STOCK PURCHASE AGREEMENT HEALTHSPORT, INC.
Exhibit 10.1
This Stock Purchase Agreement (“Agreement”) dated November 6, 2009 is made and entered into by
and between HealthSport, Inc., a Delaware corporation (the “Company”) and Supplemental
Manufacturing & Ingredients, LLC, an Arizona limited liability company (the “Investor”), with
respect to the following facts:
A. The Investor desires to purchase from the Company, and the Company desires to sell to the
Investor shares of the Company’s authorized but unissued common stock on the terms and conditions
of this Agreement.
B. In connection with the purchase, the Investor will issue to the Company a Promissory Note
in the form attached hereto as Exhibit A (the “Note”), as partial payment for the shares of
common stock.
C. In connection with the purchase, the Investor and the Company will enter into a Stock
Pledge Agreement, in the form attached hereto as Exhibit B (the “Stock Pledge Agreement”),
to secure the Investor’s obligations under this Agreement and the Note.
D. In connection with the purchase, the Investor, the Company and an escrow agent designated
by the Company and reasonably acceptable to the Investor (the “Escrow Agent”) will enter into an
Escrow Agreement in a form reasonably acceptable to the Investor, the Company and the Escrow Agent
(the “Escrow Agreement”).
NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained, and
intending to be legally bound, the Investor and the Company agree as follows:
Section 1. Purchase of Shares. The Investor hereby agrees to purchase from the
Company, and the Company hereby agrees to sell to the Investor Sixty Six Million, Six Hundred Sixty
Six Thousand Six Hundred Sixty Seven (66,666,667) shares of the Company’s authorized but unissued
common stock, par value $.0001 (the “Shares”).
Section 2. Purchase Price. The purchase price of the Shares is $0.15 per share, for an
aggregate purchase price of Ten Million Dollars ($10,000,000) (the “Purchase Price”). As payment
of the Purchase Price, at the Closing, the Investor shall deliver to the Company the following:
| a) | a wire transfer in the amount of Two Million Dollars ($2,000,000) in
immediately available funds; and |
| b) | the Note in the principal amount of Eight Million Dollars ($8,000,000). |
Section 3. Closing. The Closing of the transactions contemplated by this Agreement
shall take place on the business day following the satisfaction or waiver of each of the conditions
to closing identified in Section 12 herein. At the Closing and against delivery of the Purchase
Price, the Company will issue instructions to its transfer agent to issue into the name of the
Investor and deliver to the Investor certificates representing Thirteen Million, Three Hundred
Thirty Three Thousand, Three Hundred and Thirty Three (13,333,333) of the Shares. The Company
will instruct the transfer agent to issue into the name of the Investor and deliver to the Escrow
Agent certificates representing the remaining Fifty Three Million, Three Hundred Thirty Three
Thousand, Three Hundred and Thirty Four shares (53,333,334) for the Escrow Agent to hold pursuant
to the terms of the Stock Pledge Agreement and Escrow Agreement. The certificates representing the
Shares held by the Escrow Agent will be broken down in denominations that match the payment
installments under the Note and Stock Pledge Agreement.
Section 4. Investor Representations. The Investor hereby represents and warrants to
the Company, effective as of the date of this Agreement and at Closing, as follows:
| a) | The Investor is a limited liability company duly organized, validly existing
and in good standing under the laws of the State of Arizona and has the corporate power
and authority to carry on its business as now conducted, and to own and operate the
properties and assets now owned and operated by it. |
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| b) | The execution and delivery of this Agreement, the Note and the Stock Pledge
Agreement and consummation of the transaction contemplated thereby has been duly
authorized by all necessary corporate action of the Investor and does not conflict with
the terms of the articles or organization, operating agreement or material agreements
of the Investor. |
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| c) | The Investor is relying solely on the information filed by the Company with the
SEC or contained in this Agreement, which the Investor acknowledges it has received,
read and understood the terms contained herein and is not relying upon any oral
representations in making the decision to purchase the Shares. |
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| d) | The Investor has carefully reviewed and understands the risks of, and other
consideration relating to, the purchase of the Shares, including without limitation the
risks set forth in the “Risk Factors” section of the Company’s Annual Report. |
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| e) | The Investor is an accredited investor, is familiar with the risks inherent in
speculative investments such as in the Company, and has such knowledge and experience
in financial business matters that it is capable of evaluating the merits and risks of
the investment in the Shares. |
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| f) | The Investor is purchasing the Shares without being furnished any offering
literature or prospectus. |
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| g) | The Investor has been afforded the opportunity to ask questions of, and receive
answers from, the Company’s management about the business and affairs of the Company
and concerning the terms and conditions of the offering of the Shares, and to obtain
any additional information, to the extent that the Company possessed such information
or could acquire it without unreasonable effort or expense, necessary to verify the
accuracy of the information otherwise obtained by or furnished to the Investor in
connection with the offering of the Shares. The Investor agrees that the Company has
furnished to the Investor all information which the Investor considered necessary to
form a decision concerning the purchase of the Shares, and no valid request to the
Company by the Investor for
information of any kind about the Company has been refused or denied by the Company
or remains unfulfilled as of the date hereof. |
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| h) | The Investor recognizes that the Shares have not been registered under the
Securities Act of 1933, as amended (“Securities Act”), nor under the securities laws of
any state and, therefore, cannot be resold unless resale of the Shares is registered
under the Securities Act or unless an exemption from registration is available; no
public agency has passed upon the accuracy or adequacy of the information contained in
herein or the fairness of the terms of the offering; the Investor may not sell the
Shares without registering them under the Securities Act and any applicable state
securities laws unless exemptions from such registration requirements are available
with respect to any such sale. |
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| i) | The Shares being acquired by Investor are being acquired for the Investor’s own
account and for the purpose of investment and not with a view to, or in connection
with, the resale, transfer or other distribution thereof in violation of the Securities
Act, nor with any present intention of so reselling, transferring or distributing the
Shares. Any sale, transfer or other disposition of the Shares will be made only if such
securities are registered under the Securities Act, or the sale is made in compliance
with an exemption under the Securities Act, or the rules thereunder, and any applicable
state securities laws. No one other than the Investor has any beneficial interest in
said securities. |
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| j) | The Investor understands and acknowledges that the Investor has no right to
require registration of resale of the securities purchased hereby under the Securities
Act or under any state securities laws. |
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| k) | The Investor is an “Accredited Investor” within the meaning of Regulation D
promulgated under the Securities Act. An Accredited Investor shall mean any person who
comes within any of the following categories, or who the Company reasonably believes
comes within any of the following categories, at the time of the sale of the securities
to that person: |
| (1) | Any bank as defined in section 3(a)(2) of the Securities Act or
savings and loan association or other institution as defined in Section
3(a)(5)(A) of the Securities Act whether acting in an individual or fiduciary
capacity; brokers and dealers registered under Section 15 of the Securities
Exchange Act of 1934; an insurance company as defined in section 2(13) of the
act; an investment company registered under the Investment Company Act of 1940
or a business development company as defined in section 2(a)(48) of that act; a
Small Business Investment Company licensed by the U. S. Small Business
Administration under section 301(c) or (d) of the Small Business Investment Act
of 1958; an employee benefit plan within the meaning of Title I of the Employee
Retirement Income Security Act of 1974, if the investment decision is made by a
plan fiduciary, as defined in section 3(21) of such act, which is either a
bank, insurance company, or registered investment adviser, or if the employee
benefit plan has total assets in excess of $5,000,000; |
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| (2) | Any private business development company as defined in section
202(a)(22) of the Investment Advisers Act of 1940; |
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| (3) | Any organization described in Section 501(c)(3) of the Internal
Revenue Code, corporation, Massachusetts or similar business trust, or
partnership, not formed for the specific purpose of acquiring the securities
offered, with total assets of more than $5,000,000; |
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| (4) | Any director, executive officer, or general partner of the
issuer of the securities being offered or sold, or any director, executive
officer, or general partner of a general partner of that issuer; |
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| (5) | Any natural person whose individual net worth, or joint net
worth with that person’s spouse, at the time of his purchase exceeds
$1,000,000; |
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| (6) | Any natural person who had an individual income in excess of
$200,000 in each of the two most recent years or joint income with that
person’s spouse in excess of $300,000 in each of those years and has a
reasonable expectation of reaching that same level in the current year; |
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| (7) | Any trust, with total assets in excess of $5,000,000, not
formed for the specific purpose of acquiring the securities offered, whose
purchase is directed by a sophisticated person as described in Rule
506(b)(2)(ii) of Regulation D; and |
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| (8) | Any entity in which all of the equity owners are Accredited
Investors. |
| l) | The Investor recognizes that the total amount of funds tendered to purchase the
Shares is placed at the risk of the business and may be completely lost. The Investor
understands that there can be no assurance of profitable operations and that the
purchase of Shares as an investment involves substantial risks. |
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| m) | The Investor realizes that the Shares cannot readily be sold, that it may not
be possible to sell or dispose of the Shares and therefore the Shares must not be
purchased unless the Investor has liquid assets sufficient to assure that such purchase
will cause no undue financial difficulties and the Investor can provide for current
needs and possible personal contingencies. |
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| n) | The Investor confirms and represents that the Investor is able (i) to bear the
economic risk of Investor’s investment, (ii) to hold the securities for an indefinite
period of time, and (iii) to afford a complete loss of the Investor’s investment. The
Investor also represents that the Investor has (i) adequate means of providing for the
Investor’s current needs and possible personal contingencies, and (ii) no need for
liquidity in this particular investment. |
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| o) | The Investor understands that there are substantial restrictions on the
transferability of the component parts of the Shares and that any certificate or other
document evidencing the component parts of the Shares will have substantially the
following restrictive legend thereon: |
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THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH SHARES MAY NOT BE
SOLD OR TRANSFERRED OR PLEDGED IN THE ABSENCE OF SUCH REGISTRATION UNLESS THE
COMPANY RECEIVES AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY STATING
THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY
REQUIREMENTS OF SAID ACT. |
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| p) | All information which the Investor has provided to the Company concerning the
Investor’s financial position and knowledge of financial and business matters is
correct and complete as of the date set forth herein, and if there should be any
material change in such information prior to acceptance of this Agreement by the
Company, the Investor will immediately provide the Company with such information. |
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| q) | In subscribing for the Shares, the Investor is relying solely upon independent
investigation and has carefully considered the Company’s business, prospects,
operations and financial condition and has, to the extent the Investor believes such
discussion necessary, discussed with the Investor’s professional legal, tax and
financial advisors and the Investor’s other representative(s), if any, the suitability
of an investment in the Company for the Investor’s particular tax and financial
situation and the Investor and the Investor’s advisors or the Investor’s other
representative(s), if any, have determined that the investment is a suitable investment
for the Investor. |
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| r) | The Investor is familiar with the terms, risks and merits of an investment in
the Company through the subscription for the purchase of the Shares. The Investor has
been presented with and has acted upon the opportunity to ask questions and receive
answers from the Company relating to the terms and conditions of the offering in order
to obtain any additional information necessary to verify the accuracy of the
information made available to Investor. |
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| s) | The Investor has not become aware of the offering of the Shares by any form of
general solicitation or advertising, including, but not limited to advertisements,
articles, notices or other communications published in any newspaper, magazine or other
similar media or broadcast over television or radio or any seminar or meeting where
those individuals that have attended have been invited by any such or similar means of
general solicitation or advertising. |
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| t) | The Investor is a bona fide resident of the state set forth as his, her or its
“residence address” in this Agreement, and that (i) if a corporation, partnership,
trust, or other form of business organization, it has its principal office within such
state; (ii) if an individual, he or she has his or her principal residence in such
state; and (iii) if a corporation, partnership, trust, or other form of business
organization which was organized for the specific purpose of acquiring the Shares in
the Company, all of its beneficial owners are residents of such state. |
Section 5. Company Representations. The Company represents and warrants to the
Investor, effective as of the date of this Agreement and at Closing, as follows:
| u) | The Company 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
authority to carry on its business as now conducted, and to own and operate the
properties and assets now owned and operated by it. |
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| v) | The issuance of the Shares has been duly authorized by all necessary corporate
action of the Company and does not conflict with the terms of the bylaws, certificate
of incorporation or material agreements of the Company. |
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| w) | To the Company’s knowledge, each of the Company’s SEC Filings (as defined
below), was, on the date it was filed, complete and accurate in all material respects,
and did not contain any material misstatement or omit to state any facts that are
material to the operations or financial results of the Company, as of the date made.
For purposes hereof, the “Sec Filings” shall mean the Company’s Annual Report on Form
10-K for the year ended December 31, 2008 as filed with the SEC and the Company’s
Quarterly Reports filed on Form 10-Q for the quarters ended March 31, 2009 and June 30,
2009, each as filed with the SEC. |
| x) | The authorized capital stock of the Company as of October 12, 2009 consists of
500,000,000 shares of Common Stock with a par value of $0.0001, of which 55,802,753
shares are issued and outstanding. The Shares when issued will be, duly authorized,
validly issued, fully paid and non-assessable. |
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| y) | Except as set forth on Schedule 5(e) attached hereto, there are no outstanding
(or authorized and reserved for issuance) (i) options, warrants, purchase rights,
subscription rights, conversion rights, exchange rights, or other contracts or
commitments for the purchase or acquisition from the Company of any of its securities;
or (ii) stock appreciation, phantom stock, profit participation, or similar rights with
respect to the Company. |
Section 6. Additional Share Issuance. The Company agrees that upon issuance of the
Shares the Investor shall own at least 55% of the issued and outstanding common stock of the
Company as of the Closing. Subject to the terms and conditions of this Section 6, the Investor
shall be entitled to receive additional shares common stock as follows:
| z) | Exercise or Conversion of Outstanding Convertible Securities. If at any time
after the Closing but prior to June 30, 2011, the Shares (plus any other shares of
common stock issued to the Investor pursuant to Section 6(b) below) equal less than 55%
of the Deemed Outstanding (as defined below), then, provided that all amounts then
currently due under the Note have been paid in full and the Note is not otherwise in
default, the Company shall issue to the Investor, without additional consideration,
such number of additional shares of common stock such that the Shares together with the
shares issued pursuant to this Section 6(a) and Section 6(b) below (collectively, the
“Supplemental Shares”) shall equal 55% of the Deemed Outstanding. For purposes of this
Section 6(a), the “Deemed Outstanding” as of any particular date shall mean the shares
of the Company’s
common stock then issued and outstanding, excluding all shares of common stock
issued after the Closing other than (i) the Supplemental Shares and (ii) issuances
of common stock resulting from the exercise or conversion of options, warrants or
other derivative securities (whether debt or equity) that were either (x)
outstanding as of the Closing or (y) reserved for issuance, as of the Closing,
under any stock option plan, restricted stock plan, or other stock plan. |
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| aa) | Undisclosed Liabilities. In the event the Company shall have any Undisclosed
Liabilities (as defined below), the Company shall issue Investor, without additional
consideration, such number of Supplemental Shares as is equal to 55% of the total
amount of such Undisclosed Liabilities divided by fifteen cents ($.15). Such
Supplemental Shares shall be issued on or after June 30, 2010, provided that the Note
has been paid in full and provided that the existence of such Undisclosed Liability has
been conclusively established by a court of competent jurisdiction or by an
acknowledgement of such Undisclosed Liability in any post-Closing filing by the Company
with the SEC. As used herein, “Undisclosed Liabilities” shall mean liabilities in
excess of One Hundred Thousand Dollars ($100,000) individually or Three Hundred
Thousand Dollars ($300,000) in the aggregate accruing or arising on or before the
Closing other than (i) liabilities disclosed or reflected in the Company’s Quarterly
Report on Form 10-Q for the period ended June 30, 2009, as filed with the SEC; (ii)
current liabilities incurred in the ordinary course of business; and (iii) liabilities
set forth on Schedule 6(b) attached hereto (other than costs, fees and amounts paid to
claimant Schering-Plough and plaintiff Xxxxxx Xxxxxx, if any, as a direct result of (i)
the arbitration action Schering-Plough S.A. DE C.V. v. InnoZen, Inc. noticed on October
22, 2009 and involving the parties’ Distribution
Agreement dated June 1, 2006, or (ii)
the case Xxxxxx Xxxxxx v. HealthSport, Inc., Case No. CACE 00-000000-00, filed in the
Circuit Court for the Seventeenth Judicial District in and for Broward County, Florida,
which amounts shall be deemed undisclosed for purposes of this Section 6(b)). The
rights and remedies set forth in this Section 6(b) shall be the Investor’s exclusive
remedy for any failure by the Company to disclose any liability notwithstanding the
fact that such failure may also constitute a breach of the Company’s representations
and warranties set forth in Section 5 above. |
| bb) | Other Dilutive Issuances. If on June 30, 2010, the Shares plus any
Supplemental Shares equal less than 55% of the Company’s common stock issued and
outstanding as of June 30, 2010, then, provided the Note has been paid in full, the
Investor shall have the right and option to purchase such number of additional shares
of common stock (the “Option Shares”) such that the Shares together with all
Supplemental Shares and the Option Shares shall equal 55% of the Company’s common stock
issued and outstanding as of June 30, 2010 The purchase price for the Option Shares
shall be $.15 per share (as adjusted for stock splits, stock dividends and
recapitalizations. The right to purchase Option Shares hereunder shall expire on
August 31, 2010. |
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Section 7. Board of Directors. Prior to the Closing, the Company shall have caused
its Board of Directors to adopt a resolution, effective upon the Closing, to expand the size of its
board to seven members. The Company shall also secure the resignations of three of its current
board members. The Investor shall have the right to appoint four new members to serve as
members of the Board of Directors of the Company. As a condition to the appointment, each new
director appointed by the Investor will place into escrow pursuant to the Stock Pledge Agreement
and the Escrow Agreement a written resignation which shall become effective, upon the Company’s
election, upon the occurrence of an Event of Default under the Note or the Stock Pledge Agreement.
Promptly upon execution of this Agreement the Company will file an 8-K announcing this Agreement
and shall file a Schedule 14(f)-1 with the SEC concerning the change of directors called for under
this Agreement and shall cause it to be mailed to its stockholders of record as of the date of this
Agreement.
Section 8. Separation of Agreements. Concurrently with the execution of this
Agreement, the Company shall have entered into Separation Agreements with the following directors
and executive officers of the Company: M.E. “Xxxx” Durschlag, Xxxxxxx Xxxxxxxxxx, Xxxxxxx Xxxxxx,
Xxxxxxx Xxxxx and Xxxxxx X. Xxxxx, in form and substance satisfactory to Investor the (“Separation
Agreements”), pursuant to which each of Messrs. Durschlag, Wattenberg, Seaber, Xxxxx and Xxxxx
shall resign as to one or more positions as executive officers, employees, directors or consultants
of the Company effective as of the Closing. The Separation Agreements shall contain a release of
claims against the Company, including known and unknown claims, but excluding rights to
indemnification and any other items specifically identified in the Separation Agreements.
Section 9. Executive Officers. Concurrently with the execution of this Agreement,
the Company shall have entered into Employment Agreements with the following employees: Xxxxxx
Xxxxxxxx, Xxxxxx Xxxxxxx and Xxxxx Xxxxx, in form and substance satisfactory to Investor (the
“Employment Agreements”). The Company’s Board of Directors shall appoint the following individuals
as the executive officers of the Company effective as of the Closing, to serve until the next
annual meeting of the Directors or until their successors are duly elected and qualified:
| Xxxxx Xxxxxx | Chief Executive Officer | |
| Xxxxxx Xxxxxxxx | President | |
| Xxxxxx Xxxxxxx | Chief Operating Officer, Chief Financial Officer and Secretary |
Section 10 Use of Proceeds. The proceeds from the sale of the Shares shall be used
for the purposes set forth on Exhibit C attached hereto. Prior to the Closing, the Board
of Directors of the Company shall adopt a resolution (i) approving the use of proceeds as reflected
on Exhibit C (ii) authorizing management to use the proceeds solely for the purposes
identified on Exhibit C and (iii) requiring that any change in the use of proceeds be
approved by the Board of Directors, including approval by a majority of the directors not appointed
to the Board by the Investor.
Section 11. Approval Rights. For so long as any amounts remain outstanding under the
Note, the Company shall obtain the approval of not less than five director of a seven member board
(or not less than one plus the number of directors appointed by the Investor if a different size
board) prior to taking any of the following corporate actions:
| cc) | approving any material change in the Company’s principal line of business; |
| dd) | approving or effecting any liquidation, dissolution or winding-up of the
Company, whether voluntary or involuntary; |
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| ee) | approving any amendment or restatement to the Company’s articles of
incorporation or bylaws; |
| ff) | approving any increase or decrease in the number of members of the Company’s
board of directors; |
| gg) | approving any acquisition, disposition, license or transfer of assets in an
amount in excess of $500,000, in a transaction or series of related transactions,
outside of the Company’s ordinary course of business; |
| hh) | approving the issuance of any shares of the Company’s capital stock, except for
shares issuable in accordance with the terms of outstanding employee benefit plans or
warrants, options or other derivative securities; |
| ii) | issuing any dividends or redeeming, purchasing or otherwise effecting any
recapitalization or restructuring of the Company’s outstanding shares of capital stock; |
| jj) | incurring from time to time or at any time any indebtedness in excess of
$500,000, including without limitation indebtedness for money borrowed from others;
guarantying the payment of indebtedness incurred by others; all indebtedness secured by
any mortgage, lien, pledge, charge or other encumbrance upon property; all indebtedness
created or arising under any conditional sale, lease (intended primarily as a financing
device) or other title retention or security agreement with respect to property
acquired; and any renewals, extensions and refundings of any such indebtedness; |
| kk) | approving or effecting any transaction that would result in the occurrence,
after the date hereof, of any of the following: (i) an acquisition by an individual,
legal entity or “group” (as described in Rule 13d 5(b)(1) promulgated under the
Securities Exchange Act of 1934) of control (whether through legal or beneficial
ownership of capital stock of the Company, by contract or otherwise) of in excess of
50% of the voting securities of the Company, (ii) the Company merges into or
consolidates with any other entity and the stockholders of the Company immediately
prior to such transaction own less than 50% of the aggregate voting power of the
Company or the successor entity immediately after the transaction, (iii) the Company
sells or transfers all or substantially all of its assets to another person or entity
and the stockholders of the Company immediately prior to such transaction own less than
50% of the aggregate voting power of the acquiring entity immediately after the
transaction, or (iv) the execution by the Company of an agreement to which the Company
is a party or by which it is bound, providing for any of the events set forth above; |
| ll) | approving the termination of any of the employment agreements referred to in
Section 9 below; |
| mm) | approving any material amendment, modification or waiver of any existing
agreement between the Company and the Investor, including any manufacturing agreement;
or |
| nn) | approving any amendment, modification or waiver of the use of proceeds from the
sale of the Shares from the agreed upon use of proceeds attached hereto as Exhibit
C. |
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Section 12. Indemnification. It is acknowledged that the meaning and legal
consequences of the representations and warranties contained in this Agreement are understood and
the Investor hereby agrees to indemnify and hold harmless the Company and each officer and director
thereof, and the Company hereby agrees to indemnify and hold harmless the Investor, from and
against any and all loss, damage and liability due to or arising out of a breach of any of the
representations and warranties made in this Agreement by the Investor or the Company, as the case
may be. The representations and warranties contained herein are intended to and shall survive
delivery of this Agreement, and the completion of the transaction set forth herein; provided,
however, all such representations and warranties, the indemnity obligations hereunder, and any
rights of the Investor pursuant to Section 6(b) shall terminate at the close of business on the one
year anniversary of the Closing and any such claim must be made prior to such date.
Section 13. Conditions to Closing.
| oo) | The obligations of the Company hereunder in connection with the Closing are
subject to the following conditions being met, to the extent not waived by Company in
writing: |
| (1) | the representations and warranties of the Investor set out in
this Agreement shall be true and correct in all respects when made and on the
Closing Date; |
| (2) | the Investor shall have performed all obligations, covenants
and agreements of the Investor required to be performed at or prior to the
Closing Date; |
| (3) | a period of not less than 10 days shall have elapsed from the
date that the Company mailed the Schedule 14(f)-1 to its stockholders; |
| (4) | there must not have been commenced or threatened against the
Company any proceeding: (i) involving any challenge to, or seeking damages or
other relief in connection with, any of the transactions contemplated by this
Agreement, (ii) that may have the effect of preventing, delaying, making
illegal, or otherwise interfering with any of the transactions contemplated by
this Agreement, (iii) affect adversely the right of the Company to issue the
Shares, or (iv) affect the right of the Company to operate its business; |
| (5) | the Company shall have received payment in the full amount of
the cash portion of the Purchase Price via wire transfer of immediately
available funds; |
| (6) | the Investor shall have executed and delivered the Note to the
Company; |
| (7) | the Investor shall have executed and delivered the Stock Pledge
Agreement to the Company; |
| (8) | the Investor and the Escrow Agent shall have executed and
delivered the Escrow Agreement to the Company; |
| (9) | the Investor shall have delivered to the Company such other
documents or instruments as the Company reasonably requests and are reasonably
necessary to consummate the transactions contemplated by this Agreement. |
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| pp) | The obligations of Investor hereunder in connection with the Closing are
subject to the following conditions being met to the extent not waived by Purchaser: |
| (1) | the representations and warranties of the Company set out in
this Agreement shall be true and correct in all respects when made and on the
Closing Date; |
| (2) | the Company shall have performed all obligations, covenants and
agreements of the Company required to be performed at or prior to the Closing
Date; |
| (3) | there must not have been commenced or threatened against the
Investor any proceeding: (i) involving any challenge to, or seeking damages or
other relief in connection with, any of the transactions contemplated by this
Agreement, (ii) that may have the effect of preventing, delaying, making
illegal, or otherwise interfering with any of the transactions contemplated by
this Agreement, (iii) affect adversely the right of the Investor to own the
Shares, or (iv) affect the right of the Company to operate its business; |
| (4) | the Company shall have entered into the Separation Agreements
with each of the employees and consultants identified herein, which shall be
effective as of the Closing; |
| (5) | the Company shall have entered into Employment Agreements with
each of the employees identified herein, which shall be effective as of the
Closing; |
| (6) | the Company shall have delivered to the Investor such other
documents or instruments as the Investor reasonably requests and are reasonably
necessary to consummate the transactions contemplated by this Agreement. |
Section 14. Termination.
| qq) | This Agreement may be terminated at any time prior to the Closing: |
| (1) | by the mutual written consent of the Company and the Investor; |
| (2) | by either the Company or the Investor upon written notice to
the other, in the event the other party (the “Breaching Party”) has materially
breached its representations, warranties or covenants contained in this
Agreement and failed to cure such breach within 10 days from the date of the
Breaching Party’s receipt of the Termination Notice; provided, however, that
the party claiming such breach (i) is not itself in material breach of its
representations, warranties or covenants contained herein, (ii) promptly
notifies the Breaching Party in writing of its intention to exercise its rights
under this Agreement as a result of the breach (the “Termination Notice”); and
(iii) specifies in such Termination Notice the representation, warranty or
covenant of which the Breaching Party is allegedly in material breach; or |
| (3) | by either the Company, on the one hand, or the Investor, on the
other hand, immediately upon written notice to the other party if the Closing
shall not have occurred on or before November 30, 2009. |
| rr) | In the event of termination of this Agreement in accordance with this
Agreement, this Agreement shall forthwith become void and there shall be no liability
on the part of any party hereto except that nothing herein shall relieve any party
hereto from liability for any willful breach of any provision hereof. |
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Section 15. Miscellaneous.
| ss) | Entire Agreement. This Agreement, the Note and the Stock Pledge
Agreement contains the entire agreement between the parties relating to the subject
matter herein and supersedes all previous oral statements and other writings with
respect thereto. |
| tt) | Amendment. This Agreement may not be modified or amended without the
prior consent of the parties hereto. |
| uu) | Waiver. No failure or delay on the part of either party in exercising
any right hereunder shall operate as a waiver; nor shall any single or partial exercise
of any such right preclude any other or further exercise thereof or the exercise of any
other rights. No waiver of any such right or amendment hereof shall be effective unless
given in writing. No waiver of any such right shall be deemed a waiver of any other
right hereunder. |
| vv) | Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns. |
| ww) | Severability. If any provision hereof shall be held to be void, illegal
or unenforceable it shall be deemed severable from the remaining provisions hereof
which shall remain in full force and effect. |
| xx) | Notices. Any notice to be given hereunder shall be given (except as
otherwise expressly set forth herein) by registered prepaid mail, air courier service
or by fax or may be delivered by hand and shall be deemed to have been received, if
given by registered prepaid mail, seven days after posting; if given by fax, on receipt
of the fax confirmation; and if delivered by hand or by air courier, at the time of
such delivery, if to Investor at 0000 Xxxx 0xx Xxxxxx, Xxxxx, Xxxxxxx, and if to the
Company at HealthSport, Inc. 0000 Xxxxxxxxxxxx Xxxxxx Xxxxxxxx Xxxxx, XX 00000,
Attention: Chief Financial Officer. |
| yy) | Governing Law;
Jurisdiction. |
THIS AGREEMENT AND THE OBLIGATIONS OF THE PARTIES HEREUNDER WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO
ANY CONFLICTS OF LAWS PROVISIONS THEREOF THAT WOULD OTHERWISE REQUIRE THE
APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.
Each party hereto knowingly and voluntarily waives any and all rights it may have to
a trial by jury with respect to any litigation based on, or arising out of, under,
or in connection with, this Agreement. Each party is hereby authorized to submit, as
conclusive evidence of such waiver of jury trial, this Agreement to a court that has
jurisdiction over the subject matter of such litigation and the parties to this
Agreement.
| zz) | Execution in Counterparts. This Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement. |
[Remainder of Page Intentionally Left Blank; Signature Page Follows]
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IN WITNESS WHEREOF, the Investor and the Company have caused this Stock Purchase Agreement to
be executed effective as of the date and year first above written.
| SUPPLEMENTAL MANUFACTURING AND INGREDIENTS, LLC. |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Chief Executive Officer | |||
| HEALTHSPORT, INC. |
||||
| By: | /s/ M.E. “Xxxx” Xxxxxxxxx | |||
| Name: | M.E. “Xxxx” Durschlag | |||
| Title: | Chief Executive Officer | |||
[SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT]
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