EXHIBIT 2.6
STOCK PURCHASE AGREEMENT
This Agreement ("Agreement") entered into as of September 30, 1998, is by and
among Dynamic Health Products, Inc., a Florida corporation ("Purchaser"), J.
Labs, Inc., a Florida corporation ("Corporation"), and those persons who are
signatories hereto (collectively referred herein to as "Sellers").
WHEREAS, the Corporation presently has authorized a single class of common stock
of which 500,000 shares (the "Shares") have been issued to the Sellers and are
outstanding as described in Exhibit "A" hereto; and
WHEREAS, the Shares are the only issued and outstanding capital stock of the
Corporation; and
WHEREAS, Purchaser desires to purchase from Sellers and Sellers desire to sell
to Purchaser all of the Shares on the terms and subject to the conditions set
forth herein;
NOW THEREFORE, IT IS AGREED AS FOLLOWS:
SECTION 1. PURCHASE OF SHARES.
1.1 PURCHASE OF SHARES. Subject to the terms and conditions set forth herein,
simultaneously with the execution hereof by all parties, Sellers will sell all
of the Shares to Purchaser and Purchaser will purchase all of the Shares from
Sellers, said Shares constituting one hundred percent (100%) of all of the
issued and outstanding capital stock of the Corporation as of the Closing.
1.2 CONSIDERATION. In consideration of the sale of the Shares by Sellers to
Purchaser, Purchaser will issue to Sellers a total of 100,000 shares of
Purchaser's common stock, ("Purchaser's Shares"), with each Seller receiving the
number of shares set forth in Exhibit "B" hereto.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE CORPORATION AND SELLERS. As a
material inducement to Purchaser to enter into this Agreement and purchase the
Shares, Sellers and the Corporation, jointly and severally, represent and
warrant that:
2.1 ORGANIZATION AND CORPORATE POWER. The Corporation is a corporation duly
incorporated and validly existing under the laws of the state of Florida. The
Corporation has all requisite corporate power and authority necessary to own its
properties. The copies of the Corporation's charter documents and bylaws have
been furnished to Purchaser's counsel reflect all amendments made thereto at any
time prior to the date of this Agreement and are correct and complete.
2.2 CAPITAL STOCK AND RELATED MATTERS. The authorized capital stock of the
Corporation consists of 1,000,000 shares of common stock, 500,000 of which are
issued and
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outstanding and are owned, beneficially and of record, by Sellers and
no other stock of the Corporation is issued and outstanding. The Corporation
does not have outstanding and has not agreed, orally or in writing, to issue any
stock or securities convertible or exchangeable for any shares of its stock, nor
does it have outstanding nor has it agreed, orally or in writing, to issue any
options or rights to purchase or otherwise acquire its stock. The Corporation is
not subject to any obligation (contingent or otherwise) to repurchase or
otherwise acquire or retire any shares of its stock. All of the outstanding
shares of the Corporation's capital stock are validly issued, fully paid, and
nonassessable. Sellers have, and upon purchase thereof pursuant to the terms of
this Agreement Purchaser will have, good and marketable title to the Shares,
free and clear of all security interests, liens, encumbrances, or other
restrictions or claims, subject only to restrictions as to marketability imposed
by securities laws.
2.3 NO UNDISCLOSED LIABILITIES. Neither the Corporation nor any of the
property of the Corporation is subject to any material liability or obligation.
2.4 OWNERSHIP OF TRADE NAMES. Exhibit "C" contains a complete and accurate
list of all fictional business names, trading names, registered and unregistered
trademarks, servicemarks and applications (collectively, "Marks"). The Company
is the owner of all right, title, and interest in and to each of the Marks, free
and clear of all liens, security interests, charges, encumbrances, equities, and
other adverse claims. All Marks that have been registered with the United States
Patent and Trademark Office are currently in compliance with all formal legal
requirements (including the timely post-registration filing of affidavits of use
and incontestability and renewal applications), are valid and enforceable. No
Xxxx has been or is now involved in any opposition, invalidation, or
cancellation and, to Sellers' knowledge, no such action is threatened with
respect to any of the Marks. To Sellers' knowledge, there is no potentially
interfering trademark or trademark application of any third party. No Xxxx is
infringed or, to Sellers' knowledge, has been challenged or threatened in any
way. None of the Marks used by the Corporation infringes or is alleged to
infringe any tradename, trademark, or servicemark of any third party.
2.5 LITIGATION. There are no actions, suits, proceedings, orders,
investigations, or claims pending or, to the best of Sellers' and the
Corporation's knowledge, overtly threatened against the Corporation or any
property of either, at law or in equity, or before or by any governmental
department, commission, board, bureau, agency, or instrumentality; the
Corporation is not subject to any arbitration proceedings under collective
bargaining agreements or otherwise or, to the best of Sellers' and the
Corporation's knowledge, any governmental investigations or inquiries; and, to
the best knowledge of Sellers' and the directors and responsible officers of the
Corporation, there is no basis for any of the foregoing.
2.6 TAX MATTERS. (i) The Corporation has prepared in a substantially correct
manner and has filed all federal, state, local, and foreign tax returns and
reports heretofore required to be filed by it and has paid all taxes shown as
due thereon; and (ii) no taxing authority has asserted any deficiency in the
payment of any tax or informed the Corporation that it intends to assert any
such deficiency or to make any audit or other investigation of the Corporation
for the purpose of determining whether such a deficiency should be asserted
against the Corporation.
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2.7 DISCLOSURE. This Agreement does not contain any untrue statement of a
material fact or omit a material fact necessary to make each statement contained
herein or therein not misleading. No Seller has intentionally concealed any fact
known by such person to have a material adverse effect upon the Corporation's
assets.
2.8 POWER OF ATTORNEY. No material power of attorney or similar authorization
given by the Corporation is presently in effect.
2.9 AGREEMENTS AND COMMITMENTS. Except for this Agreement, the Company is a
party to no agreement, contract, instrument, and commitment (including license
agreements).
2.10 PROPERTY. Other than the Marks, the Corporation owns no property.
2.11 EMPLOYEES. The Company has no employees.
2.12 INVESTMENT REPRESENTATIONS
2.12.1 Sellers are acquiring the Purchaser's Shares for their own account
for purposes of investment and without expectation, desire, or need for resale
and not with the view toward distribution, resale, subdivision, or
fractionalization of the Purchaser's Shares.
2.12.2 During the course of the negotiation of this Agreement, Seller's
have reviewed all information provided to them by the Purchaser and have had the
opportunity to ask questions of and receive answers from representatives of the
Purchaser concerning the Purchaser, the Purchaser's Shares, and this purchase,
and to obtain certain additional information requested by Sellers.
2.12.3 Sellers understand that the Purchaser's Shares have not been
registered under Securities Act of 1933 ("1933 Act"), or under any state
securities law.
2.12.4 Sellers understand that the Purchaser's Shares cannot be resold in
a transaction to which the 1933 Act and state securities laws apply unless (i)
subsequently registered under the 1933 Act and applicable state securities laws
or (ii) exemptions from such registrations are available.
2.12.5 Seller's understand that no public market now exists for the
Purchaser's Shares and that it is uncertain that a public market will ever exist
for the Purchaser's Shares.
2.12.6 Seller's understand that the certificates for the Purchaser's
Shares will bear a restrictive legend in the following form or such other form
as is determined by Purchaser:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933.
THE CORPORATION WILL NOT TRANSFER THIS CERTIFICATE UNLESS (i) THERE IS AN
EFFECTIVE REGISTRATION
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COVERING THE SHARES REPRESENTED BY THIS CERTIFICATE UNDER THE SECURITIES
ACT OF 1933 AND ALL APPLICABLE STATE SECURITIES LAWS, (ii) IT FIRST
RECEIVES A LETTER FROM AN ATTORNEY, ACCEPTABLE TO THE CORPORATION, STATING
THAT IN THE OPINION OF THE ATTORNEY THE PROPOSED TRANSFER IS EXEMPT FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933 AND UNDER ALL APPLICABLE
STATE SECURITIES LAWS, OR (iii) THE TRANSFER IS MADE PURSUANT TO RULE 144
UNDER THE SECURITIES ACT OF 1933.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF PURCHASER. As a material inducement
to Sellers to enter into this Agreement and sell the Shares, Purchaser hereby
represents and warrants to Sellers as follows:
3.1 ORGANIZATION; POWER. Purchaser is a corporation duly incorporated and
validly existing under the laws of the state of Indiana, and has all requisite
corporate power and authority to enter into this Agreement and perform its
obligations hereunder.
3.2 AUTHORIZATION. The execution, delivery, and performance by Purchaser of
this Agreement and all other agreements contemplated hereby to which Purchaser
is a party have been duly and validly authorized by all necessary corporate
action of Purchaser, and this Agreement and each such other agreement, when
executed and delivered by the parties thereto, will constitute the legal, valid,
and binding obligation of Purchaser enforceable against it in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, and similar statutes affecting creditors' rights generally and
judicial limits on equitable remedies.
3.3 NO CONFLICT WITH OTHER INSTRUMENTS OR AGREEMENTS. The execution, delivery,
and performance by Purchaser of this Agreement and all other agreements
contemplated hereby to which Purchaser is a party will not result in a breach or
violation of, or constitute a default under, its Articles of Incorporation or
Bylaws or any material agreement to which Purchaser is a party or by which
Purchaser is bound.
SECTION 4. COVENANTS OF THE CORPORATION AND SELLERS.
4.1 ACTION AFTER THE CLOSING. Upon the reasonable request of any party hereto,
any other party will take all action and will execute all documents and
instruments necessary or desirable to consummate and give effect to this
purchase. These include, by way of illustration and not by way of limitation,
the following:
4.1.1 Resignations of each of the directors of the Corporation;
4.1.2 Provisions relating to delivery of Corporate books and records;
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SECTION 5. CLOSING.
5.1 TIME, PLACE, AND MANNER OF CLOSING. The closing ("Closing") will be held
at the offices of Johnson, Blakely, Pope, Bokor, Xxxxxx & Xxxxx, P.A., at 000
Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx, or such other place as the
parties may agree, simultaneously with the execution hereof. At the Closing the
Sellers will deliver certificates evidencing the Shares, duly endorsed for
transfer. Purchaser shall deliver certificates evidencing the Purchaser's Shares
a reasonable time after the Closing. After the Closing, Sellers, at Purchaser's
cost, will execute, deliver, and acknowledge all such further instruments of
transfer and conveyance and will perform all such other acts as Purchaser may
reasonably request to effectively transfer the Shares.
5.2 CONSUMMATION OF CLOSING. All acts, deliveries, and confirmations
comprising the Closing regardless of chronological sequence shall be deemed to
occur contemporaneously and simultaneously upon the occurrence of the last act,
delivery, or confirmation of the Closing and none of such acts, deliveries, or
confirmations shall be effective unless and until the last of the same shall
have occurred. The time of the Closing has been scheduled to correspond with the
close of business at the principal office of the Corporation and, regardless of
when the last act, delivery, or confirmation of the Closing shall take place,
the transfer of the Shares shall be deemed to occur as of the close of business
at the principal office of the Corporation on the date of the Closing.
SECTION 6. MISCELLANEOUS PROVISIONS.
6.1 AMENDMENT AND MODIFICATION. Subject to applicable law, this Agreement may
be amended, modified, or supplemented only by a written agreement signed by
Purchaser and Sellers.
6.2 WAIVER OF COMPLIANCE; CONSENTS
6.2.1 Any failure of any party to comply with any obligation, covenant,
agreement, or condition herein may be waived by the party entitled to the
performance of such obligation, covenant, or agreement or who has the benefit of
such condition, but such waiver or failure to insist upon strict compliance with
such obligation, covenant, agreement, or condition will not operate as a waiver
of, or estoppel with respect to, any subsequent or other failure.
6.2.2 Whenever this Agreement requires or permits consent by or on behalf
of any party hereto, such consent will be given in a manner consistent with the
requirements for a waiver of compliance as set forth above.
6.3 TITLES AND CAPTIONS. All section titles or captions contained in this
Agreement are for convenience only and shall not be deemed part of the context
nor effect the interpretation of this Agreement.
6.4 ENTIRE AGREEMENT. This Agreement contains the entire understanding between
and among the parties and supersedes any prior understandings and agreements
among them respecting the subject matter of this Agreement.
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6.5 AGREEMENT BINDING. This Agreement shall be binding upon the heirs,
executors, administrators, successors and assigns of the parties hereto.
6.6 ATTORNEY FEES. In the event an arbitration, suit or action is brought by
any party under this Agreement to enforce any of its terms, or in any appeal
therefrom, it is agreed that the prevailing party shall be entitled to
reasonable attorneys fees to be fixed by the arbitrator, trial court, and/or
appellate court.
6.7 COMPUTATION OF TIME. In computing any period of time pursuant to this
Agreement, the day of the act, event or default from which the designated period
of time begins to run shall be included, unless it is a Saturday, Sunday, or a
legal holiday, in which event the period shall begin to run on the next day
which is not a Saturday, Sunday, or legal holiday, in which event the period
shall run until the end of the next day thereafter which is not a Saturday,
Sunday, or legal holiday.
6.8 PRONOUNS AND PLURALS. All pronouns and any variations thereof shall be
deemed to refer to the masculine, feminine, neuter, singular, or plural as the
identity of the person or persons may require.
6.9 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
6.10 ARBITRATION. If at any time any dispute, difference, or disagreement shall
arise upon or in respect of the Agreement, and the meaning and construction
hereof, every such dispute, difference, and disagreement shall be referred to a
single arbiter agreed upon by the parties, or if no single arbiter can be agreed
upon, an arbiter or arbiters shall be selected in accordance with the rules of
the American Arbitration Association and such dispute, difference, or
disagreement shall be settled by arbitration in accordance with the then
prevailing commercial rules of the American Arbitration Association, and
judgment upon the award rendered by the arbiter may be entered in any court
having jurisdiction thereof.
6.11 PRESUMPTION. This Agreement or any section thereof shall not be construed
against any party due to the fact that said Agreement or any section thereof was
drafted by said party.
6.12 FURTHER ACTION. The parties hereto shall execute and deliver all
documents, provide all information and take or forbear from all such action as
may be necessary or appropriate to achieve the purposes of the Agreement.
6.13 PARTIES IN INTEREST. Nothing herein shall be construed to be to the
benefit of any third party, nor is it intended that any provision shall be for
the benefit of any third party.
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6.14 SAVINGS CLAUSE. If any provision of this Agreement, or the application of
such provision to any person or circumstance, shall be held invalid, the
remainder of this Agreement, or the application of such provision to persons or
circumstances other than those as to which it is held invalid, shall not be
affected thereby.
6.15 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties of the parties shall survive the Closing.
Dated: September 30, 1998
/s/ XXXXX XXXXXX
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Xxxxx Xxxxxx
/s/ XXXXXXX XXXXXX
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Xxxxxxx Xxxxxx
/s/ XXXXX XXXXXX
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Xxxxx Xxxxxx
/s/ XXXXXXX XXXXXXXX
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Xxxxxxx Xxxxxxxx
/s/ KOTHA SEKHARAM
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Kotha Sekharam
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