Exhibit "B"
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;
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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:
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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.
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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.
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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
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