Exhibit 10(i)
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement") is entered into this15th day of
September, 2000 by and between Richard D. Surber ("Surber") an individual and
President of Cyberbotanical, Inc. with a principal office located at 268 West
400 South, Suite 300, Salt Lake City, Utah 84101, and Cyberbotanical, Inc., a
Nevada corporation ("Cyberbotanical") with principal offices located at 268 West
400 South, Suite 300, Salt Lake City, Utah 84101.
WHEREAS, Surber desires to sell to Cyberbotanical One Million (1,000,000)
shares of the common stock of Cyberbotanical, Inc. ("Shares").
WHEREAS, Cyberbotanical will pay Five Thousand Dollars ($5,000) to Surber
in exchange for delivery of all certificates in negotiable form representing the
Shares.
NOW, THEREFORE with the above being incorporated into and made a part
hereof for the mutual consideration set out herein and, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Exchange. Cyberbotanical will pay $5,000 to Surber or assigns on September
20, 2000 and Surber will:
a. Deliver the Shares as represented by the following certificate No.
2002 with all the necessary executed medallion stock powers to
transfer ownership to Cyberbotanical for delivery no later than
September 20, 2000; and
b. Cyberbotanical will deliver to Surber the sum of $5,000.00.
2. Termination. This Agreement may be terminated at any time prior to the
Closing Date:
A. By Surber or Cyberbotanical:
(1) If there shall be any actual or threatened action or
proceeding by or before any court or any other governmental
body which shall seek to restrain, prohibit, or invalidate the
transactions contemplated by this Agreement and which, in
judgement of such Board of Directors made in good faith and
based upon the advice of legal counsel, makes it inadvisable
to proceed with the transactions contemplated by this
Agreement; or
(2) If the Closing shall have not occurred prior to September
29, 2000, or such later date as shall have been approved by
parties hereto, other than for reasons set forth herein.
B. By Cyberbotanical:
(1) If Surber shall fail to comply in any material respect
with any of his covenants or agreements contained in this
Agreement or if any of the representations or warranties of
Surber contained herein shall be inaccurate in any material
respect; or
C. By Surber:
(1) If Cyberbotanical shall fail to comply in any material
respect with any of its covenants or agreements contained in
this Agreement or if any of the representations or warranties
of Cyberbotanical contained herein shall be inaccurate in any
material respect;
37
In the event this Agreement is terminated pursuant to the above Paragraph 2,
this Agreement shall be of no further force or effect, no obligation, right, or
liability shall arise hereunder, and each party shall bear its own costs as well
as the legal, accounting, printing, and other costs incurred in connection with
negotiation, preparation and execution of the Agreement and the transactions
herein contemplated.
3. Representations and Warranties of Surber. Surber hereby represents and
warrants that effective this date and the Closing Date, the following
representations are true and correct:
A. Authority. Surber has the full power and authority to enter this
Agreement and to carry out the transactions contemplated by this
Agreement.
B. No Conflict With Other Instruments. The execution of this
Agreement will not violate or breach any document, instrument,
agreement, contract, or commitment material to the business of
Surber to which Surber is a party and has been duly authorized by
all appropriate and necessary action.
C. Deliverance of Shares. As of the Closing Date, the to be
delivered to Cyberbotanical will be restricted and constitute
valid and legally issued shares of Cyberbotanical, fully paid and
non- assessable and equivalent in all respects to all other
issued and outstanding shares of Cyberbotanical restricted stock.
D. No Conflict with Other Instrument. The execution of this
agreement will not violate or breach any document, instrument,
agreement, contract or commitment material to Surber.
4. Representations and Warranties of Cyberbotanical.
Cyberbotanical hereby represents and warrants that, effective this date and the
Closing Date, the representations and warranties listed below are true and
correct.
A. Corporate Authority. Cyberbotanical has the full corporate power
and authority to enter this Agreement and to carry out the
transactions contemplated by this Agreement. The Board of
Directors of Cyberbotanical has duly authorized the execution,
delivery, and performance of this Agreement.
B. No Conflict With Other Instruments. The execution of this
Agreement will not violate or breach any document, instrument,
agreement, contract, or commitment material to the business of
Cyberbotanical to which Cyberbotanical is a party and has been
duly authorized by all appropriate and necessary action.
C. No Conflict with Other Instrument. The execution of this
agreement will not violate or breach any document, instrument,
agreement, contract or commitment material to Cyberbotanical.
5. Closing. The Closing as herein referred to shall occur upon such date as the
parties hereto may mutually agree upon, but is expected to be on or before
September 20, 2000.
At closing Cyberbotanical will deliver $5,000 to Surber, and Surber
will deliver the Shares to Cyberbotanical.
6. Conditions Precedent of Cyberbotanical to Effect Closing. All obligations of
Cyberbotanical under this Agreement are subject to fulfillment prior to or as of
the Closing Date, as follows:
38
A. The representations and warranties by or on behalf of
Cyberbotanical contained in this Agreement or in any certificate
or documents delivered to Cyberbotanical pursuant to the
provisions hereof shall be true in all material respects as of
the time of Closing as though such representations and warranties
were made at and as of such time.
B. Cyberbotanical shall have performed and complied with all
covenants, agreements and conditions required by this Agreement
to be performed or complied with by it prior to or at the
Closing.
C. All instruments and documents delivered to Cyberbotanical
pursuant to the provisions hereof shall be reasonably
satisfactory to Cyberbotanical's legal counsel.
7. Conditions Precedent of Surber to Effect Closing. All obligations of Surber
under this Agreement are subject to fulfillment prior to or as of the date of
Closing, as follows:
A. The representations and warranties by or on behalf of Surber
contained in this Agreement or in any certificate or documents
delivered to Surber pursuant to the provisions hereof shall be
true in all material respects at end as of the time of Closing as
though such representations and warranties were made at and as of
such time.
B. Surber shall have performed and complied with all covenants,
agreements and conditions required by this Agreement to be
performed or complied with by it prior to or at the Closing.
C. All instruments and documents delivered to Surber pursuant to the
provisions hereof shall be reasonably satisfactory to Surber's
legal counsel.
8. Damages and Limit of Liability. Each party shall be liable, for any material
breach of the representations, warranties, and covenants contained herein which
results in a failure to perform any obligation under this Agreement, only to the
extent of the expenses incurred in connection with such breach or failure to
perform Agreement.
9. Nature and Survival of Representations and Warranties. All representations,
warranties and covenants made by any party in this Agreement shall survive the
Closing hereunder. All of the parties hereto are executing and carrying out the
provisions of this Agreement in reliance solely on the representations,
warranties and covenants and agreements contained in this Agreement or at the
Closing of the transactions herein provided for and not upon any investigation
upon which it might have made or any representations, warranty, agreement,
promise, or information, written or oral, made by the other party or any other
person other than as specifically set forth herein.
10. Indemnification Procedures. If any claim is made by a party which would give
rise to a right of indemnification under this paragraph, the party seeking
indemnification (Indemnified Party) will promptly cause notice thereof to be
delivered to the party from whom indemnification is sought (Indemnifying Party).
The Indemnified Party will permit the Indemnifying Party to assume the defense
of any such claim or any litigation resulting from the claims. Counsel for the
Indemnifying Party which will conduct the defense must be approved by the
Indemnified Party (whose approval will not be unreasonable withheld), and the
Indemnified Party may participate in such defense at the expense of the
Indemnified Party. The Indemnifying Party will not in the defense of any such
claim or litigation, consent to entry of any judgement or enter into any
settlement without the written consent of the Indemnified Party (which consent
will not be unreasonably withheld). The Indemnified Party will not, in
connection with any such claim or litigation, consent to entry of any judgement
or enter into any settlement without the written consent of the Indemnifying
Party (which consent will not be unreasonably withheld). The Indemnified Party
will cooperate fully with the Indemnifying Party and make available to the
Indemnifying Party all pertinent information under its control relating to any
such claim or litigation. If the Indemnifying Party refuses or fails to conduct
the defense as required in this Section, then the Indemnified Party may conduct
such defense at the expense of the Indemnifying Party and the approval of the
Indemnifying Party will not be required for any settlement or consent or entry
of judgement.
39
11. Default at Closing. Notwithstanding the provisions hereof, if Surber shall
fail or refuse to deliver any of the Shares, or shall fail or refuse to
consummate the transaction described in this Agreement prior to the Closing
Date, such failure or refusal shall constitute a default by Surber and
Cyberbotanical at its option and without prejudice to its rights against such
defaulting party, may either (a) invoke any equitable remedies to enforce
performance hereunder including, without limitation, an action or suit for
specific performance, or (b) terminate all of its obligations hereunder with
respect to Surber.
12. Costs and Expenses. Cyberbotanical and Surber shall bear their own costs and
expenses in the proposed exchange and transfer described in this Agreement.
Cyberbotanical and Surber have been represented by their own attorneys in this
transaction, and shall pay the fees of their attorneys, except as may be
expressly set forth herein to the contrary.
13. Notices. Any notice under this Agreement shall be deemed to have been
sufficiently given if sent by registered or certified mail, postage prepaid,
addressed as follows:
To Surber: To Cyberbotanical:
268 West 400 South, Suite 300 Cyberbotanical, Inc.
Salt Lake City, Utah 84101 268 West 400 South, Suite 300
Salt Lake City, Utah 84101
14. Miscellaneous.
A. Further Assurances. At any time and from time to time, after the
effective date, each party will execute such additional
instruments and take such additional steps as may be reasonably
requested by the other party to confirm or perfect title to any
property transferred hereunder or otherwise to carry out the
intent and purposes of this Agreement.
B. Waiver. Any failure on the part of any party hereto to comply
with any of its obligations, agreements, or conditions hereunder
may be waived in writing by the party to whom such compliance is
owed.
C. Brokers. Neither party has employed any brokers or finders with
regard to this Agreement not disclosed herein.
D. Headings. The section and subsection headings in this Agreement
are inserted for convenience only and shall not affect in any way
the meaning or interpretation of this Agreement.
E. Counterparts. This Agreement may be executed simultaneously 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.
F. Governing Law. This Agreement was negotiated and is being
contracted for in the State of Utah, and shall be governed by the
laws of the State of Utah, notwithstanding any conflict-of-law
provision to the contrary. Any suit, action or legal proceeding
arising from or related to this Agreement shall be submitted for
binding arbitration resolution to the American Arbitration
Association, in Salt Lake City, Utah, pursuant to their Rules of
Procedure or any other mutually agreed upon arbitrator. The
parties agree to abide by decisions rendered as final and
binding, and each party irrevocably and unconditionally consents
to the jurisdiction of such Courts in such suit, action or legal
proceeding and waives any objection to the laying of venue in, or
the jurisdiction of, said Courts.
G. Binding Effect. This Agreement shall be binding upon the parties
hereto and inure to the benefit of the parties, their respective
heirs, administrators, executors, successors, and assigns.
40
H. Entire Agreement. The Agreement contains the entire agreement
between the parties hereto and supersedes any and all prior
agreements, arrangements or understandings between the parties
relating to the subject matter hereof. No oral understandings,
statements, promises or inducements contrary to the terms of this
Agreement exist. No representations, warranties covenants, or
conditions express or implied, other than as set forth herein,
have been made by any party.
I. Severability. If any part of this Agreement is deemed to be
unenforceable the balance of the Agreement shall remain in full
force and effect.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and year
first above written.
Surber Cyberbotanical, Inc.,
a Nevada corporation
/s/ Richard D. Surber By: /s/ Ruairidh Campbell
------------------------------------ ----------------------
Richard D. Surber Name: Ruairidh Campbell
Its: Director
41