STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement"), dated December 8, 2006, is by
and among Liberty Diversified Holdings, Inc., a Nevada corporation
("Buyer"), Xxxxx Xxxxxx ("Stockholder") and Better Bodies, Inc., a Nevada
corporation (the "Company"). The Company and the Stockholder are sometimes
collectively referred to as the "Stockholders."
RECITAL:
WHEREAS, the Company is in the business of health and fitness.
WHEREAS, Stockholder owns one hundred percent (100%) of the
outstanding capital stock of Company (the "Shares");
WHEREAS, Buyer desires to acquire the Company and make it a
wholly-owned subsidiary of Buyer; and
WHEREAS, Stockholder desires to sell, and Buyer desires to purchase
the Shares of the Company upon the terms and subject to the conditions set
forth in this Agreement.
NOW, THEREFORE, the parties agree as follows.
ARTICLE I
PURCHASE AND SALE OF STOCK
1.1. Sale of Common Stock. Stockholder hereby agrees to sell, convey,
transfer, assign and deliver to Buyer on the Closing Date (as defined in
Section 1.3), free and clear of all liens, encumbrances, purchase rights,
claims, pledges, mortgages, security interests, or other limitations or
restrictions whatsoever, 6,000,000 shares of duly and validly issued, fully
paid and nonassessable common stock of the Company, representing all of the
Shares.
(a) Stockholder further agrees that as part of this agreement,
the name Cellubike and any and all trade marks, marketing agreements
and/or licenses for Cellubike, and the website xxx.xxxxxxxxx.xxx and
the domain xxx.xxxxxxxxx.xxx is also included in Better Bodies, Inc,
1.2. Purchase Price. Subject to the terms and conditions of this
Agreement and in reliance upon the respective representations, warranties
and covenants of Buyer, Stockholder and the Company herein contained and in
full consideration of such sale, conveyance, transfer, assignment and
delivery of the Shares to Buyer, Buyer agrees to deliver to Stockholder
10,000,000 shares of Buyer's Series B Preferred stock (OTCBB LDHI).
1.3. Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") will take place at the offices of Liberty
Diversified Holdings, Inc. on December 8, 2006, or such other place and
time that the parties decide to meet on December 8, 2006. The date and
time of the Closing are herein referred to as the "Closing Date."
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF
STOCKHOLDER CONCERNING THE COMPANY
To induce Buyer to enter into this Agreement, Stockholder represents
and warrants to Buyer as follows:
2.1. Organization and Qualifications of the Company. The Company is a
corporation lawfully existing and in good standing under the laws of Nevada
with full power and authority to own or lease its properties and to conduct
its business in the manner and in the places where such properties are
owned or leased or such business is conducted by it. The Company is duly
qualified and in good standing as a foreign corporation in each state where
such qualification is required.
2.2. Capitalization of the Company. The authorized capital stock of
the Company consists of 100,000,000 shares of Common Stock of which
approximately 6,000,000 are issued and outstanding, fully paid and
non-assessable. There are no outstanding warrants, options, preemptive
rights, or other rights to purchase or acquire any shares of the Company's
capital stock. No securities of the Company are either directly or
indirectly convertible into or exchangeable for shares of capital stock of
the Company and there are no stock appreciation, phantom or similar rights
based on the book value or any other attribute of any capital stock of the
Company.
2.3. Subsidiaries. The Company does not have any subsidiaries or own
any securities issued by any other business organization or governmental
authority. The Company is not a partner or joint venturer in any
partnership or joint venture.
2.4. Title to Properties; Condition of Properties. The Company has
good and marketable title to all of the assets listed on the Latest Balance
Sheet (defined in Section 2.7) (other than inventory and other assets sold
since the date of the Latest Balance Sheet in the ordinary course of
business) and all other assets used in its business free and clear of any
encumbrance of any kind (collectively, "Encumbrances"), except liens
securing debt reflected on the Latest Balance Sheet. All machinery and
equipment owned by the Company is in good repair, has been well maintained
and is in good working order, normal wear and tear excepted. All assets
necessary for the continued operation of the Company's business as it is
currently being conducted and as it has been conducted since its inception
are owned by the Company or subject to valid leasehold interests.
2.5. Environmental Matters.
(a) Neither the Real Property nor any property previously owned
or operated by the Company has been used by the Company, or to the
best knowledge of each Stockholder, by any other party, for the
purpose of generating, storing, disposing or treating of any
hazardous, toxic or dangerous substance, waste or material ("Hazardous
Materials") as defined under or regulated by any federal, state or
local laws relating to pollution, protection of the environment or
worker health and safety (collectively, the "Environmental Laws")
except to the extent such generating, storing, disposing or treating
is not in violation of the Environmental Laws. There has been no
release or threatened release of Hazardous Materials on the Real
Property by the Company or, to the best knowledge of each Stockholder,
by any other party. Neither the Company nor any Stockholder has
received any notice of any asserted present or past failure by the
Company or by any other party to comply with any Environmental Laws or
any rule or regulation adopted pursuant to such laws in connection
with the Real Property.
(b) The Company has not transported Hazardous Materials, or
arranged for the transportation of Hazardous Materials to any
disposal, treatment or storage site which is the subject of federal,
state or local enforcement actions, or, to the best knowledge of each
Stockholder, other governmental or private investigations, or which
may lead to claims against the Company for clean up costs, remedial
work, or for damages.
2.6. Financial Statements. Stockholder has delivered or will deliver
to Buyer the following financial statements (collectively, the "Financial
Statements"): Unaudited Income Statement, Balance Sheet, and Statement of
Cash Flow of the Company from its inception through November 30, 2006.
All of the financial statements referred to in this Section 2.6 have
been prepared in accordance with generally accepted accounting principles
applied on a basis consistent with the Company's past practices, are
complete and correct and present fairly the financial condition of the
Company at the dates of said statements and the results of its operations
for the periods covered.
2.7. Payment of Taxes. The Company has filed all federal, state and
local income, excise or franchise tax returns, real estate and personal
property tax returns, sales and use tax returns and other tax returns
required to be filed by it and has paid all taxes owing by it except taxes
which have not yet accrued or otherwise become due and taxes for which
adequate provision has been made in the Latest Balance Sheet.
2.8. Absence of Undisclosed Liabilities. Except as set forth on
Schedule 2.8, the Company has no liabilities of any nature, whether
accrued, absolute or contingent, other than and to the extent reflected or
reserved against on the Latest Balance Sheet and liabilities incurred in
the ordinary course of business since the date of the Latest Balance Sheet.
There is no agreement, judgment, decree, order or, to the best knowledge of
Stockholder, any facts which materially affects, or may in the future (so
far as can now be reasonably foreseen) materially affect, the business,
properties, operations or condition of the Company which has not been
specifically disclosed in this Agreement.
2.9. Accounts Receivable. All of the accounts receivable of the
Company reflected on the Latest Balance Sheet or thereafter acquired are
valid and enforceable claims, fully collectible and subject to no setoff or
counterclaim in the recorded amounts, subject only to the allowance for
doubtful accounts maintained in accordance with the Company's past
practices.
2.10. Inventories. The inventory of the Company consists of items
of a quantity consistent with normal inventory levels of the Company and of
a quality and condition that is usable and saleable in the ordinary course
of business for the purposes for which intended. Such inventory is carried
on the Company's books of account in accordance with generally accepted
accounting principles consistently applied.
2.11. Conduct of Business in the Ordinary Course. The Company has
conducted its business since its inception only in the usual and ordinary
course consistent with past practice and since such date, the Company has
not (i) sold or transferred any of its assets, except inventory in the
ordinary course of business; (ii) changed any method of accounting or
accounting practice; (iii) increased or promised to increase the
compensation payable to any employee; (iv) made any direct or indirect
payments, dividends, distributions, sales or transfers of assets, other
than normal compensation, to any officer, director, shareholder or employee
of the Company or any of their affiliates; (v) changed its outstanding
shares of capital stock or repurchased, redeemed or acquired any
outstanding shares of capital stock or other ownership interest in
securities of the Company; or (vi) suffered any damage or casualty to its
assets.
2.12. Patents, Trade Names, Trademarks and Copyrights. The
Company owns and has the right to use, free and clear of any claims or
rights of others, all patents, trademarks, service marks, tradenames,
formulations, lab manuals, know-how, unpatented technology, trade secrets
and customer lists which it is using. A list of all registered trademarks
is attached as Schedule 2.12.
2.13. Contracts. Except for contracts, commitments, plans,
agreements and licenses described on Schedule 2.13 (the "Contracts"), the
Company is not a party to or subject to:
(a) any contract or agreement providing for the purchase of all
or substantially all of the Company's requirements of a particular
product from a supplier, or for periodic minimum purchases of a
particular product from a supplier;
(b) any contract or agreement not terminable on 30-days notice
without penalty to the Company;
(c) any contract with any sales agent or distributor;
(d) any contract containing covenants limiting the Company's
freedom to compete in any line of business or with any person or
entity;
(e) any license agreement (as licensor or licensee);
(f) any contract or agreement with any present or former
officer, director or shareholder of the Company or with any persons or
organizations controlled by or affiliated with any of them; or
(i) any other material contract not entered into in the ordinary
course of business.
All Contracts are in full force and effect and have not been amended,
extended or otherwise modified. Neither the Company nor, to the best
knowledge of Stockholder, any other party is in default under any of the
Contracts.
2.14. Litigation. There is no legal, administrative, arbitration
or other proceeding or governmental investigations pending or, to the best
knowledge of Stockholder, threatened against the Company.
2.15. Compliance with Laws. The Company has not violated, and is
not violating, any laws, regulations or permits which apply to the conduct
of its business or the Real Property, the failure with which to comply
would have a material adverse effect on the Company.
2.16. Permits. The Company holds all licenses, permits and
franchises which are required to permit it to conduct its business.
2.17. Transactions with Interested Persons. Stockholder does not
own directly or indirectly any material interest in, or serve as an officer
or director of, any customer, competitor or supplier of the Company, or any
organization which has a material contract or arrangement with the Company.
2.18. Warranty or Other Claims. There are no existing material
claims against the Company for goods or services which are defective or
fail to meet any product warranties or contract or industry standards. To
the best knowledge of each Stockholder, there are no threatened claims, or
any facts upon which a claim could be based, against the Company for goods
or services which are defective or fail to meet any product warranties or
contract or industry standards.
2.19. Employee Benefit Programs.
(a) Company has no current or planned employee benefit plans as
term idefined in Section 3(3) of the Employee Retirement Income
Security Act of 1974 ("ERISA"), as amended.
(b) Other than claims for benefits by employees, beneficiaries
or dependents arising in the normal course of the operation of such
plans, no claim is currently pending or, to the best knowledge of each
Stockholder, threatened against any such plan. There are no unfunded
obligations of the Company under any of its retirement, pension,
profit-sharing and deferred compensation plans and programs.
(c) the Company has filed all returns required under the Code
and ERISA with respect to its employee benefit plans, including
returns required by the Department of Labor.
(d) the Company has complied with all obligations under the
Consolidated Omnibus Budget Reconciliation Act ("COBRA").
2.20 Employee Matters.
(a) Company currently has no salaried employees;
(b) To the best knowledge of Stockholder, the Company has no
past employees who have suffered or are suffering from any illness or
disease caused directly or indirectly by any employment related
condition or by contact with any Hazardous Materials within the scope
of such employee's employment with the Company.
(c) No employees of the Company are currently on temporary or
permanent disability or other leave;
(d) there are no labor strikes or work stoppages threatened
against the Company; and
(e) there are no material pending or threatened grievance or
arbitration proceedings regarding labor matters, and the Company has
not experienced any work stoppage or other labor difficulty.
2.21. Stockholder Familiarity With Buyer. Stockholder represents
that he has been afforded an opportunity to review all information, books
and records, including accounting and financial records, of Buyer, as well
as the opportunity to ask questions of Buyer's accountants, and is making
an informed independent investment decision. Further, Stockholder
currently serves as Chief Financial Officer and Secretary of the Buyer and
is a member of its Board of Directors and hereby represents and
acknowledges that Stockholder is familiar with Liberty Diversified
Holdings, Inc., its operations, and current assets and liabilities.
Stockholder further represents that he has made his own independent
investigation of Liberty Diversified Holdings, Inc. and is not relying upon
any representations of share worth, potential profitability or similar
representations of the Buyer.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
Stockholder represents and warrants to Buyer as follows:
3.1. Ownership of the Shares. Stockholder is the recorded and
beneficial owner of the Shares set forth on Exhibit A attached hereto free
and clear of all liens, encumbrances, purchase rights, claims, pledges,
mortgages, security interests, or other limitations or restrictions.
Stockholder is not subject to, or a party to, any Articles of Incorporation
or Bylaws provisions, shareholder control agreements, buy-sell agreements,
contracts, instruments or other restrictions of any kind or character which
directly or indirectly restrict or otherwise limit in any manner the
voting, sale or other disposition of such Shares.
3.2. Authority of Stockholder. Stockholder has full and unrestricted
legal right, power and authority to enter into this Agreement, and to sell,
assign, transfer, and deliver to Buyer valid, lawful and marketable title
to such Shares to be sold, assigned and transferred by Stockholder pursuant
to this Agreement. Such Stockholder represents that neither the execution
and delivery of this Agreement or any other agreements contemplated hereby
nor the consummation of the transactions contemplated hereby will conflict
with or result in any violation of, or result in default or loss of a
benefit under, or permit the acceleration of any obligation under, any
judgment, order, decree, mortgage, contract, agreement, deed of trust,
indenture, lease or other instrument or any federal, state or local
statute, law, ordinance, rule, or regulation applicable to such Stockholder
or the Company or any of his or its assets or property or business.
3.3. Title. Upon delivery to Buyer of certificates representing all
of such Stockholder's Shares at Closing, Buyer will acquire lawful, valid
and marketable title to such Shares free and clear of all liens,
encumbrances, purchase rights, claims, pledges, mortgages, security
interests, or other limitations or restrictions whatsoever.
3.4. Prohibitions of Transactions. Stockholder is not presently a
party to or subject to or bound by any agreement or any judgment, order,
writ, injunction or decree of any court or any governmental body which
contains any provision which would or could operate to prevent the carrying
out of this Agreement or the transactions contemplated hereby. There are
no actions, suits, proceedings at law or in equity by any person or entity,
or any arbitration or administrative proceeding or other proceeding pending
or threatened, which could prevent consummation of the transactions
contemplated by this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to the Company and Stockholder as
follows:
4.1. Approval. Buyer has all necessary corporate power and is duly
authorized to purchase, acquire and accept the Shares as specified in this
Agreement. Buyer has taken all action required to authorize and approve
the execution and delivery of this Agreement and the consummation by Buyer
of the transactions contemplated hereby.
4.2. Prohibitions of Transactions. Buyer is not presently a party to
or subject to or bound by any agreement or any judgment, order, writ,
injunction or decree of any court or any governmental body which contains
any provision which would or could operate to prevent the carrying out of
this Agreement or the transactions contemplated hereby. There are no
actions, suits, proceedings at law or in equity by any person or entity, or
any arbitration or administrative proceeding or other proceeding pending or
threatened, which could prevent consummation of the transactions
contemplated by this Agreement.
4.3. Capitalization of Buyer. The authorized capital stock of Buyer
consists of 100,000,000 shares of Common Stock as of December 5, 2006 of
which approximately 54,000,000 are issued and outstanding, fully paid and
non-assessable. Buyer also has authorized Series A and Series B preferred
stock consisting of a total of 50,000,000 shares of which a total of
28,401,834 are issued and outstanding, fully aid and non-assessable, and
which are convertible to common shares on a one-to-one bases. There are no
outstanding warrants, options, preemptive rights, or other rights to
purchase or acquire any shares of Buyer's capital stock. No securities of
Buyer are either directly or indirectly convertible into or exchangeable
for shares of capital stock of Buyer, except for the conversion rights of
the existing classes of preferred stock, and there are no stock
appreciation, phantom or similar rights based on the book value or any
other attribute of any capital stock of Buyer.
4.4. Subsidiaries. Buyer currently has one inactive wholly owned
subsidiary Corporate Media Solutions, Inc. Buyer is not a partner or joint
venturer in any partnership or joint venture.
4.5. Title to Properties; Condition of Properties. Buyer has good and
marketable title to all of the assets listed on the Latest Balance Sheet
(defined in Section 4.8) (other than inventory and other assets sold since
the date of the Latest Balance Sheet in the ordinary course of business)
and all other assets used in its business free and clear of any encumbrance
of any kind (collectively, "Encumbrances"), except liens securing debt
reflected on the Latest Balance Sheet.
4.6. Real Property. Buyer does not own any real property.
4.7. Financial Statements. Buyer has delivered to Stockholder the
following financial statements (collectively, the "Financial Statements"):
(a) Audited Income Statement, Balance Sheet, and Statement of
Cash Flow of Buyer for the year ending December 31, 2005.
(b) Reviewed Balance Sheet of Buyer as of September 30, 2006
(the "Latest Balance Sheet"), and an Income Statement for the
six-month period then-ended prepared by Buyer.
All of the financial statements referred to in this Section 4.7 have
been prepared in accordance with generally accepted accounting principles
applied on a basis consistent with Buyer's past practices, are complete and
correct and present fairly the financial condition of Buyer at the dates of
said statements and the results of its operations for the periods covered.
4.8. Payment of Taxes. Buyer has filed or is in process of filing all
federal, state and local income, excise or franchise tax returns, real
estate and personal property tax returns, sales and use tax returns and
other tax returns required to be filed by it.
4.9. Absence of Undisclosed Liabilities. Buyer has no liabilities of
any nature, whether accrued, absolute or contingent, other than and to the
extent reflected or reserved against on the Latest Balance Sheet and
liabilities incurred in the ordinary course of business since the date of
the Latest Balance Sheet. There is no agreement, judgment, decree, order
or any facts which materially affects, or may in the future (so far as can
now be reasonably foreseen) materially affect, the business, properties,
operations or condition of Buyer which has not been specifically disclosed
in this Agreement.
4.10. Accounts Receivable. All of the accounts receivable of
Buyer reflected on the Latest Balance Sheet or thereafter acquired are
valid and enforceable claims, fully collectible and subject to no setoff or
counterclaim in the recorded amounts, subject only to the allowance for
doubtful accounts maintained in accordance with Buyer's past practices.
4.11. Inventories. The inventory of Buyer consists of items of a
quantity consistent with normal inventory levels of Buyer and of a quality
and condition that is usable and saleable in the ordinary course of
business for the purposes for which intended. Such inventory is carried on
Buyer's books of account in accordance with generally accepted accounting
principles consistently applied.
4.12. Conduct of Business in the Ordinary Course. Buyer has
conducted its business since December 31, 2005, only in the usual and
ordinary course consistent with past practice and since such date, Buyer
has not sold or transferred any of its assets, except MCR Printing and
Packaging Corp., Packaging City, Inc., and Innovative Packaging
Technologies, Inc. (IPTI), which were disclosed in an 8-K filing on
November 28, 2006; and of which Stockholder is fully aware.
4.13. Patents, Trade Names, Trademarks and Copyrights. Buyer owns
or has the right to use, free and clear of any claims or rights of others,
all patents, trademarks, service marks, trade names, formulations, lab
manuals, know-how, unpatented technology, trade secrets and customer lists
which it is using.
4.14. Contracts. Buyer is not a party to or subject to:
(a) any contract or agreement providing for the purchase of all
or substantially all of Buyer's requirements of a particular product
from a supplier, or for periodic minimum purchases of a particular
product from a supplier;
(b) any contract or agreement not terminable on 30-days notice
without penalty to Buyer;
(c) any contract containing covenants limiting Buyer's freedom
to compete in any line of business or with any person or entity;
All Contracts are in full force and effect and have not been amended,
extended or otherwise modified. Neither Buyer nor any other party is in
default under any of the Contracts.
4.15. Litigation. There is no legal, administrative, arbitration
or other proceeding or governmental investigations pending or threatened
against Buyer that have not been disclosed in the Company's 10K or 10Q
reports.
4.16. Regulatory Matters. Buyer has filed and is current with all
filings with the Securities and Exchange Commission ("SEC") and any other
applicable regulatory, listing or exchange agency. All filing with the SEC
or other applicable regulatory, listing or exchange agency are true and
correct and contain no material inaccuracies.
4.17 Transactions with Interested Persons. Buyer does not own
directly or indirectly any material interest in any customer, competitor or
supplier of Buyer, or any organization which has a material contract or
arrangement with Buyer.
4.18 Warranty or Other Claims. There are no existing material claims
against Buyer for goods or services which are defective or fail to meet any
product warranties or contract or industry standards. There are no
threatened claims, or any facts upon which a claim could be based, against
Buyer for goods or services which are defective or fail to meet any product
warranties or contract or industry standards.
4.19. Employee Benefit Programs.
(a) To the best knowledge of Stockholder, Buyer is in full
compliance with the Internal Revenue Code of 1986, as amended (the
"Code") and ERISA with respect to any and all employee benefit plans.
(b) Other than claims for benefits by employees, beneficiaries
or dependents arising in the normal course of the operation of such
plans, no claim is currently pending or threatened against any such
plan. There are no unfunded obligations of Buyer under any of its
retirement, pension, profit-sharing and deferred compensation plans
and programs.
(c) Buyer has filed all returns required under the Code and
ERISA with respect to its employee benefit plans, including returns
required by the Department of Labor.
(d) Buyer has complied with all obligations under the
Consolidated Omnibus Budget Reconciliation Act ("COBRA").
4.20. Employee Matters.
(a) Buyer is not a party to any collective bargaining agreement
and no labor union or group is attempting to organize or represent any
employees of Buyer;
(b) Buyer is in substantial compliance with applicable federal,
state and local laws respecting terms and conditions of employment,
occupational safety and health and wages and hours;
(c) None of the employees of Buyer has suffered or is suffering
from any illness or disease caused directly or indirectly by any
employment related condition or by contact with any Hazardous
Materials within the scope of such employee's employment with Buyer.
(d) No employees of Buyer are currently on temporary or
permanent disability or other leave;
(e) there are no labor strikes or work stoppages threatened
against Buyer; and
(f) there are no material pending or threatened grievance or
arbitration proceedings regarding labor matters, and Buyer has not
experienced any work stoppage or other labor difficulty.
ARTICLE V
CLOSING DOCUMENTS
5.1 Deliveries of Stockholder. Stockholder shall deliver to Buyer
within 20 days all of the following, executed as appropriate:
(a) a Certificate executed by the Secretary of the Company
certifying as to (i) an attached copy of the Company's Articles of
Incorporation in effect as of the date hereof, (ii) an attached copy
of the Company's Bylaws in effect as of the date hereof, and (iii) a
Certificate of Good Standing of the Company from the Nevada Secretary
of State, dated no more than ten (10) days prior to the Closing Date;
(b) the stock certificate(s) representing all of the Shares,
duly endorsed for transfer or accompanied by an executed stock power.
5.2 Deliveries of Buyer. Buyer shall deliver to Stockholder on the
Closing Date the Preferred Shares in accordance with Section 1.2 hereof
within 20 days of the Closing Date.
ARTICLE VI
COVENANTS
6.1. General Release. On the Closing Date, Stockholder releases the
Company and its directors, officers, shareholders, agents and employees and
discharges them from any and all obligations and claims which have arisen
or might arise out of facts or actions existing or taken on or prior to the
Closing Date, except obligations or claims which may be made under this
Agreement. In the event that Buyer is entitled to any claim for
indemnification under this Agreement, Stockholder agrees that he shall not
have the right to seek indemnity or contribution with respect to any such
claim from, or have any similar right with respect to, the Company, Buyer
or their respective affiliates whether by contract, agreement, bylaw,
corporate law statute, common law or otherwise.
6.2 Confidential Information. Each party to this Agreement
recognizes that the other parties' business interests require the fullest
practical protection and confidential treatment of all information not
generally known within the relevant trade group or by the public,
including, without limitation, all documents, writings, memoranda, business
plans, illustrations, designs, plans, know-how, technology, financial
information, personnel data, processes, formulas, programs, inventions,
computer software, reports, sources of supply, customer lists, supplier
lists, pricing policies, operational methods, marketing plans or
strategies, product development techniques, business acquisition plans,
methods of manufacture, trade secrets and all other valuable or unique
information and techniques acquired, developed or used by the Company
relating to its business, operations, employees or customers (hereinafter
collectively termed "Protected Information"). Each party to this Agreement
expressly acknowledges and agrees that Protected Information constitutes
trade secrets and confidential and proprietary business information of
Buyer and the Company. Protected Information shall not include information
which is or becomes part of the public domain through no breach of this
Agreement by any party. Each party to this Agreement acknowledges that
Protected Information is essential to the success of business, and it is
the policy of Buyer and the Company to maintain as secret and confidential
Protected Information. Accordingly, each party to this Agreement agrees to
hold such Protected Information in a fiduciary capacity, to keep secret and
to treat confidentially and not to, and not to permit any other entity or
person to, directly or indirectly, appropriate, divulge, disclose or
otherwise disseminate to any other entity or person nor use in any manner
for any parties' or any other entity's or person's purposes or benefit any
Protected Information, and not to use or aid others in using any such
Protected Information except to the extent that disclosure is required by
law; provided, however, that the parties shall provide Buyer and the
Company with notice as far in advance of any required disclosure as is
practicable in order for Buyer and the Company to obtain an order or other
assurance that any information required to be disclosed will be treated as
Protected Information and all parties shall use all reasonable efforts to
cooperate with Buyer and the Company in connection therewith and in
furtherance thereof. This obligation of non disclosure of information
shall continue to exist for so long as such information remains Protected
Information.
6.3 Scope. If, at the time of enforcement of Section 6.2, a court of
competent jurisdiction shall hold that the duration, scope or area
restrictions stated herein are unreasonable under circumstances then
existing, the parties agree that the maximum duration, scope or area
reasonable under such circumstances shall be substituted for the stated
duration, scope or area.
6.4 Remedies. Each party to this Agreement agrees that if he or it
shall commit or threaten to commit a breach of any of the covenants and
agreements contained in this Article VI, then Buyer or the Company shall
have the right to seek and obtain all appropriate injunctive and other
equitable remedies therefor, in addition to any other rights and remedies
that may be available at law, it being acknowledged and agreed that any
such breach would cause irreparable injury to Buyer and the Company and
that money damages would not provide an adequate remedy therefor. If any
party to this Agreement violates any of the terms of this Article VI, the
running of the periods of limitation referred to in this Agreement shall be
tolled from the date that Buyer or the Company gives to the violating party
notice of such violation until such violation shall cease and shall begin
to run again only when the violating party is in compliance with the terms
hereof, whether voluntarily or pursuant to an order of a court.
ARTICLE VII
INDEMNIFICATION
7.1 Indemnification. Shareholder and Company shall indemnify and
hold Buyer harmless from and against all claims, liabilities, losses and
damages, including, but not limited to, litigation costs, expenses,
reasonable attorney fees and liabilities relating thereto asserted by any
legal entity against Buyer and/or Shareholder and Company based upon any
and all claims, including claims of infringement (or similar legal theory)
of any U.S. or foreign patent, trade secret, trademark, copyright or other
intellectual property interest resulting from or allegedly related to the
manufacture, sale, operation or use of products, documents or materials
produced by Company. Shareholder and Company shall notify Buyer promptly
of any matter in respect of which the foregoing indemnity may apply and of
which Shareholder and Company has knowledge. Shareholder and Company shall
defend such claims at its own expense and pay the costs and damages and
attorney fees awarded in any such action or claim. Shareholder and Company
shall have the right to control the defense and settlement of all such
actions or claims. Buyer shall cooperate with Shareholder and Company in
connection with such settlement or defense.
ARTICLE VIII
MISCELLANEOUS
8.1. Survival of Representations and Warranties. The representations,
warranties, covenants and agreements set forth in this Agreement or in any
writing delivered to Buyer, the Company or Stockholder in connection with
this Agreement will survive the Closing Date and the consummation of the
transactions contemplated hereby.
8.2. Governing Law. This Agreement shall be construed and enforced in
accordance with the internal laws (and not the law of conflicts) of the
State of California.
8.3. Entire Agreement. This Agreement, including the other documents
referred to herein which form a part hereof, contains the entire
understanding of the parties hereto with respect to the subject matter
contained herein. There are no restrictions, promises, warranties,
covenants, or undertakings, other than those expressly provided for herein.
This Agreement supersedes all prior agreements and undertakings between the
parties with respect to such subject matter. No waiver and no modification
or amendment of any provision of this Agreement shall be effective unless
specifically made in writing and duly signed by the party to be bound
thereby.
8.4. Severability of Invalid Provision. If any one or more covenants
or agreements provided in this Agreement should be contrary to law, then
such covenant or covenants, agreement or agreements shall be null and void
and shall in no way affect the validity of the other provisions of this
Agreement.
8.5. Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement.
8.6. Section Headings. Section headings contained in this Agreement
are inserted only as a matter of convenience and in no way define, limit,
extend or describe the scope of this Agreement or the intent of any of the
provisions hereof.
8.7. Counterparts. This Agreement may be executed in one or more
counterparts, and shall become effective when one or more counterparts have
been signed by each of the parties.
8.8. Waiver. Waiver by any party hereunder of any breach of or
failure to comply with any provision of this Agreement by the other party
shall not be construed as, or constitute a continuing waiver of, or a
waiver of any other breach of, or failure to comply with, any other
provision of this Agreement.
8.9. Non-exclusivity. The rights, remedies, powers and privileges
provided in this Agreement are cumulative and not exclusive and shall be in
addition to any and all other rights, remedies, powers and privileges
granted by law, rule, regulation or instrument.
8.10 Notices. All notices, requests, consents and other
communications required or permitted hereunder must be in writing and must
be personally delivered, mailed first-class postage prepaid, registered or
certified mail, or delivered by a nationally recognized overnight courier:
If to the Stockholder:
Xxxxx Xxxxxx
00 Xxxxxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
(000) 000-0000
If to the Company
Better Bodies, Inc.
00 Xxxxxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
(000) 000-0000
Attn: Xxxxx Xxxxxx
If to the Buyer, at:
Liberty Diversified Holdings, Inc.
0 Xxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxx Xxxxxxxx
(000) 000-0000
with a copy to:
Xxxxxxxxxx & Xxxxx
Xxxxxxx Plaza
00000 Xxxxxxxx Xxxx. Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx
or to such other address as the Stockholder or the Buyer may specify to the
other by written notice, and such notices and other communications will be
treated as being effective or having been given when delivered, if
personally delivered, or when received, if sent by mail.
This agreement may have amendments after review by legal counsel of
both parties and if they are mutually agreed upon by both parties.
IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto on the day and year first above written.
BUYER:
LIBERTY DIVERSIFIED HOLDINGS, INC. STOCKHOLDER:
By:____________________________ By: _______________________________
Its: Chief Executive Officer Xxxxx Xxxxxx
BETTER BODIES, INC.
By:____________________________ By: _______________________________
Its: President Its: CEO
ATTACHMENTS:
Exhibit A Certificate of Ownership of Shares
Schedule 2.8 Statement of Liabilities
Schedule 2.12 List of Registered Trademarks
Schedule 2.13 - Contracts
