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EXHIBIT 10.1
AGREEMENT FOR PURCHASE AND SALE OF ASSETS
THIS AGREEMENT IS MADE this 20th day of October 2012, by and between SPICY
GOURMET MANUFACTURING INC., a Delaware corporation with its principal office at
7910 Ivanhoe Ave #414, La Jolla, CA 92037(hereinafter referred to as
"Purchaser"), and JAMES M. PALLADINO, with his principal address at 1490
Goodwood Terrace, Wellington, FL 33414(hereinafter referred to as "Seller"); and
WITNESSETH:
WHEREAS, the parties desire that Purchaser shall acquire certain Assets of
the Seller more particularly described and set forth in Exhibit "A" annexed
hereto (hereinafter referred to collectively as the "Assets";
NOW, THEREFORE, in order to consummate the Agreement herein set forth and
in consideration of the mutual benefits to be derived therefrom and of the
mutual agreements hereinafter contained, the parties hereto do represent,
warrant, covenant and agree as follows:
1. PURCHASE OF ASSETS. The Seller agrees to sell and the Purchaser agrees
to purchase from Seller all right, title and interest in and to certain assets
of the Seller related to Seller's business activities and operations, which
Assets are more particularly described and set forth in Exhibit "A" annexed
hereto.
2. PURCHASE PRICE AND TERMS. The Purchase Price for the Assets shall be
$150,000.00, payable through the issuance at closing of a one-year Promissory
Note, a copy of which is annexed as Exhibit "B" hereto and made a part of this
Agreement.
3. DELIVERY OF THE ASSETS AT CLOSING. At the time of the closing of this
transaction, the Seller shall deliver physical possession or a bill of sale of
the Assets to Purchaser at Seller's principal office as set forth hereinabove.
4. REPRESENTATIONS OF SELLER. The Seller represents and warrants to the
Purchaser as follows:
4.1. That it is the owner of the Assets and holds the Assets free and
clear of all liens and encumbrances, and that title to the Assets has not been
assigned, pledged, or otherwise hypothecated.
4.2. The Seller is not a party to any pending or threatened litigation
that might adversely affect the marketability or title of the Assets;
4.3. No representation by the Seller made in this Agreement and no
statement made in any certificate furnished in connection with this transaction
contains or will contain any knowingly untrue statement of a material fact or
omits or will omit to state any material fact necessary to make such statement,
representation or warranty not misleading to a prospective purchaser of the
Assets purchased herein;
5. UNDERTAKINGS BY SELLER.
5.1. Seller shall not cause, suffer or permit the Assets, subsequent
to the date hereof and prior to the delivery of the Assets as contemplated
hereunder, to become subject to any further mortgage, pledge, lien or
encumbrance;
5.2. Seller shall indemnify and hold harmless the Purchaser, at all
times after the date of this Agreement, against and in respect of any and all
claims which may be made against the Assets arising out of transactions entered
into, or any state of facts existing, on or prior to the Closing;
6. REPRESENTATIONS OF PURCHASER. Purchaser represents and warrants to the
Seller as follows:
6.1. That Purchaser has been duly organized pursuant to the laws of
the State of Delaware and that it's Certificate of Incorporation has not been
revoked or canceled nor has the Corporation been dissolved;
6.2. There are no lawsuits pending against Purchaser or its Officers
or Directors, nor are there any such lawsuits threatened or anticipated, nor are
there any judgments, warrants, or levies outstanding against Purchaser, or its
property, nor are there any tax examinations or proceedings pending relating to
taxes or other assessments against Purchaser, nor has Purchaser at any time
taken any insolvency or bankruptcy actions;
6.3. That all of the chattels, trade fixtures, motor vehicles, and
equipment owned or utilized by Purchaser are free and clear of all liens and
encumbrances, except for such liens or security agreements as are set forth an
Exhibit hereto;
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6.4. The Balance Sheet of Purchaser as of September 30, 2012, a copy
of which has been provided to Seller, has been prepared in accordance with
generally accepted accounting principles consistently applied and accurately and
fairly presents the financial condition and liabilities of Purchaser as of such
date;
6.5. Purchaser is duly qualified and entitled to own or lease its
respective properties and to carry on its business all as and in the places
where such properties are now owned or such businesses are conducted;
6.6. Purchaser has good marketable title to all of the property and
assets (including title in fee simple to all real property) included in the
Balance Sheet of Purchaser annexed hereto, except, however, property and assets
in non-material amounts sold in the ordinary course of business since the date
of such Balance Sheet, and that all of the properties and assets are free of all
liens, encumbrances, or claims except as set forth in the Balance Sheet;
6.7. Purchaser is not party to any pending or threatened litigation
which might adversely affect the financial condition, business operations, or
properties of Purchaser, nor to the knowledge of Purchaser is there any
threatened or pending governmental or regulatory investigation, inquiry, or
proceeding involving Purchaser except as disclosed herein, and that it is and
will be at the time of closing a non-reporting public company pursuant to the
Securities Act of 1933, as amended;
6.8. No representation by Purchaser or by its Officers made in this
Agreement and no statement made in any certificate furnished in connection with
this transaction contains or will contain any knowingly untrue statement of a
material fact or omits or will omit to state any material fact necessary to make
such statement, representation or warranty not misleading to a prospective
purchaser of the stock of Purchaser who is seeking full information as to
Purchaser and its business affairs.
6.9. Purchaser at the time of the Closing will have an authorized
capitalization consisting of 100,000,000 shares of Common Stock ($.0001 par
value) of which not more than 11,180,000 shares of Common and no shares of
Preferred are now and on the date of Closing will be outstanding, fully paid and
non-assessable; it does not have authorized, issued, or outstanding any other
shares of stock of any class or any subscription or other rights to the issuance
or receipt of shares of its capital stock; and all voting rights are vested
exclusively in such capital stock.
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6.10. Purchaser at the time of Closing will have issued and
outstanding a total of 5,000,000 Common Stock Purchase Warrants exercisable at
$.25 per Share. The Certificate of Designation of such Warrants, and amendments
thereto, is attached as Exhibit "C" hereto.
7. CONDITIONS PRECEDENT TO CLOSING. All obligations of Purchaser under this
Agreement are subject to the fulfillment, on or prior to the Closing, of each of
the following conditions:
7.1. That the representations of the Seller shall be true at and as of
the Closing date as though such representations were made at and as of such
time;
7.2. That no claim or liability shall have been asserted against any
of the Assets, nor have they suffered any loss on account of fire, flood,
accident or other calamity of such a character as to materially adversely affect
their condition, regardless of whether or not such loss shall have been insured,
and that the Assets shall be freely transferrable to the Purchaser on the
Closing date.
8. CONDITIONS SUBSEQUENT TO CLOSING. All obligations of the parties under
this Agreement are subject to the fulfillment, subsequent to the Closing, of
each of the following conditions:
8.1. In further consideration of this Agreement, Purchaser agrees to
appoint to the Purchaser's Board of Directors one (1) Member nominated by
Seller, and to place such Director on the Purchaser's official ballot for
reelection at the next meeting of Shareholders of the Purchaser.
9. APPROVALS AND RATIFICATIONS. All transactions contemplated by this
Agreement shall be subject to the approval and ratification of the Boards of
Directors and Shareholders of the Seller and of the Purchaser, and which
approvals and ratifications shall be obtained not less than forty-eight hours
prior to the Closing.
10. CLOSING DATE. The closing under this Agreement shall take place at the
offices of the Purchaser on or before October 12, 2012.
11. NOTICES. All notices under this Agreement shall be in writing and
addressed to the parties at the addresses hereinabove set forth, and shall be
mailed by certified mail, return receipt requested.
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12. SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure to the
benefit of the parties hereto and their respective legal representatives,
successors and assigns, provided, however, that this Agreement cannot be
assigned by any party except by or with the written consent of all parties
hereto. Nothing herein expressed or implied is intended or shall be construed to
confer upon or give any person, firm or corporation other than the parties
hereto and their respective legal representatives, successors and assigns any
rights or benefits under or by reason of this Agreement.
13. LAW GOVERNING. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
14. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have respectively executed this
Agreement as of the day and year first written above.
PURCHASER:
SPICY GOURMET MANUFACTURING, INC.
By:/s/ Daniel Masters
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DANIEL MASTERS
SELLER:
By: /s/ James Palladino
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JAMES PALLADINO
Exhibit "A"
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