Exhibit 10.1
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April 5, 2005
Icy Splash Food & Beverage, Inc.
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Re: Rescission and Stock Purchase Agreement (this "Letter Agreement")
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Gentlemen:
This Letter Agreement shall serve to confirm the rescission of an oral
agreement as of August 18, 2004 (the "Stock Agreement") by and among Icy Splash
Food & Beverage, Inc., a New York corporation (the "Company") and the
undersigned (together, the "Parties"), and all transactions contemplated
thereby, relating to the Company's issuance of an aggregate 9,000,000 shares of
its common stock (the "Shares"), in the amounts set forth in Schedule A attached
hereto, as consideration for the Company's receipt of payments to or on behalf
of the Company totaling $540,000 in the aggregate from the undersigned, the
receipt of which is hereby acknowledged by the Company. The Company hereby
agrees to issue, for the consideration described above, an aggregate of
5,400,000 Shares, in the amounts set forth in Schedule B attached hereto, at the
current market price of $0.10 per Share. Any federal, state and local transfer
taxes, if any, shall be paid by the Company.
The Company represents and warrants to the undersigned:
1. That the undersigned will have good and marketable title to the
Shares and the Shares will be validly issued, fully paid and non-assessable.
2. The Company has the power and authority to accept, execute and
deliver this Letter Agreement and to carry out its obligations hereunder; the
execution, delivery and performance by the Company of this Letter Agreement and
the consummation of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of the Company; this
Letter Agreement constitutes the valid and legally binding obligation of the
Company enforceable against the Company in accordance with its terms, except as
the same may be limited by bankruptcy, insolvency, reorganization or other laws
affecting the enforcement of creditors' rights generally now or hereafter in
effect and subject to the application of equitable principles and the
availability of equitable remedies.
3. The Company has not assigned or transferred or purported to assign
or transfer, voluntarily or involuntarily, or by operation of law, any matters
pursuant to this Letter Agreement or any portion of it, or any interest in the
Stock Agreement or any agreements entered into in connection therewith.
Each of the undersigned hereby represents, warrants and acknowledges to
and covenants and agrees with the Company as follows:
1. Each of the undersigned has the legal capacity to enter into,
execute and deliver this Letter Agreement and any other instruments and
agreements required to be executed and delivered pursuant to this Letter
Agreement and to consummate the transactions contemplated herein. This Letter
Agreement is a valid and binding obligation of each party, enforceable in
accordance with its terms, except as the same may be limited by bankruptcy or
other laws affecting the enforcement of creditors' rights generally now or
hereafter in effect and subject to the application of equitable principles and
the availability of equitable remedies;
2. Each of the undersigned represents and warrants that he/she has not
assigned or transferred or purported to assign or transfer, voluntarily or
involuntarily, or by operation of law, any matters pursuant to this Letter
Agreement or any portion of it, or any interest in the Stock Agreement or any
agreements entered into in connection therewith;
3. Each of the undersigned has acquired the Shares for the
undersigned's own account, for investment only and not with a view to, or for
sale in connection with, a distribution thereof or any part thereof, within the
meaning of the Securities Act of 1933, as amended (the "Securities Act"), and
the rules and regulations promulgated thereunder, or any applicable state Blue
Sky laws;
4. Each of the undersigned is, as of the date hereof (the "Issuance
Date"), an accredited investor as such term is defined under Regulation D
promulgated pursuant to the Securities Act ("Regulation D") and all of the
representations and warranties of the undersigned set forth herein are correct
and complete as of the date of this Letter Agreement, and were true and correct
as of the Issuance Date;
5. Each of the undersigned is not a party or subject to or bound by any
contract, undertaking, agreement or arrangement with any person to sell,
transfer or pledge the Shares or any part thereof to any person, and has no, and
as of the Issuance Date had no present intention to enter into such a contract,
undertaking, agreement or arrangement;
6. All of the certificate(s) representing the Shares shall bear the
restrictive legends substantially in the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 AND, ACCORDINGLY, MAY NOT BE
OFFERED, SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED OR
DISPOSED OF IN, THE ABSENCE OF AN EFFECTIVE REGISTRATION
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STATEMENT UNDER THE SECURITIES ACT OF 1933 OR AN AVAILABLE
EXEMPTION THEREUNDER.
7. Each of the undersigned has evaluated the merits and risks of
purchasing the Shares and has such knowledge and experience in financial and
business matters that the undersigned is, capable of evaluating the merits and
risks of such purchase, is, aware of and has considered the financial risks and
financial hazards of purchasing the Shares, and is, able to bear the economic
risk of purchasing the Shares, including the possibility of a complete loss with
respect thereto;
8. Each of the undersigned has had access to such information regarding
the business and finances of the Company, the receipt and careful reading of
which is hereby acknowledged by the undersigned, and has been provided the
opportunity to discuss with the Company's management the business, affairs and
financial condition of the Company and such other matters with respect to the
Company as would concern a reasonable person considering the transactions
contemplated by this Agreement and/or concerned with the operation of the
Company including, without limitation, pursuant to a meeting and/or discussions
with management of the Company; and
9. Each of the undersigned is aware and acknowledges that the purchase
of the Shares involves a high degree of risk and may result in a loss of the
entire amount invested.
This Letter Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof, and supersedes any
prior agreement with respect to the subject matter hereof, and may be amended
only by a writing executed by all parties hereto. This Letter Agreement may be
executed in several counterparts, each of which shall be deemed an original, and
all of which shall constitute one and the same instrument. This Letter Agreement
shall be governed in all respects, including validity, interpretation and
effect, by the laws of the State of New York, without regard to its conflicts of
laws principles. This Letter Agreement shall be binding upon and inure to the
benefit of and be enforceable by the successors and assigns of the parties
hereto. This Letter Agreement shall not be assignable by either party without
the prior written consent of the other. The rights and obligations contained in
this Letter Agreement are solely for the benefit of the parties hereto and are
not intended to benefit or be enforceable by any other party, under the third
party beneficiary doctrine or otherwise.
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IN WITNESS WHEREOF, the undersigned has duly executed this Letter
Agreement as of the date first set forth above.
Very Truly Yours,
Subscribers:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Accepted and agreed as of the date first
above written:
ICY SPLASH FOOD & BEVERAGE, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: President and Chief Executive Officer
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SCHEDULE A
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STOCK PREVIOUSLY ISSUED AND CANCELLED
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Number of Shares: Previous Owner:
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5,000,000 ▇▇▇▇▇▇ ▇▇▇▇▇
2,000,000 ▇▇ ▇▇▇▇▇
1,300,000 ▇▇▇▇▇ ▇▇▇▇▇
700,000 ▇▇▇▇▇▇ ▇▇▇▇▇
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SCHEDULE B
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STOCK ISSUED
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Number of Shares: Owner:
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3,000,000 ▇▇▇▇▇▇ ▇▇▇▇▇
1,200,000 ▇▇ ▇▇▇▇▇
780,000 ▇▇▇▇▇ ▇▇▇▇▇
420,000 ▇▇▇▇▇▇ ▇▇▇▇▇
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