EXHIBIT 10.8
STOCK EXCHANGE AGREEMENT
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THIS STOCK EXCHANGE AGREEMENT (the "Agreement"), is dated as of the 1st day
of March 2000, by, between, and among Evergood Products Corporation (the
"Company"), a Delaware corporation, whose principal corporate address for
purposes hereof is 000 Xxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxx 00000, and Xxx Xxxx
("Rich") and Xxxxxxx X. Xxxxx ("Xxxxx")(collectively Rich and Xxxxx are
sometimes called the "Stockholders") whose address for purposes hereof is c/o
Hoffinger Xxxxxxxxx Xxxxxxx & Xxxxx, P.C., 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000.
R E C I T A L S:
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A. Company having originally been incorporated as Circus Corporation
under the laws of the State of Delaware on July 16,
1969 by a Certificate of Incorporation filed with the Secretary of State of
Delaware; a Certificate of Merger having been filed on November 9, 1970 which
merged Phoenix Laboratories, Inc. with and into Corporation under the name
Circus Corporation; the Certificate of Incorporation having been amended on
November 13, 1970 whereby Circus Corporation changed its name from Circus
Corporation to Evergood Products Corporation; such Certificate of Incorporation
having been amended on November 23, 1970 to increase the number of shares the
Company shall have the authority to issue to 2,020,000 of common and preferred
stock; the Certificate of Incorporation again having been amended on April 9,
1974 by reducing the number of shares the Company shall have the authority to
issue to 1,000,000; the Certificate of Incorporation having been amended on June
4, 1981 by increasing the number of shares the Company shall have the authority
to issue to 10,000,000; the Certificate of Incorporation having been amended on
December 30, 1982 whereby the business and affairs of the Corporation shall be
managed and controlled by a Board of Directors which shall consist of seven (7)
directors and setting forth other relevant information pertaining to the Board
of Directors; the Company having filed a Restated Certificate of Incorporation
on February 9, 1983; the Company having filed a Certificate of Ownership August
18, 1989 which
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merged Phoenix Acquisition Corp, a California corporation and Phoenix
Laboratories International, Ltd., a United States Corporation with and into the
Company; the Company having filed a Certificate of Renewal on July 26, 1996; the
Company having entered into a certain Stock Exchange Agreement dated as of
September 30, 1999; and the Company currently being a corporation duly
organized, existing and in good standing under the laws of the State of
Delaware;
B. Company, at the date of this Agreement, has an authorized
capitalization consisting of 10,000,000 shares of common stock, $.01 par value
per share of which ___________ are currently issued and outstanding:
C. GEC is a corporation duly organized and existing under the laws of the
State of Delaware, having been originally incorporated under the name Great
Earth International, Inc. on April 11, 1991; the Certificate of Incorporation
having been amended on May 1, 1991 whereby Great Earth International, Inc.
changed its name to Great Earth Vitamins Ltd.; Great Earth Vitamins Ltd. having
filed a Certificate of Amendment on August 19, 1991 by changing the number of
shares which it shall have the authority to issue; a Certificate of Merger
having been
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filed on August 19, 1991 which merged GEFC Georgia, Inc. a New York corporation,
GEFC N.J. Corp., a New York corporation, S & B Bayshore Ltd., a New York
corporation, S & B Centereach Ltd., a New York corporation, S & B Lake Success
Ltd., a New York Corporation with and into Great Earth Vitamins Ltd. a
corporation organized and existing under the laws of the State of Delaware under
the name Great Earth Vitamins Ltd.; the filing of a Certificate of Amendment on
October 25, 1991 whereby Great Earth Vitamins Ltd. changed its name from Great
Earth Vitamins Ltd. to Great Earth Companies Inc.; GEC having filed a
Certificate of Designation on April 22, 1992 authorizing the issuance of a
series of preferred stock from time to time; such Certificate of Incorporation
having been amended on August 3, 1992 thereby authorizing GEC to issue 5,000,000
shares of common stock; and such Certificate of Incorporation having been
amended on May 25, 1995 whereby reducing the total amount of shares of common
stock GEC is authorized to issue to 3000 shares of common stock; GEC is
currently a corporation duly organized, existing and in good standing under the
laws of the State of Delaware and currently maintains a place of business at 000
Xxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxx 00000;
D. As of the date of this Agreement, GEC has an authorized
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capitalization consisting of 3000 shares of common stock, $.01 par value, 100
shares of which are currently validly issued and outstanding;
E. Company's Board of Directors has determined is desirable, upon the
terms and conditions set forth herein, to acquire from Stockholders the twenty
(20%) percent of all of the issued and outstanding stock of GEC owned by the
Stockholders (the "GEC Stock");
F. Bodyonics, Ltd., ("Bodyonics") is a corporation duly organized and
existing under the laws of the State of Delaware having been incorporated on
_____________________ and is in good standing in that State and currently
maintains a place of business at 000 Xxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxx 00000;
G. As of the date of this Agreement, Bodyonics has an authorized
capitalization consisting of ______ shares of common stock, ___ par value, _____
shares of which are currently validly issued and outstanding and _____ shares of
which are owned by the Stockholders equally (the "Bodyonics Stock");
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H. Company's Board of Directors has determined it is desirable, upon the
terms and conditions set forth herein, to acquire from the Stockholders the
Bodyonics Stock; and
I. Company has determined to acquire the GEC Stock and Bodyonics,
respectively, by exchanging common stock of the Company in the amounts set forth
next to the named Stockholder, as set forth in Schedule A attached hereto, for
Stock of the Company such Stock (the "Stock Exchange"):
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, and other good and valuable consideration, each to the other
in hand paid, the receipt and sufficiency of which is hereby acknowledged, it is
hereby agreed that Company shall exchange shares of its common stock for the GEC
and Bodyonics Stock, and that the terms and conditions of the Stock Exchange,
the mode of carrying same into effect, the manner and basis of converting
shares, and such other provisions as are deemed necessary or desirable to be
effected by the Stock Exchange shall be as follows:
ARTICLE I
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STOCK EXCHANGE
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1.1 Stock Exchange. At the Effective Time (defined in Section 1.2
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hereof), Stockholders shall exchange the GEC and Bodyonics Stock for shares of
the Company's common stock and, as a consequence thereof, the Company shall own
the GEC and Bodyonics Stock.
1.2 Closing and Effective Time. Consummation of the Stock Exchange (the
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"Closing") shall take place:
(a) at the offices of Hoffinger, Friedland, Dobrish, Xxxxxxxx and
Xxxxx, P.C., 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, at
10:30 A.M., on the first business day following the date after which (i) the
meeting of the shareholders of the Company entitled to vote thereon has been
held, at which such entitled shareholders shall have duly approved this
Agreement and all of its terms and provisions or the Company's Board of
Directors has determined that a vote of the stockholders is not required and the
Board of Directors has duly approved this Agreement and all of its terms and
provisions, and (ii) all conditions set forth in this Agreement have been
satisfied, or
(b) at such other place, date and time as may be
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agreed upon in writing unanimously by the Company and the Stockholders.
The date upon which the Closing shall take place shall be hereinafter
referred to as the "Closing Date." Simultaneously with the consummation of the
Closing, this Agreement, as appropriate, and all other instruments or documents
required to make the Stock Exchange effective or complete the transaction as
contemplated by the terms of this Agreement shall be filed with the appropriate
governmental agencies or authorities in accordance with the provisions hereof or
thereof.
The date upon which the Stock Exchange shall become effective shall be the
Closing Date.
1.3 Effect of Stock Exchange. At the Effective Time, the effects of the
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consummation of the Stock Exchange on the Company, Rich and Xxxxx and the
Company shall be as provided herein.
1.4 Other Action; Further Assurances. Upon and after the Effective Time,
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the Stockholder shall take all such action as
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shall be deemed necessary or appropriate by any of the parties to this Agreement
to give full effect to the Stock Exchange. If at any time after the Effective
Time, the Company or the Stockholders shall consider or be advised any further
deeds, assignments, conveyances, or instruments are necessary or desirable to
carry out the provisions of this Agreement, they shall execute and deliver any
and all proper deeds, assignments, conveyances, instruments and assurances at
law, and do all things necessary or appropriate and proper to carry out the
provisions or the terms of this Agreement.
ARTICLE II
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TERMS OF THE TRANSACTION AND MANNER AND BASIS
OF THE STOCK EXCHANGE
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2.1 Delivery and Exchange of Share Certificates. On the Closing Date,
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Stockholders will deliver to Company their certificates for the GEC and
Bodyonics Stock, respectively, representing twenty (20%) percent of the issued
and outstanding shares of stock in GEC and Bodyonics, duly endorsed and with any
requisite documentary stamps affixed at the Stockholder's expense so as to make
the Company the sole owner thereof, free and clear of all claims and
encumbrances; and on such Closing
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Date delivery of the Company's stock, on which documentary stamp taxes will have
been paid by the Company, will be made to Stockholders in the amounts to each
Stockholder as set forth in Schedule A attached hereto.
2.2 Authorized but Unissued Shares of Common Stock of Company. All
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authorized but unissued shares of Company's common stock shall continue as
authorized but unissued shares of Company, as appropriate, after the Effective
Time.
ARTICLE III
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STOCKHOLDER APPROVAL, SUPPLEMENTARY ACTION AND
EFFECTIVENESS FOR TAX AND ACCOUNTING PURPOSES
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3.1 Stockholder Approval. This Agreement is approved by the Stockholders
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and each of them.
3.2 Supplementary Action. At any time, or from time to time, after the
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Effective Time, the Stockholders may execute and deliver all such proper deeds,
assignments and other instruments and take or cause to be taken all such further
or other action as Company may deem necessary or desirable in order to vest,
perfect or confirm in Company, all right, title and interest in
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and to possession of the GEC and Bodyonics Stock and their rights, privileges,
immunities, powers and purposes, and otherwise carry out the purposes and intent
of this Agreement.
3.3 Effectiveness for Tax and Accounting Purposes. Notwithstanding
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the provisions of Section 1.2 of Article I above, the Stock Exchange shall be
considered to be effective for tax and accounting purposes as of the close of
business on March 1, 2000, regardless of the actual Effective Time under Section
1.2 of Article I.
ARTICLE IV
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REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS
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Representations of Stockholders. Stockholders, jointly and severally,
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represent and warrant to Company as follows:
(a) As of the Closing Date they will be the sole owners of the shares
appearing next to their names as set forth in Schedule A; such shares will be
free from claims, liens, or other encumbrances; and they will have the
unqualified right to
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transfer such shares; and
(b) such shares constitute validly issued shares of each of GEC and
Bodyonics, as appropriate, fully paid and nonassessable.
ARTICLE V
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CONDITIONS PRECEDENT TO OBLIGATIONS OF ALL PARTIES
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The obligations of Company and Stockholders to consummate the Stock
Exchange are subject to the fulfillment prior to or at the Closing of each of
the following conditions, except as such parties may legally waive such
conditions in writing:
5.1 Company Shareholder Approval. Either the stockholders or Board of
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Directors of the Company entitled to vote on this Agreement shall have duly
approved this Agreement at a meeting called for such purpose or by unanimous
consent in accordance with the provisions of the Articles of Incorporation or
Certificate of Incorporation and by-laws of the Company.
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5.2 Litigation. On the Closing Date, there shall not be pending or
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threatened any claim, action, suit or proceeding against any of the parties
hereto or any of their affiliates which, if adversely determined, might prevent
or materially hinder consummation of the Stock Exchange contemplated by this
Agreement, result in the payment of substantial damages as a result of such
Stock Exchange and the transactions contemplated hereby or otherwise materially
impair the benefits to any party or parties contemplated hereby and no
investigation by any governmental agency shall be pending or threatened which
might eventually result in any such suit, action or other proceeding.
5.3 Representations and Warranties. The representations and warranties of
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Stockholders contained in this Agreement or on any schedule, list, certificate
or document delivered pursuant to the provisions hereof shall be true in all
material respects on and as of the Closing Date as if such representations and
warranties were made on and as of such date (except to reflect changes permitted
or contemplated by this Agreement).
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ARTICLE VI
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TERMINATION
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6.1 Procedure for Termination. Notwithstanding any other section or
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provision of this Agreement, this Agreement may be terminated by written notice
of termination at any time before the Closing Date only as follows:
(a) by the mutual consent of the Boards of Directors of the Company
and the Stockholders; or
(b) by the Board of Directors of the Company, upon two days' written
notice to the Stockholders given at any time.
6.2 Effect of Termination. In the event this Agreement is terminated,
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this Agreement shall forthwith become void and of no further force and effect
and there shall be no obligation on the part of Company or the Stockholders.
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ARTICLE VII
MISCELLANEOUS
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7.1 Amendments. Notwithstanding anything to the contrary in this
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Agreement, to the extent permitted by law, this Agreement may only be amended,
supplemented or modified by a written instrument duly executed by each of the
parties hereto which shall have been authorized by appropriate action taken by
the board of directors of the parties hereto and, in the case of an
interpretation, the actions of such board of directors shall be binding.
7.2 Governing Law. The terms of this Agreement shall be governed by, and
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interpreted and construed in accordance with, the provisions of the laws of the
State of New York applicable to agreements to be fully performed within the
State of New York.
7.3 Section Headings and Gender. The section headings herein have been
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inserted for convenience of reference only and shall in no way modify or
restrict any of the terms or provisions hereof. The use of the masculine or any
other pronoun herein when referring to any party has been for
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convenience only and shall be deemed to refer to the particular party intended
regardless of the actual gender of such party.
7.4 Entire Agreement. This Agreement and the documents referred to herein
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constitute the entire, full and complete agreement concerning the subject matter
hereof and supersede all prior agreements. No other representations have induced
any party to execute this Agreement. any and all other undertakings and
agreements are merged herein.
7.5 Survival of Covenants. The covenants contained in this Agreement
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which by their terms require performance by the parties after the expiration or
termination of this Agreement shall be enforceable notwithstanding the
expiration or other termination of this Agreement for any reason whatsoever.
7.6 Incorporation of Recitals. The recitals set forth at the head of this
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Agreement are incorporated herein as if fully set forth.
7.7 Waiver. Each of the parties hereby agrees that the other party shall
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not by act, delay, omission or otherwise be
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deemed to have waived any of its right or remedies hereunder nor in any other
instrument given hereunder, unless such waiver is given in writing, and the same
shall be binding only to the extent therein provided and only upon the parties
signing the same. A waiver on one occasion shall not be construed as a waiver
for any prior or future occasion.
7.8 Notices and Communications.
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(a) Notices and communications required or permitted to be given
shall be sent by facsimile; United States certified mail, postage prepaid; or
Federal Express (or any other reputable overnight mail service), at such address
as may be designated in writing. Notice shall be deemed given three business
days after deposit in the United States mail, the next business day after
deposit with overnight delivery service, or when actually delivered in person.
(b) Any party may from time to time change the mailing address or
telephone facsimile machine for payments, notices or communications by notice in
writing pursuant to the provisions of this Section.
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7.9 Successors and Assigns. This Agreement shall inure to the benefit of,
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and be binding upon, the parties hereto and the subscribers hereof and their
successors, representatives, assigns and transferee, where the same is not
prohibited by the provisions hereof.
7.10 Severability. If any term or provision of this Agreement shall be
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finally held invalid or unenforceable by a court of competent jurisdiction, the
same shall not affect the validity of any other term or provision of this
Agreement, and the remainder hereof shall continue in full force and effect.
7.11 Counterparts. This Agreement may be executed in counterparts, all of
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which together shall constitute this Agreement.
7.12 Compliance With Applicable Law. To the extent that any provisions of
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this Agreement provide for periods of notice less than those required by
applicable law, or provide for termination, cancellation, non-renewal or the
like other than in accordance with applicable law, such provisions shall, to the
extent such are not in accordance with applicable law, not be effective, and the
parties shall comply with applicable law in
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connection with each of these matters.
IN WITNESS WHEREOF, Company, GEC and each of Stockholders have each caused
this Agreement to be executed all as of the date and year first above written.
EVERGOOD PRODUCTS CORPORATION
By: /s/
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Name:
/s/ Xxx Xxxx
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XXX XXXX
/s/ Xxxxxxx X. Xxxxx
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XXXXXXX X. XXXXX
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SCHEDULE A
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Shares of EXCHANGED Shares of
Stockholder GEC Owned FOR.... Evergood
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Xxx Xxxx 10 50,758
Xxxxxxx X. Xxxxx 10 50,758
Shares of EXCHANGED Shares of
Stockholder Bodyonics Owned FOR.... Evergood
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Xxx Xxxx 10 90,235
Xxxxxxx X. Xxxxx 10 90,235
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