Exhibit 10.37
WARRANT EXCHANGE and RELEASE AGREEMENT
AGREEMENT made as of the 9th day of December 2004 by and among the XXXXXX
FAMILY TRUST, having an address at [ ] (hereinafter referred to as "XXXXXX"),
FORTUNA INVESTMENT PARTNERS with an address at [ ] (hereinafter referred to as
("FORTUNA"), FORTUNA UNPLUGGED with an address at [ ](hereinafter referred to as
"UNPLUGGED") (collectively referred to as the "WARRANT HOLDERS") and CREATIVE
BAKERIES, INC. having its principal place of business at 00 Xxxxxxx Xxxxxx,
Xxxxxxxxx Xxx Xxxxxx 00000 (hereinafter referred to as "CBAK").
W I T N E S S E T H:
WHEREAS, the WARRANT HOLDERS hold [ ] warrants collectively
that contain a put provision to CBAK;
WHEREAS, the warrants held by WARRANT HOLDERS are due to expire
December 31, 2004;
WHEREAS, the WARRANT HOLDERS are desirous of exchanging their warrants
for shares of CBAK common stock;
WHEREAS, the WARRANT HOLDERS further wish to release CBAK, it officers,
directors and all those acting on behalf of CBAK from any and all claims or
obligations associated with the warrants exchanged;
WHEREAS, CBAK is agreeable to exchanging shares of CBAK common stock for
warrants owned by the WARRANT HOLDERS; and
WHEREAS, the parties are desirous of defining their rights and
responsibilities with respect to the transaction.
NOW THEREFORE, IN CONSIDERATION OF THE MUTUAL
REPRESENTATIONS, COVENANTS AND AGREEMENTS HEREIN SET
FORTH, THE PARTIES HERETO AGREE AS FOLLOWS:
FIRST: XXXXXX owns [ ] warrants of CBAK, a copy of the warrant is
annexed hereto as Exhibit A, FORTUNA owns [ ] warrants of CBAK, a copy of the
warrant is annexed hereto as Exhibit B, and UNPLUGGED owns [ ] warrants of CBAK,
a copy of the warrant is annexed hereto as Exhibit C which represents all of the
issued and outstanding warrants subject to this Agreement (collectively the
"WARRANTS").
SECOND: Upon execution of the within Agreement, XXXXXX will exchange
the [ ] warrants held by it for 640,041 shares of CBAK common stock.
THIRD: Upon execution of the within Agreement, FORTUNA will exchange
the [ ] warrants held by it for 475,081 shares of CBAK common stock.
FOURTH: Upon execution of the within Agreement, UNPLUGGED will
exchange the [ ] warrants held by it for 105,574 shares of CBAK common stock.
FIFTH: The WARRANT HOLDERS represent and warrant to CBAK that the
WARRANTS are free and clear of any liens or encumbrances and that there is no
restriction on the WARRANT HOLDERS with respect to the exchange of the WARRANTS
for shares of Common Stock in CBAK.
SIXTH: The parties acknowledge and recognize that the business
operations and current financial statements of CBAK have been fully disclosed,
and all matters with respect to the business of CBAK have been fully disclosed
to all of the parties herein.
SEVENTH: As additional consideration for the exchange of WARRANTS
for shares of CBAK common stock, XXXXXX hereby releases CBAK its directors,
officers and all those acting on its behalf from and claims associated with the
warrant exchanged and hereby relinquishes any and all rights or claims
associated with the warrants exchanged for common stock under this Agreement.
EIGHTH: As additional consideration for the exchange of WARRANTS for
shares of CBAK common stock, FORTUNA hereby releases CBAK its directors,
officers and all those acting on its behalf from and claims associated with the
warrant exchanged and hereby relinquishes any and all rights or claims
associated with the warrants exchanged for common stock under this Agreement.
NINTH: As additional consideration for the exchange of WARRANTS for
shares of CBAK common stock, UNPLUGGED hereby releases CBAK its directors,
officers and all those acting on its behalf from and claims associated with the
warrant exchanged and hereby relinquishes any and all rights or claims
associated with the warrants exchanged for common stock under this Agreement.
TENTH: Each party further acknowledges that it has had the
opportunity to be represented by independent counsel concerning their respective
rights and obligations under the within Agreement and has specifically requested
Xxxxxxx & Xxxxxxxxx as counsel to CBAK to serve as escrow agent in connection
with the exchange of WARRANTS for common stock under the within Agreement.
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ELEVENTH: The parties further agree that the WARRANTS, the common
stock of CBAK to be issued to the WARRANT HOLDERS as set forth herein and fully
executed Agreements are to be returned to the ESCROW AGENT in care of Xxxxxxx &
Xxxxxxxxx, Attn: Xxxxxx X. Xxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000
(telephone 000-000-0000 and fax 000-000-0000]by overnight xxxxxxx or hand
delivery and that the common stock to be issued in exchange for the WARRANTS
will be forwarded to the WARRANT HOLDERS at their respective addresses as set
forth in the preamble of this Agreement unless the ESCROW AGENT is otherwise
advised in writing by a party.
TWELFTH: The parties understand and agree that in the event any
additional or further documents are required with respect to the within exchange
of WARRANTS, that each party agrees to provide same within a reasonable time of
a request of any such documents.
THIRTEENTH: It is further understood and agreed that the parties
have agreed that the exchange of WARRANTS for stock herein will be deemed
effective upon execution of the within Agreement by all parties.
FOURTEENTH: Except as set forth in paragraph ELEVENTH regarding the
procedure for exchange of WARRANTS and shares of common stock, all notices and
other communications hereunder shall be in writing and shall be deemed to have
been validly served, given or delivered five (5) days after deposit in the
United States mails, by certified mail, return receipt requested, and postage
prepaid, when delivered personally, one (1) day after delivery to any overnight
courier, or when transmitted by facsimile transmission facilities, and addressed
to the parties as set forth in the preamble of this agreement or to such other
address as each party may designate for itself by like notice.
FIFTEENTH: The within Agreement is governed by the laws of the State
of New York and cannot be changed, altered or modified, except in writing signed
by the parties. No delay or omission by any party in exercising any right with
respect hereto shall operate as a waiver. A waiver on any one occasion shall not
be construed as a bar to, or waiver of, any right or remedy on any future
occasion.
[The Remainder of this Page
Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed under seal as of the date first above written.
CREATIVE BAKERIES, INC.
By:
--------------------------------------
XXXXXX FAMILY TRUST
By:
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FORTUNA INVESTMENT PARTNERS
By:
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FORTUNA UNPLUGGED
By:
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Agreed to as to the Escrow Provisions Only:
-----------------------------
Xxxxxxx & Xxxxxxxxx
[Signature Page to Warrant Exchange and Release Agreement]
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STATE OF , COUNTY OF SS.:
I CERTIFY that on January ______ , 2005, ______________ an authorized
signatory on behalf of Xxxxxx Family Trust, personally came before me and stated
to my satisfaction that this person (or if more than one, each person):
(a) was authorized to execute the within Exchange Agreement and Release;
(b) is the maker of the attached Exchange Agreement and Release;
(c) executed this Exchange Agreement and Release as his or her own act;
and
(d) entered into this Exchange Agreement and Release for the full and
actual consideration set forth herein
Notary
My commission expires:
STATE OF , COUNTY OF SS.:
I CERTIFY that on January ______ , 2005, ______________ an authorized
signatory on behalf of Fortuna Investment Partners, personally came before me
and stated to my satisfaction that this person (or if more than one, each
person):
(e) was authorized to execute the within Exchange Agreement and Release;
(f) is the maker of the attached Exchange Agreement and Release;
(g) executed this Exchange Agreement and Release as his or her own act;
and
(h) entered into this Exchange Agreement and Release for the full and
actual consideration set forth herein
Notary
My commission expires:
STATE OF , COUNTY OF SS.:
I CERTIFY that on January ______ , 2005, ______________ an authorized
signatory on behalf of Fortuna Unplugged, personally came before me and stated
to my satisfaction that this person (or if more than one, each person):
(i) was authorized to execute the within Exchange Agreement and Release;
(j) is the maker of the attached Exchange Agreement and Release;
(k) executed this Exchange Agreement and Release as his or her own act;
and
(l) entered into this Exchange Agreement and Release for the full and
actual consideration set forth herein
Notary
My commission expires:
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"ANNEX EXHIBIT A WARRANT"
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"ANNEX EXHIBIT B WARRANT"
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"ANNEX EXHIBIT C WARRANT"
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