Exhibit A
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT ("Agreement") is executed this 17th day of October
2000 by and between Cyberbotanical, Inc., a Nevada corporation ("CBI") and
Kelly's Coffee Group, Inc., a Nevada corporation ("Kelly's").
Recitals
CBI desires to purchase and acquire and Kelly's desires to sell and
transfer the assets and liabilities of Kelly's as of August 31, 2000, (the
"Property"), in a private transaction and in exchange for the acceptance of the
obligations CBI will also receive the assets of Kelly's (except the shares of
common stock of CBI held by Kelly's).
Agreement
In consideration of the mutual promises, covenants, and agreements
contained in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which is acknowledged by all the parties, the parties
hereby agree as follows:
1. Purchase and Sale of Property. Kelly's agrees to transfer the Property to
Kelly's, and CBI agrees to acquire the Property from Kelly's, the Property
is further defined as those assets and liabilities identified in the 10-QSB
for August 31, 2000 as filed by Kelly's with the sole exception being the
shares of CBI common stock held by Kelly's, a copy of that 10-QSB is
attached hereto and labeled as Exhibit "A."
2. Purchase Price. As consideration for the Property, CBI agrees to indemnify
Kelly's from all claims and payments related to any of the obligations
included in the Property.
3. Representation and Warranties of Kelly's. Kelly's represents and warrants
that:
a. Kelly's is an entity incorporated under the laws of the State of
Colorado.
b. Kelly's has such knowledge and expertise in financial and
business matters that it is capable of evaluating the merits and
substantial risks of the transfer of the Property and is able to
bear the economic risks relevant to the transfer of the Property
hereunder.
c. Kelly's is relying solely upon independent consultation with its
professional, legal, tax, accounting and such other advisors as
Kelly's deems to be appropriate in transferring the Property;
Kelly's has been advised to, and has consulted with, its
professional tax and legal advisors with respect to any tax
consequences of transferring the Property.
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d. Kelly's understands that CBI is relying upon Kelly's's
representations and warranties as contained in this Agreement in
consummating the sale and transfer of the Property. Therefore,
Kelly's agrees to indemnify CBI against, and hold it harmless
from, all losses, liabilities, costs, penalties and expenses
(including attorney's fees) which arise as a result of a sale,
exchange or other transfer of the Property other than as
permitted under this Agreement and to provide good faith
cooperation with any asserted claim against or involving the
Property as transferred to CBI.
e. Kelly's Board of Directors has reviewed and approved this
transaction with full disclosure that Richard Surber is the
President of both Kelly's and CBI and that the other members of
the Board have approved the proposed transaction.
4. Representations and Warranties of CBI. CBI represents and warrants that:
a. CBI is a corporation duly organized and validly existing under
the laws of the State of Nevada.
b. CBI agrees to indemnify and hold Kelly's harmless from any claim
arising from any of the assets or liabilities that constitute the
Property. It shall inform Kelly's and cooperate with Kelly's in
any response or defense that shall or should be made to any claim
that arises from the Property and shall promptly resolve and
settle those claims arising from the Property in a reasonable and
business like manner as facts and circumstances permit.
c. CBI agrees and represents that the Property is known to contain
both assets and liabilities, that such assets and liabilities are
not of definitive valuation and have not been subject to
valuation by an independent third party.
d. CBI is relying solely upon its independent consultation with its
professional, legal, tax, accounting and such other advisors as
CBI deems to be appropriate in transferring the Property as
provided for herein. CBI has been advised to, and has consulted
with, its professional tax and legal advisors with respect to any
tax consequences of transferring the Property. CBI has disclosed
to the Board of Directors of Kelly's that Richard Surber is the
President of CBI and Kelly's and required the full approval of
the remaining members of Kelly's board prior to closing this
transaction, such approval to be evidenced by a resolution
approved by Kelly's Board of Directors.
e. All corporate action on the part of CBI required for the lawful
execution and delivery of this Agreement and the issuance,
execution and delivery of the Shares has been duly and
effectively taken. Upon execution and delivery, this Agreement
will constitute a valid and binding obligation of CBI,
enforceable in accordance with its terms, except as the
enforceability may be limited by applicable bankruptcy,
insolvency or similar laws and judicial decisions affecting
creditors' rights generally.
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f. CBI understands that Kelly's is relying upon CBI's
representations and warranties as contained in this Agreement in
consummating the sale and transfer of the Property. Therefore,
CBI agrees to indemnify Kelly's against, and hold it harmless
from, all losses, liabilities, costs, penalties and expenses
(including attorney's fees) which arise as a result of a sale,
exchange or other transfer of the Property other than as
permitted under this Agreement.
5. Survival of Representations, Warranties and Covenants. The representations,
warranties and covenants made by CBI and Kelly's in this Agreement shall
survive the purchase and sale of the Property.
6. Miscellaneous.
a. In the event any one or more of the provisions contained in this
Agreement are for any reason held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this
Agreement. This Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained
herein.
b. This Agreement shall be binding upon and inure to the benefit of
the parties and their respective heirs, legal representatives,
successors, and permitted assigns. The parties hereto may not
transfer or assign any part of their rights or obligations except
to the extent expressly permitted by this Agreement.
c. This Agreement constitutes the entire agreement and understanding
between the parties with respect to the sale of the Property and
may not be modified or amended except in writing signed by both
parties.
d. No term or condition of this Agreement shall be deemed to have
been waived nor shall there be any estoppel to enforce any
provision of this Agreement except by written instrument of the
party charged with such waiver or estoppel.
e. The validity, interpretation, and performance of this Agreement
shall be governed by the laws of the State of Utah, without
regard to its law on the conflict of laws. Any dispute arising
out of this Agreement shall be brought in a court of competent
jurisdiction in Salt Lake County, State of Utah. The parties
exclude any and all statutes, laws and treaties which would allow
or require any dispute to be decided in another forum or by other
rules of decision than provided in this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Stock Purchase Agreement
as of the day and year first appearing herein.
Cyberbotanical, Inc.
/s/ Ruairidh Campbell
By: _________________________________
Name: Ruairidh Campbell
Title: Vice-President
Kelly's Coffee Group, Inc.
/s/ Richard Surber
By: _________________________________
Richard Surber, President
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