Exhibit “A” PROMISSORY NOTE
EXHIBIT
10.1
S T O C K P
U R C H A S E A G R E E M E N T
THIS AGREEMENT is entered into
this 23rd day of April, 2009, by and between the Xxxx and Xxxx Xxxxx Family
Foundation, a Texas not for profit corporation, having its principal
address at 0000 Xxxx Xxxxx Xxxxx, Xxxx, Xxxxx 00000 (“Seller"), Xxxx X. Xxxxx (“Xxxxx”) and
Reliv International,
Inc., a Delaware corporation, having its principal place of business at
000 Xxxxxxxxxxxx Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxxxxxx, Xxxxxxxx (the
"Company”).
WHEREAS, Seller is the owner
of Two Million Sixty-Eight Thousand Nine Hundred Seventy Three (2,068,973)
shares of the common stock of the Company (such shares hereinafter referred to
as the "Shares"); and,
WHEREAS, Seller desires to
sell and Company desires to purchase and redeem all of the Shares on the terms
and conditions provided herein.
NOW, THEREFORE, in
consideration of the premises and of the terms, covenants and conditions
hereinafter contained, the parties hereto agree as follows:
1. Sale and
Purchase of Shares. Subject to and on the terms and conditions
hereof, in reliance on the representations and warranties herein and for the
consideration herein, Seller agrees to sell to the Company, and the Company
agrees to purchase and redeem from Seller, all of the Shares at the price and on
the terms provided herein.
2. Purchase
Price. The Shares to be purchased hereunder shall be
designated in three groups of Shares:
Group A
shall include 1,000,000 of the Shares the purchase price for which shall be
$2.90 per share.
Group B
shall include 700,000 of the Shares the purchase price for which shall be $3.00
per share.
Group C
shall include 368,973 of the Shares, the purchase price for which shall be $3.00
per share.
3. Payment. Subject
to and on the terms and conditions hereof, the Company shall, concurrently with
the deliveries described in Sections 4.1, and 4.2 below, transfer to an account
designated by Seller the sum of Five Million ($5,000,000) in cash in full and
final payment of the purchase price for all of the Group A Shares and all of the
Group B Shares, and, a promissory note (the “Note”), payable to the Seller, in
the original principal amount of One Million One Hundred Six Thousand Nine
Hundred Nineteen Dollars ($1,106,919), payable in a single balloon installment
of principal and interest, maturing 90 days from the date hereof, and bearing
interest before maturity at the rate of 6% per annum for payment of the purchase
price for all
of the Group C Shares. Such promissory note shall be in the form
attached hereto as Exhibit “A”.
4. Closing
and Transfer. The Closing of the transactions provided for
herein shall be held at the offices of the Company on April 27, 2009 (the
“Closing”), at which time:
4.1 Each
party shall deliver to the other a fully executed copy of this Agreement
concurrently with its execution;
4.2 Concurrently
with the delivery of the cash payment provided within Section 3 above and the
delivery of the originally executed Note, Seller shall deliver all of the Shares
to the Company by transfer of such Shares, through the Depository Trust Company,
from Seller’s brokerage account to the Company’s brokerage account; to effect
such transfer, Seller will deliver instructions to its securities broker holding
the Shares substantially in the form of the instruction letter attached to this
Agreement as Exhibit “B” and shall provide to the Company evidence of the
delivery of such instruction letter to its securities broker at the
Closing. Providing a copy of a written acknowledgement from Seller’s
broker acknowledging receipt of the instruction letter shall be sufficient for
purposes of providing evidence of delivery of the instruction
letter.
4.3 The
Company shall pay the cash (or cash equivalent) purchase price for the
applicable portions of the Shares as provided in Section 3 hereof and shall
provide evidence to Seller of the wire transfer of funds for such payment
provided for herein.
Effective
at the time of its receipt of the Shares, the Company shall be entitled to
transfer all of such Shares on the books of the Company to the name of the
Company. The
parties need not attend the Closing in person, and the delivery of all documents
and funds as described in Section 4 may be handled by wire transfer and
electronic mail or by facsimile transmission.
5. Representations
and Warranties of Seller. Seller represents and warrants to
the Company, as of the Closing as follows:
5.1 Seller
is the sole owner of, and has good and marketable title to, the Shares free and
clear of any and all contracts, options, commitments, agreements, liens, claims
or encumbrances whether or not of record.
5.2 Seller
has all necessary corporate power and authority to enter into this Agreement and
to perform its obligations hereunder, and this Agreement, and the transactions
provided for herein, have been duly and validly authorized by proper action of
the Board of Directors of Seller. This Agreement has been duly
executed and delivered by Seller and constitutes a valid and binding obligation
of Seller, enforceable against Seller in accordance with its terms.
5.3 The
sale and transfer of the Shares as provided herein will not violate, or
constitute a default under, any agreement, commitment, contract, loan, security
agreement,
pledge or other document or instrument to which Seller is a party or by which
Seller, or any of the Shares, are bound.
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5.4 (i)
Seller is fully informed concerning the business, condition, financial and
otherwise, assets, operations and prospects of the Company; (ii) Seller, or its
representatives, have read and have knowledge of all reports filed by the
Company with the Securities and Exchange Commission, including
all Reports on Form 10-K and Form 10-Q, (iii) neither the Company nor
any officer, director, agent or representative of the Company has made any
representation or warranty, or provided any information, to Sellers concerning
or relating to the business, condition, financial or otherwise, assets,
operations or prospects of the Company, except as is set forth in the public
filings of the Company, and (iv) the market value of the Company’s common stock
as traded on the Nasdaq Stock Market, or otherwise, may increase to an amount in
excess of the purchase price for the Shares, and nevertheless, Seller has
determined and desire to sell the Shares on the terms and at the price provided
herein.
The representations and warranties of
Seller herein shall survive the Closing.
6. Representations
and Warranties of the Company. The Company
represents and warrants to Seller as of the Closing, as follows:
6.1 The
Company has all necessary corporate power and authority to enter into this
Agreement and the Note and to perform its obligations hereunder and under the
Note, and the transactions provided for herein, have been duly and validly
authorized by proper action of the Board of Directors of this
Company. This Agreement and the Note 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 respective
terms and conditions;
6.2 The
Company has filed all Reports required by it to be filed with the Securities and
Exchange Commission, including all Reports on Form 10-K and Form
10-Q.
6.3 The
Company has filed, or shall timely file, and make any and all reports or
disclosures, required to be made or filed, concerning or related to this
Agreement and the transactions provided for herein.
6.4 The
Company's purchase of the Shares as provided herein will not violate, or
constitute a default under, any agreement, commitment, contract, loan, security
agreement, pledge or other document or instrument to which the Company is a
party or by which the Company is bound.
The
representations and warranties of the Company herein shall survive the
Closing.
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7. Covenant
of Seller and Xxxxx. Provided that the Company has made the
payments required under Section 3 and timely paid the Note in full in accordance
with its terms, Seller covenants and agrees that Seller or any affiliated person
of Seller, shall not, for a period of one year from the date hereof under engage
in any transaction in or concerning the common stock of the Company other than
the transactions contemplated herein. Furthermore, provided
that the Company has made the payments required under Section 3 and timely paid
the Note in full in accordance with its terms, Xxxxx covenants and agrees that
Xxxxx shall not, for a period of one year from the date hereof under engage in
any transaction in or concerning the common stock of the Company other than the
transactions contemplated herein.
8. Voting of
Shares. Seller shall vote all of the Shares in favor of all
directors nominated by management and each proposal recommended by management at
the annual meeting of shareholders of the Company to be held on May 28,
2009.
9. Specific
Enforcement and Rights upon Default. The
obligations of Seller hereunder are of a special, unique, unusual and
extraordinary character, thereby giving this Agreement peculiar value so that
the loss of the Shares or violation by Seller of this Agreement could not
reasonably or adequately be compensated in damages in an action at
law. Therefore, in addition to other remedies provided by law, the
Company shall have the right to compel specific performance hereof by Seller or
to obtain injunctive relief against violations hereof by Seller. In
like manner, Company is uniquely interested in the acquisition of the Shares and
the obligations of Company hereunder are of a special, unique, unusual and
extraordinary character, thereby giving this Agreement peculiar value so that
the loss of the conveyance of the Shares contemplated herein or violation by
Company of this Agreement could not reasonably or adequately be compensated in
damages in an action at law. Therefore, in addition to other remedies
provided by law, the Seller shall have the right to compel specific performance
hereof by Company or to obtain injunctive relief against violations hereof by
Company.
10. Further
Assurances. Seller and the Company shall take such other and
further actions, execute such other and further documents as shall be reasonably
necessary or appropriate to effect and consummate the sale contemplated
herein.
11. Notices. All notices or
other communications required or permitted to be given hereunder shall be in
writing and shall be delivered in person, delivered by prepaid courier, mailed
by prepaid certified mail (return receipt requested), or transmitted by
facsimile, to the parties as follows:
If to
Seller, to:
Xxxxx
Xxxxx, Vice President
Xxxx and
Xxxx Xxxxx Family Foundation
0000 Xxxx
Xxxxx Xxxxx
Xxxx,
Xxxxx 00000
Facsimile:
(000) 000-0000
If to
Company, to:
Xxxxxx X.
Xxxxxxxxxx
Chief
Executive Officer
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Reliv
International, Inc.
000
Xxxxxxxxxxxx Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxxxxxx,
Xxxxxxxx 00000
Facsimile:
(000) 000-0000
Any
notice that is (a) delivered in person or by prepaid courier shall be deemed
given, effective, and received upon delivery to (or refusal by) the addressee,
(b) mailed shall be deemed given, effective, and received upon the earlier of
delivery to (or refusal by) the addressee or the third business day after the
date of mailing, and (c) transmitted by facsimile shall be deemed given,
effective, and received upon receipt by the addressee as confirmed by the
facsimile transmission report.
12. Entire
Agreement. This Agreement constitutes the entire agreement of
the parties hereto with respect to the subject matter hereof and supersedes all
prior written or oral warranties, representations, inducements, understandings,
commitments, agreements or contracts. This Agreement may not be
modified except by a writing signed by all of the parties.
13. Binding
Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective, heirs, personal
representatives, successors and assigns.
14. Governing
Law; Jurisdiction. This
Agreement shall be governed by and construed and enforced in all respects in
accordance with the laws of the State of Missouri. This Agreement
shall be deemed to have been executed in the State of Missouri and the courts of
the State of Missouri, County of St. Louis, or the courts of the United States
of America for the Eastern District of Missouri, shall have exclusive
jurisdiction of any case, action or proceeding arising under or related to this
Agreement. Each of the parties hereto consents to the jurisdiction of
such courts with respect to any such case, action or proceeding and further
consents to service of process in any action filed by the other party by
certified mail at the address of the party set forth herein.
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement effective as of the day and year
first above written.
RELIV
INTERNATIONAL, INC.
By:
/s/ Xxxxxx X. Xxxxxxxxxx
Xxxxxx X.
Xxxxxxxxxx, CEO
ATTEST:
/s/
Xxxxxxx X. Xxxxxxx
Secretary
XXXX
AND XXXX XXXXX FAMILY FOUNDATION
By:
/s/ Xxxxx Xxxxx
Xxxxx
Xxxxx, Vice President
/s/ Xxxx
X. Xxxxx
Xxxx X.
Xxxxx
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Exhibit
“A”
PROMISSORY
NOTE
|
$1,106,919.00
|
April
__, 2009
|
FOR VALUE RECEIVED, the undersigned
Reliv International, Inc, with its address at 000 Xxxxxxxxxxxx Xxxxxxxxxx
Xxxxxxxxx, Xxxxxxxxxxxx, Xxxxxxxx 00000 (herein called “Reliv”), promises to pay
to the order of The Xxxx and Xxxx Xxxxx Family Foundation, a Texas non-profit
corporation, with its address at X.X. Xxx 0000, Xxxx, XxXxxxxx Xxxxxx, Xxxxx
00000 (herein called “Foundation”), the principal sum of ONE MILLION, ONE
HUNDRED SIX THOUSAND, NINE HUNDRED NINETEEN and No/100 Dollars ($1,106,919.00),
together with interest from the date of hereof, on the balance of the principal
remaining unpaid from time to time at a rate of interest equal to Six Percent
(6%) per annum. The entire principal balance, and all accrued and
unpaid interest, shall be finally due and payable upon the expiration of ninety
(90) days from the date hereof. All payments on this Note shall be
made by check of Reliv mailed to Foundation at its address provided herein or by
wire transfer to the account of Foundation. All payments on account
of the indebtedness evidenced by this Note shall be applied first to the
interest on the unpaid principal balance, and the remainder to
principal.
Reliv may prepay the obligations under
this Note at any time, in whole or in part, without penalty.
Any
amounts of principal or interest not paid when due shall bear interest at the
rate of Twelve Percent (12%) per annum, both before and after
judgment. Notwithstanding any contrary provision hereof, in no event
will interest exceed the maximum rate (if any) permitted by the applicable
law. If, for any reason, the holder or holders of this Note ever
receive in connection with the transaction of which this Note is a part an
amount which would result in interest being charged at a rate exceeding the
maximum rate (if any) permitted by applicable law, such amount or portion
thereof as would otherwise be excessive interest shall automatically be applied
toward reduction of the principal balance then outstanding under this Note and
not toward payment of interest.
A default exists under this note if (1)
(a) Reliv or (b) any other person liable on any part of this note or
who grants a lien or security interest on property as security for any part of
this note (an "Other Obligated Party") fails to timely pay or perform any
obligation or covenant in any written agreement between Foundation and Reliv or
any Other Obligated Party; (2) any warranty, covenant, or representation in this
note or in any other written agreement between Foundation and Reliv or any Other
Obligated Party is materially false when made; (3) a receiver is appointed for
Reliv, any Other Obligated Party, or any property on which a lien or security
interest is created as security (the "Collateral Security") for any part of this
note; (4) any Collateral Security is assigned for the benefit of creditors; (5)
a bankruptcy or insolvency proceeding is commenced by Reliv, a partnership of
which Reliv is a general partner, or an Other Obligated Party; (6) (a) a
bankruptcy or insolvency proceeding is commenced against Reliv, a partnership of
which Reliv is a general partner, or an Other Obligated Party and (b)
the proceeding continues without dismissal for sixty days, the party against
whom the proceeding is commenced admits the material allegations of the petition
against it, or an order for relief is entered; (7) any of the following parties
is dissolved, begins to wind up its affairs, is authorized to dissolve or wind
up its affairs by its governing body or persons, or any event occurs or
condition exists that permits the dissolution or winding up of the affairs of
any of the following parties: Reliv, a partnership of which Reliv is a general
partner, or an Other Obligated Party; and (8) any Collateral Security is
impaired by loss, theft, damage, levy and execution, issuance of an official
writ or order of seizure, or destruction, unless it is promptly replaced with
collateral security of like kind and quality or restored to its former
condition.
1
If Reliv
defaults in the payment of this note or in the performance of any obligation in
any instrument securing or collateral to this note or as provided above,
Foundation may declare the unpaid principal balance, earned interest, and any
other amounts owed on the note immediately due. Reliv and each
surety, endorser, and guarantor waive all demand for payment, presentation for
payment, notice of intention to accelerate maturity, notice of acceleration of
maturity, protest, and notice of protest, to the extent permitted by
law.
Reliv hereby waives notice of and
consent to any and all extensions of this Note that may be granted by the
Foundation hereof. Any such extension may be made at any time, and
from time to time, without giving notice to Reliv and without discharging any
liability of Reliv.
No failure on the part of Foundation to
exercise, and no delay in exercising, any right under this Note shall operate as
a waiver of any such right; nor shall any single or partial exercise of any
right preclude any other or future exercise thereof or the exercise of any other
right. Any waiver on the part of Foundation of any right under this
Note must be in writing and signed by an officer of Foundation. A
waiver of one event shall not be construed as continuing or as a bar to or
waiver of such right or remedy on a subsequent event.
This note, and/or interests herein, may
be sold, assigned, hypothecated, negotiated or transferred without notice to, or
the consent of Reliv.
This Note is payable within, and is to
be governed by, the laws of the State of Texas.
Reliv irrevocably consents and agrees
that any legal action, suit or proceeding arising out of this Note may be
brought in any state or federal court sitting in McLennan County, Texas, as
Foundation may elect, and, by execution and delivery of this Note, Reliv hereby
irrevocably accepts and submits to the jurisdiction of any such
court. Reliv irrevocably consents to service of any legal process by
registered or certified mail, postage prepaid, to Reliv at the address set forth
above.
RELIV
INTERNATIONAL, INC.
By:_______________________________
Xxxxxx X.
Xxxxxxxxxx
Chief
Executive Officer
Exhibit
“B”
Xxxx
& Xxxx Xxxxx Family Foundation
0000 Xxxx
Xxxxx Xxxxx
Xxxx,
Xxxxx 00000
Xxxxx 00,
0000
Xxxxxxxx
Securities
0000
Xxxxxxxx Xxxxx, Xxxxx 0
Xxxxx
Xxxxxxxx Xxxx
Xxxx,
Xxxxx 00000
Attention:
Xxxxx Xxxx
|
Re:
|
Transfer
of Shares of Reliv’ International,
Inc.
|
Ladies
and Gentlemen:
The
undersigned is the holder of 2,068,973 shares (the “Shares”) of common stock of
Reliv’ International, Inc., a Delaware corporation (“Reliv”), CUSIP Xx.
00000 X 000, XXX 00-0000000.
You are
hereby instructed to transfer and deliver the Shares, against payment, via
Depository Trust Company (“DTC”) to Wachovia Securities (“Broker”),] having DTC
Participant No. _____, on April 27, 2009. The Shares are being
transferred for registration unto Wachovia Seccurities Account
No. ___________ for the benefit of Reliv. In exchange for the
transfer of the Shares to such Account, the undersigned acknowledges receipt of
payment to the undersigned’s account of the sum of Five Million ($5,000,000.00)
Dollars and of the Promissory Note of Reliv payable to the undersigned in the
principal amount of $1,106,919.00.
XXXX
& XXXX XXXXX FAMILY FOUNDATION
By:
_______________________________
Xxxxx
Xxxxx, Vice President
