PURCHASE AGREEMENT
This Purchase Agreement ("Agreement"), made and entered into as of February
2, 2001, by and between Omni Nutraceuticals, Inc., a Utah corporation ("Omni"),
and Xxxxxxxx.xxx, Inc., a Delaware corporation ("Vita").
RECITALS
WHEREAS, Vita desires to purchase certain specific assets of Omni related
to its HealthZone, Smart Basics, Vitamin Discount and Health Shop internet
retail businesses (collectively, the "Business"), and in consideration
therefore, issue and deliver to Omni certain shares of Vita Common Stock;
WHEREAS, the parties intend and believe that it is in their best interests
to enter into this Agreement and the other agreements contemplated herein;
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual promises,
covenants and conditions herein contained, the parties hereto do hereby agree as
follows:
1. CLOSING.
1.1 CONSIDERATION. On the basis of the representations and warranties and
subject to the terms and conditions hereinafter set forth, on the Closing Date
(as hereinafter defined) unless otherwise indicated, the following shall occur:
(a) VITA SHALL ISSUE AND DELIVER TO OMNI A STOCK CERTIFICATE FOR SIX
MILLION EIGHT HUNDRED THOUSAND (6,800,000) SHARES OF VITA COMMON STOCK (THE
"EXCHANGED VITA STOCK");
(b) Omni shall transfer to Vita all right, title and interest in and to the
specific assets set forth on SCHEDULES 1.1(b) attached hereto and all goodwill
associated therewith (collectively, the "Transferred Assets").
(c) Omni shall deliver to Vita a Xxxx of Sale and Assignment for the
Transferred Assets in the form attached hereto as EXHIBIT A (the "Xxxx of Sale
and Assignment");
(d) As further consideration for the Exchanged Vita Stock, on the Closing
Date Omni and Vita shall execute and deliver the Supplier Agreement in the form
attached hereto as EXHIBIT B (the "Supplier Agreement"), whereby Omni shall
provide Vita with certain rights to sell certain of Omni's products on Vita's
website subject to the terms of the Supplier Agreement;
(e) As further consideration for the Transferred Assets and in order to
further induce Omni to enter into this Agreement, as soon as practicable after
the Closing Date, Vita shall execute an agreement (the "NSI Exclusivity
Agreement") with Nutraceutical Sciences Institute, Inc. ("NSI") in a form
acceptable to Omni and attached hereto as EXHIBIT C whereby NSI shall designate
Vita as its exclusive internet retailer for the sale of its products direct to
retail customers, and shall sell its products to Vita at cost, subject to the
terms of the NSI Exclusivity Agreement;
1.2 CLOSING DATE. THE CLOSING ("CLOSING") OF THE TRANSACTIONS CONTEMPLATED
BY THIS AGREEMENT SHALL BE ON A DATE AND AT SUCH TIME AS THE PARTIES MAY AGREE
("CLOSING DATE"), PRIOR TO WHICH THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED HEREBY MAY NOT BE EFFECTUATED. THE PARTIES INTEND THAT THE CLOSING
DATE SHALL OCCUR NO LATER THAN FEBRUARY 2, 2001.
1.3 CLOSING DOCUMENTS TO BE DELIVERED BY OMNI. On the Closing Date, Omni
shall deliver to Vita:
(a) CERTIFICATE. A certificate dated the Closing Date, signed by a duly
authorized officer of Omni, stating that all of Omni's representations and
warranties set forth in this Agreement are true and correct on and as of the
Closing Date as if made on the Closing Date and making such other statements as
may be required pursuant to this Agreement;
(b) XXXX OF SALE AND ASSIGNMENT. The Xxxx of Sale and Assignment executed
by Omni;
(c) SUPPLIER AGREEMENT. The Supplier Agreement executed by Omni; and
(d) FURTHER INSTRUMENTS. Such further instruments with respect to the
transactions contemplated by this Agreement as Omni is required to deliver or as
Vita may reasonably request.
1.4 CLOSING DOCUMENTS TO BE DELIVERED BY VITA. On the Closing Date, Vita
shall deliver to Omni:
(a) CERTIFICATE(S). A certificate dated the Closing Date, signed by a duly
authorized officer of Vita, stating that all of Vita's representations and
warranties set forth in this Agreement are true and correct on and as of the
Closing Date as if made on the Closing Date and making such other statements as
may be required pursuant to this Agreement;
(b) STOCK CERTIFICATES. Certificates for the Exchanged Vita Stock
registered in the name of Omni;
(c) SUPPLIER AGREEMENT. The Supplier Agreement executed by Vita; and
(d) FURTHER INSTRUMENTS. Such further instruments with respect to the
transactions contemplated by this Agreement as Vita is required to deliver or as
Omni may reasonably request.
1.5 TERMINATION. This Agreement may be terminated by Omni or by Vita at any
time prior to the Closing Date if:
(a) the other party shall fail to comply in any material respect with any
of its covenants or agreements contained in this Agreement or if any of the
representations or warranties of such party contained herein shall be inaccurate
in any material respect;
(b) there shall be any actual or threatened action or proceeding before any
court or any governmental body which shall seek to restrain, prohibit or
invalidate the transactions contemplated by this Agreement; or
(c) any of the transactions contemplated hereby are disapproved by any
regulatory authority whose approval is required to consummate such transactions.
In the event of termination pursuant to Section 1.5, no obligation, right
or liability shall arise hereunder, or under any other instrument or agreement
executed by the parties hereto in conjunction with this Agreement and/or the
transactions described herein, and each party shall bear all of the expenses
incurred by it in connection with the negotiation, drafting and execution of
this Agreement and the transactions herein contemplated.
1.6 RETENTION OF LIABILITIES. Vita shall not assume any obligation to pay,
perform or otherwise discharge any liability or obligation of Omni, direct or
indirect, known or unknown, absolute or contingent, related to the Business or
Transferred Assets, and arising from events occurring on or prior to the Closing
Date.
2. REPRESENTATIONS AND WARRANTIES OF OMNI.
2.1 ORGANIZATION AND GOOD STANDING; DUE AUTHORIZATION. Omni is a
corporation duly organized, validly existing and in good standing under the laws
of Utah and has the corporate power and is duly authorized, qualified,
franchised and licensed under all applicable laws, regulations, ordinances and
orders of public authorities to own all of its properties and assets and to
carry on its business in all material respects as it is now being conducted,
including qualification to do business as a foreign corporation in the states in
which the character and location of the assets owned by it or the nature of the
business transacted by it requires qualification, except where the failure to so
qualify would not have a Material Adverse Effect (as hereinafter defined) upon
the business, assets, properties or operations of Omni. The execution
and delivery of this Agreement does not, and the consummation of the transaction
contemplated by this Agreement in accordance with the terms hereof will not,
violate any provision of Omni's Articles of Incorporation or Bylaws. Omni has
taken all action required by law, its Articles of Incorporation, its Bylaws or
otherwise to authorize the execution and delivery of this Agreement. Omni has
full power, authority and legal right and has taken all action required by law,
its Articles of Incorporation, Bylaws and otherwise to consummate the
transactions herein contemplated.
2.2 BINDING OBLIGATION; NO DEFAULT. Omni has duly taken all corporate
action necessary to authorize the execution, delivery and performance of this
Agreement and the other instruments and agreements contemplated hereby. Such
execution, delivery and performance does not and will not (a) CONTRAVENE,
CONFLICT WITH, OR RESULT IN A VIOLATION OF, OR GIVE ANY PERSON (AS DEFINED
HEREIN) THE RIGHT TO CHALLENGE ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR TO
EXERCISE ANY REMEDY OR OBTAIN ANY RELIEF UNDER, ANY LAW, RULE, REGULATION,
JUDGMENT, ORDER, INJUNCTION, DECREE OR RULING OF ANY COURT, TRIBUNAL, ARBITRATOR
OR GOVERNMENTAL AUTHORITY, DOMESTIC OR FOREIGN TO WHICH OMNI, OR ANY OF THE
ASSETS OWNED OR USED BY OMNI, MAY BE SUBJECT; (b) CONTRAVENE, CONFLICT WITH, OR
RESULT IN A VIOLATION OF ANY OF THE TERMS OR REQUIREMENTS OF, OR GIVE ANY PERSON
THE RIGHT TO REVOKE, WITHDRAW, SUSPEND, CANCEL, TERMINATE, OR MODIFY, ANY
LICENSE, PERMIT OR OTHER AUTHORIZATION THAT IS HELD BY OMNI OR THAT OTHERWISE
RELATES TO THE BUSINESS, OR ANY OF THE TRANSFERRED ASSETS; OR (c) CONTRAVENE,
CONFLICT WITH, OR RESULT IN A VIOLATION OR BREACH OF ANY PROVISION OF, OR GIVE
ANY PERSON THE RIGHT TO DECLARE A DEFAULT OR EXERCISE ANY REMEDY UNDER, OR TO
ACCELERATE THE MATURITY OR PERFORMANCE OF, OR TO CANCEL, TERMINATE, OR MODIFY,
ANY CONTRACT (AS HEREINAFTER DEFINED) TO WHICH OMNI IS A PARTY. This Agreement
constitutes the legal, valid and binding obligation of Omni enforceable against
Omni in accordance with its terms, subject to equitable principles affecting
creditors generally.
2.3 COMPLIANCE WITH OTHER INSTRUMENTS, ETC. Neither the execution and
delivery of this Agreement by Omni nor compliance by Omni with the terms and
conditions of this Agreement will: (a) require Omni to obtain the consent of any
governmental agency; (b) result in any violation or breach of any term of the
Articles of Incorporation or Bylaws of Omni; (c) constitute a material default
under any indenture, mortgage or deed of trust to which Omni is a party or by
which Omni, the Transferred Assets, or any of its other assets may be subject;
(d) cause the creation or imposition of any lien, charge or Encumbrance (as
defined herein) on any of the Transferred Assets or any of its other assets; or
(e) breach any statute or regulation of any governmental authority, domestic or
foreign, or will on the Closing Date conflict with or result in a breach or any
of the terms or conditions of any judgment, order, injunction, decree or ruling
of any court or governmental authority, domestic or foreign, to which Omni is
subject.
2.4 CONSENTS. Except as set forth in Schedule 2.4, no consent, approval or
authorization of, or declaration, filing or registration with, any governmental
or regulatory authority or any third party is required to be made or obtained by
Omni in connection with the execution, delivery and performance of this
Agreement and the transactions contemplated hereby.
2.5 SECURITIES WARRANTIES. With respect to the Exchanged Vita Stock to be
issued and delivered by Vita to Omni pursuant to Section 1 hereof, Omni hereby
represents and warrants to Vita that:
(a) Omni understands and acknowledges that no registration statement has
been filed or is in effect with respect to the Exchanged Vita Stock;
(b) The Exchanged Vita Stock is being acquired for the account of Omni and
not with a view to sale in connection with any distribution of the Exchanged
Vita Stock;
(c) Omni is acquiring the Exchanged Vita Stock hereunder without having
received any form of general solicitation or general advertising;
(d) Omni or its representative, if any, has been provided with, or given
reasonable access to, full and fair disclosure of all material information
concerning the Exchanged Vita Stock;
(e) Omni or its Affiliates (as defined in Rule 405 promulgated by the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Securities Act")) has a preexisting personal or
business relationship with Vita or certain of its officers, directors or
controlling persons, or by reason of its business or financial experience, Omni
could reasonably be assumed to have the capacity to represent its own interests
in connection with this Agreement;
(f) Omni understands and hereby acknowledges that the Exchanged Vita Stock
will be issued pursuant only to those restrictions imposed by and exemptions
available pursuant to applicable federal and state laws and that the
certificates to be issued in respect of the Exchanged Vita Stock may bear a
legend in a form satisfactory to respective counsel for Vita and Omni and that
Vita's reliance upon such exemptions is based, in part, on the representations
and warranties made by Omni in this Section;
(g) OMNI AGREES THAT THE CERTIFICATES TO BE ISSUED IN RESPECT OF THE
EXCHANGED VITA STOCK MAY BEAR A LEGEND IN A FORM SATISFACTORY TO RESPECTIVE
COUNSEL FOR VITA AND OMNI, reflecting the status of the Exchanged Vita Stock as
restricted securities under Rule 144(a)(3) promulgated under the Securities Act
and acknowledges that the transfer agent or registrar for Vita may be instructed
to restrict the transfer of the Exchanged Vita
Stock in accordance with such legend and any other restrictions provided in this
Agreement;
(h) OMNI HEREBY AGREES THAT IT WILL NOT SELL, TRANSFER, HYPOTHECATE,
PLEDGE, ASSIGN OR OTHERWISE DISPOSE OF ANY OF THE EXCHANGED VITA STOCK OR ANY
SHARES OF VITA COMMON STOCK ISSUED TO OMNI PURSUANT TO SECTION 6.10 HEREOF
(OTHER THAN A PLEDGE OF THE EXCHANGED VITA STOCK TO FIRST SOURCE FINANCIAL LLP
("FIRST SOURCE") PURSUANT TO THE CONSENT AND AMENDMENT NO. 5 TO SECURED CREDIT
AGREEMENT DATED FEBRUARY 2, 2001 BY AND BETWEEN OMNI, THE LENDERS (AS DEFINED
THEREIN) AND FIRST SOURCE AS AGENT FOR THE LENDERS AND EXHIBITS THERETO
(COLLECTIVELY, THE "CONSENT") ATTACHED HERETO AS EXHIBIT D), EXCEPT SUBJECT TO
SECTION 6.7 OF THIS AGREEMENT AND PURSUANT TO A REGISTRATION STATEMENT FILED
UNDER THE PROVISIONS OF THE SECURITIES ACT, A FAVORABLE NO-ACTION OR
INTERPRETIVE LETTER RECEIVED FROM THE COMMISSION OR AN OPINION OF COUNSEL
SATISFACTORY TO VITA that such sale, transfer, hypothecation, pledge, assignment
or other disposition will not violate the registration requirements of the
Securities Act; and
(i) OMNI HEREBY ACKNOWLEDGES THAT: (i) THE SHARES OF EXCHANGED VITA STOCK
REFERRED TO HEREIN ARE BEING ACQUIRED AFTER ADEQUATE INVESTIGATION OF THE
BUSINESS PLAN AND PROSPECTS OF VITA; (ii) THAT OMNI IS NOT RELYING UPON THE
ACCURACY OF ANY PREDICTIONS AS TO THE FUTURE PROSPECTS OR DEVELOPMENTS OF VITA
OR ITS BUSINESS AND IS WELL INFORMED AS TO THE BUSINESS OF VITA AND HAS REVIEWED
ITS OPERATIONS AND FINANCIAL STATEMENTS; (iii) OMNI OR ITS PROFESSIONAL ADVISORS
HAVE DISCUSSED THE FINANCIAL CONDITION AND BUSINESS OPERATIONS OF VITA WITH THE
OFFICERS, DIRECTORS AND PRINCIPAL STOCKHOLDERS OF VITA AND HAS BEEN AFFORDED THE
OPPORTUNITY TO ASK QUESTIONS WITH RESPECT THERETO; AND (iv) OMNI SPECIFICALLY
ACKNOWLEDGES THAT THE SHARES OF THE EXCHANGED VITA STOCK ARE SPECULATIVE AND
INVOLVE A VERY HIGH DEGREE OF RISK AND THAT THERE CAN BE NO ASSURANCE THAT VITA
WILL ACHIEVE ITS BUSINESS OBJECTIVES OR, IN PARTICULAR, THAT IT WILL EVER HAVE
CASH AVAILABLE FOR DISTRIBUTION TO ITS SHAREHOLDERS.
2.6 TITLE TO TRANSFERRED ASSETS. SUBJECT TO THE CONSENT ATTACHED HERETO AS
EXHIBIT D, AND EXCEPT AS SET FORTH ON SCHEDULE 2.6, OMNI HAS GOOD AND MARKETABLE
TITLE TO AND IS THE SOLE AND EXCLUSIVE OWNER OF THE TRANSFERRED ASSETS,
INCLUDING THE TRANSFERRED INTELLECTUAL PROPERTY (AS DEFINED HEREIN), FREE AND
CLEAR OF ALL ENCUMBRANCES (AS HEREINAFTER DEFINED). EXCEPT AS CONTEMPLATED BY
SECTION 6.10, UPON DELIVERY TO VITA ON THE CLOSING DATE OF THE INSTRUMENTS OF
TRANSFER CONTEMPLATED BY SECTION 1.3, OMNI WILL THEREBY TRANSFER TO VITA GOOD
AND MARKETABLE TITLE TO THE TRANSFERRED ASSETS, SUBJECT TO NO ENCUMBRANCES. THE
TRANSFERRED ASSETS ARE IN GOOD CONDITION AND REPAIR (SUBJECT TO ROUTINE
MAINTENANCE AND REPAIR FOR SIMILAR ASSETS OF LIKE AGE). EXCEPT AS SET FORTH ON
SCHEDULE 2.6, OMNI OWNS FREE AND CLEAR OF ANY ENCUMBRANCES, ROYALTY INTERESTS
OR OTHER RESTRICTIONS OR LIMITATIONS OF ANY NATURE WHATSOEVER, ANY AND ALL OF
THE TRANSFERRED ASSETS, INCLUDING THE TRANSFERRED INTELLECTUAL PROPERTY. SUBJECT
TO THE CONSENT ATTACHED HERETO AS EXHIBIT D, NO THIRD PARTY HAS ANY RIGHT TO,
AND OMNI HAS NOT RECEIVED ANY NOTICE OF CONFLICT WITH ASSERTED RIGHTS OF OTHERS
WITH RESPECT TO, ANY OF THE TRANSFERRED ASSETS, INCLUDING THE TRANSFERRED
INTELLECTUAL PROPERTY, WHICH, SINGLY OR IN THE AGGREGATE, IF THE SUBJECT OF AN
UNFAVORABLE DECISION, RULING OR FINDING, WOULD HAVE A MATERIAL ADVERSE EFFECT ON
THE TRANSFERRED ASSETS, BUSINESS AND THE ASSOCIATED GOODWILL.
NOTWITHSTANDING THE FOREGOING, OMNI MAKES NO REPRESENTATION OR WARRANTY,
AND ALL SUCH REPRESENTATIONS AND WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED,
WITH RESPECT TO THE TRADE NAMES OR TRADEMARKS SET FORTH ON SCHEDULE 1.1(b) (THE
"TRANSFERRED TRADEMARKS"). THE TRANSFERRED TRADEMARKS ARE BEING TRANSFERRED TO
VITA, AS IS, WHERE IS, WITH ALL FAULTS.
FOR PURPOSES OF THIS AGREEMENT, THE TERM "TRANSFERRED INTELLECTUAL
PROPERTY" MEANS ALL INTELLECTUAL PROPERTY, PROPRIETARY INFORMATION, TRADE
SECRETS, AND COPYRIGHTS LISTED ON SCHEDULE 1.1(b), EXCEPT THE TRANSFERRED
TRADEMARKS.
For purposes of this Agreement, the term "Encumbrance" means any mortgage,
deed of trust, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, security interest, lien (statutory or other) or preference, equity,
option, charge, limitation on voting rights, right to receive dividends,
dissenters' or appraisal rights, priority or other security or similar agreement
or preferential arrangement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement having
substantially the same economic effect as any of the foregoing).
2.7 LITIGATION. THERE IS NO PENDING COMPLAINT, CHARGE, CLAIM, ACTION, SUIT
OR ARBITRATION PROCEEDING BEFORE ANY FEDERAL, TERRITORIAL, STATE, MUNICIPAL, OR
OTHER COURT OR GOVERNMENTAL OR ADMINISTRATIVE BODY OR AGENCY, OR ANY PRIVATE
ARBITRATION TRIBUNAL OR ANY INVESTIGATION OR INQUIRY BEFORE ANY FEDERAL,
TERRITORIAL, STATE, MUNICIPAL, OR OTHER COURT OR GOVERNMENTAL OR ADMINISTRATIVE
BODY OR AGENCY AGAINST, RELATING TO OR AFFECTING: (i) THE TRANSFERRED ASSETS,
(ii) THE BUSINESS OR (iii) THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
2.8 CUSTOMERS AND REVENUE. THE CD-ROM DESCRIBED IN SCHEDULE 2.6 HEREOF
CONTAINS A TRUE, COMPLETE AND CORRECT LIST OF ALL CUSTOMERS OF THE BUSINESS (THE
"CUSTOMER LIST"). THE CUSTOMER LIST IS FREELY TRANSFERABLE TO VITA, AND IS NOT
SUBJECT TO ANY RESTRICTIONS ON ITS TRANSFER, INCLUDING ANY PROHIBITION OR
COVENANT NOT TO SELL, DISCLOSE OR OTHERWISE TRANSFER THE CUSTOMER LIST CONTAINED
IN OMNI'S PRIVACY POLICY OR OTHER CONTRACT, OBLIGATIONS OR AGREEMENTS OF OMNI.
AS OF THE
CLOSING DATE, THE CUSTOMER LIST SHALL INCLUDE NOT LESS THAN 160,000 VALID
CUSTOMER E-MAIL ADDRESSES AND NOT LESS THAN 240,000 VALID MAILING ADDRESSES. TO
OMNI'S KNOWLEDGE, THERE IS NO STATE OF FACTS OR CIRCUMSTANCES INVOLVING THE
CUSTOMER LIST WHICH OMNI CAN NOW REASONABLY FORESEE WOULD MATERIALLY AND
ADVERSELY AFFECT VITA'S ABILITY TO SOLICIT THE CUSTOMERS SET FORTH IN THE
CUSTOMER LIST. NET CREDIT CARD RECEIPTS FROM OMNI'S E-COMMERCE AND RETAIL
CATALOG FOR THE TWENTY-ONE (21) CALENDAR DAYS ENDED FEBRUARY 21, 2001 WERE NOT
LESS THAN EXCESS OF $143,000.
2.9 ACCURACY OF INFORMATION FURNISHED. To Omni's knowledge, no
representation or warranty by Omni contained in this Agreement or in respect of
the exhibits, schedules or documents delivered to Vita by Omni and expressly
referred to herein, and no statement contained in any certificate furnished or
to be furnished by or on behalf of Omni pursuant hereto, or in connection with
the transactions contemplated hereby, contains, or will contain as of the date
such representation or warranty is made or such certificate is or will be
furnished, and as of the Closing Date, any untrue statement of a material fact,
or omits, or will omit to state as of the date such representation or warranty
is made or such certificate is or will be furnished, any material fact which is
necessary to make the statements contained herein or therein, in light of the
circumstances under which they were made, not misleading.
3. REPRESENTATIONS AND WARRANTIES OF VITA.
3.1 ORGANIZATION AND GOOD STANDING; DUE AUTHORIZATION. Vita is a
corporation duly organized, validly existing, and in good standing under the
laws of the state of Delaware, and has the corporate power and is duly
authorized, qualified, franchised and licensed under all applicable laws,
regulations, ordinances and orders of public authorities to own all of its
properties and assets and to carry on its business in all material respects as
it is now being conducted, including qualification to do business as a foreign
corporation in the states in which the character and location of the assets
owned by it or the nature of the business transacted by it requires
qualification, except where the failure to so qualify would not have a Material
Adverse Effect (as hereinafter defined) upon the business, assets, properties or
operations of Vita. Included in Schedule 3.1 are complete and correct copies of
the Certificate of Incorporation and Bylaws of Vita as in effect on the date
hereof. The execution and delivery of this Agreement does not, and the
consummation of the transaction contemplated by this Agreement in accordance
with the terms hereof will not, violate any provision of Vita's Certificate of
Incorporation or Bylaws. Vita has taken all action required by law, its
Certificate of Incorporation, its Bylaws or otherwise to authorize the execution
and delivery of this Agreement. Vita has full power, authority and legal right
and has taken all action required by law, its Certificate of Incorporation,
Bylaws and otherwise to consummate the transactions herein contemplated.
3.2 CAPITALIZATION. The authorized capitalization of Vita consists of
100,000,000 shares of common stock, par value of $0.00001 (the "Vita Common
Stock") and 25,000,000 shares of Preferred Stock, par value of $0.00001 per
share, no shares of which have been designated as Series A Preferred Stock
(collectively, "Vita Preferred Stock"). As of the Closing Date, the number of
issued and outstanding shares of Vita Common Stock shall not exceed Twenty Seven
Million Four Hundred Thousand (27,400,000) shares and there shall be no issued
and outstanding shares of Vita Preferred Stock. Vita Common Stock and Vita
Preferred Stock are collectively referred to as "Vita Stock." All issued and
outstanding shares of Vita Stock have been duly authorized, validly issued and
are fully paid and nonassessable, and none of such shares of Vita Stock were
issued in violation of the preemptive or other rights of any Person or, to
Vita's knowledge, the provisions of any applicable law, rule or regulation. To
Vita's knowledge, Schedule 3.2 sets forth a true and complete and correct list
of the shareholders of Vita (the "Vita Shareholders") and the number and class
of Vita Stock in the name of each Vita Stockholder.
3.3 SUBSIDIARIES. Except as set forth in Schedule 3.3, Vita does not have
any Subsidiaries (as defined herein) and does not own, beneficially or of
record, directly or indirectly, any equity securities or other securities issued
by any other Person, or any direct or indirect equity or ownership interest in
any other business.
3.4 OPTIONS AND WARRANTS. Subject to the provisions of Section 6.6(c), as
of the Closing Date, the number of shares of Vita Stock subject to Purchase
Rights (as defined herein) shall not exceed, in the aggregate, One Million
(1,000,000) shares of Vita Stock. As used in this Agreement, "Purchase Rights"
shall include: (a) outstanding securities convertible into or exchangeable for
any of Vita's capital stock; (b) outstanding options, warrants, calls or other
rights, including rights to demand registration or to sell in connection with
any registration by Vita under the Securities Act, to purchase or subscribe to
capital stock of Vita or securities convertible into or exchangeable for capital
stock of Vita; and (c) contracts, agreements, arrangements, commitments, plans
or understandings (each, a "Contract") relating to the issuance, sale or
transfer of any equity or other security of Vita, other than this Agreement.
3.5 BINDING OBLIGATION; NO DEFAULT. Vita has duly taken all corporate
action necessary to authorize the execution, delivery and performance of this
Agreement and the other instruments and agreements contemplated hereby. Such
execution, delivery and performance does not and will not (a) CONTRAVENE,
CONFLICT WITH, OR RESULT IN A VIOLATION OF, OR GIVE ANY PERSON THE RIGHT TO
CHALLENGE ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR TO EXERCISE ANY REMEDY
OR OBTAIN ANY RELIEF UNDER, ANY LAW, RULE, REGULATION, JUDGMENT, ORDER,
INJUNCTION, DECREE OR RULING OF ANY COURT, TRIBUNAL, ARBITRATOR OR GOVERNMENTAL
AUTHORITY, DOMESTIC OR FOREIGN, TO WHICH VITA, OR ANY OF THE ASSETS OWNED OR
USED BY VITA, MAY BE SUBJECT; (b) CONTRAVENE, CONFLICT WITH, OR RESULT IN A
VIOLATION OF ANY OF THE TERMS OR REQUIREMENTS OF, OR GIVE ANY PERSON THE RIGHT
TO
REVOKE, WITHDRAW, SUSPEND, CANCEL, TERMINATE, OR MODIFY, ANY LICENSE, PERMIT OR
OTHER AUTHORIZATION THAT IS HELD BY VITA OR THAT OTHERWISE RELATES TO THE
BUSINESS OF, OR ANY OF THE ASSETS OWNED OR USED BY, VITA; OR (c) CONTRAVENE,
CONFLICT WITH, OR RESULT IN A VIOLATION OR BREACH OF ANY PROVISION OF, OR GIVE
ANY PERSON THE RIGHT TO DECLARE A DEFAULT OR EXERCISE ANY REMEDY UNDER, OR TO
ACCELERATE THE MATURITY OR PERFORMANCE OF, OR TO CANCEL, TERMINATE, OR MODIFY,
ANY CONTRACT TO WHICH VITA IS A PARTY. This Agreement constitutes the legal,
valid and binding obligation of Vita enforceable against Vita in accordance with
its terms, subject to equitable principles affecting creditors generally.
3.6 COMPLIANCE WITH OTHER INSTRUMENTS, ETC. Neither the execution and
delivery of this Agreement by Vita nor compliance by Vita with the terms and
conditions of this Agreement will: (a) require Vita to obtain the consent of any
governmental agency; (b) result in any violation or breach of any term or
provision of the Certificate of Incorporation or Bylaws of Vita; (c) constitute
a material default under any indenture, mortgage or deed of trust to which Vita
is a party or by which Vita or its property may be subject; (d) cause the
creation or imposition of any lien, charge or Encumbrance on any of its assets;
or (e) breach any statute or regulation of any governmental authority, domestic
or foreign, or will on the Closing Date conflict with or result in a breach of
any of the terms or conditions of any judgment, order, injunction, decree or
ruling of any court or governmental authority, domestic or foreign, to which
Vita is subject.
3.7 BOOKS AND RECORDS. To Vita's knowledge, the books of account and other
financial records of Vita are complete and correct in all material aspects. To
Vita's knowledge, the minute books of Vita contain records of all meetings and
accurately reflect all other material corporate action of the stockholders,
directors and any committees of the Board of Directors of Vita.
3.8 FINANCIAL STATEMENTS. Attached hereto as Schedule 3.8(a) are true,
complete and correct copies of Vita's audited financial statements, including
Vita's audited consolidated balance sheets as of December 31, 1999 and 1998, and
the related audited consolidated statements of operations and stockholders'
equity (deficit) for the years ended December 31, 1999 and 1998 (the "Vita
Audited Financial Statements"). The Vita Audited Financial Statements, together
with the notes thereto, fairly present the financial position of Vita at
December 31, 1999 and 1998, as the case may be, and the consolidated results of
the operations and the changes in stockholders' equity for Vita for the periods
covered by the Vita Audited Financial Statements and have been prepared in
accordance with generally accepted accounting principles ("GAAP") consistently
applied with prior periods. Attached hereto as Schedule 3.8(b) are true,
complete and correct copies of Vita's unaudited financial statements, including
Vita's unaudited consolidated balance sheet as of November 30, 2000, and the
related unaudited consolidated statements of operations for the eleven (11)
month periods ended November 30, 2000 and the related unaudited consolidated
statements of stockholders' equity (deficit) for the eleven (11) month period
ended November 30, 2000 (the "Vita Unaudited Financial
Statements"). To Vita's knowledge, the Vita Unaudited Financial Statements
fairly present the financial position of Vita at November 30, 2000, and the
consolidated results of the operations and the changes in stockholders' equity
(deficit) for Vita for the periods covered by the Vita Unaudited Financial
Statements (the Vita Audited Financial Statements and Vita Unaudited Financial
Statements are collectively referred to herein as the "Vita Financial
Statements").
3.9 NO UNDISCLOSED LIABILITIES. Except as set forth on Schedule 3.9, to
Vita's knowledge, since November 30, 2000, Vita does not have any material
liabilities or obligations of any nature (absolute, accrued, contingent or
otherwise), except for liabilities and obligations incurred in the ordinary
course of Vita's business and consistent with past practice.
3.10 ABSENCE OF CERTAIN CHANGES. Except as set forth in Schedule 3.10, to
Vita's knowledge, since November 30, 2000, Vita has not:
(a) Suffered any material adverse change in its financial condition,
assets, liabilities (absolute, accrued, contingent or otherwise), or reserves,
and no event has occurred and no action has been taken by Vita, or which might
reasonably be expected to have a material adverse effect on the assets,
operations or condition (financial or otherwise) of Vita's business ("Material
Adverse Effect"), except that no representation or warranty is made as to
general economic conditions or matters affecting Vita's industry generally;
(b) Suffered any material adverse change in its business or operations;
(c) Paid, discharged or satisfied any claims, liabilities or obligations
(absolute, accrued, contingent or otherwise) other than the payment, discharge
or satisfaction in the ordinary course of business and consistent with past
practice of liabilities and obligations reflected or reserved against in the
Vita Financial Statements or incurred in the ordinary course of business and
consistent with past practice since the date of the Vita Unaudited Financial
Statements; and
(d) Canceled any debts or waived any claims or rights in excess of $5,000.
3.11 TAX RETURNS. Schedule 3.11 hereto consists of a complete list of all
of Vita's Tax Returns and Statements (as defined herein) filed at any time
during the three (3) years preceding the date of this Agreement. Except as set
forth in Vita's Tax Returns and Statements, to Vita's knowledge, Vita has: (a)
filed or has caused to be filed all federal, state and local and all material
foreign, territorial, franchise, income, sales, gross receipts and all other tax
returns and statements required to be filed by Vita or on its behalf and which
were due prior to the date of this Agreement (the "Tax Returns and Statements");
(b) paid within the time and in the manner prescribed by law all Taxes (as
defined below) due for all periods ending on or prior to the date
of this Agreement, except with respect to Taxes which are immaterial in amount
and the failure to so pay or file would not result in material penalties and
would not have a Material Adverse Effect; and (c) established adequate reserves
for the payment of all unpaid Taxes as of the date of the Vita Financial
Statements. To Vita's knowledge, the Tax Returns and Statements are true,
complete and accurate in all material respects. No tax assessment or deficiency
has been made against Vita nor has any notice been given of any actual or
proposed assessment or deficiency which has not been paid or for which an
adequate reserve has not been set aside. Except as set forth in such Tax Returns
and Statements, the Tax Returns and Statements are not presently the subject of
any audit or other administrative or court proceeding by any federal,
territorial, state, or local governmental agency. Vita has not received any
notice that any of the Tax Returns and Statements is now being or will be
examined or audited, and no consents extending any applicable statute of
limitations have been filed.
For purposes of this Agreement, "Taxes" shall mean any and all taxes,
payroll and employment related taxes, levies, assessments, charges or other
fees, together with any interest, penalties or other additions, imposed by any
governmental authority upon Vita.
3.12 TRANSACTIONS WITH AFFILIATES. No Affiliate of Vita has any interest,
directly or indirectly, in any Contract to which Vita is a party, or any
interest in any competitor, supplier or customer of Vita. Except as set forth
item by item on Schedule 3.12 hereto, Vita is not indebted, directly or
indirectly, to any Affiliate of Vita, for any liability or obligation, whether
arising by reason of stock ownership, contract, oral or written agreement or
otherwise. Except as disclosed on Schedule 3.12, no Affiliate is indebted,
directly or indirectly, to Vita. Schedule 3.12 is a complete and accurate list
of all employees of Vita owing more than $5,000 in principal (provided that the
aggregate principal amount owed by employees to Vita not set forth on Schedule
3.12 shall not exceed $25,000) plus accrued interest, to Vita, other than travel
or other employee advances (not exceeding $1,000 to any one individual) in the
ordinary course of business, setting forth the amounts owed, the applicable
interest rates, a description of the security and the maturity dates of all such
debts.
Except for transactions with NSI contemplated hereby and necessary to
effect the spin off of the NSI business contemplated by Section 6.9, no
Affiliate:(a) is a party to any Contract with Vita pursuant to which it directly
provides material services to Vita; or (b) is a party to any Contract with a
third party, to which Vita is not a party, but under which Vita receives any
material amount of goods or services from said third party.
3.13 CONTRACTS AND COMMITMENTS. Except as set forth on Schedule 3.13, Vita
has not entered into any material Contracts or commitments outside the ordinary
course of business.
3.15 LITIGATION.
(a) There is no pending complaint, charge, claim, action, suit or
arbitration
proceeding before any federal, territorial, state, municipal, foreign or other
court or governmental or administrative body or agency, or any private
arbitration tribunal or any investigation or inquiry before any federal,
territorial, state, municipal, foreign or other court or governmental or
administrative body or agency against, relating to or affecting: (i) Vita's
assets, properties or business of Vita; or (ii) the transactions contemplated by
this Agreement.
(b) There is not in effect any order, judgment or decree of any court or
governmental or administrative body or agency enjoining, barring, suspending,
prohibiting or otherwise limiting Vita from conducting or engaging in any aspect
of the business of Vita.
(c) To Vita's knowledge, Vita is not in violation of or default under any
applicable order, judgment, writ, injunction or decree of any federal,
territorial, state, municipal, foreign or other court or regulatory authority.
3.16 COMPLIANCE WITH LAW. To Vita's knowledge, the operations of Vita are
being conducted in accordance with all applicable laws, regulations and other
requirements of all national governmental authorities, and of all territories,
states, municipalities and other political subdivisions and agencies thereof
having jurisdiction over Vita, including, without limitation, all such laws,
regulations, ordinances and requirements relating to environmental, antitrust,
consumer protection, labor and employment, zoning and land use, currency
exchange, immigration, health, occupational safety, pension, securities, defense
procurement and trading with the enemy matters. To Vita's knowledge, Vita has
all permits, authorizations and consents necessary for the operation of its
business except for those which the failure to have would not, individually or
in the aggregate, have a Material Adverse Effect.
3.17 ACCURACY OF INFORMATION FURNISHED. To Vita's knowledge, no
representation or warranty by Vita contained in this Agreement or in respect of
the exhibits, schedules or documents delivered to Omni by Vita and expressly
referred to herein, and no statement contained in any certificate furnished or
to be furnished by or on behalf of Vita pursuant hereto, or in connection with
the transactions contemplated hereby, contains, or will contain as of the date
such representation or warranty is made or such certificate is or will be
furnished, and as of the Closing Date, any untrue statement of a material fact,
or omits, or will omit to state as of the date such representation or warranty
is made or such certificate is or will be furnished, any material fact which is
necessary to make the statements contained herein or therein, in light of the
circumstances under which they were made, not misleading.
3.18 TITLE AND RELATED MATTERS. To Vita's knowledge, Vita has good and
marketable title to and is the sole and exclusive owner of all of the properties
and assets, inventory, interests in properties and assets, real and personal,
including the Intellectual Property (as defined herein) which are reflected in
the Vita Financial Statements and the Vita Schedules or acquired after that
date (except properties, interests in properties and assets sold or otherwise
disposed of since such date in the ordinary course of business), free and clear
of all Encumbrances except: (a) statutory liens or claims not yet delinquent;
(b) such imperfections of title and easements as do not and will not, materially
detract from or interfere with the present or proposed use of the properties
subject thereto or affected thereby or otherwise materially impair present
business operations on such properties; and (c) as described in the Vita
Schedules. Except as set forth in the Vita Schedules, to Vita's knowledge, Vita
owns free and clear of any Encumbrances, royalty interests or other restrictions
or limitations of any nature whatsoever, any and all products it is currently
manufacturing, including the underlying Intellectual Property, and all
procedures, techniques, marketing plans, business plans, methods of management
or other information utilized in connection with Vita's business. Except as set
forth in the Vita Schedules, to Vita's knowledge, no third party has any right
to, and Vita has not received any notice of infringement of or conflict with
asserted rights of others with respect to, any product, service or Intellectual
Property which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a Material Adverse Effect on the
business, operations or financial condition of Vita or any material portion of
its properties, assets or rights.
For purposes of this Agreement, the term "Intellectual Property" means all
computer software and software licenses, intellectual property, proprietary
information, trade secrets, material and manufacturing specifications, drawings
and designs, patents, trademarks, service marks, trade names and copyrights, and
applications for and licenses (to or from Vita) with respect to any of the
foregoing.
3.19 TITLE TO THE VITA STOCK. Upon issuance and delivery to Omni of the
certificates for the Exchanged Vita Stock described in Section 1 of this
Agreement, Omni shall receive good and marketable title to the Exchanged Vita
Stock, and all of such Exchanged Vita Stock shall be received by Omni as validly
issued, fully paid and nonassessable, free and clear of all Encumbrances (other
than any restrictions generally imposed by federal, corporate or territorial
securities laws or as otherwise provided for in this Agreement).
4. CONDITIONS TO OMNI'S OBLIGATIONS. The obligations of Omni to consummate the
transactions contemplated by this Agreement, both at the Closing and
subsequently, are subject to the fulfillment at the Closing (unless otherwise
indicated) of each of the conditions set forth in this Section 4. Omni may waive
any or all of these conditions in whole or in part without prior notice;
PROVIDED, HOWEVER, that no such waiver shall constitute a waiver of any of its
other rights or remedies, at law or in equity, arising from any breach by Vita
of any representation, warranty, covenant or other agreement contained herein.
4.1 ACCURACY OF REPRESENTATIONS. The representations and warranties made by
Vita in this Agreement were true when made and shall be true as of the Closing
Date (except for changes therein permitted by this Agreement) with the same
force and effect as if such representations and warranties were made at and as
of the date of this Agreement, and Vita shall
have performed and complied with all covenants and conditions required by this
Agreement to be performed or complied with by Vita prior to or at the Closing.
Omni shall have been furnished with a certificate, signed by a duly authorized
executive officer of Vita and dated the Closing Date, to the foregoing effect.
4.2 AUTHORIZATION OF ACTIONS. All action on the part of Vita necessary and
sufficient to authorize the execution, delivery and performance of this
Agreement and the consummation of the transactions provided for herein shall
have been duly and validly taken by Vita, and Omni shall have been furnished
with a certificate of the Secretary or Assistant Secretary of Vita setting forth
a copy of the resolution or other instrument authorizing the performance of all
other transactions provided for in this Agreement.
4.3 NO MATERIAL ADVERSE CHANGE. Prior to the Closing Date, there shall not
have occurred any material adverse change in the financial condition, business
or operations of, nor shall any event have occurred which, with the lapse of
time or the giving of notice, may cause or create any material adverse change in
the financial condition, business or operations of Vita.
4.4 FORM OF DOCUMENTS. The form and substance of all certificates,
instruments and other documents delivered to Omni under this Agreement shall be
satisfactory in all reasonable respects to Omni and its counsel.
4.5 DELIVERY OF CLOSING DOCUMENTS. Vita shall have delivered to Omni on the
Closing Date the closing documents required to be delivered pursuant to Section
1.4 in form and substance satisfactory to Omni and its counsel.
4.6 ABSENCE OF PROCEEDINGS. No suit, action, investigation or other
proceeding shall be pending or threatened before any court or governmental or
regulatory agency or authority, and no suit, action, investigation or other
proceeding before any governmental or regulatory agency or authority shall have
been threatened, which seeks (or, in the case of an investigation, may lead to a
suit, action or proceeding which seeks) to restrain, prohibit or obtain damages
or other relief in connection with the Agreement or the consummation of the
transactions contemplated hereby or which questions the validity or legality of
such transactions.
4.9 SUPPLIER AGREEMENT. On or prior to the Closing Date, each of Vita and
Omni shall execute and deliver the Supplier Agreement.
5. CONDITIONS TO VITA'S OBLIGATIONS. The obligations of Vita to consummate the
transactions contemplated by this Agreement, both at the Closing and
subsequently, are subject to the fulfillment at the Closing of each of the
conditions set forth in this Section 5. Vita may waive any or all of these
conditions in whole or in part without prior notice; PROVIDED, HOWEVER, that no
such waiver shall constitute a waiver of any of its other rights or remedies, at
law or in equity, arising from any breach by Omni of any representation,
warranty, covenant or other agreement
contained herein:
5.1 ACCURACY OF REPRESENTATIONS. The representations and warranties made by
Omni in this Agreement were true when made and shall be true as of the Closing
Date (except for changes therein permitted by this Agreement) with the same
force and effect as if such representations and warranties were made at and as
of the date of this Agreement, and Omni shall have performed and complied with
all covenants and conditions required by this Agreement to be performed or
complied with by Omni prior to or at the Closing. Vita shall have been furnished
with a certificate, signed by a duly authorized executive officer of Omni and
dated the Closing Date, to the foregoing effect.
5.2 AUTHORIZATION OF ACTIONS. All action on the part of Omni necessary and
sufficient to authorize the execution, delivery and performance of this
Agreement and the consummation of the transactions provided for herein shall
have been duly and validly taken by Omni, and Vita shall have been furnished
with a certificate of the Secretary or Assistant Secretary of Omni setting forth
a copy of the resolution or other instrument authorizing the performance of all
other transactions provided for in this Agreement.
5.3 FORM OF DOCUMENTS. The form and substance of all certificates,
instruments and other documents delivered to Vita under this Agreement shall be
satisfactory in all reasonable respects to Vita and its counsel.
5.4 DELIVERY OF CLOSING DOCUMENTS. Omni shall have delivered to Vita on the
Closing Date the closing documents required to be delivered pursuant to Section
1.3 in form and substance reasonably satisfactory to Vita and their counsel.
5.5 SUPPLIER AGREEMENT. On or prior to the Closing Date, each of Vita and
Omni shall execute and deliver the Supplier Agreement.
5.6 ABSENCE OF PROCEEDINGS. No suit, action, investigation or other
proceeding shall be pending before any court or governmental or regulatory
agency or authority, and no suit, action, investigation or other proceeding
before any governmental or regulatory authority shall have been threatened,
which seeks (or, in the case of investigation, may lead to a suit, action or
proceeding which seeks) to restrain, prohibit or obtain damages or other relief
in connection with this Agreement or the consummation of the transactions
contemplated hereby or which questions the validity or legality of such
transactions.
5.7 NO MATERIAL ADVERSE CHANGE. Prior to the Closing Date, there shall not
have occurred any material adverse change in the financial condition, business
or operations of, nor shall any event have occurred which, with the lapse of
time or the giving of notice, may cause or create any material adverse change in
the financial condition, business or operations of the Business or the
Transferred Assets.
6. OTHER AGREEMENTS.
6.1 CLOSING EVENTS. At the Closing, each of the respective parties hereto
shall execute, acknowledge and deliver (or shall cause to be executed,
acknowledged and delivered) any and all certificates, stock powers, financial
statements, payments, special payments, funds, schedules, agreements,
resolutions, rulings, or other instruments required by this Agreement to be so
delivered at or prior to the Closing, together with such other items as may be
reasonably requested by the parties hereto and their respective legal counsel in
order to effectuate or evidence the transactions contemplated hereby. However,
in no event shall the Closing occur without the satisfaction or waiver of the
conditions set forth in Sections 4 and 5 of this Agreement.
6.2 POST-CLOSING OBLIGATION TO OBTAIN CONSENTS AND APPROVALS. Vita and Omni
shall obtain and deliver to the other party hereto as soon as practicable after
the Closing Date all material consents, approvals or authorization of, or
declarations, filings or registrations with, any governmental or regulatory
authority which is required to be made or obtained by Omni or Vita in connection
with the execution, delivery and performance of this Agreement and the
transactions contemplated hereby. Omni shall execute and deliver, or cause to be
executed and delivered, to Vita such other instruments of conveyance and
transfer as Vita may reasonably request or as may be otherwise necessary to more
effectively convey and transfer to, and vest in, Vita and put Vita in possession
of, any part of the Transferred Assets.
6.3 AGREEMENT CONCERNING CONDITIONS TO CLOSING. Omni and Vita shall agree
to use their best efforts to cause the conditions set forth in Sections 4 and 5
to be met prior to the Closing Date.
6.4 INFORMATION FOR OMNI'S PUBLIC REPORTS.
(a) As soon as available, but in any event within ninety (90) days after
the end of each fiscal year of Vita, Vita shall mail to Omni a copy of the
audited balance sheet of Vita and its Subsidiaries (as hereinafter defined) as
at the end of such fiscal year and the related statements of income,
stockholders' equity and cash flows of Vita and its Subsidiaries for such fiscal
year certified by independent certified public accountants selected by Vita.
(b) As soon as available, but in any event not later than thirty (30) days
after the end of each of the first three quarterly periods in each fiscal year
of Vita, Vita will mail to Omni a copy of the unaudited balance sheet of Vita
and its Subsidiaries as at the end of each such quarter and the related
unaudited consolidated statements of income, stockholders' equity and cash flows
of Vita and its Subsidiaries for such quarterly period and the portion of the
fiscal year of Vita and its Subsidiaries through such date.
(c) Vita represents and warrants to Omni that, to its knowledge, all
information so furnished shall be true and correct in all material respects
without omission of any material fact required to make the information stated
not misleading.
The term "Subsidiaries" as used in this Agreement shall mean, with
respect to any Person, any corporation, partnership, association or other
business entity of which a majority of the total economic interest thereof is at
the time owned or controlled, directly or indirectly, by that Person or one or
more of the other Subsidiaries of that Person or a combination thereof.
6.5 AVAILABILITY OF RULE 144. Each of the parties acknowledge that the
Exchanged Vita Stock to be issued pursuant to this Agreement will be "restricted
securities" as that term is defined in Rule 144 promulgated pursuant to the
Securities Act. Vita is under no obligation, except as set forth herein, to
register such shares under the Securities Act. Notwithstanding the foregoing,
however, in the event that a public market for the Vita Common Stock shall
develop or the Vita Common Stock becomes the subject of a registration statement
under the Securities Act or the Securities and Exchange Act of 1934, as amended
(the "Exchange Act"), Vita will use its best efforts to: (a) make available to
Omni on a regular basis not less than semi-annually, business and financial
information regarding Vita so as to make available to the stockholders of Vita
the provisions of Rule 144 pursuant to subparagraph (c)(1) thereof; and (b)
within ten (10) days of a written request of Omni, Vita will provide to Omni
written confirmation of compliance with such of the foregoing subparagraph as
may then be applicable. The covenants set forth in this Section 6.5 shall
survive the Closing and the consummation of the transactions herein
contemplated.
6.6 EXCHANGED VITA STOCK - RIGHTS AND PREFERENCES.
(a) PROTECTION AGAINST DILUTION. Until the IPO Date (as defined herein),
Vita shall not issue any shares of its capital stock or Equity Rights (as
defined herein), or enter into any agreement in respect of such issuance, other
than if the issuance is (i) pursuant to Vita's employee stock option plan(s)
approved by the Vita stockholders as of the Closing Date, (ii) pursuant to the
issuance of shares of Vita Common Stock in connection with an initial public
offering, (iii) pursuant to a conversion or exercise of an issued and
outstanding convertible or exercisable security as of the Closing Date, (iv) to
Persons with whom Vita has equipment leasing arrangements where the issuance is
for non-equity financing, (v) pursuant to the issuance of shares of Vita Common
Stock in connection with acquisition of companies, divisions or product lines,
(vi) to Persons for satisfaction of pre-emptive rights or anti-dilution rights
existing as of the Closing Date, or (vii) in connection with a transaction
pursuant to which Vita offers to Omni the right to participate proportionately
according to its Pro Rata Share (as hereinafter defined) as of the date of such
proposed issuance and on the same terms and conditions. Any right granted
pursuant to clause (viii) of the preceding sentence shall be exercisable by
written notice to Vita given within ten (10) days after receipt by Omni of
written notice of such proposed
issuance. If Omni shall fail to respond to Vita within the 10-day notice period,
such failure shall be deemed to be a rejection of its right to participate in
the purchase of the securities to be issued. "Pro Rata Share" shall mean, as to
Omni, the ratio of the number of Formula Shares (as defined herein) held by Omni
to the total number of Formula Shares then held by all Vita stockholders.
For purposes of this Section 6.6(a), "Equity Rights" shall mean options,
warrants, calls, commitments or other rights to acquire, sell or issue shares of
capital stock or other equity interests, whether upon conversion of other
securities or otherwise.
For purposes of this Section 6.6(a), "Formula Shares" shall mean the shares
of Vita Common Stock and any other shares of capital stock of Vita which Omni
may hold or acquire in accordance with the terms of this Agreement, including,
without limitation, any shares of capital stock into which such shares of Vita
Common Stock or other shares may be converted or changed or any shares of Vita
Common Stock or other such shares of capital stock of Vita received by virtue of
any dividend, merger, consolidation, recapitalization or otherwise.
For purposes of this Agreement, "IPO Date" shall mean the date Vita shall
have consummated an initial public offering of shares of its common equity
securities which are of the same class as the shares of Exchanged Vita Stock
pursuant to an effective Registration Statement filed pursuant to the Securities
Act.
(b) BOARD REPRESENTATION. So long as Omni owns ten percent (10%) of the
issued and outstanding shares of Vita Common Stock, Omni shall have the right to
designate one (1) voting member of the five (5) authorized members of Vita's
Board of Directors. If Vita increases the number of authorized members of its
Board of Directors, Omni shall have the right to designate the number of members
of Vita's Board of Directors equal to the product of the number of authorized
members of the Board of Directors multiplied by the percentage of the issued and
outstanding Vita Common Stock owned by Omni, provided that any fractional number
equal to or less than one-half shall be rounded down to the nearest whole
number, and any fractional number greater than one-half shall be rounded up to
the nearest whole number; provided, however, that Omni shall have the right to
designate at least one (1) voting member of Vita's Board of Directors so long as
Omni owns at least ten percent (10%) of the issued and outstanding shares of
Vita Common Stock.
(c) RIGHT OF REDEMPTION.
(i) OPTIONAL REPURCHASE RIGHT OF EXCHANGED VITA STOCK. Omni shall
have the right, at any time after the expiration of four (4) years from the
Closing Date, to require Vita to redeem the Exchanged Vita Stock for cash in the
amount of Three Million Four Hundred Thousand Dollars ($3,400,000) or, at Vita's
option, a promissory note for a term of sixty (60) months payable in equal
monthly installments of $56,666.67 per month. Omni shall exercise its
rights hereunder by giving Vita written notice of its exercise. Vita shall be
obligated to purchase, and Omni shall be obligated to sell, the Exchanged Vita
Stock on a date the parties mutually agree which date shall not be more than
thirty (30) days after the date of such notice.
(ii) OPTIONAL REDEMPTION RIGHT OF EXCHANGED VITA STOCK. Vita shall
have the right to redeem all, but not less than all, of the shares of the
Exchanged Vita Stock at any time during the period beginning on the Closing Date
and ending on the fourth-year anniversary of the Closing Date for the following
aggregate purchase price:
(A) if Vita redeems the Exchanged Vita Stock at any time prior to or
on the first-year anniversary of the Closing Date, Seven Million Dollars
($7,000,000);
(B) if Vita redeems the Exchanged Vita Stock at any time after the
first-year anniversary date up to and including the second-year anniversary
of the Closing Date, Seven Million Seven Hundred Thousand Dollars
($7,700,000);
(C) if Vita redeems the Exchanged Vita Stock at any time after the
second-year anniversary date up to and including the third-year anniversary
of the Closing Date, Eight Million Four Hundred Seventy Thousand Dollars
($8,470,000); and
(D) if Vita redeems the Exchanged Vita Stock at any time after the
third-year anniversary date up to and including the fourth-year anniversary
of the Closing Date, Nine Million Three Hundred Seventeen Thousand Dollars
($9,317,000).
Vita shall pay the purchase price in cash at the closing of such transaction.
Vita shall have the right to redeem the Exchanged Vita Stock from any holder
thereof, in the event Omni has transferred any portion of the Exchanged Vita
Stock prior to Vita's exercise of its rights hereunder. Vita shall exercise its
rights hereunder by giving Omni written notice of its exercise. Vita shall be
obligated to purchase, and Omni shall be obligated to sell, the Exchanged Vita
Stock on a date the parties mutually agree which date shall not be more than
twenty (20) days after the date of such notice.
6.7 RIGHT OF FIRST REFUSAL.
(a) Subject to the terms and conditions of the Consent attached hereto as
Exhibit D, except for Transfers (as hereinafter defined) to Affiliates of Omni
and liquidation or spinoff distributions to the stockholders of Omni on a pro
rata basis and until the IPO Date, Omni shall not Transfer (as hereinafter
defined) or accept an offer to Transfer any shares of Exchanged Vita Stock to
any individual, corporation, partnership, firm, joint venture, association,
joint-stock company, trust, unincorporated organization, court, tribunal,
arbitrator or any government or political subdivision thereof, whether federal,
state, county, local or foreign, or any agency, authority, official or
instrumentality of any such government or political subdivision (each a
"Person") unless:
(i) Omni shall have received a bona fide offer in writing from a
third party (a "Bona Fide Offer"), which Bona Fide Offer shall provide for the
purchase of all or a portion of the shares of Exchanged Vita Stock, and shall
have first given written notice (the "Transfer Notice") to Vita stating (i)
Omni's intention to transfer all or a portion of the shares of Exchanged Vita
Stock pursuant to the Bona Fide Offer, (ii) the number of shares of Exchanged
Vita Stock that Omni proposes to transfer, (iii) the name and address of the
proposed transferee, and (iv) the offered purchase price per share of the shares
of Exchanged Vita Stock to be transferred and the manner of payment thereof. The
Transfer Notice shall be accompanied by a copy of the Bona Fide Offer, which
shall be in writing and signed by the proposed transferee. If Omni fails to give
the Transfer Notice with respect to any such proposed transfer of his shares of
Exchanged Vita Stock, then any such purported transfer shall be void and shall
not be made or recorded on the books of Vita.
(ii) Subject to Section 6.7(a)(iii), upon the giving of a Transfer
Notice, Vita shall have the irrevocable and exclusive option, but not the
obligation, to purchase all, but not less than all, of the shares of Exchanged
Vita Stock to be transferred. Such option shall be exercised by so notifying
Omni within ten (10) days of the delivery of the Transfer Notice. Failure by
Vita to deliver the notice required by this Section 6.7(a)(ii) shall be deemed
an election not to purchase the shares of Exchanged Vita Stock proposed to be
sold. In addition, Vita shall have the right to exercise its rights pursuant to
Section 6.6(c) of this Agreement.
(iii) In the event that Vita fails to elect to purchase all of the
shares of Exchanged Vita Stock to be Transferred by Omni in accordance with
Section 6.7(a)(ii), the election, if any, made pursuant to said Section shall be
void and shall have no force and effect; whereupon, Omni may accept the Bona
Fide Offer and effect the proposed Transfer with respect to said shares of
Exchanged Vita Stock on the terms of such Bona Fide Offer within a period of 60
days following the delivery of the Transfer Notice (the "Third Party Closing
Date"). If the proposed Transfer is not completed on or before the Third Party
Closing Date, then the Bona Fide Offer shall be deemed withdrawn and no Transfer
shall be effected except pursuant to a new Bona Fide Offer.
(iv) Unless Omni and Vita otherwise agree, if the shares of Exchanged
Vita Stock to be Transferred are purchased by a party hereto pursuant to this
Section 6.7, then such purchase or purchases shall be completed (the "Section
6.7 Closing") at the principal executive offices of the Company, at 10:00 A.M.
local time on the date 60 days following the delivery of the Transfer Notice
(the "Section 6.7 Closing Date").
(b) FIRST REFUSAL PRICE. Any shares of Exchanged Vita Stock purchased by
Vita pursuant to this Section 6.7 shall be purchased at a purchase price per
share equal to the purchase price per share set forth in Omni's Bona Fide Offer.
(c) PAYMENT, DELIVERY OF CERTIFICATES, ETC.
(i) If Vita purchases any shares of Exchanged Vita Stock pursuant to
the provisions of this Section 6.7, at the Section 6.7 Closing Vita shall pay
the purchase price in the manner set forth in the Bona Fide Offer as disclosed
in the Transfer Notice (if notes are provided for in the Bona Fide Offer then
the notes shall be the notes of Vita).
(ii) At the Section 6.7 Closing, Omni shall deliver to Vita duly
endorsed for transfer with all required stock transfer tax stamps affixed
thereto, certificates for all of the shares of Exchanged Vita Stock being
purchased by Vita and sold at the Section 6.7 Closing and, in addition, such
signature guarantees and other documents as may be reasonably requested in order
to Omni's title to such shares of Exchanged Vita Stock and its authority to act
in connection with the sale thereof. For purposes of this Section 6.7,
"Transfer" shall mean the making of any sale or exchange with respect to the
transfer of the shares of Exchanged Vita Stock pursuant to a Bona Fide Offer.
(d) CONDITION OF TRANSFER. Prior to any Transfer of the Exchange Vita
Stock, Omni (and any subsequent holder) shall cause the proposed transferee to
deliver to Vita a written instrument, in form and substance satisfactory to
Vita, agreeing to be bound by the terms of Section 6.6(c), unless the provisions
of Section 6.6(c) shall otherwise terminate.
6.8 NON-COMPETITION AGREEMENT. Each of Omni and Vita shall enter into the
Non-Competition Agreement in the form attached hereto as EXHIBIT E.
6.9 NSI DIVIDEND. As soon as practicable after the Closing Date, Vita shall
transfer, by written agreement executed by Vita and NSI, all of Vita's assets
and liabilities relating to the Nutraceutical Sciences Institute business to
NSI, and Vita shall declare a dividend of all of the stock of NSI to the Vita
Stockholders of record as of January 31, 2001. Accordingly, Omni understands and
agrees that it will not be entitled to any shares of NSI when such dividend is
paid to such Vita Stockholders. Omni further acknowledges that Vita has agreed
to transfer all of its business, assets and liabilities relating to its
Nutraceutical Sciences Institute business to NSI in return for no consideration.
Omni hereby releases and agrees that it will not assert any claims that it may
have now or in the future arising from the transfer of the Nutraceutical
Sciences Institute business to NSI for no consideration and the dividend of all
of the shares of NSI to shareholders of record as of January 31, 2001.
6.10 ISSUANCE OF ADDITIONAL VITA COMMON STOCK. In the event that the number
of issued and outstanding shares of Vita Common Stock exceeds Twenty Seven
Million
Four Hundred Thousand (27,400,000) shares on the closing date, Vita shall issue
To Omni additional shares of Vita common stock equal to one additional share of
Vita common stock for each four shares of issued and outstanding Vita common
stock that exceeds twenty seven million four hundred thousand (27,400,000)
shares on the closing date. In the event that the total number of shares of Vita
common stock subject to purchase rights (as defined in section 3.4 hereof)
exceeds one million (1,000,000) shares, Vita shall issue to Omni additional
shares of Vita common stock equal to one additional share of Vita common stock
for each four shares of Vita common stock subject to purchase rights that
exceeds one million shares on the closing date. The provisions of this section
6.10 shall not preclude other rights or remedies in law or in equity or
otherwise that Omni may have in connection with the transactions contemplated by
this agreement.
6.11 FURTHER ASSURANCES. (a) Omni shall cooperate with Vita and promptly
supply all information and documents requested by Vita, in connection with
Vita's efforts to obtain the federal trademark registrations for the names
"HealthZone", "Smart Basic," "Vitamin Discount," and "Healthshop," and to
transfer such trademark and any rights thereto to Vita; and
(b) Omni, at its sole cost and expense, shall complete the registration of
the domain names "xxxxxxxxxx.xxx," "xxxxxxxxxx.xxx," "XxxxxXxxxx.xxx," and
Vitamin Xxxxxxxx.xxx" and to transfer such domain names and any rights thereto
to Vita.
(c) Within three days of the Closing Date, Omni shall destroy, and cause
all of its employees, officers, agents and directors to destroy, all of its
copies of the Customer List, written and electronic, and shall deliver to Vita a
certificate signed by its chief technology officer that, to his knowledge, after
reasonable investigation, all copies of the Customer List have been destroyed.
6.12 NSI EXCLUSIVE. As soon as practicable after the Closing Date, each of
Vita and NSI shall execute and deliver the NSI Exclusivity Agreement and provide
Omni with a copy thereof.
6.13 CUSTOMER TRANSITION. Immediately following the Closing, each of Vita
and Omni shall cooperate with each other to do the following:
(a) Within three days of the Closing Date, Omni shall have arranged for
automatic call forwarding of all local and toll free telephone calls relating to
customer orders for products of the Business, and within thirty days transferred
control of such phone numbers to Vita.
(b) Within three days of the Closing Date, Omni shall have arranged for the
forwarding of all internet traffic from the web sites and domain names contained
in the
Transferred Assets to Vita's web site (xxx.xxxxxxxx.xxx).
(c) Within three days after the Closing Date, Omni shall have arranged for
the forwarding of all mail-orders for the products of the Business to Vita.
6.14 CONFIDENTIALITY POLICY FOR CUSTOMER LIST. From and after the Closing
Date, Vita shall only disclose and/or use the Customer List in accordance with
Vita's privacy policy posted on Vita's website.
7. INDEMNIFICATION; NOTICE OF BREACH.
7.1 VITA'S INDEMNIFICATION. After the Closing and for a period of fifteen
(15) months thereafter, Vita shall protect, defend, indemnify and hold harmless
Omni, its parents, subsidiaries, officers, directors, employees, successors and
assigns from and against any losses, damages (but not including consequential
damages and penalties) and expenses (including, without limitation, reasonable
counsel fees, costs and expenses incurred in investigating and defending against
the assertion of such liabilities) which may be sustained, suffered or incurred
by them and which arise from any breach by Vita of its representations,
warranties and covenants in this Agreement.
7.2 OMNI'S INDEMNIFICATION. After the Closing and for a period of fifteen
(15) months thereafter, Omni shall protect, defend, indemnify and hold harmless
Vita, its parents, subsidiaries, officers, directors, employees, successors and
assigns from and against any losses, damages (but not including consequential
damages and penalties) and expenses (including, without limitation, reasonable
counsel fees, costs and expenses incurred in investigating and defending against
the assertion of such liabilities) which may be sustained, suffered or incurred
by them and which arise from any breach by Omni of its representations,
warranties and covenants in this Agreement.
7.3 NOTICE. If any action, suit or proceeding shall be commenced, or any
claim or demand shall be asserted, in respect or which one party (the
Indemnitee) proposes to demand indemnification under Section 7.1 or 7.2, the
party from which indemnification is sought (the "Indemnitor") shall be notified
to that effect with reasonable promptness and shall have the right to assume the
entire control of (including the selection of counsel), subject to the right of
the Indemnitee to participate (with counsel of its choice) in, the defense,
compromise or settlement thereof, but the fees and expenses of such counsel
shall be at the expense of the Indemnitee unless (a) the employment of such
counsel by the Indemnitee has been specifically authorized by the Indemnitor, or
(b) the named parties to any such action (including any impleaded parties)
include both the Indemnitee and the Indemnitor and the Indemnitee shall have
been advised by its counsel that there may be one or more legal defenses
available to it which are different from or additional to those available to the
Indemnitor. The Indemnitee shall cooperate fully in all respects with the
Indemnitor in any such defense, compromise or settlement, including, without
limitation, by making available all pertinent information under its control to
the Indemnitor. The
Indemnitor shall not compromise or settle any such action, suit, proceeding,
claim or demand without the prior written consent of the Indemnitee;
provided, however, that in the event the approval described above is
withheld, then the liabilities of the Indemnitor shall be limited to the
total sum representing the amount of the proposed compromise or settlement
and the amount of counsel fees accumulated at the time such approval is
withheld.
8. MISCELLANEOUS.
8.1 BROKERAGE AND FINDER'S FEES. Omni and Vita represent to and agree with
each other that no broker or finder has been or shall be involved in any manner
in the negotiation or consummation of the transactions contemplated hereby. Omni
agrees to indemnify and save Vita harmless from and against any and all claims,
liabilities or obligations with respect to brokerage or finder's fees or
commissions in connection with the transactions contemplated by this Agreement
asserted by any Person on the basis of any statement or representation made or
alleged to have been made by Omni. Vita agrees to indemnify and save Omni and
one or more of its subsidiaries harmless from and against any and all claims,
liabilities or obligations with respect to brokerage or finder's fees or
commissions in connection with the transactions contemplated by this Agreement
asserted by any Person or Persons on the basis of any statement or
representation made or alleged to have been made by Vita.
8.2 COSTS AND EXPENSES. Each of the parties to this Agreement shall bear
all of its own costs and expenses incurred by it in connection with this
Agreement.
8.3 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Omni in this Agreement or in any certificate, instrument or
document delivered at Closing pursuant to this Agreement shall survive for a
period of fifteen months following the Closing, except Omni's representation and
warranty contained in the first two sentences of Section 2.6 regarding title to
the Transferred Assets, which shall survive without limitation. The
representations and warranties of Vita in this Agreement or in any certificate,
instrument or document delivered at the Closing pursuant to this Agreement shall
survive for a period of fifteen months following the Closing, except Vita's
representation and warranty contained in Section 3.19 regarding title to the
Exchange Vita Stock, which shall survive without limitation.
8.4 LAW, FORUM AND JURISDICTION. This Agreement shall be construed and
interpreted in accordance with the laws of the State of Florida. The parties
hereby waive their right to seek remedies in court, including any right to a
jury trial. The parties agree that in the event of any dispute between or among
them, such dispute shall be resolved exclusively by arbitration to be conducted
in accordance with the rules of JAMS/Endispute ("JAMS") applying the laws of the
State of Florida. Any arbitration proceeding shall be brought before JAMS
arbitrators sitting in Palm Beach County, the State of Florida. The parties
agree that such arbitration shall be conducted by a three (3) member panel (the
"Arbitration Panel"). The procedure for selecting
arbitrators shall be that Omni and Vita shall each choose one (1) arbitrator,
and the two (2) selected arbitrators shall choose the third arbitrator who shall
be the Chairman of the Arbitration Panel. By mutual agreement, Omni and Vita may
jointly waive the right to a three (3) member Arbitration Panel and have an
arbitration proceeding conducted by a single arbitrator, as mutually selected by
the parties. The rules of procedure for such arbitration proceeding shall be as
determined by the Arbitration Panel (or single arbitrator, as applicable), and
the arbitration award shall include factual findings and conclusions of law. The
parties understand that any award rendered by the arbitrator shall be final and
binding and judgment may be entered on it, as provided by law, and that the
right to appeal or seek modification thereof is limited.
8.5 NOTICES. All notices and other communications and legal process shall
be in writing and shall be personally delivered, transmitted by overnight
courier by telecopier and followed by first class mail, or transmitted by
registered or certified mail, postage prepaid, with return receipt requested, as
elected by the party giving such notice, addressed as follows:
IF TO VITA: XXXXXXXX.XXX, INC.
0000 XXXX XXXXX XXXX
XXXXXXX XXXXX, XXXXXXX 00000
ATTN: XXXXX XXXXXX
TEL: (000) 000-0000
FAX: (000) 000-0000
WITH A COPY TO: XXXXXXX & XXXXXXXX LTD.
000 XXXXX XXXXXXXX, XXXXX 0000
XXXXXXX, XXXXXXXX 00000
ATTN: XXXXXXXX X. XXXXXXXXX
TEL: (000) 000-0000
FAX: (000) 000-0000
IF TO OMNI: OMNI NUTRACEUTICALS, INC.
0000 XXXXXXXXX XXXXXX
XXX XXXXXXX, XXXXXXXXXX 00000
ATTN: PRESIDENT
TEL: (000) 000-0000
FAX: (000) 000-0000
WITH A COPY TO: XXXX, FORWARD, XXXXXXXX & SCRIPPS, LLP
0000 XXXXX XXXXX XXXXX, XXXXX 000
XXX XXXXXXX, XXXXXXXXXX 00000
ATTN: XXXXXXX X. XXXX, ESQ.
TEL: (000) 000-0000
FAX: (000) 000-0000
NOTICES SHALL BE DEEMED TO HAVE BEEN GIVEN: (i) ON THE FIFTH BUSINESS DAY AFTER
POSTING, IF MAILED AS PROVIDED ABOVE, (ii) ON THE DATE OF RECEIPT IF DELIVERED
PERSONALLY OR BY OVERNIGHT COURIER, OR (iii) ON THE NEXT BUSINESS DAY AFTER
TRANSMISSION IF TRANSMITTED BY TELECOPIER IN THE MANNER SET FORTH ABOVE (AND
APPROPRIATE ANSWERBACKS HAVE BEEN RECEIVED). ANY PARTY HERETO MAY CHANGE ITS
ADDRESS FOR PURPOSES HEREOF BY NOTICE TO THE OTHER PARTIES HERETO.
8.6 ENTIRE AGREEMENT. THIS AGREEMENT CONSTITUTES THE ENTIRE UNDERSTANDING
AND AGREEMENT BETWEEN THE PARTIES HERETO. THIS AGREEMENT SUPERSEDES ANY AND ALL
PREVIOUS AGREEMENTS, COMMITMENTS AND UNDERSTANDINGS AMONG THE PARTIES HERETO,
WHETHER SUCH AGREEMENTS, COMMITMENTS OR UNDERSTANDINGS WERE ORAL OR WRITTEN, AND
NEITHER PARTY HERETO HAS RELIED OR WILL RELY ON ANY REPRESENTATION OF THE OTHER
EXCEPT TO THE EXTENT SET FORTH HEREIN.
8.7 HEADINGS; CONTEXT. THE HEADINGS OF THE SECTIONS AND PARAGRAPHS
CONTAINED IN THIS AGREEMENT ARE FOR CONVENIENCE OF REFERENCE ONLY AND DO NOT
FORM A PART HEREOF AND IN NO WAY MODIFY, INTERPRET OR CONSTRUE THE MEANING OF
THIS AGREEMENT.
8.8 COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED IN COUNTERPARTS, ALL OF
WHICH SHALL BE CONSIDERED ONE AND THE SAME AGREEMENT, AND SHALL BECOME EFFECTIVE
WHEN ONE OR MORE COUNTERPARTS HAVE BEEN SIGNED BY EACH OF THE PARTIES HERETO AND
DELIVERED TO THE OTHER.
8.9 BENEFIT. THIS AGREEMENT SHALL BE BINDING UPON AND SHALL INURE ONLY TO
THE BENEFIT OF THE PARTIES HERETO, AND THEIR PERMITTED ASSIGNS HEREUNDER. THIS
AGREEMENT SHALL NOT BE ASSIGNED BY ANY PARTY WITHOUT THE PRIOR WRITTEN CONSENT
OF THE OTHER PARTY. IN THE EVENT OF ANY PERMITTED ASSIGNMENT BY VITA, THE
ASSIGNEE SHALL SUCCEED TO ALL OF THE RIGHTS AND OBLIGATIONS OF VITA UNDER THIS
AGREEMENT; AND IN THE EVENT OF ANY PERMITTED ASSIGNMENT BY OMNI, THE ASSIGNEE
SHALL SUCCEED TO ALL OF THE RIGHTS AND OBLIGATIONS OF OMNI UNDER THIS AGREEMENT.
8.10 AMENDMENT AND WAIVER. THIS AGREEMENT MAY BE AMENDED, OR ANY PROVISION
OF THIS AGREEMENT MAY BE WAIVED, PROVIDED THAT ANY SUCH AMENDMENT OR WAIVER
SHALL BE BINDING ON VITA ONLY IF SUCH AMENDMENT OR WAIVER IS SET FORTH IN A
WRITING EXECUTED BY VITA, AND PROVIDED THAT ANY SUCH AMENDMENT OR WAIVER SHALL
BE BINDING ON OMNI ONLY IF SUCH AMENDMENT OR WAIVER IS SET FORTH IN A WRITING
EXECUTED BY OMNI. THE WAIVER OF ANY PARTY HERETO OF A BREACH OF ANY PROVISION OF
THIS AGREEMENT SHALL NOT OPERATE OR BE CONSTRUED AS A WAIVER OF ANY OTHER
BREACH.
8.11 PUBLIC ANNOUNCEMENTS. EXCEPT AS MAY BE REQUIRED BY LAW, NEITHER
PARTY SHALL MAKE ANY PUBLIC ANNOUNCEMENT OR FILING WITH RESPECT TO THE
TRANSACTIONS PROVIDED FOR HEREIN WITHOUT THE PRIOR CONSENT OF THE OTHER PARTY
HERETO.
8.12 FURTHER ASSURANCES. AFTER THE CLOSING, OMNI AND VITA SHALL PERFORM
SUCH FURTHER ACTS AS MAY BE NECESSARY TO EFFECTUATE THE TRANSACTION AS SET FORTH
IN SECTION 1.1 HEREOF AND OTHERWISE COMPLY WITH THE TERMS OF THIS AGREEMENT.
8.13 ATTORNEYS' FEES. IN ANY ACTION AT LAW OR IN EQUITY TO ENFORCE OR
CONSTRUE ANY PROVISIONS OR RIGHTS UNDER THIS AGREEMENT, THE UNSUCCESSFUL PARTY
OR PARTIES TO SUCH LITIGATION, AS DETERMINED BY A COURT PURSUANT TO A FINAL
ORDER, JUDGMENT OR DECREE, SHALL PAY TO THE SUCCESSFUL PARTY OR PARTIES ALL
COSTS, EXPENSES AND REASONABLE ATTORNEYS' FEES INCURRED BY SUCH SUCCESSFUL PARTY
OR PARTIES (INCLUDING, WITHOUT LIMITATION, SUCH COSTS, EXPENSES AND FEES ON ANY
APPEAL), WHICH COSTS, EXPENSES AND ATTORNEYS' FEES SHALL BE INCLUDED AS PART OF
ANY ORDER, JUDGMENT OR DECREE.
8.14 SEVERABILITY. IN THE EVENT THAT ANY PARTICULAR PROVISION OR PROVISIONS
OF THIS AGREEMENT OR THE OTHER AGREEMENTS CONTAINED HEREIN SHALL FOR ANY REASON
HEREAFTER BE DETERMINED TO BE UNENFORCEABLE, OR IN VIOLATION OF ANY LAW,
GOVERNMENTAL ORDER OR REGULATION, SUCH UNENFORCEABILITY OR VIOLATION SHALL NOT
AFFECT THE REMAINING PROVISIONS OF SUCH AGREEMENTS, WHICH SHALL CONTINUE IN FULL
FORCE AND EFFECT AND BE BINDING UPON THE RESPECTIVE PARTIES HERETO.
8.15 FAILURE OF CONDITIONS; TERMINATION. IN THE EVENT ANY OF THE CONDITIONS
SPECIFIED IN THIS AGREEMENT SHALL NOT BE FULFILLED ON OR BEFORE THE CLOSING
DATE, THE PARTIES, OR ANY ONE OF THEM, HAVE THE RIGHT EITHER TO PROCEED OR, UPON
PROMPT WRITTEN NOTICE TO THE OTHER, TO TERMINATE AND RESCIND THIS AGREEMENT
WITHOUT LIABILITY TO ANY OTHER PARTY. THE ELECTION TO PROCEED SHALL NOT AFFECT
THE RIGHT OF SUCH ELECTING PARTY REASONABLY TO REQUIRE THE OTHER PARTY TO
CONTINUE TO USE ITS EFFORTS TO FULFILL THE UNMET CONDITIONS.
8.16 NO STRICT CONSTRUCTION. The language of this Agreement shall be
construed as a whole, according to its fair meaning and intendment, and not
strictly for or against either party hereto, regardless of who drafted or was
principally responsible for drafting the Agreement or any specific terms or
conditions hereof.
8.17 EXECUTION KNOWING AND VOLUNTARY. In executing this Agreement, Vita and
Omni severally acknowledge and represent that each: (a) has fully and carefully
read and considered this Agreement; (b) has been or has had the opportunity to
be fully apprised by his, her or its attorneys of the legal effect and meaning
of this document and all terms and conditions hereof; (c) has been afforded the
opportunity to negotiate as to any and all terms hereof; and (d) is executing
this Agreement voluntarily, free from any influence, coercion or duress of any
kind.
8.18 LITIGATION BY THIRD PARTIES. In the event that suit is brought by a
third party to enjoin or otherwise interfere with the consummation of the
transactions contemplated herein, the parties agree that the bringing of such
litigation shall not entitle any party hereto to terminate the within Agreement,
but that the parties shall bring an action for declaratory relief before a court
of competent jurisdiction and shall terminate this Agreement if such court
adjudges termination to be required by the rights of such third party.
8.19 RISK OF LOSS. The risk of any loss, damage, impairment, confiscation
or condemnation of the Transferred Assets or any part thereof shall be upon Omni
at all times prior to the Closing Date. Prior to the Closing Date, in the event
of any such loss, damage, impairment, confiscation or condemnation, the proceeds
of, or any claim for any loss payable under, each of Omni's insurance policy,
judgment or award with respect thereto shall be payable to Omni, and Omni shall
have no obligation to Vita to repair, replace or restore any such property or to
pay all or any part of such proceeds to Vita.
8.20 COMPLIANCE WITH BULK SALES LAWS. Each of Omni and Vita hereby waives
compliance by the other party with the provisions of the "bulk sales laws" of
any jurisdiction which may be applicable to the transactions contemplated by
this Agreement.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
duly executed and delivered in its name and on its behalf, all as of the day and
year first above written.
"Vita"
XXXXXXXX.XXX, INC., a Delaware corporation
By: /s/ XXXXX XXXXXX
--------------------------------------------
Xxxxx Xxxxxx, Chief Executive Officer
"Omni"
OMNI NUTRACEUTICALS, INC., a Utah corporation
By: /s/ XXXX XXXXX
--------------------------------------------
Xxxx Xxxxx, President
