STOCK PURCHASE AGREEMENT
EXHIBIT
10.1
THIS
AGREEMENT
is
entered into this 24th
day of
July, 2008, by and between the
Xxxx and Xxxx Xxxxx Family Foundation,
a Texas
not for profit corporation, having its principal address at 0000 Xxxx Xxxxx
Xxxxx, Xxxx, Xxxxx 00000 (“Seller”), and Reliv
International, Inc.,
a
Delaware corporation, having its principal place of business at 000 Xxxxxxxxxxxx
Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxxxxxx, Xxxxxxxx (the “Company”).
WHEREAS,
Seller
is the owner of Five Hundred Ninety-six Thousand Two Hundred (596,200) shares
of
the common stock of the Company (such shares hereinafter referred to as the
“Shares”); and,
WHEREAS,
Seller
desires to sell and Company desires to purchase and redeem all of the Shares
on
the terms and conditions provided herein.
NOW,
THEREFORE,
in
consideration of the premises and of the terms, covenants and conditions
hereinafter contained, the parties hereto agree as follows:
1. Sale
and Purchase of Shares.
Subject
to and on the terms and conditions hereof, in reliance on the representations
and warranties herein and for the consideration herein, Seller agrees to sell
to
the Company, and the Company agrees to purchase and redeem from Seller, all
of
the Shares at the price and on the terms provided herein.
2. Purchase
Price.
The
purchase price for all of the Shares shall be Six Dollars ($6.00) per share
or
an aggregate of Three Million Five Hundred Seventy-seven Thousand Two Hundred
Dollars ($3,577,200).
3. Payment.
Subject
to and on the terms and conditions hereof, and in full payment of the purchase
price hereunder, the Company shall, concurrently with the deliveries described
in Sections 4.1 and 4.2 below and confirmation of its receipt of the Shares
in
the Company’s account designated in the instruction letter described below,
transfer to an account designated by Seller the aggregate amount of the purchase
price for the Shares provided for herein.
4. Closing
and Transfer.
The
Closing of the transactions provided for herein shall be held at the offices
of
the Company on July 25, 2008, or such later date as may be mutually agreed
upon
by the parties. At the Closing:
4.1 Each
party shall deliver to the other a fully executed copy of this
Agreement.
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4.2 Seller
shall deliver all of the Shares to the Company by transfer of the Shares,
through the Depository Trust Company, from Seller’s brokerage account to the
Company’s brokerage account; to effect such transfer, Seller will deliver
instructions to its securities broker holding the Shares substantially in the
form of the instruction letter attached to this Agreement as Exhibit A (or
such
other form as the parties may agree) and shall provide to the Company a copy
of
the delivery of such instruction letter to its securities broker at the time
of
the Closing.
4.3 The
Company shall pay the purchase price for the Shares as provided in Section
3
hereof and shall provide evidence to Seller of the wire transfer of funds for
that payment.
Effective
at the time of Closing, the Company shall be entitled to transfer all of the
Shares on the books of the Company to the name of the Company.
5. Representations
and Warranties of Seller.
Seller
represents and warrants to the Company, as of the date hereof and as of the
Closing, as follows:
5.1 Seller
is
the sole owner of, and has good and marketable title to, the Shares free and
clear of any and all contracts, options, commitments, agreements, liens, claims
or encumbrances whether or not of record.
5.2 Seller
has all necessary corporate power and authority to enter into this Agreement
and
to perform its obligations hereunder, and this Agreement, and the transactions
provided for herein, have been duly and validly authorized by proper action
of
the Board of Directors of Seller. This Agreement has been duly executed and
delivered by Seller and constitutes a valid and binding obligation of Seller,
enforceable against Seller in accordance with its terms.
5.3 The
sale
and transfer of the Shares as provided herein will not violate, or constitute
a
default under, any agreement, commitment, contract, loan, security agreement,
pledge or other document or instrument to which Seller is a party or by which
Seller or any of the Shares are bound.
5.4 (i)
Seller is fully informed concerning the business, condition, financial and
otherwise, assets, operations and prospects of the Company; (ii) Seller, or
its
representatives, have read and have knowledge of all reports filed by the
Company with the Securities and Exchange Commission, including all Reports
on
Form 10-K and Form 10-Q, (iii) neither the Company nor any officer, director,
agent or representative of the Company has made any representation or warranty,
or provided any information, to Sellers concerning or relating to the business,
condition, financial or otherwise, assets, operations or prospects of the
Company, except as is set forth in the public filings of the Company, and (iv)
the market value of the Company’s common stock as traded on the NASDAQ Stock
Market, or otherwise, may increase to an amount in excess of the purchase price
for the Shares, and nevertheless, Seller has determined and desire to sell
the
Shares on the terms and at the price provided herein.
2
The
representations and warranties of Seller herein shall survive the
Closing.
6. Representations
and Warranties of the Company.
The
Company represents and warrants to Seller, as of the date hereof and as of
the
Closing, as follows:
6.1 The
Company has all necessary corporate power and authority to enter into this
Agreement and to perform its obligations hereunder and this Agreement, and
the
transactions provided for herein, have been duly and validly authorized by
proper action of the Board of Directors of this Company. This Agreement has
been
duly executed and delivered by the Company and constitutes a valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms.
6.2 The
Company has filed all Reports required by it to be filed with the Securities
and
Exchange Commission, including all Reports on Form 10-K and Form
10-Q.
6.3 The
Company has filed, or shall timely file, and make any and all reports or
disclosures, required to be made or filed, concerning or related to this
Agreement and the transactions provided for herein.
6.4 The
Company’s purchase of the Shares as provided herein will not violate, or
constitute a default under, any agreement, commitment, contract, loan, security
agreement, pledge or other document or instrument to which the Company is a
party or by which the Company is bound.
The
representations and warranties of the Company herein shall survive the Closing.
7. Right
of First Refusal.
(a) If
Seller
or any of its Affiliates (as defined in Rule 405 promulgated under the
Securities Act of 1933, as amended) shall, at any time, desire to sell some
or
all of the Remaining Shares in the open market or directly to a third party
(the
“Third Party”), Seller and/or its Affiliates shall give written notice of such
desire to the Company, which notice shall contain the number of shares Seller
and/or any of its Affiliates desire to sell, if such sale is to be made in
the
open market or whether it is a negotiated sale to a Third Party, the proposed
terms of the sale and, if the sale is a negotiated sale, the name and address
of
the Third Party (the “Offer Notice”). The Company shall have the right of first
refusal to acquire all or any portion of the Remaining Shares that Seller and/or
any of its Affiliates desire to sell as specified in the Offer Notice (the
“Offered Shares”) for a period of two (2) days following the date the Company
receives the Offer Notice. The Company must give any such notice of exercise
to
Seller within such two-day period. The Company may
freely assign its purchase option in whole or in part.
The
selling price and terms of any sale of the Offered Shares to the Company or
its
assignees shall be the same as set forth in the Offer Notice; and if the Offer
Notice proposes sales for cash in the open market, then the selling price to
the
Company or its assignees for each Offered Share will be the closing price per
share of the Company’s common stock on the NASDAQ Global Select Market on the
date the Offer Notice is given.
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(b) If
the
Company does not exercise its right of first refusal within the required two-day
period provided above, Seller and/or any of its Affiliates identified in the
Offer Notice shall have the right, for a period of twenty (20) days following
the expiration of such two-day period, to sell to the Third Party or in the
open
market, as identified in the Offer Notice, the Offered Shares not purchased
by
the Company or its assignees; provided, however, that (i) if the sale is to
the
Third Party, the sale shall be made by Seller and/or any of its Affiliates
to
the Third Party as identified in the Offer Notice on terms that are no more
favorable to the purchaser of such Offered Shares than those set forth in the
Offer Notice, and (ii) if such Offered Shares not purchased by the Company
or
its assignees are not sold by Seller and/or any of its Affiliates in accordance
with this Section 7(b) within the twenty (20)-day period described herein,
the
Offered Shares shall again be subject to the right of first refusal set forth
above.
(c) The
closing pursuant to the exercise of the right of first refusal under Section
7(a) above shall take place no later than five (5) days after the Company shall
have notified Seller and any of its Affiliates of the exercise of the right
of
first refusal and in the same manner as described in Section 4 of this
Agreement.
(d) If
Seller
and/or any of its Affiliates transfers any shares of common stock of the Company
by gift, it will obtain the donee’s written agreement to comply with the right
of first refusal in this Section 7 regarding any further sale of those shares
of
common stock of the Company.
8. Specific
Enforcement.
The
obligations of Seller hereunder are of a special, unique, unusual and
extraordinary character, thereby giving this Agreement peculiar value so that
the loss of the Shares or violation by Seller of this Agreement could not
reasonably or adequately be compensated in damages in an action at law.
Therefore, in addition to other remedies provided by law, the Company shall
have
the right to compel specific performance hereof by Seller or to obtain
injunctive relief against violations hereof by Seller.
9. Further
Assurances.
Seller
and the Company shall take such other and further actions, execute such other
and further documents as shall be reasonably necessary or appropriate to effect
and consummate the sale contemplated herein.
10. Notices.
All
notices or other communications required or permitted to be given hereunder
shall be in writing and shall be delivered in person, delivered by prepaid
courier, mailed by prepaid certified mail (return receipt requested), or
transmitted by facsimile, to the parties as follows:
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If
to Seller or any of its Affiliates, to:
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Xxxxx
Xxxxx, Vice President
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Xxxx
and Xxxx Xxxxx Family Foundation
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0000
Xxxx Xxxxx Xxxxx
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Xxxx,
Xxxxx 00000
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Facsimile:
(000) 000-0000
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If
to Company, to:
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Xxxxxx
X. Xxxxxxxxxx
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Chief
Executive Officer
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Reliv
International, Inc.
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000
Xxxxxxxxxxxx Xxxxxxxxxx Xxxxxxxxx
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Xxxxxxxxxxxx,
Xxxxxxxx 00000
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Facsimile:
(000) 000-0000
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Any
notice that is (a) delivered in person or by prepaid courier shall be deemed
given, effective, and received upon delivery to (or refusal by) the addressee,
(b) mailed shall be deemed given, effective, and received upon the earlier
of
delivery to (or refusal by) the addressee or the third business day after the
date of mailing, and (c) transmitted by facsimile shall be deemed given,
effective, and received upon receipt by the addressee as confirmed by the
facsimile transmission report.
11. Entire
Agreement.
This
Agreement constitutes the entire agreement of the parties hereto with respect
to
the subject matter hereof and supersedes all prior written or oral warranties,
representations, inducements, understandings, commitments, agreements or
contracts. This Agreement may not be modified except by a writing signed by
both
of the parties.
12. Binding
Effect.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective, heirs, personal representatives, successors and
assigns.
13. Governing
Law; Jurisdiction.
This
Agreement shall be governed by and construed and enforced in all respects in
accordance with the laws of the State of Missouri. This Agreement shall be
deemed to have been executed in the State of Missouri and the courts of the
State of Missouri, County of St. Louis, or the courts of the United States
of
America for the Eastern District of Missouri, shall have exclusive jurisdiction
of any case, action or proceeding arising under or related to this Agreement.
Each of the parties hereto consents to the jurisdiction of such courts with
respect to any such case, action or proceeding and further consents to service
of process in any action filed by the other party by certified mail at the
address of the party set forth herein.
[Remainder
of page intentionally left blank.]
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IN
WITNESS WHEREOF,
the
parties hereto have executed this Agreement effective as of the day and year
first above written.
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RELIV
INTERNATIONAL, INC.
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By:
/s/ Xxxxxx X.
Xxxxxxxxxx
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Xxxxxx
X. Xxxxxxxxxx, CEO
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ATTEST:
/s/
Xxxxxx X. Xxxxxxxx
Vice
President
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XXXX
AND XXXX XXXXX FAMILY FOUNDATION
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By:
/s/ Xxxxx
Xxxxx
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Xxxxx
Xxxxx, Vice President
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Xxxx
& Xxxx Xxxxx Family Foundation
0000
Xxxx
Xxxxx Xxxxx
Xxxx,
Xxxxx 00000
July
___,
2008
[Seller’s
securities broker]
Re: Transfer
of Shares of Reliv’ International, Inc.
Ladies
and Gentlemen:
The
undersigned is the holder of _______ shares (the “Shares”) of common stock of
Reliv’ International, Inc., a Delaware corporation (“Reliv”), CUSIP
Xx.
00000 X 000, XXX 00-0000000.
You
are
hereby instructed to transfer and deliver the Shares, against payment, via
Depository Trust Company (“DTC”) to [name
of Reliv’s broker (“Broker”),]
having
DTC Participant No. _____, on July ____, 2008. The Shares are being transferred
for registration unto [Broker]
Account
No. ___________ for the benefit of Reliv. In exchange for the transfer of
the Shares to [Broker],
you are
to receive for the undersigned’s account payment in the amount of
$3,577,200.
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XXXX
& XXXX XXXXX FAMILY FOUNDATION
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By:_______________________________
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Xxxxx
Xxxxx, Vice President
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