SCHEDULE 13D/A STOCK PURCHASE AGREEMENT
EXHIBIT 1
SCHEDULE 13D/A
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
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
Xxxxxx X. Xxxxxxxxxx
Chief Executive Officer
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Reliv International, Inc.
000 Xxxxxxxxxxxx Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
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. |
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By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||
Xxxxxx X. Xxxxxxxxxx, CEO | ||||
ATTEST: |
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/s/ Xxxxxxx X. Xxxxxxx | ||||
Secretary | ||||
XXXX AND XXXX XXXXX FAMILY FOUNDATION |
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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. |
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By: | ||||
Xxxxxx X. Xxxxxxxxxx | ||||
Chief Executive Officer |
Exhibit “B”
Xxxx & Xxxx Xxxxx Family Foundation
0000 Xxxx Xxxxx Xxxxx
Xxxx, Xxxxx 00000
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
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 |
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By: | ||||
Xxxxx Xxxxx, Vice President | ||||