MEMBER INTEREST PURCHASE AGREEMENT
This Member Interest Purchase Agreement (the "Agreement") is made and
entered into by and between Whole Living, Inc., a Nevada corporation (the
"Buyer" or the "Company") and Xxx Xxxxxxxx, Xxxxxx Xxxxx, Xxxxxx Xxxxx and
Xxxxx Xxxx (collectively "Sellers"), individually "Xxxxxxxx," "Xxxxx," "Xxxxx"
and "Xxxx").
RECITALS
A. Sellers own member interests or Units in a Utah limited liability
company known as Forever Green International, LLC ("Forever Green").
X. Xxxxxxx desire to sell, and the Buyer desires to purchase, a portion
of the member interests or Units in Forever Green owned by the Sellers.
AGREEMENT
In exchange for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Purchase and Sale. Sellers agree to sell and the Buyer agrees to
buy a portion of the Sellers' member interests or units in Forever Green
International, LLC ("Units") constituting twenty three percent (23%) of the
total Units issued and outstanding. Said percentage is represented by two
million three hundred thousand (2,300,000) Units. The Buyer shall issue to
the Sellers a total of nineteen million (19,000,000) shares of the restricted
common stock of the Buyer in payment for the Sellers' units ("Stock"). Such
shares of the Buyer shall equal approximately nineteen percent (19%) of the
then issued and outstanding stock of the Buyer on the date of closing. The
Buyer agrees to issue the shares to the Sellers and the Sellers agree to sell,
assign and transfer the Units as follows:
x. Xxxxxxxx shall sell 2,000,000 Units for 16,000,000 shares of
Stock.
x. Xxxxx shall sell 100,000 Units for 1,000,000 shares of Stock.
x. Xxxxx shall sell 100,000 Units for 1,000,000 shares of Stock
x. Xxxx shall sell 100,000 Units for 1,000,000 shares of Stock
The purchase and sale of Units for Stock shall take place at the Closing
set forth herein.
2. Sellers' Representations and Warranties. Sellers represent and
warrant the following, which representations and warranties shall be true and
accurate as the date of this Agreement as of the Closing.
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a. Sellers have received all disclosures they deem reasonably
necessary to make an informed decision as to the sale of the Purchased Units.
b. The Purchase Price constitutes the entire purchase price for
the sale of the Units notwithstanding the fact that the actual value of the
Units may be higher than the Purchase Price and the value of the Units may
increase at some time in the future.
x. Xxxxxxx have the full power and authority to execute and
deliver this Agreement, to perform their obligations under this Agreement, and
to consummate the transactions contemplated by this Agreement. This Agreement
constitutes the valid and legally binding obligations of Sellers, enforceable
in accordance with its terms except to the extent that the same may be limited
by laws concerning insolvency, bankruptcy, or similar laws, or equitable
principles affecting the enforcement of creditor's rights generally, and, to
the knowledge of Sellers, no facts exist that would cause such laws to have
the effect of rendering this Agreement unenforceable. To the knowledge of
Sellers, Sellers do not need to give any notice to, make any filing with, or
obtain any authorization, consent, or approval of any United States or other
governmental agency in order to consummate the transactions contemplated by
this Agreement; provided, however, that Sellers have made no review of any
federal or state securities laws, and notwithstanding any provision of this
Agreement to the contrary, makes no representation or warranty as to whether
the transactions contemplated by this Agreement comply in any respect with any
of such laws.
d. The execution, delivery and performance by Sellers: (i) do not
contravene, or constitute a default under, any provision of applicable law or
regulation of which Sellers are aware or of any agreement, judgment,
injunction, order, decree or other instrument binding upon Sellers, and (ii)
do not conflict with, result in a breach of, constitute a default under,
result in the acceleration of, create in any party the right to accelerate,
terminate, modify, or cancel, or require any notice under, any agreement,
contract, lease, license, instrument, or other arrangement, in each case to
which Sellers are party or by which Sellers are bound or to which Sellers'
assets are subject.
x. Xxxxxxx are the sole owners and holders of the Units, free and
clear of any liens, encumbrances or other restrictions, except under
applicable securities laws and under the Operating Agreement. Sellers are not
party to any option, warrant, purchase right, or other contract or commitment
that requires Sellers to sell, transfer, or otherwise dispose of any of the
Units, other than this Agreement.
x. Xxxxxxx have not engaged any broker or taken any action that
could result in any liability or obligation to pay any fees or commissions to
any broker, finder or agent with respect to the transactions contemplated by
this Agreement for which Sellers or the Buyer could become liable or
obligated.
x. Xxxxxxx have not made any assignments for the benefit of
creditors, filed any petition in bankruptcy, been adjudicated insolvent or
bankrupt, petitioned or applied to any
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tribunal for any receiver, conservator or trustee of any of his property or
assets, or commenced any proceeding under any reorganization arrangement,
readjustment of debt, conservation, dissolution or liquidation law or statute
of any jurisdiction. No such action or proceeding has been commenced or
threatened against Sellers by any creditor, claimant, governmental agency or
other person.
3. The Company's Representations and Warranties. The Company
represents and warrants the following, which representations and warranties
shall be true and accurate as of the date of this Agreement and as of the
Closing:
a. The Company has the full power and authority to execute and
deliver this Agreement, to perform its obligations under this Agreement, and
to consummate the transactions contemplated by this Agreement. This Agreement
constitutes the valid and legally binding obligations of the Company,
enforceable in accordance with its terms except to the extent that the same
may be limited by laws concerning insolvency, bankruptcy, or similar laws, or
equitable principles affecting the enforcement of creditor's rights generally,
and no facts exist that would cause such laws to have the effect of rendering
this Agreement unenforceable. The Company does not need to give any notice
to, make any filing with, or obtain any authorization, consent, or approval of
any United States or other governmental agency in order to consummate the
transactions contemplated by this Agreement.
b. The Shares issued by the Company to the Sellers shall be an
original issuance of shares by the Company which issuance shall at or before
the date of Closing have been duly authorized by the Board of Directors of the
Company and such shares shall be issued to the Sellers free and clear of any
claims, lien or encumbrances of any type or nature and shall be fully
authorized and duly issued common stock of the Company.
c. The execution, delivery and performance by the Company: (i) do
not contravene, or constitute a default under, any provision of applicable law
or regulation or of any organizational document of the Company or of any
agreement, judgment, injunction, order, decree or other instrument binding
upon the Company; or (ii) conflict with, result in a breach of, constitute a
default under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, instrument, or other arrangement to which
the Company is party or by which the Company is bound or to which the
Company's assets are subject.
d. The Company has not engaged any broker or taken any action
which could result in any liability or obligation to pay any fees or
commissions to any broker, finder or agent with respect to the transactions
contemplated by this Agreement for which Seller or the Company could become
liable or obligated.
e. The Company has not made any assignment for the benefit of
creditors, filed any petition in bankruptcy, been adjudicated insolvent or
bankrupt, petitioned or applied to any tribunal for any receiver, conservator
or trustee of any of its property or assets, or
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commenced any proceeding under any reorganization arrangement, readjustment of
debt, conservation, dissolution or liquidation law or statute of any
jurisdiction. No such action or proceeding has been commenced or threatened
against the Company by any creditor, claimant, governmental agency or other
person.
4. Conditions Precedent to Closing.
a. The obligation of the Company to perform its obligations
hereunder and to consummate the transactions contemplated hereby is subject to
satisfaction of the following conditions:
i. The representations and warranties of Seller set forth
in Section 2 of this Agreement shall be true and correct in all material
respects at and as of the Closing.
ii. Seller shall have performed all of its covenants to be
performed prior to or at the Closing under this Agreement in all material
respects.
iii. No final, nonappealable injunction or other order by
any United States court having proper jurisdiction that prevents the
consummation of the transactions contemplated by this Agreement shall have
been issued and remain in effect.
iv. Seller shall have executed and delivered all documents
it was required to execute and deliver to the Corporation at the closing of
the transactions contemplated by this Agreement.
b. The obligation of Sellers to consummate the transactions to be
performed by Sellers in connection with the Closing is subject to satisfaction
of the following conditions:
i. The representations and warranties of the Company set
forth in Section 3 of this Agreement shall be true and correct in all material
respects at and as of the Closing.
ii. The Company shall have performed all of its covenants
to be performed prior to or at the Closing under this Agreement in all
material respects.
iii. No final, nonappealable injunction or other order by
any United States court having proper jurisdiction that prevents the
consummation of the transactions contemplated by this Agreement shall have
been issued and remain in effect.
iv. The Corporation shall have executed and delivered all
documents it was required to execute and deliver to Seller at the closing of
the transactions contemplated by the Stock Purchase Agreement.
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v. Xxxx Xxxxxxx and Xxxx Xxxxxxx will appoint Xxx Xxxxxxxx
to fill the current vacancy on Whole Living's Board of Directors. The term of
this appointment will be until the next annual meeting or earlier termination
or resignation.
vi. Xxxx Xxxxxxx will resign as Secretary/Treasurer and a
Director of Whole Living and hereby designate Xxxxxx Xxxxx as
Secretary/Treasurer and a Director of Whole Living until the next annual
meeting of shareholders or until his earlier termination or resignation.
vii. Xxxx Xxxxxxx will resign as a Director of Whole Living
and hereby designate Xxxxxx Xxxxx as a Director of Whole Living until the next
annual meeting of shareholders or until his earlier termination or
resignation.
viii. Xxxx Xxxxxxx will also be available as an advisor to
the Board of Directors while he is employed by Whole Living and/or its
subsidiaries.
ix. Upon the completion of these transactions, a special
meeting of the Board of Directors will be called. At that time, the Board
will appoint Xxx Xxxxxxxx as the President and CEO of Whole Living and
authorize a 15 for 1 reverse split on all of the outstanding shares of Whole
Living.
5. Closing.
a. Subject to the satisfaction or waiver of all conditions set
forth in Section 4, the Closing of the Transaction contemplated hereby (the
"Closing") shall be held at 10:00 a.m. Salt Lake City time at the offices of
Forever Green located at 000 Xxxxx 0000 Xxxx, Xxxx, Xxxx on Friday, January
13, 2006, or at such other time, place and date (or without a meeting) as may
be mutually agreed upon by the parties hereto.
b. At the Closing, the Company shall:
i. Deliver the Shares to the Seller
c. At the Closing, the Sellers shall:
i. Deliver, transfer, assign and convey the Units to the
Company.
6. Securities Laws. No consent, authorization, approval, permit or
order of or filing with any Governmental Authority is required under current
laws and regulations in connection with the execution and delivery of this
Agreement or the offer, issuance, sale or delivery of the Units. The Sellers
have not, directly or through an agent, offered the Units or any similar
securities for sale to, or solicited any offers to acquire such securities
from, persons other than the Company. Under the circumstances contemplated
hereby, the offer, issuance, sale and delivery of the Units will not under
current laws and regulations require compliance with the
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prospectus delivery or registration requirements of all applicable state and
federal securities laws.
7. Membership Interests in Forever Green. All of the outstanding
membership interests or Units subject to this Agreement were duly authorized
and validly issued and are fully paid and nonassessable. There are no
outstanding subscriptions, options, warrants, calls, contracts, demands,
commitments, Convertible Securities or other agreements or arrangements of any
character or nature whatever, under which the Sellers are or may be obligated
to sell the Units. Neither the offer nor the issuance or sale of the Units
constitute an event, under any anti-dilution provisions of any Units issued or
issuable by Forever Green or any agreements with respect to the issuance of
Units by Forever Green, which will either increase the percentage membership
interests issuable pursuant to such provisions or decrease the consideration
to be received by Forever Green pursuant to such provisions (unless
accompanied by an analogous decrease in the percentage membership interest
issuable pursuant thereto). No holder of any Unit of Forever Green is
entitled to any preemptive or similar rights to purchase membership interests
in Forever Green, provided, however, that nothing in this Section shall
affect, alter or diminish any right granted to the Buyer in this Agreement.
All outstanding Units of Forever Green have been issued in full compliance
with an exemption or exemptions from the registration and prospectus delivery
requirements of the Securities Act and from the registration and qualification
requirements of all applicable state securities laws.
8. Company Acts and Proceedings. This Agreement has been duly
authorized by all necessary action on behalf of the Company, and has been duly
executed and delivered by authorized officers of the Company. All action
necessary to the authorization, creation, issuance an delivery of the Shares
has been taken on the part of the Company, or will be taken by the Company on
or prior to the Closing Date. This Agreement is a valid and binding agreement
of the Company enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally, and except for judicial limitations on the enforcement of
the remedy of specific enforcement and other equitable remedies.
9. Registration Rights. The Company has not agreed to register any
of its authorized or outstanding securities under the Securities Act or any of
the Shares being issued pursuant to this Agreement.
10. Disclosure. The Sellers have not knowingly withheld from the
Buyer any material facts relating to the assets, business, operations,
financial condition or prospects of Forever Green. No representation or
warranty in this Agreement or in any statement or other document furnished or
to be furnished to the Buyer pursuant hereto or in connection with the
transactions contemplated hereby contains or will contain any untrue statement
of a material fact or omits or will omit to state any material fact required
to be stated herein or therein or necessary to make the statements herein or
therein not misleading.
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11. Additional Representations and Warranties of the Sellers. The
Sellers represent further and warrants that:
a. Investment Intent. The Shares being acquired by the Sellers
hereunder are being acquired for the Sellers' own account and not with the
view to, or for resale in connection with, any distribution or public offering
thereof within the meaning of the Securities Act. The Sellers understand that
the Shares have not been registered under the Securities Act or any applicable
state laws by reason of its issuance or contemplated issuance in a transaction
exempt from the registration and prospectus delivery requirements of the
Securities Act and such laws, and that the reliance of the Company and others
upon this exemption is predicated in part upon this representation and
warranty. The Sellers further understand that the Shares may not be
transferred or resold without (a) registration under the Securities Act and
any applicable state securities laws, or (b) an exemption from the
requirements of the Securities Act and applicable state securities laws.
b. Resales under Rule 144. The Sellers understand that they do
not presently qualify for the exemption from registration pursuant to Rule 144
promulgated under the Securities Act by the Securities and Exchange Commission
(the "Commission") and that in any event the Sellers may not sell any of the
Shares pursuant to Rule 144 prior to the expiration of a two-year period after
the Sellers have acquired the Shares. The Sellers understand that any sales
pursuant to Rule 144 may only be made in full compliance with the provisions
of Rule 144.
c. No Brokers or Finders. No person, firm or corporation has or
will have, as a result of any act or omission by the Sellers, any right,
interest or valid claim against the Company for any commission, fee or other
compensation as a finder or broker, or in any similar capacity, in connection
with the transactions contemplated by this Agreement. The Sellers will
indemnify and hold the Company harmless against any and all liability with
respect to any such commission, fee or other compensation which may be payable
or determined to be payable as a result of the actions of the Sellers in
connection with the transactions contemplated by this Agreement.
12. Remedies. The Buyer and Sellers will be entitled to enforce
their rights under this Agreement specifically, to recover any damages by
reason of a breach of any provision hereof and to exercise all other rights
existing in their favor. The parties agree and acknowledge that money damages
may not be an adequate remedy for any breach of the provisions of this
Agreement and that either party may, in their sole discretion, apply to any
court of law or equity of competent jurisdiction for specific performance
and/or injunctive relief in order to enforce or prevent any violations of the
provisions of this Agreement. It is agreed that in the event of such action,
the prevailing party shall be entitled to receive all fees, costs and expenses
incurred, including without limitation such reasonable fees, costs and
expenses incurred, including without limitation such reasonable fees and
expenses of attorneys (whether or not litigation is commenced) and fees, costs
and expenses of all appeals.
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13. Remedies Cumulative. No right, power or remedy conferred upon
either party pursuant to 12 above shall be exclusive, and each such right,
power or remedy shall be cumulative and in addition to every other right,
power or remedy, whether conferred hereby or by any such security or now or
hereafter available at law or in equity or by statute or otherwise.
14. Remedies not Waived. No course of dealing between the parties,
and no delay in exercising any right, power or remedy conferred hereby or by
any such security or now or hereafter existing at law or in equity or by
statute or otherwise, shall operate as a waiver of or otherwise prejudice any
such right, power or remedy.
15. Changes, Waivers, etc. Neither this Agreement nor any provision
hereof may be changed, waived, discharged or terminated orally, but only by a
statement in writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought.
16. General.
a. Representation by Legal Counsel. Each of the parties to this
Agreement acknowledge that Xxxxxx X. Xxxxxxx represents the Company, and only
the Company, in connection with the Company's acquisition of the Units. Each
agrees and acknowledges that he or she has had an opportunity to engage legal
counsel and he or she has either engaged its own legal counsel to represent it
in connection with the Company's acquisition of the Units, or has elected not
to have legal counsel.
b. Survival. The representations, warranties, and covenants made
by the parties in this Agreement shall survive the execution of this
Agreement, delivery of documents contemplated by this Agreement, and the
Closing for a period of two (2) years from the date of this Agreement.
c. Assignment, Binding Agreement. This Agreement may not be
assigned by the Company or any Seller. To the extent applicable, this
Agreement shall be binding upon and shall inure to the benefit of the
successors, assigns, personal representatives, heirs and legatees of the
parties to this Agreement, except as otherwise expressly limited by the terms
of this Agreement.
d. Expenses. Each party to this Agreement shall bear its own
costs and expenses, including legal fees and expenses, incurred in connection
with the negotiation and execution of this Agreement, and the transactions
contemplated by this Agreement.
e. Captions. The headings used in this Agreement are inserted
for reference purposes only and shall not be deemed to define, limit, extend,
describe or affect in any way the meaning, scope or interpretation of any of
the terms or provisions of this Agreement or the intent hereof.
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f. Entire Agreement. This Agreement and the documents and
agreements referred to herein constitute the entire understanding and
agreement between the parties with respect to the subject matter hereof and
supersede all prior agreements, representations and understandings between the
parties relating to the subject matter of this Agreement. All preceding
agreements relating to the subject matter of this Agreement, whether written
or oral, are hereby merged into this Agreement and the documents and
agreements referred to herein.
g. Counterparts. This Agreement may be signed on any number of
counterparts with the same effect as if the signature to any counterpart were
upon the same instrument.
h. Severability. The provisions of this Agreement are severable,
and should any provision hereof be void, voidable, unenforceable or invalid,
such void, voidable, unenforceable or invalid provision shall not affect any
other provision of this Agreement.
i. Waiver of Breach. Any waiver by any party to this Agreement
of any breach of any kind or character whatsoever by any other party, whether
such be direct or implied, shall not be construed as a continuing waiver of
such breach.
j. Cumulative Remedies. The rights and remedies of the parties
to this Agreement shall be construed as cumulative, and none of them shall be
exclusive of, or in lieu or limitation of, any other right, remedy, or
priority allowed by law or any other agreement between or among the parties.
k. Amendment. This Agreement may not be modified except by an
instrument in writing signed by the parties to this Agreement.
l. Time of Essence. The parties agree that time is of the
essence in the performance of all duties in this Agreement.
m. Utah Law Governs. This Agreement shall be governed by and
construed in accordance with the laws of the state of Utah.
n. Attorney's Fees. In the event that any party to this
Agreement shall institute any action or proceeding against any other party to
this Agreement relating to the provisions of this Agreement, or any default
under this Agreement, then and in that event, the non-prevailing party in such
action or proceeding agrees to pay all reasonable expenses of the prevailing
party, including all reasonable attorney's fees and disbursements, incurred in
the action by the prevailing party.
o. Further Assurances. At any time after the Closing, if any
further action is necessary or desirable to carry out the purposes of this
Agreement, each of the parties shall take such further action, including the
execution and deliver of such further instruments and documents, as any other
party may reasonably request.
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p. Notices. Any notice, payment, demand or communication
required or permitted to be given by any provision of this Agreement shall be
deemed to have been sufficiently given or served for all purposes if delivered
personally to the party or to an officer of the party to whom the same is
directed or if sent by registered or certified mail, postage and charges
prepaid, addressed as follows:
If to the Company:
Whole Living, Inc.
Attention: Xxxx Xxxxxxx
000 Xxxx Xxx Xxxxxxxxx
Xxxxx, Xxxx 00000
If to Sellers:
Xxx Xxxxxxxx
0000 Xxxxx 0000 Xxxx
Xxxx, Xxxx 00000
Xxxxxx Xxxxx
000 Xxxx 000 Xxxxx
Xxxx, Xxxx 00000
Xxxxxx Xxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Xxxxx Xxxx
000 Xxxxx 0000 Xxxx
Xxxx, Xxxx 00000
Any such notice shall be deemed to be given on the date on which the
same was deposited in a regularly maintained receptacle for the deposit of
United States mail, addressed and sent as set forth in this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by
each of the parties as of the date first written above.
Dated effective _____________, 2006.
BUYER:
WHOLE LIVING, INC., a Nevada corporation
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By: /s/ Xxxxxxx Xxxxxxx
______________________________
Name:
Title: President
SELLERS:
/s/ Xxx Xxxxxxxx
__________________________________
Xxx Xxxxxxxx
/s/ Xxxxxx Xxxxx
__________________________________
Xxxxxx Xxxxx
/s/ Xxxxxx Xxxxx
__________________________________
Xxxxxx Xxxxx
/s/ Xxxxx Xxxx
__________________________________
Xxxxx Xxxx
Acknowledged and approved by Forever Green International, LLC
/s/ Xxx Xxxxxxxx
By: _______________________________________
Xxx Xxxxxxxx
Its Manager
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