Closing Agreement
This Agreement ("Closing Agreement") dated July 13, 1999 by and between
IVC Industries, Inc. ("Seller"), a Delaware Corporation and Archon Vitamin
Corporation ("Buyer"), a New Jersey Corporation. This Closing Agreement is an
amendment to the Stock Purchase Agreement dated July 13, 1999 between Buyer and
Seller for the acquisition of Vitamin Specialties Corp. Any capitalized terms
not defined herein have the definitions given to them in the Stock Purchase
Agreement.
The parties, intending to be legally bound, agree as follows:
A. Acquisition Closed Subject to Conditions. Seller and Buyer agree
that the acquisition of Vitamin Specialties Corp. pursuant to the
Stock Purchase Agreement shall be treated as effective as of
midnight tonight, with Buyer assuming operations as of that time,
but that such acquisition is conditional and shall, to the extent
possible be unwound, if the following post Closing Conditions set
forth below are not satisfied. For purposes of the Closing of the
Stock Purchase Agreement the conditions set forth below are waived
by Buyer subject to the terms of this Closing Agreement.
1. Unwind. If the parties are unable to satisfy the Post-Closing
Conditions by the time indicated herein, or as otherwise extended by
the parties:
a. the Stock Purchase Agreement shall be null and void;
b. Seller shall return all payments received from Buyer, less
amounts representing Seller's Manufacturing Cost of inventory
sold by the Company since Closing;
c. Buyer shall return all assets of the Company acquired from
Seller free and clear of any Encumbrance placed on the
property after July 13, 1999 unrelated to the Business of the
Company less inventory sold during the ordinary course of
business;
d. Seller shall be entitled to all revenues of the Business from
the Closing Date until the date the Stock Purchase Agreement
is determined to be null and void;
e. Buyer shall be entitled to a reimbursement of all
contributions made to or on behalf of the Company since the
Closing Date;
f. Seller shall be responsible for all outstanding liabilities of
the Company and shall indemnify Buyer for any and all
guarantees Buyer has extended on behalf of the Company.
2. Post -Closing Conditions
a. Seller shall provide Buyer with written evidence of Seller's
right to
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terminate the liens of Chase Manhattan Bank and/or Xxxxxxx-Xx
Xxxxx with respect to the stock of Vitamin Specialties Corp.
and all of Vitamin Specialties Corp.'s assets by July 31,
1999. Promptly thereafter the Seller shall removed said liens
and take all necessary steps taken to terminate UCC filings in
connection therewith.
b. Seller will deliver to Buyer certificates representing the
Shares, duly endorsed (or accompanied by duly executed stock
powers) and free of any restrictive legends by August 15,
1999.
c. Seller will provide Buyer with a UCC-3 termination statement
with respect to Seller's lien on Buyer's assets by July 16,
1999.
d. The requirement of notice, consent, approval, release or other
authorization listed in section 5.2 of the Disclosure Letter,
with the exception of any consents, approvals or releases of
any landlord of any Retail Store, shall be complied with by
December 1, 1999.
e. Seller will have completed all necessary actions to cancel the
assignment of the Company trademarks to The Chase Manhattan
Bank and to transfer all rights in the trademarks to the
Company by December 1, 1999.
3. Waiver of Condition. Buyer agrees to waive the following conditions
to Closing contained in the Stock Purchase Agreement:
a. Delivery of the Stock Certificates and all of the assets of
the Company free and clear of all Encumbrances at Closing.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of
the date first written above.
Buyer: Archon Vitamin Corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
President
Seller: IVC Industries, Inc.
By: /s/ E. Xxxxxx Xxxxx
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E. Xxxxxx Xxxxx
Chief Executive Officer
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