EXHIBIT 20
PURCHASE AGREEMENT
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This Stock Purchase Agreement dated this 18th day of March, 2004
(hereinafter THE "AGREEMENT") is made and enter into by and among Dynasty CB
Holdings ("Seller"). and GFY Foods, Inc. (Buyer" or "Purchaser"). The effective
date of this Agreement shall be as defined hereinbelow),
WITNESSETH:
WHEREAS, the Seller intends to sell to the Buyer all of its right,
title and interest in the business known as the FruLati Cafe & Bakery in
Elkhart, IN (the "Business"), as follows:
WHEREAS, the Buyer is a duly formed and validly existing corporation in
good standing under the laws of the State of Nevada and;
WHEREAS, Buyer wishes to purchase from the Seller and the Seller
desires to sell to the Buyer the capital stock and outstanding assets of the
Business, free and clear of any liens, charges, restrictions or encumbrances
thereon and:
WHEREAS, the Parties are desirous of documenting their representations,
warranties, covenants, agreements and conditions relating to the purchase and
sale of the Shares into a written agreement.
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants, representations, agreements and warranties herein contained, and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Parties agree as follows:
1. RECITALS: The foregoing recitals are true and correct in all
material respects and are incorporated herein as if fully stated.
2. DEFINITION: The following terms shall have the following meanings
for the purposes of this Agreement:
2.1 "CLOSING" shall mean the completion of the transactions
contemplated in this Agreement.
2.2 "CLOSING DATE" shall mean the date on which the Closing
occurs or is to occur.
2.3 "GOVERNMENTAL AUTHORITY" shall mean the government of the
United States or any foreign country or any state or political subdivision
thereof and any entity, body or authority exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
including the pension benefit guaranty corporation and other quasi governmental
entities established to perform such functions.
2.4 "LAW" shall mean any law, statue, regulation, ordinance,
rule, order, decree, judgment, consent decree, settlement agreement or
governmental requirement enacted, promulgated, entered into, agree or imposed by
any governmental authority.
2.5 "LIEN" shall mean any mortgage, lien (except for any lien
for taxes not yet due and payable), charge, pledge, security interest, option,
lease or sublease, claim, right of any third party or encumbrance.
2.6 "PERSON" shall mean any individual, corporation,
proprietorship, firm, partnership, limited partnership, trust, association or
other entity.
2.7 "PURCHASE PRICE" shall mean the aggregate amount set forth
in this Agreement.
2.8 "TAXES" shall mean all taxes, charges, fees, duties,
levies or other assessments, including income, gross receipts, net proceeds, ad
valor, turnover, real and personal property taxes (tangible and intangible),
sales, use, franchise, excise, value added, stamp, leasing, lease, user,
transfer, fuel, excess profits, occupational, windfall profits, interest
equalization, severance, employees' income withholding, unemployment and social
security taxes and other withholding taxes, which are imposed by any
governmental authority, and such terms shall include any interest, penalties or
additions to tax attributable thereto
3. SALE AND PURCHASE: The Seller hereby agrees to sell to the Buyer and
the Buyer shall purchase and acquire from the Seller all of Seller's right,
title and interest in the capital stock and outstanding assets of the Business.
Failure by Seller to cause delivery or transfer of 100% of its right, title and
interest in the assets of the Business of the Business within ten (10) days of
the date hereof shall be deemed an event of default hereunder.
4.1 PURCHASE PRICE AND METHOD OF PAYMENT:
A. The Purchase Price for the above purchase shall be $35,000 USD to be
paid in cash and shares of restricted stock of GFY. (which may be traded in
accordance with SEC Rule 144), plus the execution of Consulting Agreement
between Buyer and Xxxxx Xxx at terms previously agreed upon. Payment of said
Purchase Price shall be by the delivery by Buyer, within five (5) business days
of the date hereof, into escrow cash over time, plus a number of shares of
restricted stock of the Buyer, that equals the sum of $15,000.00 based on the
lowest bid price of the Corporation's common stock as quoted on the Electronic
Bulletin Board the day prior to closing. The cash portion of the purchase price
shall be as follows: Buyer will deposit into escrow the sum of $5000 on the 15th
day of each of the next four months following the Closing. The method of
distribution of the shares, liquidations of same and application of proceeds
shall be by separate agreement of the Shareholders and shall have no legal
impact this Agreement once the Shares are deposited into escrow.
In the event the shares delivered to and sold by the Shareholders
(after the expiration of applicable holding periods) pursuant to the terms of
this Agreement fail to gross a total of $15,000, Buyer shall within five (5)
business days of notice of this event, and subject to demand under the terms of
this Agreement, deliver a sufficient number of additional shares in order to
deliver to Seller for distribution any remaining balance of the $15,000.
Seller hereby expressly agrees that upon receipt of the full Purchase
Price contemplated by this Agreement, Seller shall immediately return to the
Buyer any shares remaining in Seller's possession. Seller shall not knowingly
sell Shares in excess of the number needed to allow the Seller gross recovery of
monies from the sale of Shares to exceed the Purchase Price.
In the event the Shareholders have not received realized proceeds from
stock issuances or liquidations equal the Purchase Price., Seller shall give
Buyer written notice thereof (along with proof of sale and confirmation of
proceeds received therefore) and the Buyer shall, in its sole discretion,
deliver to Seller either the cash difference or additional restricted shares of
sufficient value that the balance should satisfy the shortfall, and said process
shall continue until the Seller have received full payment of the Purchase
Price.
5. REPRESENTATIONS AND WARRANTIES OF SELLER AND BUYER: The Seller and
the Corporation represent and warrant to the Buyer, as of the date of this
Agreement and as of the Closing Date (as if such representations and warranties
were remade on the Closing Date). As follows:
5.1 The Business is a corporation duly organized, validly
existing, with all requisite power and authority to own, lease and operate its
businesses as it now being owned, operated and conducted. The Business is
licensed or qualified to do business in each jurisdiction where the nature of
the properties owned, leased or operated by it and the business where the nature
of the properties owned, leased or operated by it in and the business transacted
by it requires such licensing or qualification. The Business has no direct or
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indirect Subsidiaries, either wholly or partially owned, and the Business does
not hold any economic, voting or management interest in any Person or own any
security issued by any Person. True, correct and complete copies of the
Certificate of Incorporation, By-laws as amended, and minutes (or written
consents in lieu of meetings) of the Board of Directors (and all committees
thereof) and stockholders of the Corporation have been delivered to the Buyer.
5.2 AUTHORIZATIONS: Seller has full power and authority to
enter into this Agreement and to consummate the transaction contemplated hereby.
The Seller has duly and validly executed and delivered this Agreement and has
duly and validly executed and delivered any related agreements required hereby.
This Agreement constitutes the legal, valid and binding obligations of Seller
and is enforceable against Seller in accordance with the terms contained herein.
5.3 APPROVALS: The execution, delivery and performance by
Seller and the Corporation of this Agreement does not and will not (i) violate
or conflict with, results in a breach termination of, constitute a default (or a
circumstance which, with or without notice or lapse of time or both, would
constitute a default) or give any third party any additional right (including a
termination right) under, permit cancellation of, or result in the creation of
any lien upon any of the assets or properties of the Sellers or the Corporation,
or Seller is a party or by which Seller, a Subsidiary or any of their respective
assets or properties are bound; (ii) permit the acceleration of the maturity of
any of the circumstances in which they were made, not misleading.
The Buyer represents and warrants to Seller and the Business,
as of the date of this Agreement and as of the Closing Date (as if such
representations and warranties were remade on the Closing Date). As follows:
5.4 The Buyer is a corporation duly organized, validly
existing and in good standing under the laws of Nevada, with all requisite power
and authority to own, lease and operate its businesses as it now being owned,
operated and conducted. The Corporation is licensed or qualified to do business
and is in good standing as a foreign corporation authorized to do business in
Nevada and in each jurisdiction where the nature of the properties owned, leased
or operated by it and the business where the nature of the properties owned,
leased or operated by it in and the business transacted by it requires such
licensing or qualification. The Corporation has no direct or indirect
Subsidiaries, either wholly or partially owned, and the Corporation does not
hold any economic, voting or management interest in any Person or own any
security issued by any Person.
5.5 AUTHORIZATIONS: The Buyer has full power and authority to
enter into this Agreement and to consummate the transaction contemplated hereby.
The Buyer has duly and validly executed and delivered this Agreement and has
duly and validly executed and delivered any related agreements required hereby.
This Agreement constitutes the legal, valid and binding obligations of the Buyer
and is enforceable against the Buyer in accordance with the terms contained
herein.
5.6 APPROVALS: The execution, delivery and performance by the
Buyer of this Agreement does not and will not (i) violate or conflict with,
results in a breach termination of, constitute a default (or a circumstance
which, with or without notice or lapse of time or both, would constitute a
default) or give any third party any additional right (including a termination
right) under, permit cancellation of, or result in the creation of any lien upon
any of the assets or properties of the Buyer or the Buyer is a party or by which
the Buyer or any of their respective assets or properties are bound; (ii) permit
the acceleration of the maturity of any of the circumstances in which they were
made, not misleading.
5.7 FRANCHISE ASSIGNMENT.: Seller will perform all actions
necessary to transfer its rights under the existing FruLatti Franchise Agreement
to Buyer. Seller understands that any transfer fee is included in the selling
price and is Seller's responsibility.
6.0 Miscellaneous Matters:
(a) To the maximum extent permitted by law, Seller and the
Business, on behalf of itself and any affiliate thereof, shall hereby and
hereafter release, indemnify, hold-harmless and defend Buyer from all liability
of Seller and the Business and any other claim or demand regarding Seller or the
activities of the Business, prior to the date of closing.
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(b) Wherever the context shall require, all words herein in the
masculine gender shall be deemed to include the feminine or neuter gender, all
singular words shall include the plural, and all plural shall include the
singular.
(c) If any provision hereof is deemed unenforceable by a court of
competent jurisdiction, the remainder of this Agreement, and the application of
such provision in other circumstances shall not be affected thereby.
(d) From and after the date of this Agreement, each of the parties
hereto agrees to execute whatever additional documentation or instruments as are
necessary to carry out the intent and purposes of this Agreement or to comply
with any law.
(e) No waiver of any provision of this Agreement shall be valid unless
in writing and signed by the waiving party. The failure of any party at any time
to insist upon strict performance of any condition, promise, agreement or
understanding set forth herein, shall not be construed as a waiver or
relinquishment of any other condition, promise, agreement or understanding set
forth herein or of the right to insist upon strict performance of such waived
condition, promise, agreement or understanding at any other time.
(f) Except as otherwise provided herein, each party hereto shall bear
all expenses incurred by each such party in connection with this Agreement and
in the consummation of the transactions contemplated hereby and in preparation
thereof.
(g) This Agreement may only be amended or modified at any time, and
from time to time, in writing, executed by the parties hereto.
(h) Any notice, communication, request, reply or advice (hereinafter
severally and collectively called "Notice") in this Agreement provided or
permitted to be given, shall be made or be served by delivering same by
overnight mail or by delivering the same by a hand-delivery service, such Notice
shall be deemed given when so delivered. For all purposes of Notice, the
addresses of the parties set out below their signatures herein shall be their
addresses unless later advised in writing.
(i) Captions herein are for the convenience of the parties and shall
not affect the interpretation of this Agreement.
(j) This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument and this Agreement may be executed by fax.
(k) This Agreement is not assignable without the written consent of the
parties.
(l) Provisions of this Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties, their heirs, executors,
administrators, other permitted successors and assigns, if any. Nothing
contained in this Agreement, whether express or implied, is intended to confer
any rights or remedies under or by reason of this Agreement on any persons other
than the parties to it and their respective successors and assigns, not is
anything in this Agreement intended to relieve or discharge the obligation or
liability of any third persons to any party to this Agreement, not shall any
provision give any third persons any right of subrogation over, or action
against, any party to this Agreement.
(m) This Agreement constitutes the entire agreement and understanding
of the parties on the subject matter hereof and supercedes all prior agreements
and understandings on the subject thereof.
(n) The parties hereto agree to cooperate with one another in respect
of this Agreement, including reviewing and executing any document necessary for
the performance of this Agreement, to comply with law or as reasonably requested
by any party hereto, or legal counsel to any party hereto.
(o) The parties hereto agree to cooperate with one another in respect
of this Agreement, including reviewing and executing any document necessary for
the performance of this Agreement, to comply with law or as reasonably requested
by any party hereto, or legal counsel to any party hereto.
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(p) the parties have both conducted due diligence investigations and
have been represented by independent counsel prior to executing this Agreement.
(q) The law of the State of Illinois shall apply to this Agreement
without reference to conflict of law principles, and the sole venue for any
dispute or suit between the parties shall be a court of competent jurisdiction
in the location of the Buyer.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date herein.
DATE: March 18, 2004
SELLER:
DYNASTY CB HOLDINGS
By: /s/ Xxxxx Xxx
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BUYER:
GFY FOODS, INC.
BY: /s/ Xxxxxx Xxxxxxx
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