EXCHANGE AGREEMENT
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THIS EXCHANGE AGREEMENT (this "Agreement") is dated as of March 31,
2000 and is by and between Universal Beverages Holding Corporation, a Florida
corporation ("UBHC") and Universal Beverages, Inc., a Florida corporation,
("UBI") which is a wholly owned subsidiary of UBHC (collectively, UBHC and
UBI shall be referred to as ("Universal") and McLean Ventures Corporation, a
Virginia corporation ("Note Holder").
WHEREAS, the Note Holder acquired a $500,000 Note (the "Loan") from
American Access Technologies, Inc. pursuant to a Purchase of Note and Assignment
Agreement (the "Assignment"), dated as of March 31, 2000 and such debt is
evidenced by a promissory note dated September 3, 1998 in the amount of $500,000
(the "Note") and all of these referenced documents are hereby incorporated
herein by this reference;
WHEREAS, the Assignment, the Note and any other agreements relating to
the Loan shall be collectively referred to as the "Loan Documents":
WHEREAS, in exchange for receiving 57,500 shares of UBHC's Series E
Preferred Stock, the Note Holder has agreed (i) to forgive the $500,000
indebtedness that Universal owes under the Note, including all accrued but
unpaid interest in the amount of approximately 6,250, and (ii) to release
Universal from any and all obligations under the Loan Documents.
WHEREAS, the terms of the Series E Shares are further described in
Exhibit "A" of this Agreement, which is attached hereto and incorporated herein
by this reference.
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants and agreements herein contained, and for
other good and valuable consideration, the parties hereto agree as follows:
1. Exchange Agreement
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1.1 In exchange far receiving $57,500 shares of UBHC's Series E
Preferred Shares, the Note Holder has agreed (i) to forgive any and all
indebtedness that Universal owes under the Note, all accrued interest
(approximately $6,250), penalties, and any and all fees, costs or charges of any
other type or nature under the Note (the "Indebtedness") and (ii) to release
Universal from any and all obligations under the Loan Documents.
1.2 Effective as of the date of this Agreement, the Note Holder hereby
agrees and acknowledges that all Indebtedness under the Note is hereby
extinguished and canceled. The Note Holder also agrees that the Note and any
other Loan Documents are deemed to be null, void and of no further force and
effect.
1.3 In order to evidence the cancellation of all Indebtedness under
the Note, the Note Holder aggrees that it will write "PAID IN PULL" on the
original promissory note, initial such phrase and return the original promissory
note to Universal.
2. Terms of the Series E Preferred Stock.
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2.1 The Board of Directors has authorized the issuance of up to 115,000
shares of Series E Preferred Stock, which is the subject of this Agreement. The
terms of the Series E Stock are described in Exhibit "A."
2.2 Universal agrees that it will use its best effort to file a
registration statement with the Securities and Exchange Commission ("SEC")
within the next year by March 31, 2001 and the Series E Shares will be included
in said registration statement. If UBHC in good faith, or an Underwriter
determines that the inclusion of these shares would hurt the public offering,
UBHC will not have to included these shares in the registration statement;
however, UBHC will use its best efforts to include these shares in the next
registration statement that it files during said time period.
3. Release and Covenant Not to Xxx.
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3.1 The Note Holder hereby releases UBHC, UBI and each and every one of
their respective directors, officers, employees, representatives, legal counsel,
agents, subsidiaries, or affiliates (collectively, the "Affiliates") from all
claims, causes of action, damages, judgements, agreements and demands
whatsoever, whether liquidated or unliquidated, contingent or fixed, determined
or undetermined, known or unknown, at law, or in equity, which it has had, now
has, or may hereinafter have against UBHC, UBI or its Affiliates for any matter
whatsoever arising out of or relating to this Agreement, arising from the
beginning of the world to the end of the world. The Note Holder further agrees
never to institute or cause to be instituted any suit or any form or action or
proceeding of any kind or nature against UBHC, UBI or its Affiliates by reason
of or in connection with any of the actions or matters released hereinabove.
3.2 Universal releases the Note Holder and each and every one of its
respective directors, officers, employees, representatives, legal counsel,
agents, subsidiaries, or affiliates (collectively, the "Affiliates") from all
claims causes of action, damages, judgements, agreements and demands whatsoever,
whether liquidated or unliquidated, contingent or filed, determined or
undetermined, known or unknown, at law or in equity, which it has had, how has,
or may hereinafter have against the Note Holder or its Affiliates for any matter
whatsoever arising directly or indirectly out of or relating to this Agreement
arising from the beginning of the world to the end of the world. Universal
agrees never to institute or cause to be instituted any suit or any form or
action or proceeding of any kind or nature against the Note Holder or its
Affiliates by reason of or in connection with any of the actions or matters
released hereinabove and that this Release shall he construed broadly to protect
the Note Holder and its affiliates.
4. Representations, Warranties, and Agreements of the Note Holder. In
connection with UBHC's agreement to issue Series E Shares pursuant to the terms
of this Agreement, the Note Holder hereby makes the following representations,
warranties and agreements and confirms the following understandings:
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4.1 Investment Purpose. The Note Holder is acquiring the Series E
Shares for its own account and for investment purposes only, within the meaning
Of the Securities Act of 1933, as amended (the "Securities Act"). with no
intention of assigning any participation or interest therein and no view to the
distribution thereof.
4.2 Unregistered Offering. The Note Holder understands that the sale
of the Series E Shares is not being registered, on the basis that the
issuance of the Series E Shares is exempt from registration under the
Securities Act and rules and regulations promulgated thereunder, as a
transaction by an issuer not involving any public offering (the "Offering"),
and that reliance on such exemption is predicated, in part, on the Note
Holder's representations and warranties contained in this Agreement.
4.3 Limitations on position. The Note Holder understand that there are
substantial restrictions on the transferability of the Series E Shares; the
Series E Shares will contain a restrictive legend; the investors in UBHC have no
fights to require that the Series E Shares be registered under the Securities
Act and there is not expected to he a market for the resale of (the Series E
Shares. The Note Holder represents that it can afford to hold the Series E
Shares for an indefinite period of time.
4.4 Absence of Official Evaluation. The Note Holder has had the
opportunity to conduct a due diligence review of Universal and ask
representatives of Universal questions about Universal's business and financial
condition and the terms of this exchange offer and related restructuring with
other creditors and has obtained such information as it has requested to the
extent it has deemed necessary to permit it to fully to evaluate the clients and
risks of his investment in UBHC. The Note Holder also represents that he has had
access to all n material books and records of UBHC and all material contracts
and documents relating to Universal and the exchange offer.
4.5 Full Rights, Title and Interest. The Note Holder represents and
warrants that it has full title, right and interest in and to the Note and it
has not assigned, hypothecated, transferred or otherwise sold its interest in
the Note.
5. Indemnification and Governing Law
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5.1 The Note Holder agrees to indemnify and fluid harmless UBHC, UBI
and its Affiliates against and in respect of any and all loss, liability,
claim damage, deficiency, and all actions, suits, proceedings, demands,
assessments, judgments, costs and expenses whatsoever (including, but not
limitcd to, any and all expenses whatsoever, including attorneys' fees,
reasonably incurred in investigating, preparing, or defending against any
litigation commenced or threatened or any claim whatsoever through all
appeals) arising out of or based upon any false representation or warranty or
breach or failure by the Note Holder to comply with any covenant or agreement
made by him herein or in any other document furnished by its in connection
with his subscription.
5 2 This Agreement has been entered into and shall he construed and
enforced in accordance with the laws of the State of Florida, without reference
to the choice of law principles thereof.
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6. General Provisions.
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6.1 This Agreement and the agreements, instruments, schedules, exhibits
and other writings referred to in this Agreement, constitute the entire
understanding of the parties with respect to the subject matter of this
Agreement. This Agreement supersedes all prior agreements and understandings
between the parties with respect to its subject matter. This Agreement will he
amended only by means of a written instrument duly executed by all of the
parties hereto.
6.2 This Agreement shall not be assignable by any party, and shall
not be altered or otherwise amended except pursuant to a writing executed by
all of the parties hereto. This Agreement will be binding upon, inure to the
benefit of, and be enforceable by and against the respective successors and
assigns of the parties hereto.
6.3 No waiver of any breach or default hereunder shall be considered
valid unless such waiver is made in writing signed by the party giving
such waiver. The granting of a waiver by a party in a particular instance shall
not constitute a waiver of future conduct unless expressly specified in the
written instrument granting such waiverr. No waiver shall be granted or inferred
based upon the conduct of the parties.
6.4 Each party represents and warrants to the other party hereto that
it has the proper authorization and legal authority to enter into this
Agreement. All pronouns and any variations thereof shall be deemed to refer to
the masculine, feminine, neuter, singular and plural as the context may require.
6.5 All notices, claims, certificates, requests, demands or other
communications under this Agreement shall he in writing and 44'1(1 are deemed Io
have; been duly h yell when delivered or mailed, registered or certified mail,
postage prepaid, return receipt requested. or by overnight delivery- by a
nationally recognized overnight mail service as follows:
If to the:
Note Holder McLean Ventures Corporation
c/o Xxxxxx Xxxxxxxxxxxx
Xxxxx Mohir LLP
0000 Xxxxxxx Xxxx, Xxxxx 000
XxXxxx, Xxxxxxxx 0x0000
If to Universal: Xxxxxxxx 0. Xxxxx
Chief Executive Officer
0000 Xxxxxxx Xxxxxxx, Xxxxx X 00
Xxxxxxxxxxxx, Xxxxxxx 00000
or to such address as the party to whom such notice is to be given has furnished
to the other parry 'Al-iting III die manner set forth in tails Section.
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