Exhibit 10.6
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT, dated as of April 23, 2001 (the
"Agreement") between Whole Living, Inc., a Nevada corporation with offices at
000 Xxxx 000 Xxxxx, Xxxxx 000, Xxxxxxxx Xxxx, Xxxx 00000 (the "Company") and
the persons and entities listed on the Schedule of Investors attached hereto
as Exhibit D (collectively referred to as the "Investors").
RECITALS
WHEREAS, the parties desire that, upon the terms and subject to the
conditions contained herein, the Company shall issue and sell to the
Investors, and the Investors shall purchase up to 7,500,000 Common Shares (the
"Shares").
WHEREAS, the investment will be made in reliance upon the provisions of
Section 4(2) and Regulation D of the United States Securities Act of 1933, as
amended, and the regulations promulgated thereunder, and/or upon such other
exemptions from the registration requirements of the Securities Act as may be
available with respect to any and all of the investments to be made hereunder.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein and other good and valuable consideration, the sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
Certain Definitions
-------------------
Section 1.1 "Capital Shares" shall mean the Common Stock and any
shares of any other class of Common Stock whether now or hereafter authorized,
having the right to participate in the distribution of earnings and assets of
the Company.
Section 1.2 "Capital Shares Equivalents" shall mean any securities,
rights, or obligations that are convertible into or exchangeable for, or
giving any right to, subscribe for any Capital Shares of the Company or any
warrants, options or other rights to subscribe for or purchase Capital Shares
or any such convertible or exchangeable securities.
Section 1.3 "Closing" shall mean one of the closings of the purchase
and sale of the Common Shares pursuant to Article II below.
Section 1.4 "Closing Date" shall mean the date of the closing of the
purchase and sale of the Common Shares pursuant to Article II below.
Section 1.5 "Common Stock" shall mean the Company's common stock,
$0.001 par value per share.
Section 1.6 "Damages" shall mean any loss, claim, damage, liability,
costs and expenses which shall include, but not be limited to, reasonable
attorney's fees, disbursements, costs and expenses of expert witnesses and
investigation.
Section 1.7 "Effective Date" shall mean the date on which the SEC
first declares effective the Registration Statement.
Section 1.8 "Escrow Agent" shall mean the law firm of Xxxxxx X.
Xxxxxxx, pursuant to the terms of the Escrow Agreement attached as Exhibit A.
Section 1.9 "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
Section 1.10 "Legend" shall have the meaning set forth in Article
VIII below.
Section 1.11 "Material Adverse Effect" shall mean any effect on the
business, operations, properties, earnings, prospects, Bid Price, trading
volume of the Common Stock, or financial condition of the Company that is
material and adverse to the Company and its subsidiaries and affiliates, taken
as a whole, and/or any condition, circumstance, or situation that would
prohibit or otherwise in any material respect interfere with the ability of
the Company to enter into and perform any of its obligations under this
Agreement, the Registration Rights Agreement and the Escrow Agreement.
Section 1.12 "NASD" shall mean the National Association of Securities
Dealers, Inc.
Section 1.13 "Outstanding" when used with reference to shares of
Common Stock, or Capital Shares (collectively the "Shares"), shall mean, at
any date as of which the number of such Shares is to be determined, all issued
and outstanding Shares, and shall include all such Shares issuable in respect
of outstanding scrip or any certificates representing fractional interests in
such Shares; provided, however, that Outstanding shall not mean any such
Shares then directly or indirectly owned or held by or for the account of the
Company.
Section 1.14 "Person" shall mean an individual, a corporation, a
partnership, an association, a limited liability company, a trust or other
entity or organization, including a government or political subdivision or an
agency or instrumentality thereof.
Section 1.15 "Principal Market" shall mean the OTC Bulletin Board,
Nasdaq National Market, the Nasdaq Small Cap Stock Market, the American Stock
Exchange, or the New York Stock Exchange, whichever is at the time the
principal trading exchange or market for the Common Stock.
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Section 1.16 "Registrable Securities" shall have the definition set
forth in the Registration Rights Agreement.
Section 1.17 "Registration Rights Agreement" shall mean the agreement
regarding the filing of the Registration Statement for the resale of the
Registrable Securities, entered into between the Company, and the Investors.
Section 1.18 "Registration Statement" shall mean a registration
statement on Form SB-2, for the registration of the resale by the Investors of
the Registrable Securities under the Securities Act annexed hereto as Exhibit
B.
Section 1.19 "Regulation D" shall have the meaning set forth in the
recitals of this Agreement.
Section 1.20 "SEC" shall mean the Securities and Exchange Commission.
Section 1.21 "Section 4(2)" shall have the meaning set forth in the
recitals of this Agreement.
Section 1.22 "Securities Act" shall have the meaning set forth in the
recitals of this Agreement.
ARTICLE II
Purchase and Sale of the Common Stock
-------------------------------------
Section 2.1 Closings. The Company will sell, and the Investors will
buy, on the Closing Date 7,500,000 Common Shares at a per unit price of $.34.
Section 2.2 Form of Payment. The Investors shall pay the Purchase
Price by delivering good funds in United States Dollars by wire transfer to
the Escrow Agent, against delivery of the original shares of Common Shares.
The parties have entered into an Escrow Agreement annexed hereto as Exhibit A.
Section 2.3 Wire Instructions. Wire instructions for the Escrow
Agent are as follows:
Xxxxxx X. Xxxxxxx
Xxxxx Fargo Bank
Sugar House Branch
0000 Xxxx 0000 Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Telephone: (000) 000-0000
ABA #xxxxxxxxx
Account #xxxx xxxxxx
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Section 2.4 Closings. The closings are as follows:
(i) Acceptance by the Investor of this Purchase Agreement
and due execution by all parties of this Agreement and the Exhibits annexed
hereto;
(ii) Delivery into escrow by the Company of the original
Initial Shares as more full set forth in the Escrow Agreement attached hereto;
(iii) Delivery into escrow by the Investors of the Purchase
Price as set forth in the Escrow Agreement annexed hereto;
(iv) All representations, covenants, and warranties of the
Company contained herein shall remain true and correct in all material
respects as of Closing Date;
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ARTICLE III
Representations and Warranties of the Investors
-----------------------------------------------
The Investor represents and warrants to the Company that:
Section 3.1 Intent. The Investor is entering into this Agreement
for its own account and has no present arrangement (whether or not legally
binding) at any time to sell the Common Stock to, or through any person or
entity; provided, however, that by making the representations herein, the
Investor does not agree to hold the Common Stock for any minimum or other
specific term and reserves the right to dispose of the Common Stock at any
time in accordance with federal and state securities laws applicable to such
disposition.
Section 3.2 Sophisticated Investors. The Investors are
sophisticated investors (as described in Rule 506(b)(2)(ii) of Regulation D)
and a accredited investor (as defined in Rule 501 of Regulation D), and have
such experience in business and financial matters that they are capable of
evaluating the merits and risks of an investment in the Common Shares. The
Investors acknowledge that an investment in the Common Stock is speculative
and involves a high degree of risk.
Section 3.3 Authority. This Agreement has been duly authorized and
validly executed and delivered by the Investors and is a valid and binding
agreement of the Investor enforceable against each of it in accordance with
its terms, subject to applicable bankruptcy, insolvency, or similar laws
relating to, or affecting generally the enforcement of, creditors' rights and
remedies or by other equitable principles of general application.
Section 3.4 Not an Affiliate. The Investors are not an officer,
director or "affiliate" (as that term is defined in Rule 405 of the Securities
Act) of the Company.
Section 3.5 Organization and Standing. The Investors are duly
organized, validly existing, and in good standing under the laws of the
countries and/or states of their incorporation or organization.
Section 3.6 Absence of Conflicts. The execution and delivery of
this Agreement and any other document or instrument executed in connection
herewith, and the consummation of the transactions contemplated thereby, and
compliance with the requirements thereof, will not violate any law, rule,
regulation, order, writ, judgment, injunction, decree or award binding on
Investors, or, to the Investors knowledge, (a) violate any provision of any
indenture, instrument or agreement to which the Investor is a party or is
subject, or by which the Investors or any of their assets is bound; (b)
conflict with or constitute a material default thereunder; (c) result in the
creation or imposition of any lien pursuant to the terms of any such
indenture, instrument or agreement, or constitute a breach of any fiduciary
duty owed by Investors to any third party; or (d) require the approval of any
third-party (which has not been obtained) pursuant to any material contract,
agreement,
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instrument, relationship or legal obligation to which the Investors are
subject or to which any of their assets, operations or management may be
subject.
Section 3.7 Disclosure; Access to Information. The Investors have
received all documents, records, books and other information pertaining to
Investors' investment in the Company that have been requested by Investors,
including the opportunity to ask questions and receive answers. The Investors
have reviewed or received copies of any such reports that have been requested
by it. The Investors represent that they have reviewed the Company Reports.
Section 3.8 Manner of Sale. At no time was the Investors presented
with or solicited by or through any leaflet, television advertisement or any
other form of general solicitation or advertising.
Section 3.9 Registration or Exemption Requirements. The Investors
further acknowledges and understands that the Securities may not be
transferred, resold or otherwise disposed of except in a transaction
registered under the Securities Act and any applicable state securities laws,
or unless an exemption from such registration is available. The Investors
understand that the certificate(s) evidencing the Common Shares, and Warrants
will be imprinted with a legend that prohibits the transfer of these
securities unless (i) they are registered or such registration is not
required, or (ii) if the transfer is pursuant to an exemption from
registration (with no limitations).
Section 3.10 No Legal, Tax or Investment Advice. The Investors
understand that nothing in this Agreement or any other materials presented to
the Investors in connection with the purchase and sale of the Units
constitutes legal, tax or investment advice. The Investors have relied on,
and have consulted with, such legal, tax and investment advisors as they, in
their sole discretion, have deemed necessary or appropriate in connection with
their purchase of the Units.
ARTICLE IV
Representations and Warranties of the Company
---------------------------------------------
The Company represents and warrants to the Investors that:
Section 4.1 Organization of the Company. The Company is a
corporation duly incorporated and existing in good standing under the laws of
the State of Nevada and has all requisite corporate authority to own its
properties and to carry on its business as now being conducted except as
described in the Company Documents. The Company is duly qualified to do
business as a foreign corporation and is in good standing in every
jurisdiction in which the nature of the business conducted or property owned
by it makes such qualification necessary, other than those in which the
failure so to qualify would not reasonably be expected to have a Material
Adverse Effect.
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Section 4.2 Authority. (i) The Company has the requisite corporate
power and authority to enter into and perform its obligations under this
Agreement, and all Exhibits annexed hereto, and to issue the Common Shares,
Warrants, and Warrant Shares, (ii) the execution, issuance and delivery of
this Agreement, and all Exhibits annexed hereto, by the Company and the
consummation by it of the transactions contemplated hereby have been duly
authorized by all necessary corporate action and no further consent or
authorization of the Company or its Board of Directors, and (iii) this
Agreement, and all Exhibits annexed hereto, have been duly executed and
delivered by the Company and constitute valid and binding obligations of the
Company enforceable against the Company in accordance with their terms, except
as such enforceability may be limited by applicable bankruptcy, insolvency, or
similar laws relating to, or affecting generally the enforcement of,
creditors' rights and remedies or by other equitable principles of general
application. Upon their issuance and delivery pursuant to this Agreement, the
Common Shares, Warrants and Warrant Shares, will be validly issued, fully paid
and nonassessable and will be free of any liens or encumbrances other than
those created hereunder or by the actions of the Investor; provided, however,
that the Common Shares, Warrants and Warrant Shares, are subject to
restrictions on transfer under state and/or federal securities laws. The
issuance and sale of the Common Shares, Warrants and Warrant Shares, under
will not give rise to any preemptive right or right of first refusal or right
of participation on behalf of any person.
Section 4.3 Capitalization. The authorized capital stock of the
Company consists of 50,000,000 shares of Common Stock, $0.001 par value per
share, of which approximately 20,357,230 shares are issued and outstanding.
All of the outstanding shares of Common Stock of the Company has been duly and
validly authorized and issued and are fully paid and nonassessable. No shares
of Common Stock are entitled to preemptive or similar rights. To the
knowledge of the Company, no Person or group of Persons beneficially owns (as
determined pursuant to Rule 13d-3 promulgated under the Exchange Act) or has
the right to acquire by agreement with or by obligation binding upon the
Company beneficial ownership of in excess of five percent of the Common Stock.
Section 4.4 Common Stock. The Common Stock has been registered
pursuant to Section 12(g) of the Exchange Act. The Common Stock is currently
listed or quoted on the OTC Bulletin Board under the symbol WLIV.
Section 4.5 Company Documents. The Company has delivered or made
available to the Investor true and complete copies of the Company Documents.
The Company has not provided to the Investor any information that, according
to applicable law, rule or regulation, should have been disclosed publicly
prior to the date hereof by the Company, but which has not been so disclosed.
None of the Company Documents contain any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading. The financial statements of the Company
included in the Company Documents comply as to form in all material respects
with applicable accounting requirements. Such financial statements have been
prepared in accordance with generally accepted accounting principles applied
on a consistent basis during the periods involved
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(except (i) as may be otherwise indicated in such financial statements or the
notes thereto or (ii) in the case of unaudited interim statements, to the
extent they may not include footnotes or may be condensed or summary
statements) and fairly present in all material respects the financial position
of the Company as of the dates thereof and the results of operations and cash
flows for the periods then ended.
Section 4.6 Valid Issuances. When issued and payment has been made
therefor, Common Shares, Warrants and Warrant Shares, sold to the Investors
will be duly and validly issued, fully paid, and nonassessable. Neither the
issuance of the Common Shares, Warrants and Warrant Shares to the Investors,
pursuant to, nor the Company's performance of its obligations under this
Agreement, and all Exhibits annexed hereto will (i) result in the creation or
imposition by the Company of any liens, charges, claims or other encumbrances
upon the securities issued to the Investors, or any of the assets of the
Company, or (ii) entitle the holders of Outstanding Capital Shares to
preemptive or other rights to subscribe to or acquire the Capital Shares or
other securities of the Company.
Section 4.7 No General Solicitation or Advertising in Regard to this
Transaction. Neither the Company nor any of its affiliates nor any distributor
or any person acting on its or their behalf (i) has conducted or will conduct
any general solicitation (as that term is used in Rule 502(c) of Regulation D)
or general advertising with respect to the Units, or (ii) made any offers or
sales of any security or solicited any offers to buy any security under any
circumstances that would require registration of the Units under the
Securities Act.
Section 4.8 Corporate Documents. The Company has furnished or made
available to each of the Investors true and correct copies of: (i) the
Company's Articles of Incorporation, as amended and in effect on the date
hereof; (ii) the Company's by-laws, as amended and in effect on the date
hereof (the "By-Laws"); (iii) Form 10 Registration Statement; and (iv) Form
10Q report for the March 31, 2001 period.
Section 4.9 No Conflicts. The execution, delivery and performance
of this Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby, including without limitation the issuance of
the Common Shares, Warrants and Warrant Shares, do not and will not (i) result
in a violation of the Company's Articles of Incorporation or By-Laws, or (ii)
conflict with, or constitute a material default (or an event that with notice
or lapse of time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, any
material agreement, indenture, instrument or any "lock-up" or similar
provision of any underwriting or similar agreement to which the Company is a
party, or (iii) result in a violation of any federal, state or local law,
rule, regulation, order, judgment or decree (including federal and state
securities laws and regulations) applicable to the Company or by which any
property or asset of the Company is bound or affected, nor is the Company
otherwise in violation of, conflict with or in default under any of the
foregoing as would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect. The business of the Company is not
being conducted in violation of any law, ordinance or regulation of any
governmental entity, except for possible violations that either singly or in
the aggregate would not reasonably be expected to have a Material Adverse
Effect. The Company is not
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required under federal, state or local law, rule or regulation to obtain any
consent, authorization or order of, or make any filing or registration with,
any court or governmental agency in order for it to execute, deliver or
perform any of its obligations under this Agreement (including all Exhibits
annexed hereto) or to issue and sell the Common Shares, Warrants and Warrant
Shares in accordance with the terms hereof; provided that, for purposes of the
representation made in this sentence, the Company is assuming and relying upon
the accuracy of the relevant representations and agreements of the Investors
herein.
Section 4.10 No Material Adverse Change. Since March 31, 2001, no
Material Adverse Effect has occurred or exists with respect to the Company,
except as publicly announced.
Section 4.11 No Undisclosed Liabilities. The Company has no
liabilities or obligations which are material, individually or in the
aggregate, that are not disclosed in the Company Documents or otherwise
publicly announced, other than those set forth in the Company's financial
statements or as incurred in the ordinary course of the Company's businesses
since January 1, 1999, and which, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect.
Section 4.12 No Undisclosed Events or Circumstances. Since March
31, 1999, no event or circumstance has occurred or exists with respect to the
Company or its businesses, properties, prospects, operations or financial
condition, that, under applicable law, rule or regulation, requires public
disclosure or announcement prior to the date hereof by the Company but which
has not been so publicly announced or disclosed in the Company Documents.
Section 4.13 No Integrated Offering. To the Company's knowledge,
neither the Company, nor any of its affiliates, nor any person acting on its
or their behalf has, directly or indirectly, made any offers or sales of any
security or solicited any offers to buy any security, other than pursuant to
this Agreement or pursuant to the Company's existing employee benefit plan,
under circumstances that would cause the offering of the Units pursuant to
this Agreement to be integrated with prior or future offerings by the Company
for purposes of the Securities Act or any applicable stockholder approval
provisions.
Section 4.14 Litigation and Other Proceedings. There are no
lawsuits or proceedings pending or to the knowledge of the Company threatened,
against the Company, nor has the Company received any written or oral notice
of any such action, suit, proceeding or investigation, which would reasonably
be expected to have a Material Adverse Effect. Except as set forth in the
Company Documents, no judgment, order, writ, injunction or decree or award has
been issued by or, so far as is known by the Company, requested of any court,
arbitrator or governmental agency which would be reasonably expected to result
in a Material Adverse Effect.
Section 4.15 Acknowledgment of Dilution. The Company is aware and
acknowledges that issuance of Common Shares, and/or Warrant Shares, may result
in dilution of the outstanding shares of Common Stock, which dilution may be
substantial under
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certain market conditions. The Company further acknowledges that its
obligation to issue the Common Shares, and Warrant Shares is unconditional and
absolute regardless of the effect of any such dilution.
Section 4.16 Employee Relations. The Company is not involved in any
labor dispute, nor, to the knowledge of the Company, is any such dispute
threatened which could reasonably be expected to have a Material Adverse
Effect. None of the Company's employees is a member of a union and the
Company believes that its relations with its employees are good.
Section 4.17 Environmental Laws. The Company is (i) in compliance
with any and all foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants and which
the Company know is applicable to them ("Environmental Laws"), (ii) has
received all permits, licenses or other approvals required under applicable
Environmental Laws to conduct its business, and (iii) is in compliance with
all terms and conditions of any such permit, license or approval.
Section 4.18 Insurance. The Company is insured by insurers of
recognized financial responsibility against such losses and risks and in such
amounts as management of the Company believes to be prudent and customary in
the businesses in which the Company is engaged. The Company has no notice to
believe that it will not be able to renew its existing insurance coverage as
and when such coverage expires, or obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost that would not
materially and adversely affect the condition, financial or otherwise, or the
earnings, business or operation, of the Company.
Section 4.19 Board Approval. The board of directors of the Company
has concluded, in its good faith business judgment, that the issuances of the
securities of the Company in connection with this Agreement are in the best
interests of the Company.
Section 4.20 Integration. The Company shall not and shall use its
best efforts to ensure that no affiliate shall sell, offer for sale or solicit
offers to buy or otherwise negotiate in respect of any security of the Company
that would be integrated with the offer or sale of the Units, in a manner that
would require the registration under the Securities Act of the issue, offer or
sale of the Units to the Investors. The Units are being offered and sold
pursuant to the terms hereunder, are not being offered and sold as part of a
previously commenced private placement of securities.
Section 4.21 Use of Proceeds. The Company represents that the net
proceeds from this offering will be used for working capital purposes, and not
for the repayment of any outstanding judgments against the Company (including
any affiliate or subsidiary) or any officer, director or employee of the
Company.
Section 4.22 Subsidiaries. Except as disclosed in the Company
Reports, the
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Company does not presently own or control, directly or indirectly, any
interest in any other corporation, partnership, association or other business
entity.
ARTICLE V
Covenants of the Investors
--------------------------
Section 5.1 4.99% Limitation. The number of shares of Common Stock
which may be acquired by any of the Investors pursuant to the terms of this
Agreement shall not exceed the number of such shares which, when aggregated
with all other shares of Common Stock then owned by any of the Investors,
would result in any of the Investors owning more than 4.99% of the then issued
and outstanding Common Stock.
ARTICLE VI
Covenants of the Company
------------------------
Section 6.1 Registration Rights. The Company shall cause the
Registration Rights Agreement to remain in full force and effect so long as
any Registrable Securities remain outstanding and the Company shall comply in
all material respects with the terms thereof.
Section 6.2 Reservation of Common Stock. As of the date hereof, the
Company has authorized and reserved and the Company shall continue to reserve
and keep available at all times, free of preemptive rights, shares of Common
Stock for the purpose of enabling the Company to satisfy any obligation to
issue the Common Shares, Warrants and Warrant Shares. The number of shares so
reserved shall be increased or decreased to reflect potential increases or
decreases in the Common Stock that the Company may thereafter be so obligated
to issue by reason of adjustments to the Warrants.
Section 6.3 Legends. The Common Shares, Warrants and Warrant Shares,
to be issued by the Company pursuant to this Agreement shall be free of
legends, except as set forth in Article VIII.
Section 6.4 Corporate Existence. The Company will take all steps
necessary to preserve and continue the corporate existence of the Company.
Section 6.5 Notice of Certain Events Affecting Registration. The
Company will immediately notify each of the Investors within five Business
Days after the occurrence of any of the following events in respect of a
registration statement or related prospectus in respect of an offering of
Registrable Securities: (i) receipt of any request for additional information
by the SEC or any other federal or state governmental authority during the
period of effectiveness of the Registration Statement for amendments or
supplements to the Registration Statement or related prospectus; (ii) the
issuance by the SEC or any other federal or state governmental authority of
any stop order suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for that purpose; (iii) receipt of any
notification with respect to the suspension of the qualification or exemption
from
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qualification of any of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; (iv) the happening of any event that makes any statement made in the
Registration Statement or related prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material respect
or that requires the making of any changes in the Registration Statement,
related prospectus or documents so that, in the case of the Registration
Statement, it will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading, and that in the case of the related
prospectus, it will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading (the Company shall not be required to notify
the Investors in this case in the event such notification would be deemed the
release of nonpublic information); and (v) the Company's reasonable
determination that a post-effective amendment to the Registration Statement
would be appropriate. The Company will, within five Business Days of when
filed with the SEC make available to the Investors any such supplement or
amendment to the related prospectus.
Section 6.6 Consolidation; Merger. The Company shall not, at any
time after the date hereof, effect any merger or consolidation of the Company
with or into, or a transfer of all or substantially all of the assets of the
Company to, another entity (a "Consolidation Event") unless the resulting
successor or acquiring entity (if not the Company) assumes by written
instrument the obligation to deliver to the Investors such shares of stock
and/or securities as the Investors are entitled to receive pursuant to this
Agreement.
Section 6.7 Issuance of Common Shares and Warrant Shares. The
issuance of the Common Shares and Warrant Shares shall be made in accordance
with the provisions and requirements of Section 4(2) of the Securities Act, or
Regulation D and any applicable state securities law.
Section 6.8 Exercise of Warrants. The Company will permit the
Investors to exercise their right to exercise the Warrants, by telecopying an
executed and completed Notice of Exercise (along with payment of the
applicable Exercise Price) to the Company as is set forth in the Warrant.
Section 6.9 Increase in Authorized Shares. At such time as the
Company would be, if a notice of exercise were to be delivered on such date,
precluded from honoring (i) the exercise in full of the Warrants, due to the
unavailability of a sufficient number of shares of authorized but unissued or
re-acquired Common Stock, the Board of Directors of the Company shall promptly
(and in any case within 60 calendar days from such date) hold a shareholders
meeting in which the shareholders would vote for authorization to amend the
Company's certificate of incorporation to increase the number of shares of
Common Stock which the Company is authorized to issue to at least a number of
shares equal to the sum of (i) all shares of Common Stock then outstanding,
(ii) the number of shares of Common Stock issuable on account of all
outstanding warrants, options and convertible securities (other than the
Warrants) and on account of all shares reserved under any stock option, stock
purchase, warrant or similar plan, and (iv) such number of Warrant Shares as
would then be issuable
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upon the exercise in full of the Warrants, as would be issuable on such date.
In connection therewith, the Board of Directors shall promptly (x) adopt
proper resolutions authorizing such increase, (y) recommend to and otherwise
use its best efforts to promptly and duly obtain shareholder approval to carry
out such resolutions and (z) within five Business Days of obtaining such
shareholder authorization, file an appropriate amendment to the Company's
certificate of incorporation to evidence such increase. In no way shall the
aforementioned be deemed a waiver of the Company's obligations contained in
Section 6.2 above.
Section 6.10 Notice of Breaches. Each of the Company on the one
hand, and the Investors on the other, shall give prompt written notice to the
other of any breach by it of any representation, covenant, warranty or other
agreement contained in this Agreement or any Exhibit annexed hereto, as well
as any events or occurrences arising after the date hereof, which would
reasonably be likely to cause any representation, covenant, or warranty or
other agreement of such party, as the case may be, contained in this Agreement
or any Exhibit annexed hereto, to be incorrect or breached as of such date.
However, no disclosure by either party pursuant to this Section shall be
deemed to cure any breach of any representation, warranty or other agreement
contained in this Agreement or any Exhibit annexed hereto. Notwithstanding
the generality of the foregoing, the Company shall promptly notify each
Investor of any notice or claim (written or oral) that it receives from any
lender of the Company to the effect that the consummation of the transactions
contemplated by this Agreement or any Exhibit annexed hereto, violates or
would violate any written agreement or understanding between such lender and
the Company, and the Company shall promptly furnish by facsimile to each
Investor a copy of any written statement in support of or relating to such
claim or notice.
ARTICLE VII
Due Diligence Review; Non-Disclosure of Non-Public Information
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Section 7.1 Due Diligence Review. The Company shall make available
for inspection and review by the Investors, advisors to and representatives of
the Investors (who may or may not be affiliated with the Investors), any
underwriter participating in any disposition of the Registrable Securities on
behalf of the Investors pursuant to the Registration Statement, any such
registration statement or amendment or supplement thereto or any blue sky,
NASD or other filing, all financial and other records, all Company Documents,
and all other corporate documents and properties of the Company as may be
reasonably necessary for the purpose of such review, and cause the Company's
officers, directors and employees to supply all such information reasonably
requested by any of the Investors or any such representative, advisor or
underwriter in connection with such Registration Statement (including, without
limitation, in response to all questions and other inquiries reasonably made
or submitted by any of them), prior to and from time to time after the filing
and effectiveness of the Registration Statement for the sole purpose of
enabling the Investors and such representatives, advisors and underwriters and
their respective accountants and attorneys to conduct initial and ongoing due
diligence with respect to the Company and the accuracy of the Registration
Statement.
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Section 7.2 Non-Disclosure of Non-Public Information
(a) The Company has not disclosed, and hereafter shall not
disclose non-public information to the Investors, advisors to, or
representatives of, the Investors unless prior to disclosure of such
information the Company identifies such information as being non-public
information and provides each Investor, and its advisors and representatives
with the opportunity to accept or refuse to accept such non-public information
for review. The Company may, as a condition to disclosing any non-public
information hereunder, require each of the Investors advisors and
representatives to enter into a confidentiality agreement in form reasonably
satisfactory to the Company and the Investors.
(b) Nothing herein shall require the Company to disclose
non-public information to any of the Investors or their advisors or
representatives, and the Company represents that it does not disseminate
non-public information to any investors who purchase stock in the Company in a
public offering, to money managers or to securities analysts, provided,
however, that notwithstanding anything herein to the contrary, the Company
will, as hereinabove provided, immediately notify the advisors and
representatives of the Investors and, if any, underwriters, of any event or
the existence of any circumstance (without any obligation to disclose the
specific event or circumstance) of which it becomes aware, constituting
non-public information (whether or not requested of the Company specifically
or generally during the course of due diligence by such persons or entities),
which, if not disclosed in the prospectus included in the Registration
Statement would cause such prospectus to include a material misstatement or to
omit a material fact required to be stated therein in order to make the
statements, therein, in light of the circumstances in which they were made,
not misleading. Nothing contained in this Section shall be construed to mean
that such persons or entities other than the Investors (without the written
consent of the Investors prior to disclosure of such information) may not
obtain non-public information in the course of conducting due diligence in
accordance with the terms of this Agreement and nothing herein shall prevent
any such persons or entities from notifying the Company of their opinion that
based on such due diligence by such persons or entities, that the Registration
Statement contains an untrue statement of a material fact or omits a material
fact required to be stated in the Registration Statement or necessary to make
the statements contained therein, in light of the circumstances in which they
were made, not misleading.
ARTICLE VIII
Legends
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Section 8.1 Legends. The Investors agree to the imprinting, so long
as is required by this Section, of the following legend (or such substantially
similar legend as is acceptable to the Investors and their counsel, the
parties agreeing that any unacceptable legended securities shall be replaced
promptly by and at the Company's cost) on the securities:
[FOR COMMON SHARES] NEITHER THESE SECURITIES NOR THE SECURITIES
INTO WHICH THESE SECURITIES ARE [EXERCISABLE] HAVE BEEN REGISTERED
WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES
COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION
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UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT
TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS.
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION
OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS.
Upon the execution and delivery hereof, the Company is issuing to the
transfer agent for its Common Stock (and to any substitute or replacement
transfer agent for its Common Stock upon the Company's appointment of any such
substitute or replacement transfer agent) instructions in substantially the
form of Exhibit C hereto. Such instructions shall be irrevocable by the
Company from and after the date hereof or from and after the issuance thereof
to any such substitute or replacement transfer agent, as the case may be,
except as otherwise expressly provided in the Registration Rights Agreement.
It is the intent and purpose of such instructions, as provided therein, to
require the transfer agent for the Common Stock from time to time upon
transfer of Registrable Securities by the Investors to issue certificates
evidencing such Registrable Securities free of the Legend during the following
periods and under the following circumstances and except as provided below,
without consultation by the transfer agent with the Company or its counsel and
without the need for any further advice or instruction or documentation to the
transfer agent by or from the Company or its counsel or the Investors:
(a) at any time upon any surrender of one or more certificates
evidencing Registrable Securities, that bear the aforementioned legend, to the
extent accompanied by a notice requesting the issuance of new certificates
free of such legend to replace those surrendered and containing
representations that (i) the Investor(s) is permitted to dispose of such
Registrable Securities, without limitation as to amount or manner of sale
pursuant to Rule 144(k) under the Securities Act or (ii) the Investor(s) has
sold, pledged or otherwise transferred or agreed to sell, pledge or otherwise
transfer such Registrable Securities, in a manner other than pursuant to an
effective registration statement, to a transferee who will upon such transfer
be entitled to freely tradeable securities. The Company shall have
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counsel provide any and all opinions necessary for the sale under Rule 144, as
permitted under applicable law.
Any of the notices referred to above in this Section may be sent by
facsimile to the Company's transfer agent.
Section 8.2 No Other Legend or Stock Transfer Restrictions. No
legend other than the one specified in this Article has been or shall be
placed on the share certificates representing the Common Stock, and no
instructions or "stop transfer orders," so called, "stock transfer
restrictions," or other restrictions have been or shall be given to the
Company's transfer agent with respect thereto other than as expressly set
forth in this Article.
Section 8.3 Investor's Compliance. Nothing in this Article shall
affect in any way any of the Investors obligations under any agreement to
comply with all applicable securities laws upon resale of the Common Stock.
ARTICLE IX
Choice of Law
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Section 9.1 Choice of Law; Venue; Jurisdiction. This Agreement will
be construed and enforced in accordance with and governed by the laws of the
State of Utah, except for matters arising under the Securities Act, without
reference to principles of conflicts of law. Each of the parties consents to
the exclusive jurisdiction of the United States District Court for the
District of Utah in connection with any dispute arising under this Agreement
and hereby waives, to the maximum extent permitted by law, any objection,
including any objection based on forum non conveniens, to the bringing of any
such proceeding in such jurisdictions. Each party hereby agrees that if
another party to this Agreement obtains a judgment against it in such a
proceeding, the party which obtained such judgment may enforce same by summary
judgment in the courts of any country having jurisdiction over the party
against whom such judgment was obtained, and each party hereby waives any
defenses available to it under local law and agrees to the enforcement of such
a judgment. Each party to this Agreement irrevocably consents to the service
of process in any such proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to such party at its address
set forth herein. Nothing herein shall affect the right of any party to serve
process in any other manner permitted by law. Each party waives its right to
a trial by jury.
ARTICLE X
Assignment; Entire Agreement, Amendment; Termination
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Section 10.1 Assignment. The Investor's interest in this Agreement
and its ownership of Common Stock and Warrants may be assigned or transferred
at any time, in whole or in part, to any other person or entity (including any
affiliate of the Investors) who agrees to, and truthfully can, make the
representations and warranties contained in Article III,
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and who agrees to be bound by the covenants of Article V. The provisions of
this Agreement shall inure to the benefit of, and be enforceable by, any
transferee of any of the shares of Common Stock and/or Warrants purchased or
acquired by the Investors hereunder with respect to the Common Stock held by
such person.
Section 10.2 Termination. This Agreement shall terminate upon the
earliest of (i) the date that all the Registrable Securities have been sold by
the Investors pursuant to the Registration Statement; (ii) the date the
Investors receive an opinion from counsel to the Company that all of the
Registrable Securities may be sold under the provisions of Rule 144, without
volume limitation; or (iii) three years after the Closing Date; provided,
however, that the provisions of Articles III, IV, V, VI, VII, VIII, IX, X, XI,
and XII herein, and the registration rights provisions for the Registrable
Securities held by the Investors set forth in this Agreement, and the
Registration Rights Agreement, shall survive the termination of this
Agreement.
ARTICLE XI
Notices
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Section 11.1 Notices. All notices, demands, requests, consents,
approvals, and other communications required or permitted hereunder shall be
in writing and, unless otherwise specified herein, shall be (i) personally
served, (ii) deposited in the mail, registered or certified, return receipt
requested, postage prepaid, (iii) delivered by reputable air courier service
with charges prepaid, or (iv) transmitted by hand delivery, telegram, or
facsimile, addressed as set forth below or to such other address as such party
shall have specified most recently by written notice. Any notice or other
communication required or permitted to be given hereunder shall be deemed
effective (a) upon hand delivery or delivery by facsimile, with accurate
confirmation generated by the transmitting facsimile machine, at the address
or number designated below (if delivered on a Business Day during normal
business hours where such notice is to be received), or the first Business Day
following such delivery (if delivered other than on a Business Day during
normal business hours where such notice is to be received), or (b) on the
second Business Day following the date of mailing by reputable courier
service, fully prepaid, addressed to such address, or upon actual receipt of
such mailing, whichever shall first occur. The addresses for such
communications shall be:
If to the Company:
Whole Living, Inc.
000 Xxxx 000 Xxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Investors:
TST Corporation
000 Xxxx 000 Xxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
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Pacific First National, Inc.
00000 Xxxxxxxx Xxxx., Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
State Management Associates, L.C.
000 Xxxx 0xx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
RB Mutual Ventures, Inc.
000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Buena Vista Consulting, Inc.
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
3GC, Inc.
0000 XxXxxxxx
Xxx Xxxxx, XX 00000
Either party hereto may from time to time change its address or facsimile
number for notices under this Section 11.1 by giving at least ten calendar
days' prior written notice of such changed address or facsimile number to the
other party hereto.
Section 11.2 Indemnification. The Company agrees to indemnify and
hold harmless each of the Investors and each officer, director of the
Investors or person, if any, who controls the Investors within the meaning of
the Securities Act against any losses, claims, damages or liabilities, joint
or several (which shall, for all purposes of this Agreement, include, but not
be limited to, all costs of defense and investigation and all attorneys'
fees), to which the Investors may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon the breach of any term of
this Agreement by the Company. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
Each Investor agrees that it will indemnify and hold harmless the
Company, and each officer, director of the Company or person, if any, who
controls the Company within the meaning of the Securities Act, against any
losses, claims, damages or liabilities (which shall, for all purposes of this
Agreement, include, but not be limited to, all costs of defense and
investigation and all attorneys' fees) to which the Company or any such
officer, director or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon the
breach of any term of this Agreement by the Investor. This indemnity
agreement will be in addition to any liability which the Investors or any
subsequent assignee may otherwise have.
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Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
this Section, notify the indemnifying party of the commencement thereof; but
the omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability which it may have to any indemnified
party otherwise than as to the particular item as to which indemnification is
then being sought solely pursuant to this Section. In case any such action is
brought against any indemnified party, and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate in, and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, assume the defense thereof, subject to
the provisions herein stated and after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation, unless the indemnifying party shall not pursue the
action to its final conclusion. The indemnified party shall have the right to
employ separate counsel in any such action and to participate in the defense
thereof, but the fees and expenses of such counsel shall not be at the expense
of the indemnifying party if the indemnifying party has assumed the defense of
the action with counsel reasonably satisfactory to the indemnified party;
provided that if the indemnified party is one of the Investors, the fees and
expenses of such counsel shall be at the expense of the indemnifying party if
(i) the employment of such counsel has been specifically authorized in writing
by the indemnifying party, or (ii) the named parties to any such action
(including any impleaded parties) include both the Investors and the
indemnifying party and the Investors shall have been advised by such counsel
that there may be one or more legal defenses available to the indemnifying
party in conflict with any legal defenses which may be available to the
Investors (in which case the indemnifying party shall not have the right to
assume the defense of such action on behalf of the Investors, it being
understood, however, that the indemnifying party shall, in connection with any
one such action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable only for the reasonable fees and expenses of one
separate firm of attorneys for the Investor(s), which firm shall be designated
in writing by the Investor(s)). No settlement of any action against an
indemnified party shall be made without the prior written consent of the
indemnified party, which consent shall not be unreasonably withheld.
Section 11.3 Contribution. In order to provide for just and equitable
contribution under the Securities Act in any case in which (i) the indemnified
party makes a claim for indemnification pursuant to Section 11.2 hereof but is
judicially determined (by the entry of a final judgment or decree by a court
of competent jurisdiction and the expiration of time to appeal or the denial
of the last right of appeal) that such indemnification may not be enforced in
such case notwithstanding the fact that the express provisions of Section 11.2
hereof provide for indemnification in such case, or (ii) contribution under
the Securities Act may be required on the part of any indemnified party, then
the Company and the applicable Investor shall contribute to the aggregate
losses, claims, damages or liabilities to which they may be subject (which
shall, for all purposes of this Agreement, include, but not be limited to, all
costs of defense and investigation and all attorneys' fees), in either such
case (after contribution from others) on the
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basis of relative fault as well as any other relevant equitable
considerations. The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in Section 11.2 shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contributions from any person who was not
guilty of such fraudulent misrepresentation.
ARTICLE XII
Miscellaneous
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Section 12.1 Counterparts; Facsimile; Amendments. This Agreement
may be executed in multiple counterparts, each of which may be executed by
less than all of the parties and shall be deemed to be an original instrument
which shall be enforceable against the parties actually executing such
counterparts and all of which together shall constitute one and the same
instrument. Except as otherwise stated herein, in lieu of the original
documents, a facsimile transmission or copy of the original documents shall be
as effective and enforceable as the original. This Agreement may be amended
only by a writing executed by the Company on the one hand, and the Investors,
on the other hand.
Section 12.2 Entire Agreement. This Agreement, the Exhibits or
attachments hereto, which include, but are not limited to, the Certificate of
Designation, the Escrow Agreement, and the Registration Rights Agreement, set
forth the entire agreement and understanding of the parties relating to the
subject matter hereof and supersedes all prior and contemporaneous agreements,
negotiations and understandings between the parties, both oral and written
relating to the subject matter hereof. The terms and conditions of all
Exhibits to this Agreement are incorporated herein by this reference and shall
constitute part of this Agreement as if fully set forth herein.
Section 12.3 Survival; Severability. The representations, warranties,
covenants and agreements of the parties hereto shall survive each Closing
hereunder. In the event that any provision of this Agreement becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without said
provision; provided that such severability shall be ineffective if it
materially changes the economic benefit of this Agreement to any party.
Section 12.4 Title and Subtitles. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
Section 12.5 Reporting Entity for the Common Stock. The reporting
entity relied upon for the determination of the trading price or trading
volume of the Common Stock on any given Trading Day for the purposes of this
Agreement and all Exhibits shall be
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Bloomberg, L.P. or any successor thereto. The written mutual consent of the
Investors and the Company shall be required to employ any other reporting
entity.
Section 12.6 Replacement of Certificates. Upon (i) receipt of
evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of a certificate representing the Initial Shares,
Secondary Shares, Reset Shares, or Additional Shares, and (ii) in the case of
any such loss, theft or destruction of such certificate, upon delivery of an
indemnity agreement or security reasonably satisfactory in form and amount to
the Company or (iii) in the case of any such mutilation, on surrender and
cancellation of such certificate, the Company at its expense will execute and
deliver, in lieu thereof, a new certificate of like tenor.
Section 12.7 Fees and Expenses. Each of the parties shall pay its
own fees and expenses (including the fees of any attorneys, accountants,
appraisers or others engaged by such party) in connection with this Agreement
and the transactions contemplated hereby, except that the Company shall pay
(i) on the Closing Date $10,000, in cash, out of the escrowed funds, to the
Escrow Agent for legal, administrative, and escrow fees.
Section 12.8 Publicity. The Company and the Investors shall consult
with each other in issuing any press releases or otherwise making public
statements with respect to the transactions contemplated hereby and no party
shall issue any such press release or otherwise make any such public statement
without the prior written consent of the other parties, which consent shall
not be unreasonably withheld or delayed, except that no prior consent shall be
required if such disclosure is required by law, in which such case the
disclosing party shall provide the other parties with prior notice of such
public statement. Notwithstanding the foregoing, the Company shall not
publicly disclose the names of the Investors without the prior written consent
of the Investors, except to the extent required by law or in response to a
written SEC request, in which case the Company shall provide the Investors
with prior written notice of such public disclosure.
Exhibits:
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Escrow Agreement Exhibit A
Registration Rights Agreement Exhibit B
Instructions to Transfer Agent Exhibit C
Schedule of Investors Exhibit D
[Remainder of page intentionally left blank]
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Unit Purchase
Agreement to be executed by the undersigned, thereunto duly authorized, as of
the date first set forth above.
WHOLE LIVING, INC.
/s/ R Xxxxxxxx
By _____________________________
Name: Xxxxxxxx
Title: Pres.
PACIFIC FIRST NATIONAL, INC.
/s/ signature illegible
By _____________________________
Its: illegible
TST CORPORATION
/s/ Xxxx X. Xxxxxx
By _____________________________
Its: President
RB MUTUAL VENTURES, INC.
/s/ signature illegible
By _____________________________
Its:
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STATE MANAGEMENT ASSOCIATES
/s/ X. Xxxxx
By ___________________________________
Its Manager
BUENA VISTA CONSULTING, INC.
/s/ signature illegible
By ____________________________________
Its Sec.
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3GC, INC.
/s/ signature illegible
By ____________________________________
Its partner\``
