STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is executed this day of August
2000 by and between Cyberbotanical, Inc., a Nevada corporation ("CBI") and
Kelly's Coffee Group, Inc., a Colorado corporation ("Kelly's").
Recitals
CBI desires to sell and transfer, and Kelly's desires to purchase and
acquire, Eighteen Million Four Hundred Thousand (18,400,000) shares of the
Common Stock of CBI, (the "Shares"), in a private non-registered transaction and
in exchange for the payment in cash by Kelly's of Five Hundred Forty Thousand
Five Hundred Fifty Four and no/100 dollars ($540,554.00).
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 Shares. CBI agrees to transfer the Shares to Kelly's,
and Kelly's agrees to acquire the Shares from CBI. Immediately after CBI
receives a duly executed copy of this Agreement, it will deliver the Shares
to Kelly's.
2. Purchase Price. As consideration for the Shares, Kelly's hereby agrees to
deliver to CBI the sum of Five Hundred Forty Thousand Five Hundred Fifty
Four and no/100 dollars ($540,554.00) in cash immediately following the
receipt by Kelly's of a duly executed copy of this Agreement.
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 purchase of the Shares and is able to bear the economic
risks relevant to the purchase of the Shares 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 purchasing the Shares; Kelly's has
been advised to, and has consulted with, its professional tax and
legal advisors with respect to any tax consequences of purchasing the
Shares.
Page -1-
<PAGE>
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 Shares. 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 Shares other than
as permitted under this Agreement
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 and the purchase of a controlling interest of
CBI by Kelly's as set forth herein.
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 has valid title to the Shares which it is transferring to Kelly's
pursuant to this Agreement. There are no claims, liens, security
interests, or other encumbrances upon the Shares. That the Shares will
represent not less than ninety percent (90%) of the issued and
outstanding shares of common stock of CBI at the conclusion of this
transaction.
c. CBI agrees and represents that the proceeds of the sale provided for
herein shall be used to complete the purchase of the Board of Trade
Building located at 120 Market, Wichita, Kansas.
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 Shares in exchange for the
cash consideration 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 Shares. 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.
Page -2-
<PAGE>
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 Shares. 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 Shares 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 Shares.
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 Shares 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.
Page -3-
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Stock Purchase Agreement
as of the day and year first appearing herein.
Cyberbotanical, Inc. Kelly's Coffee Group, Inc.
/s/ Richard Surber /s/ Kevin Schillo
------------------------- ---------------------------------
Richard Surber, President Kevin Schillo, Secretary
Page -4-
