EXHIBIT 10.8
STOCK AND NOTE PURCHASE/SALE AGREEMENT
AGREEMENT made the 29th day of June, 2000 by and among Chefs
International, Inc., a Delaware corporation with a principal place of business
at 00 Xxxxxxxx, Xxxxx Xxxxxxxx Xxxxx, Xxx Xxxxxx 00000 ("Chefs"), Mister Cookie
Face, Inc., a New Jersey corporation with a principal place of business at 0000
Xxxxxxx Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 ("MCF") and Xxxxx "Doc"
Xxxxxxxxx, the president, chief executive officer and controlling stockholder of
MCF residing at 0 Xxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 ("Doc").
W I T N E S S E T H :
WHEREAS at a closing effective as of January 26, 1997, Chefs sold 950
shares (representing 95%) of the outstanding capital stock of MCF to Doc for;
(i) a $500,000 cash payment,
(ii) MCF's $100,000 principal amount promissory note ("Note
A") payable to Chefs which Note has been paid in full,
(iii) MCF's $500,000 principal amount subordinated promissory
note ("Note B") payable to Chefs in fixed principal installments commencing one
year after said closing through July 1, 2000, of which $208,377.51 in principal
amount is currently outstanding, and
(iv) MCF's $500,000 principal amount subordinated promissory
note ("Note C") payable to Chefs within seven years after the closing, of which
$500,000 in principal amount is currently outstanding; and
WHEREAS MCF desires to purchase Note B and Note C (collectively the
"Notes") from Chefs thereby extinguishing its remaining obligations to Chefs
pursuant to the Notes and Chefs has agreed to sell and deliver the Notes to MCF
in consideration for a cash payment by MCF
hereinafter described together with the transfer by MCF to Chefs of 233,334
shares of Chefs' common stock represented by Certificate Nos. CHEF 1724 and 1725
(the "Chefs Shares"); and
WHEREAS MCF desires to purchase from Chefs and Chefs has agreed to sell
to MCF, the 50 shares of MCF capital stock owned by Chefs (the "MCF Shares") in
consideration for a cash payment by MCF as hereinafter described; and
WHEREAS Chefs on the one hand, and MCF and Doc on the other, each
desire to release the other party from any and all obligations other than
obligations arising from MCF's sales to Chefs and Chefs' purchases from MCF of
ice cream products.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
1. SALE BY CHEFS AND PURCHASE BY MCF OF THE NOTES
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Based upon the representations and warranties herein contained and
subject to the terms and conditions herein set forth, Chefs shall sell and
deliver to MCF and MCF shall purchase from Chefs, Note B and Note C thereby
extinguishing MCF's remaining obligations to Chefs pursuant to Note B and Note
C, for a cash payment equal to $344,836.02 and the transfer of the Chefs Shares
to Chefs.
2. SALE BY CHEFS AND REPURCHASE BY MCF OF THE MCF SHARES
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Based upon the representations and warranties herein contained and
subject to the terms and conditions herein set forth, Chefs shall sell and
deliver to MCF and MCF shall purchase from Chefs, the MCF Shares for a cash
payment equal to $35,000.
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3. CLOSING
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(a) The closing of the sale and purchase of the Notes, the
Chefs Shares and the MCF Shares (the "Closing") shall take place at Chefs'
executive offices at 00 Xxxxxxxx, Xxxxx Xxxxxxxx Xxxxx, Xxx Xxxxxx 00000 at
10:00 o'clock A.M. (EDT) on Thursday, June 29, 2000 or at such place, date and
time as all of the parties hereto shall agree.
(b) At the Closing, Chefs will deliver to MCF;
(i) the original Note B and Note C duly marked
"CANCELLED,"
(ii) a certificate for the MCF Shares registered in
Chefs' name, duly endorsed by a Chefs officer on the reverse side or on an
attached stock power with signature medallion guaranteed for transfer to MCF,
and
(iii) duly completed and executed UCC-3 Termination
Statements in form for filing to terminate all liens held of record by Chefs
against MCF's assets.
(c) At the Closing, MCF will deliver to Chefs;
(i) a bank or certified check payable to Chefs' order or
funds wired in accordance with Chefs' instructions in the amount of $344,836.02
in partial payment for the Notes,
(ii) certificates for the Chefs Shares registered in
Doc's name, duly endorsed by Doc on the reverse side of the certificates or on
an attached stock power with signature medallion guaranteed for transfer to
Chefs in payment of the balance of the purchase price for the Notes, and
(iii) a bank or certified check payable to Chefs' order
or funds wired in accordance with Chefs' instructions in the amount of $35,000
in full payment for the MCF Shares.
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(d) No delivery at the Closing of any of the payments, stock
certificates and documents enumerated above shall be made unless each and every
payment, certificate and document enumerated in this Section 3 is delivered at
the Closing in satisfactory form and duly executed where required.
4. CHEFS' REPRESENTATIONS AND WARRANTIES
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Chefs covenants, agrees, represents and warrants to MCF and to Doc as
follows:
(a) That Chefs is the record and beneficial owner, free and
clear of any and all claims, security interests, liens, encumbrances,
restrictions, agreements, rights of third parties and burdens of any nature of
the Notes and the MCF Shares and that Chefs' title to the Notes and the MCF
Shares is good, valid and indefeasible.
(b) That Chefs' execution and delivery of this Agreement and
each of the documents referred to herein has been duly and validly authorized
and Chefs has the right and the power to enter into and perform this Agreement,
to transfer the Notes and the MCF Shares to MCF, and to execute and deliver the
UCC-3 Termination Statements described herein.
(c) That Chefs has obtained all required consents necessary to
permit it to consummate the transactions described herein.
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5. MCF'S AND DOC'S REPRESENTATIONS AND WARRANTIES
MCF and Doc, in his capacity as MCF's president, chief executive
officer and principal stockholder as well as individually, jointly and severally
covenant, agree, represent and warrant to Chefs as follows:
(a) That Doc is the record owner and that by virtue of an
assignment by Doc, MCF is the beneficial owner, free and clear of any and all
claims, security interests, liens, encumbrances, restrictions, agreements,
rights of third parties and burdens of any nature (other than liens of record
held by Chefs and liens held by its primary lender, all of which have been
effectively waived) of the Chefs Shares and that MCF's title to the Chefs Shares
is good, valid and indefeasible.
(b) That MCF's execution and delivery of this Agreement and
each of the documents referred to herein has been duly and validly authorized
and MCF has the right and power to enter into and perform this Agreement, to
transfer the Chefs Shares to Chefs, and to repurchase the Notes and the MCF
Shares.
(c) That MCF has obtained all required consents necessary to
permit it to consummate the transactions described herein.
6. CONDITIONS TO CHEFS' OBLIGATION TO CLOSE
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The obligation of Chefs to consummate this Agreement shall be subject
to each of the following conditions:
(a) Each of the representations and warranties made by MCF and
Doc contained in this Agreement shall be true and accurate as of the date when
made and shall be deemed to be
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made again at and as of the time of the Closing hereunder and shall then be true
and accurate in all respects.
(b) Each and every covenant, agreement and condition required
by this Agreement to be performed or complied with by MCF and Doc shall have
been performed or complied with at or prior to the Closing hereunder.
(c) MCF and Doc shall have delivered to Chefs all of the
payments, instruments, certificates and other documents referred to hereinabove
at or prior to the Closing.
(d) Each and every one of the transactions required herein to
occur at the Closing shall have been completed at such time.
7. CONDITIONS TO MCF'S OBLIGATION TO CLOSE
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The obligation of MCF to consummate this Agreement shall be subject
to each of the following conditions
(a) Chefs shall have delivered the Notes and the MCF Shares to
MCF as described in Section 3(b)(i) and (ii) hereof.
(b) Each of the representations and warranties made by Chefs
contained in this Agreement shall be true and accurate as of the date when made
and shall be deemed to be made again at and as of the time of the Closing
hereunder and shall then be true and accurate in all respects.
(c) Each and every covenant, agreement and condition required
by this Agreement to be performed or complied with by Chefs shall have been
performed or complied with at or prior to the Closing hereunder.
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(d) Chefs shall have delivered to MCF all of the instruments,
certificates and other documents referred to hereinabove at or prior to the
Closing.
(e) Each and every one of the transactions required herein to
occur at the Closing shall have been completed at such time.
8. RELEASES
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Provided that each and every one of the transactions required to occur
at the Closing shall have been completed at such time;
(a) Chefs releases and discharges MCF and Doc, and each of
them, and each of their heirs, executors, administrators, successors and assigns
from any and all actions, causes of action, suits, debts, sums of money,
contracts, claims and demands whatsoever, in law or in equity, which against MCF
and Doc and each of them, Chefs, its successors and assigns ever had, now have
or hereafter can, shall or may have, for, upon or by reason of any matter, cause
or thing from the beginning of the world to the date of the Closing excluding
obligations arising from MCF's sales to Chefs and Chefs' purchases from MCF of
ice cream products and further excluding obligations arising pursuant to this
Stock and Note Purchase/Sale Agreement.
(b) MCF releases and discharges Chefs and its officers and
directors and their heirs, executors, administrators, successors and assigns
from any and all actions, causes of action, suits, debts, sums of money,
contracts, claims and demands whatsoever, in law or in equity, which against
Chefs, its officers and directors, MCF, its successors and assigns ever had, now
have or hereafter can, shall or may have, for, upon or by reason of any matter,
cause or thing from the beginning of the world to the date of the Closing
excluding obligations arising from MCF's sales to
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Chefs and Chefs' purchases from MCF of ice cream products and further excluding
obligations arising pursuant to this Stock and Note Purchase/Sale Agreement.
(c) Doc releases and discharges Chefs and its officers and
directors and their heirs, executors, administrators, successors and assigns
from any and all actions, causes of action, suits, debts, sums of money,
contracts, claims and demands whatsoever, in law or in equity, which against
Chefs, its officers and directors, Doc and his heirs, executors, administrators,
successors and assigns ever had, now have or hereafter can, shall or may have,
for, upon or by reason of any matter, cause or thing from the beginning of the
world to the date of the Closing excluding obligations arising from MCF's sales
to Chefs and Chefs' purchases from MCF of ice cream products and further
excluding obligations arising pursuant to this Stock and Note Purchase/Sale
Agreement.
9. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
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Each statement of fact contained herein or in any statement,
certificate, schedule or other document delivered by or on behalf of MCF, Doc or
by Chefs pursuant to this Agreement or in connection with the transactions
contemplated hereby, shall be deemed a representation and warranty of MCF, Doc
or Chefs hereunder, as the case may be. All covenants, agreements,
representations and warranties made by MCF, Doc or by Chefs under or in
connection with this Agreement shall survive the Closing and shall remain
effective regardless of any investigation at any time made by or on behalf of
MCF, Doc or Chefs and regardless of any information MCF, Doc or Chefs may have
with respect thereto.
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10. MISCELLANEOUS
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(a) Each party hereto represents and warrants to the other
parties hereto that he or it has not incurred any obligation or liability
contingent or otherwise, for brokerage or finder's fees or agent's commissions
or other like payment in connection with this Agreement or the transactions
contemplated hereby, and each party agrees to indemnify and hold the other party
hereto harmless against and in respect of any such obligation or liability based
in any way on agreements, arrangements or understandings claimed to have been
made by such party with any third party.
(b) This Agreement including the exhibits referred to herein
and the Notes, Shares, payments and documents delivered hereunder constitutes
the entire agreement between the parties hereto and supersedes all prior
agreements and understandings, oral and written, between the parties hereto with
respect to the subject matter hereof. No representation, promise, inducement or
statement of fact has been made by MCF, Doc or by Chefs which is not embodied in
this Agreement or a written statement, certificate, schedule, exhibit or other
document delivered pursuant hereto or made express reference to herein, and
neither MCF, Doc nor Chefs shall be bound or liable for any alleged
representation, promise, inducement or statement of fact not so set forth.
(c) This Agreement shall inure to the benefit of and be
binding upon MCF, Doc and Chefs and their respective heirs, executors,
administrators, successors and assigns.
(d) All notices, requests, demands and other communications
which are required or may be given under or in connection with this Agreement
shall be in writing and shall be deemed to have been duly given if mailed,
certified or registered mail, postage prepaid:
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(i) if to Chefs, addressed to Xxxxxxx Xxxxxxx,
President, Chefs International, Inc., 00 Xxxxxxxx, Xxxxx Xxxxxxxx Xxxxx, Xxx
Xxxxxx 00000.
(ii) if to MCF, addressed to Xxxxx "Doc" Koenemund,
President, Mister Cookie Face, Inc., 0000 Xxxxxxx Xxxxxxxxxx Xxxxxxxxx,
Xxxxxxxx, Xxx Xxxxxx 00000.
(iii) if to Doc, addressed to Doc at 0 Xxxxxx Xxxxx,
Xxxxxxxx, Xxx Xxxxxx 00000. Such notices, requests, demands and other
communications shall be deemed given three (3) business days after date of
deposit thereof with the United States mail in a postage prepaid envelope by
certified or registered mail.
(e) This Agreement shall be interpreted in accordance with the
laws of New Jersey.
(f) The parties agree to take all such additional actions and
to execute and deliver all such additional documents as shall be necessary in
order to effectuate all of the foregoing.
(g) This Agreement shall not be amended, modified or rescinded
except by a written document duly executed by all of the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have made and entered into this
Agreement effective the date first hereinabove set forth.
CHEFS INTERNATIONAL, INC.
("Chefs")
ATTEST:
By /s/ XXXXXXX XXXXXXX
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Xxxxxxx Xxxxxxx, President
/s/ XXXXXX XXXXXXXX
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Xxxxxx Xxxxxxxx, Secretary
Mister Cookie Face, Inc.
("MCF")
WITNESS: By /s/ XXXXX "DOC" XXXXXXXXX
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Xxxxx "Doc" Koenemund, President
/s/ XXXXX X. XXXX
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WITNESS: /s/ XXXXX "DOC" KOENEMUND
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Xxxxx "Doc" Xxxxxxxxx
Individually
/s/ XXXXX X. XXXX
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