EXHIBIT 2.1
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STOCK PURCHASE AGREEMENT
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This STOCK PURCHASE AGREEMENT (the "Agreement") is entered into as of this
28th day of December, 2000 by and among Access Health Alternatives, Inc., a
Florida corporation with offices at 0000 Xxxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx
00000 ("Seller") and Pines International Corporation, a Nevada corporation
("Investor"), in connection with the purchase and sale of 1,840,000 shares of
Seller's Common Stock, par value $.001 per share, for US$500,000.
WITNESSETH:
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WHEREAS, Seller desires to sell to Investor, and Investor desires to
purchase from Seller, the 1,840,000 Shares subject to the terms and conditions
contained in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and for other good and valuable consideration, the receipt and legal sufficiency
of which are hereby acknowledged, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. Purchase and Sale. Subject to the terms and conditions of this
Agreement, at the end of the Initial and Final Closings referred to in Section 2
of this Agreement, Seller shall sell and deliver to Investor, and Investor shall
purchase from Seller, 1,840,000 Shares, for the Purchase Price referred to in
Section 3 of this Agreement.
2. Closing. The closing of the purchase and sale contemplated by this
Agreement shall take place in two closings: the first on January 31, 2001 (the
"Initial Closing"), and the second on February 28, 2001 (the "Final Closing").
At the Final Closing, Seller shall deliver the Shares to Investor in one or more
certificates, as requested in writing by Investor, registered in the name of
Investor or as designated in writing by Investor, and Investor shall pay to
Seller the Purchase Price referred to in Section 3 of this Agreement. Pending
the Initial Closing, by January 10th,2001, Investor shall deposit US$100,000
with Xxxx & Valentine as a good faith deposit which shall be forfeited to Seller
as liquidated damages in the event that Investor does not pay the full Purchase
Price to Seller at both the Initial Closing and the Final Closing. Otherwise,
such good faith deposit shall be applied to the $250,000 payable at the Final
Closing.
3. Purchase Price. Investor shall pay an aggregate of Five Hundred Thousand
United States Dollars (US$500,000.00) ("Purchase Price") as follows:
(i) Initial Closing. On or before January 31, 2001, Investor shall pay
Seller, by certified check, wire transfer, bank cashier's check or bank
money order payable to Seller, the amount of US$250,000 Dollars.
(ii) Final Closing. On or before February 28, 2001, Investor shall pay
to Seller, by certified check, wire transfer, bank cashier's check or bank
money order payable to Seller, the amount of US$250,000.00 Dollars.
4. Representations of Seller. Seller hereby represents and warrants to
Investor that:
4.1 Due Incorporation. etc. Seller is duly incorporated, validly
existing and in good standing under the laws of Florida and has all
requisite power and authority to execute and deliver this Agreement and to
perform the obligations to be performed by it hereunder. Neither the
execution or delivery of this Agreement nor the performance by Seller
hereof will constitute a breach of or default under the governing
instruments of Seller or any agreement, instrument, indenture, judgment or
decree to which it is a party or by which it is bound. Prior to the Initial
Closing, all consents and approvals, if any, required to be obtained by
Seller for the sale of the Shares to be sold by it hereunder will have been
obtained.
4.2 Corporate Condition; SEC Filings. Seller files annual and periodic
reports with the Securities and Exchange Commission. There have been no
material adverse changes in Seller's business prospects or financial
condition since the date of the last balance sheet included in such
reports. The financial statements contained in such reports have been
prepared in accordance with generally accepted accounting principles,
consistently applied, and fairly present the financial condition of Seller
as of the dates of the balance sheets included therein and the results of
its operations and cash flows for the period then ended.
4.3 Due Execution. Validity and Effect. This Agreement has been duly
authorized, executed and delivered by Seller and, assuming the due
authorization, execution and delivery by Investor, this Agreement
constitutes the valid, legal and binding obligation of Seller, enforceable
in accordance with its terms, except to the extent that enforceability may
be limited by bankruptcy, insolvency, moratorium or similar laws affecting
the enforcement of creditors' rights generally.
4.4 Valid Issuance of the Shares. Upon payment of the Purchase Price,
the Shares shall be duly and validly issued and outstanding, fully paid and
nonassessable, free of any liens, pledge, security interest, or other
encumbrances (though subject to the restrictions or transfer as detailed
herein) and, based in part on the representations and warranties of
Investor, will be issued in compliance with all applicable federal and
state securities laws.
4.5 Full Disclosure. No representation or warranty made by Seller in
this Agreement and no certificate or document furnished or to be furnished
to Investor pursuant to this Agreement contains or will contain any untrue
statement of a material fact, or omits or will omit to state a material
fact necessary to make the statements contained herein or therein not
misleading.
4.6 Certain Fees. The Seller has incurred no liability for any
brokers' or finders' fees or commissions in connection with the
transactions contemplated by this Agreement for which Investor would be
liable. The Seller agrees to indemnify and hold harmless Investor from and
against any commission, fee or claim of any person employed or retained or
claiming to have been employed or retained by Seller to bring about the
transactions contemplated hereby or to represent Seller in connection
therewith.
4.7 Granting of Certain Rights to Investor. Seller will grant certain
rights to Investor:
(a) Seller grants to Investor the right to designate one
individual for election to the Board of Directors of Seller.
(b) Seller grants to Investor a non-exclusive right to distribute
Seller's Nutritional Program throughout Canada, Europe and the Pacific
Rim. The terms of said distribution shall be negotiated at a later
date, but in no event, later than January 31, 2001.
(c) Seller grants to Investor a right of first refusal with
regard to any future private financing conducted by Seller within the
next five (5) years, with a minimum commission paid to Investor of
10%.
(d) Investor shall direct a private placement of Seller's common
stock equal to US$10 million at a minimum of US$2.50 per share. The
offering shall include Warrants exercisable at US$5.00 per share, and
Seller will pay a commission of 10% to Investor. Upon the closing of
said private placement, Seller shall execute a two-year contract with
Investor for additional consulting services substantially similar to
those services set forth in that Consulting Agreement executed between
the parties hereto dated December 28, 2000.
5. Representations of Investor. Investor hereby represents and warrants to
Seller that:
5.1 Due Execution. Validity and Effect. This Agreement has been duly
authorized, executed and delivered by Investor and, assuming the due
authorization, execution and delivery by Seller, this Agreement constitutes
the valid, legal and binding obligation of Investor, enforceable in
accordance with its terms, except to the extent that enforceability may be
limited by bankruptcy, insolvency, moratorium or similar laws affecting the
enforcement of creditors' rights generally.
5.2 Full Disclosure. No representation or warranty made by Investor in
this Agreement and no certificate or document furnished or to be furnished
to Seller pursuant to this Agreement contains or will contain any untrue
statement of a material fact, or omits or will omit to state a material
fact necessary to make the statements contained herein or therein not
misleading.
5.3 Capability to Evaluate; Accredited Investor. Investor acknowledges
that he directly or indirectly is able to represent and fend for himself in
the transaction contemplated by this Agreement, that he has the ability to
bear the economic risk of, and adequately evaluate, his investment pursuant
to this Agreement, and that he is an "Accredited Investor" as that term is
defined in Rule 501 of Regulation D.
5.4 Regulation S.
(a) Investor is not a "U.S. Person" as that term is defined in
Rule 902(o) of Regulation S.
(b) Investor is purchasing the Shares for his own account and not
on behalf of or for the benefit of any U.S. Person and the sale and
resale of the Shares have not been prearranged with any U.S. Person or
buyer in the United States;
5.5 Certain Fees. Investor has incurred no liability for any brokers'
or finders' fees or commissions in connection with the transactions
contemplated by this Agreement for which Seller is or would be liable.
Investor agrees to indemnify and hold harmless Seller from and against any
commission fee or claim of any person employed or retained or claiming to
have been employed or retained by Investor to bring about the transactions
contemplated hereby or to represent Investor in connection therewith.
6. Securities Act of 1933.
6.1 Reporting Issuer. Resale. The Seller is a "reporting issuer" as
defined in the Securities Act of 1933 (the "Securities Act"). Upon
expiration of the Distribution Compliance Period set forth in Section 6.3,
the resale of any or all of the Shares by Investor must be made in
accordance with the registration requirements of the Securities Act or Rule
144 (in that such shares are deemed to be "restricted securities").
6.2 Transfer Restrictions; Registration. Investor understands that the
Shares have not been registered under the Securities Act or any applicable
state securities laws by reason of exemptions from the registration
requirements of the Securities Act and applicable state securities laws and
may not be sold, transferred, pledged, assigned or otherwise disposed of,
in whole or in part, in the absence of an effective registration statement
under the Securities Act and any applicable state securities laws, or
unless an exemption from such registration is available.
6.3 Distribution Compliance Period. Investor agrees that the Shares
acquired pursuant to this Agreement shall not be voluntarily sold,
transferred or otherwise disposed of prior to the expiration of a one year
distribution compliance period from the date of Final Closing and until two
years thereafter may be publicly sold only in accordance with the terms and
conditions of Rule 144 of the Securities Act.
6.4 Restrictive Legend. Investor understands and agrees that any
disposition of the Shares in violation of this Agreement shall be null and
void, and that no transfer of the Shares shall be made by Seller's
secretary or transfer agent upon Seller's stock transfer books unless there
has been compliance with the terms of this Agreement. Investor also
understands and agrees that Seller shall issue stop transfer instructions
to Seller's transfer agent instructing such transfer agent not to transfer
the certificates evidencing the Shares issued during the one year
distribution compliance period to any purchasers within, or nationals of,
the United States. In addition, Investor understands and agrees that there
shall be imprinted on the face of the certificates of the Shares the
following legend:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED WITH THE
SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933 OR
WITH ANY SECURITIES COMMISSION OF ANY STATE UNDER ANY APPLICABLE STATE
SECURITIES LAWS. THEY MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THOSE SECURITIES
LAWS OR AN EXEMPTION TO THE REGISTRATION REQUIREMENTS OF THOSE
SECURITIES LAWS.
7. Conditions to Obligations of Seller. All obligations of Seller under
this Agreement are subject to the fulfillment or satisfaction, prior to or at
the Initial Closing and the Final Closing, of each of the following conditions
precedent (all of which may be waived by Seller):
(a) neither Seller nor Investor's being precluded by an order or
preliminary or permanent injunction of a court of competent jurisdiction
from consummating the purchase and sale of the Shares pursuant to this
Agreement (each party agreeing to use its reasonable best efforts to have
any such injunction lifted); and
(b) there not having been any statute, rule or regulation enacted or
promulgated by any governmental body or agency after the date hereof which
is applicable to the purchase and sale of the Shares pursuant to this
Agreement which would render the consummation of any such purchase and sale
illegal.
8. Conditions to Obligations of Investor. All obligations of Investor under
this Agreement are subject to the fulfillment or satisfaction, prior to or at
the Initial Closing, of each of the following conditions precedent (all of which
may be waived by Investor);
(a) neither Seller nor Investor's being precluded by an order or
preliminary or permanent injunction of a court of competent jurisdiction from
consummating the purchase or sale of the Shares, pursuant to this Agreement
(each party agreeing to use its reasonable best efforts to have any such
injunction lifted);
(b) there not having been any statute, rule or regulation enacted or
promulgated by any governmental body or agency after the date hereof which is
applicable to the purchase and sale of the Shares, pursuant to this Agreement
which would render the consummation of any such purchase and sale illegal; and
9. Survival of Representation. etc. All representations, warranties and
agreements made herein shall survive any investigation made by Seller and
Investor and shall survive the Initial and Final Closings.
10. Termination. This Agreement may be terminated:
(a) on the date specified in a writing executed by Seller and
Investor;
(b) by Seller, upon written notice to Investor, if any
representation or warranty made in this Agreement by Investor shall
have been false or incorrect in any material respect when made or
shall have become false or incorrect in any material respect
thereafter, or if Investor shall fail to perform or observe any
material covenant or agreement made by Investor in this Agreement; or
(c) by Investor, upon written notice to Seller, if any
representation or warranty made in this Agreement by Seller shall have
been false or incorrect in any material respect when made or shall
have become false or incorrect in any material respect thereafter, or
if Seller shall fail to perform or observe any material covenant or
agreement made by it in this Agreement.
11. Miscellaneous.
11.1 Binding Effect: Assignment. This Agreement shall inure to the
benefit of and be binding upon the parties hereto, their respective legal
representatives and successors. This Agreement may not be assigned.
11.2 Further Assurances: Cooperation. Each party shall, upon
reasonable request by the other party, execute and deliver any additional
documents necessary or desirable to complete the sale, conveyance, transfer
and assignment of the Shares acquired by Investor, pursuant to and in the
manner contemplated by this Agreement. The parties hereto agree to
cooperate and use their respective best efforts to consummate the
transactions contemplated by this Agreement.
11.3 Entire Agreement: Absence of Representation. This Agreement
constitutes the entire agreement between the parties hereto and supersedes
all prior arrangements, understandings and agreements, oral or written,
between the parties hereto with respect to the subject matter hereof.
Investor hereby acknowledges that in acquiring the Shares to be acquired
hereunder Investor has relied only upon the representations and warranties
expressly made in this Agreement and upon information contained in public
reports of Seller, and that no other statements, representations or
warranties, oral or written, expressed or implied, have been made or relied
upon in connection with such acquisition or as an inducement therefor.
11.4 Execution in Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original and all of which
shall be deemed to be one and the same instrument.
11.5 Notices. All notices, requests, permissions, waivers and
communications hereunder shall be in writing and shall be deemed to have
been duly given when delivered in person, by telegram, telex, facsimile
transmission or by mail (registered or certified mail, postage prepaid,
return receipt requested) to the respective parties at the following
respective addresses or to such other address as any party hereto shall
specify in a notice to the other parties hereto in accordance with the
terms hereof:
If to Seller: Access Health Alternatives, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxx
Facsimile Transmission:
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If to Investor: Xxxxx Xxxx
00 Xxx Xxxxx Xxxxx
Xxxx, Xxxxxxx, Xxxxxx X0X 0X0
Facsimile Transmission:
(000) 000-0000
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11.6 Amendments and Waivers. This Agreement may not be modified or
amended except by an instrument or instruments in writing signed by the
party against whom enforcement of any such modification or amendment is
sought. The Seller may, by an instrument in writing, waive compliance by
Investor with any term or provision of this Agreement on the part of
Investor to be performed or complied with. Investor may, by an instrument
in writing, waive compliance by Seller, with any term or provision of this
Agreement on the part of Seller to be performed or complied with. Any
waiver of a breach of any term or provision of this Agreement shall not be
construed as a waiver of any subsequent breach.
11.7 Headings; Severability. The headings contained in this Agreement
are for convenience of reference only and shall not affect the
interpretation or construction hereof. Any term or provision of this
Agreement which is invalid or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining
terms and provisions of this Agreement or affecting the validity or
enforceability of any of the terms or provisions of this Agreement in any
other jurisdiction. If any provision of this Agreement is so broad as to be
unenforceable, such provision shall be interpreted to be only so broad as
is enforceable.
11.8 Arbitration. Any controversy or claim arising out of or relating
to this Agreement, or the breach thereof, shall be settled by arbitration
administered by the American Arbitration Association ("AAA") in accordance
with its Commercial Rules (including its Emergency Interim Relief
Procedures] and its supplementary procedures for Securities Arbitration,
and judgment on the award rendered by the arbitrators may be entered in any
court having jurisdiction thereof. The matter shall be heard in Orlando by
a panel of three (3) AAA arbitrators, one picked by Investor, one picked by
Seller, and the third agreed to by the two selected arbitrators. The Seller
and Investor, for themselves and their respective successors in interest,
hereby irrevocably consent to such jurisdiction, venue and binding
arbitration, and hereby irrevocably waive any claim of forum non conveniens
or right to change such venue or to litigate the underlying dispute in
court.
11.9 Governing Law. This Agreement is made and executed and shall be
governed by the laws of the State of Florida, without regard to the
conflicts of law principles thereof.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized officers on the date first above written.
Access Health Alternatives, Inc.
By Seller: /s/ Xxxxxx X. Xxxxxx
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Xx. Xxxxxx X. Xxxxxx
Chief Executive Officer
By Investor: /s/ Xxxxx Xxxx
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Xxxxx Xxxx
