute, law, and/or regulation pertaining. The Company has complied with all
federal and state securities laws in connection with the offer, sale and
distribution of its securities. At the time that the Company sold Shares to the
Seller, the Company was entitled to use the exemptions provided by the
Securities Act of 1933 relative to the sale of its Shares. The Shares being sold
herein are being sold in a private transaction between the Sellers and the
Purchaser, and the Sellers make no representation as to whether the Shares are
subject to trading restrictions under the Securities Act of 1933, as amended and
rules thereunder.
2.12 Litigation. With the exception of litigation entered into by the
subsidiary of Fit For Business, Fit For Business is not a party to any suit,
action, arbitration, or legal administrative, or other proceeding, or pending
governmental or regulatory investigation. To the best knowledge of the Sellers,
there is no basis for any such action or proceeding and no such action or
proceeding is threatened against the Company except as so noted in the last
Annual and/or Quarterly Report filed with the SEC. The Company is not a party to
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or in default with respect to any order, writ, injunction, or decree of any
federal, state, local, or foreign court, department, agency, or instrumentality.
2.13 Conduct of Business. Prior to the Closing, Fit For Business shall
conduct its business in the ordinary course in accordance with past practice,
and shall not (without the prior written approval of Purchaser) (i) sell,
pledge, or assign any assets, (ii) amend its Certificate of Incorporation or
Bylaws, (iii) declare dividends, redeem or sell stock or other securities (iv)
incur any liabilities, except in the normal course of business, (v) acquire or
dispose of any assets, enter into any contract, guarantee obligations of any
third party, or (vi) enter into any other transaction.
2.14 Corporate Documents. The Company keeps its books, records and
accounts (including, without limitation, those kept for financial reporting
purposes and for tax purposes) in accordance with good business practice and in
sufficient detail to reflect the transactions and dispositions of its assets,
liabilities and equities. The minute books of the Company contain records of its
directors and shareholders' meetings and of actions taken by such directors and
shareholders. The meetings of directors and shareholders referred to in such
minute books were duly called and held, and the resolutions appearing in such
minute books were duly adopted. The signatures appearing on all documents
contained in such minute books are the true signatures of the persons purporting
to have signed the same. Each of the following documents, which shall be true,
complete and correct in all material respects, will be submitted at the Closing:
(i) Certificate of Incorporation and all amendments thereto;
(ii) Bylaws and all amendments thereto;
(iii) Minutes and Consents of Shareholders;
(iv) Minutes and Consents of the board of directors;
(v) List of officers and directors;
(vi) Certificate of Good Standing from the Secretary of State
of Nevada;
(vii) Current Shareholder list from the Transfer Agent;
(viii) Stock register and stock certificate records of Fit For
Business.
2.15 Closing Documents. All minutes, consents or other documents
pertaining to Fit For Business to be delivered at the Closing shall be valid and
in accordance with the laws of Nevada.
2.16 Title. The Sellers have good and marketable title to all of the
Shares being sold by them to the Purchaser pursuant to this Agreement. The
Shares will be, at the Closing, free and clear of any and all liens, security
interests, pledges, charges, claims, encumbrances and restrictions of any kind,
except for restrictions on transfer imposed by federal and state securities
laws. None of the 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,
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none of the Sellers are a party to any agreement which offers or grants to any
person the right to purchase or acquire any of the Shares. There is no
applicable local, state or federal law, rule, regulation, or decree which would,
as a result of the purchase of the Shares by the Purchaser (and/or assigns)
impair, restrict or delay voting rights with respect to the Shares.
2.17 Transfer of Shares. The Sellers will have the responsibility for
sending all certificates representing the Shares being purchased, along with the
proper Stock Powers with Bank Signature Guarantees or Power of Attorney to the
Escrow Agent for delivery to the Purchaser.
2.18 Significant Changes. The Sellers understand that significant
changes may be made in the capitalization and/or stock ownership of Fit For
Business, which changes could involve a reverse stock split and/or the issuance
of additional shares, thus possibly having a dramatic negative effect on the
percentage of ownership and/or number of shares owned by present shareholders of
Fit For Business.
2.19 Representations. All representations shall be true as of the date
of this Agreement and Closing and all such representations shall survive the
Closing.
ARTICLE III
CLOSING
3.01 Closing for the Purchase of Common Stock. The Closing (the
"Closing") of this transaction for the Shares of Common Stock being purchased
will occur when all of the documents and consideration described in Sections
2.14 above and in 3.02 below, have been delivered. Unless the Closing of this
transaction takes place within five (5) business days after the Company either:
i) files its Quarterly Report on Form 10-QSB for the period ended December 31,
2007, ii) files an amended filing with its amended audited financial statements
for the fiscal year ended June 30, 2006, or iii) 10 days after the mailing of
the Schedule 14F-1 (as set forth below), whichever is later, then either party
may terminate this Agreement. If this Agreement is terminated pursuant to
Section 5.02 below or the failure of the Sellers to provide the documents
specified in Section 2.14 or the documents listed below in Section 3.02, then
all consideration paid by the Purchaser shall be returned to the Purchaser. If
this Agreement is terminated by the Sellers due to the failure of the Purchaser
to provide the Purchase Price, then the Deposit previously paid by the Purchaser
will be forfeited to the Sellers and the Sellers shall have no further liability
to the Purchaser and the Purchaser shall have no further liability to the
Sellers, except that such Deposit shall be returned to the Purchaser if
termination shall occur by the Purchaser pursuant to Section 5.02 below.
However, it is understood by all parties that, in addition to any other
terms or conditions described herein, the purchase of the Shares by the
Purchaser is contingent on the Company: i) filing an amended filing with its
amended audited financial statements for the fiscal year ended June 30, 2006,
ii) filing its Quarterly Report on Form 10-QSB for the period ended December 31,
2007, iii) filing a Current Report on Form 8-K disclosing this Agreement, and
iv) filing a Schedule 14F-1, mailing the Schedule 14F-1 to all its shareholders,
and having at least 10 days pass after the mailing of the Schedule 14F-1 to its
shareholders.
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This Agreement can be terminated in the event of any material breach by
either party and the Deposit and Purchase Price will be returned to Purchaser
unless the only material breach of this Agreement is the Purchaser's failure to
pay the remaining $450,000 of the Purchase Price, in which case the Deposit is
forfeited to the Sellers.
3.02 Documents and Payments to be Delivered at Closing of the Shares
Purchase. As part of the Closing, those documents listed in 2.14 of this
Agreement, as well as the following documents, in form reasonably acceptable to
counsel to the parties, shall be delivered:
(a) By the Sellers:
(i) stock certificate or certificates, along with
Bank Guaranteed stock powers or Power of Attorney acceptable
to the Transfer Agent for the transfer of the Shares to the
Purchaser, representing the Shares (84,080,000 shares of
common stock), endorsed in favor of the name or names as
designated by Purchaser or left blank;
(ii) the resignation of all officers of Fit For
Business;
(iii) the appointment of a new President, Secretary
and Treasurer of the Company as designated by Purchaser;
(iv) the appointment of new directors of the Company
as designated by the Purchaser and the resignation of all its
current directors;
(v) true and correct copies of all of the business
and corporate records of Fit For Business, including but not
limited to correspondence files, bank statements, checkbooks,
savings account books, minutes of shareholder and directors
meetings or consents, financial statements, shareholder
listings, stock transfer records, agreements and contracts
that exist;
(vi) written confirmation of the approval of this
Agreement and the herein described transactions by the Sellers
and the Company's Board of Directors;
(vii) proper documentation signed by the holder of
each obligation and liability of the Company at Closing
evidencing the fact the obligation has either been paid in
full or has been cancelled prior to Closing (as stated in
Section 2.06, above);
(viii) fully executed copies of the Stock Purchase
Escrow Agreement and the Subsidiary Acquisition Escrow
Agreement; and
(viii) such other documents of the Sellers or the
Company as may be reasonably required by Purchaser, if
available.
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(b) By the Purchaser:
(i) wire transfer to the Xxxxxx & Xxxxxx Escrow
Account the amount of $450,000.00, which, in addition to the
initial deposit of $50,000 is the full payment for the
Purchase Price for the Shares;
(ii) Names of all individuals to be appointed as
President, Secretary, Treasurer and director of the Company at
Closing;
(iii) written confirmation of the approval of this
Agreement and the herein described transactions by the
Purchaser; and
(iv) a fully executed copy of the Stock Purchase
Escrow Agreement.
(c) By the Company:
(i) a signed copy of the Subsidiary Acquisition
Option Agreement and the Subsidiary Acquisition Escrow
Agreement.
ARTICLE IV
INVESTMENT INTENT
4.01 Transfer Restrictions. The Purchaser (and/or assigns) agrees that
the securities being acquired pursuant to this Agreement may be sold, pledged,
assigned, hypothecated or otherwise transferred, with or without consideration
("Transfer") only pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "Act"), or pursuant to an exemption from
registration under the Act.
4.02. Investment Intent. The Purchaser is acquiring the Shares for
their own account for investment, and not with a view toward distribution
thereof.
4.03. No Advertisement. The Purchaser acknowledges that the Shares have
been offered to them in direct communication between them and Sellers, and not
through any advertisement of any kind.
4.04. Knowledge and Experience. (a) The Purchaser acknowledges that
they have been encouraged to seek their own legal and financial counsel to
assist them in evaluating this purchase. The Purchaser acknowledges that the
Sellers have given them and all of their representatives access to all
information relating to the Company's business that they or any one of them have
requested or have committed to provide prior to on or before Closing. The
Purchaser acknowledges that they have sufficient business and financial
experience, and knowledge concerning the affairs and conditions of the Company
so that they can make a reasoned decision as to this purchase of the Shares and
is capable of evaluating the merits and risks of this purchase.
4.05. Restrictions on Transferability.
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(a) The Purchaser is aware of the restrictions of
transferability of the Shares and further understand the certificates
shall bear the following legend:
THIS SECURITY HAS NOT BEEN REGISTERED WITH THE SECURITIES AND
EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), IN RELIANCE UPON THE EXEMPTION FROM
REGISTRATION PROVIDED IN SECTIONS 4(1) AND 4(2) AND REGULATION
D UNDER THE ACT. AS SUCH, THE PURCHASE OF THIS SECURITY WAS
MADE WITH THE INTENT OF INVESTMENT AND NOT WITH A VIEW FOR
DISTRIBUTION. THEREFORE, ANY SUBSEQUENT TRANSFER OF THIS
SECURITY OR ANY INTEREST THEREIN WILL BE UNLAWFUL UNLESS IT IS
REGISTERED UNDER THE ACT OR UNLESS AN EXEMPTION FROM
REGISTRATION IS AVAILABLE.
(b) The Purchaser understands that the Shares may only be
disposed of pursuant to either (i) an effective registration statement
under the Act, or (ii) an exemption from the registration requirements
of the Act.
ARTICLE V
COVENANTS, INDEMNIFICATION, AND REMEDIES
5.01 Arbitration. Any controversy of claim arising out of, or relating
to, this Agreement, or the making, performance, or interpretation thereof, shall
be settled by binding arbitration in Los Angeles, California 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. All Parties agree not to contest venue or
that arbitration is the sole recourse to resolve any disputes between the
Parties related to this Agreement.
5.02 Termination. In addition to any other remedies, the Purchaser may
terminate this Agreement, if the Sellers (i) have failed to comply with all
material terms of this Agreement, (ii) have failed to supply any documents
required by this Agreement unless they do not exist, (iii) have failed to
disclose any material facts which could have a substantial effect on any part of
this transaction, or (iv) during the due diligence investigation by the
Purchaser, something of significance with respect to Fit For Business or the
Sellers is discovered that the Purchaser was not previously made aware of.
5.03 Indemnification by Sellers. From and after the Closing, the
Sellers, jointly and severally, agree to indemnify the Purchaser against all
actual losses, damages and expenses caused by (i) any material breach of this
Agreement by the Sellers or any material misrepresentation by the Sellers
contained herein, or (ii) any misstatement of a material fact or omission to
state a material fact required to be stated herein or necessary to make the
statements herein not misleading by the Sellers.
5.04 Indemnification by Purchaser. From and after the Closing, the
Purchaser agrees to indemnify the Sellers against all actual losses, damages and
expenses caused by (i) any material breach of this Agreement by the Purchaser or
any material misrepresentation by the Purchaser contained herein, or (ii) any
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misstatement of a material fact or omission to state a material fact required to
be stated herein or necessary to make the statements herein not misleading by
the Purchaser.
5.05 Indemnification Non-Exclusive. The foregoing indemnification
provision is in addition to, and not derogation of any statutory, equitable or
common law remedy any party may have for breach of representation, warranty,
covenant or agreement.
5.06 Covenants. To induce the Purchaser to enter into this Agreement
and to consummate the transactions contemplated hereby, and without limiting any
covenant, agreement, representation or warranty made, Fit For Business and the
Purchaser covenant and agree as follows:
(a) Notices and Approvals. Fit For Business and the Sellers
agree: (a) to give all notices to third parties which may be necessary
or deemed desirable by the Purchaser in connection with this Agreement
and the consummation of the transactions contemplated hereby; (b) to
use its best efforts to obtain all federal and state governmental
regulatory agency approvals, consents, permit, authorizations, and
orders necessary or deemed desirable by the Purchaser in connection
with this Agreement and the consummation of the transaction
contemplated hereby; and (c) to use its best efforts to obtain all
consents and authorizations of any other third parties necessary or
deemed desirable by the Purchaser in connection with this Agreement and
the consummation of the transactions contemplated hereby.
(b) Information for the Purchaser's Statements and
Applications. Fit For Business and the Sellers and their employees,
accountants and attorneys shall cooperate fully with the Purchaser in
the preparation of any statements or applications made by the Purchaser
to any federal or state governmental regulatory agency in connection
with this Agreement and the transactions contemplated hereby and to
furnish the Purchaser with all information concerning Fit For Business
and the Sellers necessary or deemed desirable by the Purchaser for
inclusion in such statements and applications, including, without
limitation, all requisite financial statements and schedules.
(c) Access to Information. The Purchaser, together with its
appropriate attorneys, agents and representatives, shall be permitted
to make the full and complete investigation of Fit For Business and the
Sellers and have full access to all of the books and records of Fit For
Business during reasonable business hours. Notwithstanding the
foregoing, such parties shall treat all such information as
confidential and shall not disclose such information without the prior
consent of the other.
ARTICLE VI
CONDITIONS PRECEDENT
The obligation of the Purchaser to pay the Purchase Price and
to satisfy its other obligations hereunder shall be subject to the
fulfillment (or waiver by the Purchaser), at or prior to the Closing,
of the following conditions, which the Company and the Sellers agree to
use their best efforts to cause to be fulfilled:
11
(a) Representations, Performance. If the Closing Date
is not the date hereof, the representations and warranties
contained in Article II hereof shall be true at and as of the
date hereof and shall be repeated and shall be true at and as
of the Closing Date with the same effect as though made at and
as of the Closing Date; the Company and the Sellers shall have
duly performed and complied with all agreements and conditions
required by this Agreement to be performed or complied with by
it prior to or on the Closing Date.
(b) Consents. Any required consent to the
transactions contemplated by this Agreement shall have been
obtained or waived.
(c) Litigation. No suit, action, arbitration or other
proceeding or investigation shall be threatened or pending
before any court or governmental agency in which it is sought
to restrain or prohibit or to obtain material damages or other
material relief in connection with this Agreement or the
consummation of the transactions contemplated hereby or which
is likely to affect materially the value of Fit For Business.
(d) Proceedings and Documentation. All proceedings of
Fit For Business in connection with the transactions
contemplated by this Agreement, and all documents and
instruments incident to such proceedings, shall be
satisfactory in form and substance to the Purchaser and its
counsel, and the Purchaser and Purchaser's counsel shall have
received all such receipts, documents and instruments, or
copies thereof, certified if requested, to which the Purchaser
is entitled and as may be reasonably requested.
(e) Property Loss. No portion of Fit For Business'
assets shall have been destroyed or damaged or taken by
condemnation under circumstances where the loss thereof will
not be substantially reimbursed to the Purchaser through the
proceeds of applicable insurance or condemnation award.
(f) Consents and Approvals. All material licenses,
permits, consents, approvals, authorizations, qualifications
and orders of governmental or regulatory bodies which are (1)
necessary to enable the Purchaser to fully operate the
business of Fit For Business as contemplated from and after
the Closing shall have been obtained and be in full force and
effect, or (2) necessary for the consummation of the
transactions contemplated hereby, shall have been obtained.
Any notices to or consents of any party to any agreement or
commitment constituting part of the transactions contemplated
hereby, or otherwise required to consummate any such
transactions, shall have been delivered or obtained.
(g) SEC Filings. The Company shall have filed with
the SEC, on Form 10-QSB or other applicable form, its
quarterly financial statements and other required information
12
for the quarter ended December 31, 2007, shall have filed its
amended financial statements for 2006, shall have filed a Form
8-K regarding this Agreement, and shall have filed a Schedule
14F-1, mailed to its shareholders, and 10 days have passed
since the mailing, as noted above.
(h) Subsidiary Acquisition Option Agreement. The
Company and Xxxx Xxxxxxx shall have entered into an agreement,
satisfactory in form and content to the Purchaser, whereby the
Company may opt, in its sole discretion, to sell 100% of the
outstanding common stock of FFB Australia to Xxxx Xxxxxxx on
an "as-is" basis and without any representation or warranties
(the "Subsidiary Acquisition Option Agreement").
ARTICLE VII
MISCELLANEOUS
7.01 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.
7.02 No Oral Change. This Agreement and any provision hereof, may not
be amended, 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.
7.03 Non Waiver. Except as otherwise expressly 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 relinquishment 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.
7.04 Time of Essence. Time is of the essence of this Agreement and of
each and every provision hereof.
7.05 Entire Agreement. This Agreement, together with the schedules and
exhibits hereto, sets forth the entire agreement and understanding of the
parties hereto with respect to the transactions contemplated hereby, and
supersedes all prior agreements, arrangements and understandings related to the
subject matter hereof. No understanding, promise, inducement, statement of
intention, representation, warranty, covenant or condition, written or oral,
express or implied, whether by statute or otherwise, has been made by any party
hereto which is not embodied in this Agreement, or exhibits hereto or the
written statements, certificates, or other documents delivered pursuant hereto
or in connection with the transactions contemplated hereby, and no party hereto
shall be bound by or liable for any alleged understanding, promise, inducement,
statement, representation, warranty, covenant or condition not so set forth.
13
7.06 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. Facsimile
signatures will be acceptable to all parties.
7.07 Notices. Any notice, request, instruction or other document
required by the terms of this Agreement, or deemed by any of the parties hereto
to be desirable, to be given to any other party hereto shall be in writing and
shall be delivered by facsimile or overnight courier to the following addresses:
If to the Sellers:
-----------------
Xxxx Xxxxxxx
Fit For Business (Australia) Pty, Ltd.
00/00 Xxxxxxxxx Xxxxxx, Xxxxxx X 0000 Xxxxxxxxx
Telephone: 0000000000
Facsimile: 07336732252
Email - xxxx@xxxxxxxxxxxxxx.xxx.xx
With a copy to:
Xxxxxx + Jaclin, LLP
000 Xxxxx 0 Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq
If to the Purchaser:
-------------------
Adele Ruger, Managing Member
Route 32, LLC
0 Xxxxx Xxxxx
Xxx Xxxxx, Xxx Xxxx 00000
Telephone:
Facsimile:
Email -
The persons and addresses set forth above may be changed from time to
time by a notice sent as aforesaid. Notice shall be conclusively deemed given at
the time of delivery if made during normal business hours, otherwise notice
shall be deemed given on the next business day.
7.08 Binding Effect. This Agreement shall inure to and be binding upon
the heirs, executors, personal representatives, successors and assigns of each
of the parties to this Agreement.
14
7.9 Effect of Closing. All representations, warranties, covenants, and
agreements of the parties contained in this Agreement, or in any instrument,
certificate, opinion, or other writing provided for in it, shall be true and
correct as of the Closing and shall survive the Closing of this Agreement.
7.10 Mutual Cooperation. The parties hereto shall cooperate with each
other to achieve the purpose of this Agreement, and shall execute such other and
further documents and take such other and further actions as may be necessary or
convenient to effect the transaction described herein.
7.11 Survival of Representations. All statements of fact (including
financial statements) contained in the schedules, the exhibits, the certificates
or any other instrument delivered by or on behalf of the parties hereto, or in
connection with the transactions contemplated hereby, shall be deemed
representations and warranties by the respective party hereunder. All
representations, warranties, agreements, and covenants hereunder shall survive
the Closing and remain effective regardless of any investigation or audit at any
time made by or on behalf of the parties or of any information a party may have
in respect thereto. Consummation of the transactions contemplated hereby shall
not be deemed or construed to be a waiver of any right or remedy possessed by
any party hereto, notwithstanding that such party knew or should have known at
the time of Closing that such right or remedy existed.
7.12 Incorporated by Reference. All documents (including, without
limitation, all financial statements) delivered as part hereof or incident
hereto are incorporated as a part of this Agreement by reference.
7.13 Remedies Cumulative. No remedy herein conferred upon any party is
intended to be exclusive of any other remedy and each and every such remedy
shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute or
otherwise.
7.14 Execution of Additional Documents. Each party hereto shall make,
execute, acknowledge and deliver such other instruments and documents, and take
all such other actions as may be reasonably required in order to effectuate the
purposes of this Agreement and to consummate the transactions contemplated
hereby.
7.15 Finders' and Related Fees. Each of the parties hereto is
responsible for, and shall indemnify the other against, any claim by any third
party to a fee, commission, bonus or other remuneration arising by reason of any
services alleged to have been rendered to or at the instance of said party to
this Agreement with respect to this Agreement or to any of the transactions
contemplated hereby.
7.16 Governing Law. This Agreement has been negotiated and executed in
the State of California and shall be construed and enforced in accordance with
the laws of such state.
7.17 Forum. Each of the Parties hereto acknowledges that any action for
money damages must be settled by binding arbitration per Section 5.01, however,
all Parties also agree that if any action is brought by a Party that is not
subject to arbitration, such as for specific performance, then all Parties agree
15
that such action or suit may only be brought in a federal or state court in Los
Angeles, California.
7.18 Attorneys' Fees. Except as otherwise provided herein, if a dispute
should arise between the Parties including, but not limited to arbitration, the
prevailing party shall be reimbursed by the nonprevailing party for all
reasonable expenses incurred in resolving such dispute, including reasonable
attorneys' fees exclusive of such amount of attorneys' fees as shall be a
premium for result or for risk of loss under a contingency fee arrangement.
7.19 Representation. The parties acknowledge that The Lebrecht Group,
APC represents the Purchaser in connection with the negotiation and drafting of
this Agreement. The Lebrecht Group, APC has not represented Fit For Business or
the Sellers in connection with the negotiation and drafting of this Agreement.
7.20 Public Disclosure. Subject to any applicable requirements of law,
the parties hereto shall not make any public disclosure concerning the subject
matter hereof or the transactions contemplated hereby without the prior written
consent of the other.
7.21 Expenses. Except as otherwise specifically provided for herein,
whether or not the transactions contemplated hereby are consummated, each of the
parties hereto shall bear the cost of all fees and expenses relating to or
arising from its compliance with the various provisions of this Agreement and
such party's covenants to be performed hereunder, and except as otherwise
specifically provided for herein, each of the parties hereto agrees to pay all
of its own expenses (including, without limitation, attorneys and accountants'
fees and printing expenses) incurred in connection with this Agreement, the
transactions contemplated hereby, the negotiations leading to the same and the
preparations made for carrying the same into effect, and all such fees and
expenses of the parties hereto shall be paid prior to Closing.
[remainder of page left blank; signature page follows]
16
In witness whereof, this Agreement has been duly executed by the
parties hereto as of the date first above written.
"Purchaser" "Fit For Business" or "Company"
Route 32, LLC, Fit For Business International, Inc.,
a New York limited liability company a Nevada corporation
____________________________________ ____________________________________
By: Adele Ruger By: Xxxx Xxxxxxx
Its: Managing Member Its: President and CEO
"Shareholders"
____________________________________ ____________________________________
Xxxx Xxxxxxx, an individual Xxxxx Xxxxxxx, an individual
____________________________________
[_______________] on behalf of Kamaneal Investments
Pty Ltd ATF The Xxxxxxx Family Trust
17
Schedule 2.10
-------------
Contracts, Leases and Assets
18
EXHIBIT A
---------
SELLING SHAREHOLDERS
Selling Shareholder Number of Shares
Xxxx Xxxxxxx 74,040,000
Xxxxx Xxxxxxx 1,540,000
Kamaneal Investments Pty Ltd ATF The
Xxxxxxx Family Trust 8,500,000
Total: 84,080,000
19
EXHIBIT B
---------
LIABILITIES of FIT FOR BUSINESS INTERNATIONAL, INC.
The following is a complete list of all liabilities of Fit For Business
International, Inc. as of the Signing of the
1. Xxxxxx Associates $ 22,698.75
2. Mendozer Xxxxxx & Company, L.L.P. $ 28,518.58
3. Xxxxxxxx Accounting $ 2,260.00
4. Fort Street Equity $ 80,000.00
5. Xxxxx Services $ 570.00
6. Xxxxxx & Jaclin, LLP $ 20,000.00
TOTAL $158,664.99
20
EXHIBIT C
---------
STOCK PURCHASE ESCROW AGREEMENT
21
EXHIBIT D
---------
SUBSIDIARY ACQUISITION ESCROW AGREEMENT
22
