EXHIBIT 1
STOCK PURCHASE AGREEMENT
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This STOCK PURCHASE AGREEMENT (the "Agreement") is entered into as of this
28th day of December, 2000 by and among Access Health Alternatives, Inc., a
Florida corporation with offices at 0000 Xxxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx
00000 ("Seller") and Pines International Corporation, a Nevada corporation
("Investor"), in connection with the purchase and sale of 1,840,000 shares of
Seller's Common Stock, par value $.001 per share, for US$500,000.
WITNESSETH:
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WHEREAS, Seller desires to sell to Investor, and Investor desires to
purchase from Seller, the 1,840,000 Shares subject to the terms and conditions
contained in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and for other good and valuable consideration, the receipt and legal sufficiency
of which are hereby acknowledged, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. Purchase and Sale. Subject to the terms and conditions of this
Agreement, at the end of the Initial and Final Closings referred to in Section 2
of this Agreement, Seller shall sell and deliver to Investor, and Investor shall
purchase from Seller, 1,840,000 Shares, for the Purchase Price referred to in
Section 3 of this Agreement.
2. Closing. The closing of the purchase and sale contemplated by this
Agreement shall take place in two closings: the first on January 31, 2001 (the
"Initial Closing"), and the second on February 28, 2001 (the "Final Closing").
At the Final Closing, Seller shall deliver the Shares to Investor in one or more
certificates, as requested in writing by Investor, registered in the name of
Investor or as designated in writing by Investor, and investor shall pay to
Seller the Purchase Price referred to in Section 3 of this Agreement. Pending
the Initial Closing, by January 10th, 2001, Investor shall deposit US$100,000
with Xxxx & Valentine as a good faith deposit which shall be forfeited to Seller
as liquidated damages in the event that Investor does not pay the full Purchase
Price to Seller at both the Initial Closing and the Final Closing. Otherwise,
such good faith deposit shall be applied to the $250,000 payable at the Final
Closing.
3. Purchase Price. Investor shall pay an aggregate of Five Hundred Thousand
United States Dollars (US$500,000.00) ("Purchase Price") as follows:
(i) Initial Closing. On or before January 31, 2001, Investor shall pay
Seller, by certified check, wire transfer, bank cashier's check or bank money
order payable to Seller, the amount of US$250,000 Dollars.
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(ii) Final Closing. On or before February 28, 2001, Investor shall pay
to Seller, by certified check, wire transfer, bank cashier's check or bank money
order payable to Seller, the amount of US$250,000.00 Dollars.
4. Representations of Seller. Seller hereby represents and warrants to
Investor that:
4.1 Due Incorporation, etc. Seller is duly incorporated, validly
existing and in good standing under the laws of Florida and has all requisite
power and authority to execute and deliver this Agreement and to perform the
obligations to be performed by it hereunder. Neither the execution or delivery
of this Agreement nor the performance by Seller hereof will constitute a breach
of or default under the governing instruments of Seller or any agreement,
instrument, indenture, judgment or decree to which it is a party or by which it
is bound. Prior to the Initial Closing, all consents and approvals, if any,
required to be obtained by Seller for the sale of the Shares to be sold by it
hereunder will have been obtained.
4.2 Corporate Condition; SEC Filings. Seller files annual and periodic
reports with the Securities and Exchange Commission. There have been no material
adverse changes in Seller's business prospects or financial condition since the
date of the last balance sheet included in such reports. The financial
statements contained in such reports have been prepared in accordance with
generally accepted accounting principles, consistently applied, and fairly
present the financial condition of Seller as of the dates of the balance sheets
included therein and the results of its operations and cash flows for the period
then ended.
4.3 Due Execution. Validity and Effect. This Agreement has been duly
authorized, executed and delivered by Seller and, assuming the due
authorization, execution and delivery by Investor, this Agreement constitutes
the valid, legal and binding obligation of Seller, enforceable in accordance
with its terms, except to the extent that enforceability may be limited by
bankruptcy, insolvency, moratorium or similar laws affecting the enforcement of
creditors' rights generally.
4.4 Valid Issuance of the Shares. Upon payment of the Purchase Price,
the Shares shall be duly and validly issued and outstanding, fully paid and
nonassessable, free of any liens, pledge, security interest, or other
encumbrances (though subject to the restrictions or transfer as detailed herein)
and, based in part on the representations and warranties of Investor, will be
issued in compliance with all applicable federal and state securities laws.
4.5 Full Disclosure. No representation or warranty made by Seller in
this Agreement and no certificate or document furnished or to be furnished to
Investor pursuant to this Agreement contains or will contain any untrue
statement of a material fact, or omits or will omit to state a material fact
necessary to make the statements contained herein or therein not misleading.
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4.6 Certain Fees. The Seller has incurred no liability for any
brokers' or finders' fees or commissions in connection with the transactions
contemplated by this Agreement for which Investor would be liable. The Seller
agrees to indemnify and hold harmless Investor from and against any commission,
fee or claim of any person employed or retained or claiming to have been
employed or retained by Seller to bring about the transactions contemplated
hereby or to represent Seller in connection therewith.
4.7 Granting of Certain Rights to Investor. Seller will grant certain
rights to Investor:
(a) Seller grants to Investor the right to designate one
individual for election to the Board of Directors of Seller.
(b) Seller grants to Investor a non-exclusive right to distribute
Seller's Nutritional Program throughout Canada, Europe and the Pacific Rim. The
terms of said distribution shall be negotiated at a later date, but in no event,
later than January 31, 2001.
(c) Seller grants to Investor a right of first refusal with
regard to any future private financing conducted by Seller within the next five
(5) years, with a minimum commission paid to Investor of 10%.
(d) Investor shall direct a private placement of Seller's common
stock equal to US$10 million at a minimum of US$2.50 per share. The offering
shall include Warrants exercisable at US$5.00 per share, and Seller will pay a
commission of 10% to Investor. Upon the closing of said private placement,
Seller shall execute a two-year contract with Investor for additional consulting
services substantially similar to those services set forth in that Consulting
Agreement executed between the parties hereto dated December 28, 2000.
5. Representations of Investor. Investor hereby represents and warrants to
Seller that:
5.1 Due Execution. Validity and Effect. This Agreement has been duly
authorized, executed and delivered by Investor and, assuming the due
authorization, execution and delivery by Seller, this Agreement constitutes the
valid, legal and binding obligation of Investor, enforceable in accordance with
its terms, except to the extent that enforceability may be limited by
bankruptcy, insolvency, moratorium or similar laws affecting the enforcement of
creditors' rights generally.
5.2 Full Disclosure. No representation or warranty made by Investor in
this Agreement and no certificate or document furnished or to be furnished to
Seller pursuant to this Agreement contains or will contain any untrue statement
of a material fact, or omits or will omit to state a material fact necessary to
make the statements contained herein or therein not misleading.
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5.3 Capability to Evaluate; Accredited Investor. Investor acknowledges
that he directly or indirectly is able to represent and fend for himself in the
transaction contemplated by this Agreement, that he has the ability to bear the
economic risk of, and adequately evaluate, his investment pursuant to this
Agreement, and that he is an "Accredited Investor" as that term is defined in
Rule 501 of Regulation D.
5.4 Regulation S.
(a) Investor is not a "U.S. Person" as that term is defined in
Rule 902(o) of Regulation S.
(b) Investor is purchasing the Shares for his own account and not
on behalf of or for the benefit of any U.S. Person and the sale and resale of
the Shares have not been prearranged with any U.S. Person or buyer in the United
States;
5.5 Certain Fees. Investor has incurred no liability for any brokers'
or finders' fees or commissions in connection with the transactions contemplated
by this Agreement for which Seller is or would be liable. Investor agrees to
indemnify and hold harmless Seller from and against any commission fee or claim
of any person employed or retained or claiming to have been employed or retained
by Investor to bring about the transactions contemplated hereby or to represent
Investor in connection therewith.
6. Securities Act of 1933.
6.1 Reporting Issuer. Resale. The Seller is a "reporting issuer" as
defined in the Securities Act of 1933 (the "Securities Act"). Upon expiration of
the Distribution Compliance Period set forth in Section 6.3, the resale of any
or all of the Shares by Investor must be made in accordance with the
registration requirements of the Securities Act or Rule 144 (in that such shares
are deemed to be "restricted securities").
6.2 Transfer Restrictions; Registration. Investor understands that the
Shares have not been registered under the Securities Act or any applicable state
securities laws by reason of exemptions from the registration requirements of
the Securities Act and applicable state securities laws and may not be sold,
transferred, pledged, assigned or otherwise disposed of, in whole or in part, in
the absence of an effective registration statement under the Securities Act and
any applicable state securities laws, or unless an exemption from such
registration is available.
6.3 Distribution Compliance Period. Investor agrees that the Shares
acquired pursuant to this Agreement shall not be voluntarily sold, transferred
or otherwise disposed of prior to the expiration of a one year distribution
compliance period from the date of Final Closing and until two years thereafter
may be publicly sold only in accordance with the terms and conditions of Rule
144 of the Securities Act.
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6.4 Restrictive Legend. Investor understands and agrees that any
disposition of the Shares in violation of this Agreement shall be null and void,
and that no transfer of the Shares shall be made by Seller's secretary or
transfer agent upon Seller's stock transfer books unless there has been
compliance with the terms of this Agreement. Investor also understands and
agrees that Seller shall issue stop transfer instructions to Seller's transfer
agent instructing such transfer agent not to transfer the certificates
evidencing the Shares issued during the one year distribution compliance period
to any purchasers within, or nationals of, the United States. In addition,
Investor understands and agrees that there shall be imprinted on the face of the
certificates of the Shares the following legend:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED WITH THE
SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933 OR WITH ANY
SECURITIES COMMISSION OF ANY STATE UNDER ANY APPLICABLE STATE SECURITIES LAWS.
THEY MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THOSE SECURITIES LAWS OR AN EXEMPTION TO THE
REGISTRATION REQUIREMENTS OF THOSE SECURITIES LAWS.
7. Conditions to Obligations of Seller. All obligations of Seller under
this Agreement are subject to the fulfillment or satisfaction, prior to or at
the Initial Closing and the Final Closing, of each of the following conditions
precedent (all of which may be waived by Seller):
(a) neither Seller nor Investor's being precluded by an order or
preliminary or permanent injunction of a court of competent jurisdiction from
consummating the purchase and sale of the Shares pursuant to this Agreement
(each party agreeing to use its reasonable best efforts to have any such
injunction lifted); and
(b) there not having been any statute, rule or regulation enacted
or promulgated by any governmental body or agency after the date hereof which is
applicable to the purchase and sale of the Shares pursuant to this Agreement
which would render the consummation of any such purchase and sale illegal.
8. Conditions to Obligations of Investor. All obligations of Investor under
this Agreement are subject to the fulfillment or satisfaction, prior to or at
the Initial Closing, of each of the following conditions precedent (all of which
may be waived by Investor);
(a) neither Seller nor Investor's being precluded by an order or
preliminary or permanent injunction of a court of competent jurisdiction from
consummating the purchase or sale of the Shares, pursuant to this Agreement
(each party agreeing to use its reasonable best efforts to have any such
injunction lifted);
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(b) there not having been any statute, rule or regulation enacted
or promulgated by any governmental body or agency after the date hereof which is
applicable to the purchase and sale of the Shares, pursuant to this Agreement
which would render the consummation of any such purchase and sale illegal; and
9. Survival of Representation, etc. All representations, warranties and
agreements made herein shall survive any investigation made by Seller and
Investor and shall survive the Initial and Final Closings.
10. Termination. This Agreement may be terminated:
(a) on the date specified in a writing executed by Seller and
Investor;
(b) by Seller, upon written notice to Investor, if any
representation or warrant made in this Agreement by Investor shall have been
false or incorrect in any material respect when made or shall have become false
or incorrect in any material respect thereafter, or if Investor shall fail to
perform or observe any material covenant or agreement made by Investor in this
Agreement; or
(c) by Investor, upon written notice to Seller, if any
representation or warranty made in this Agreement by Seller shall have been
false or incorrect in any material respect when made or shall have become false
or incorrect in any material respect thereafter, or if Seller shall fail to
perform or observe any material covenant or agreement made by it in this
Agreement.
11. Miscellaneous.
11.1 Binding Effect: Assignment. This Agreement shall inure to the
benefit of and be binding upon the parties hereto, their respective legal
representatives and successors. This Agreement may not be assigned.
11.2 Further Assurances: Cooperation. Each party shall, upon
reasonable request by the other party, execute and deliver any additional
documents necessary or desirable to complete the sale, conveyance, transfer and
assignment of the Shares acquired by Investor, pursuant to and in the manner
contemplated by this Agreement. The parties hereto agree to cooperate and use
their respective best efforts to consummate the transactions contemplated by
this Agreement.
11.3 Entire Agreement: Absence of Representation. This Agreement
constitutes the entire agreement between the parties hereto and supersedes all
prior arrangements, understandings and agreements, oral or written, between the
parties hereto with respect to the subject matter hereof. Investor hereby
acknowledges that in acquiring the Shares to be acquired hereunder Investor has
relied only upon the representations and warranties expressly made in this
Agreement and upon information contained in public reports of Seller, and that
no other statements, representations or warranties, oral or written, expressed
or implied, have been made or relied upon in connection with such acquisition or
as an inducement therefor.
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11.4 Execution in Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original and all of which shall
be deemed to be one and the same instrument.
11.5 Notices. All notices, requests, permissions, waivers and
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered in person, by telegram, telex, facsimile transmission
or by mail (registered or certified mail, postage prepaid, return receipt
requested) to the respective parties at the following respective addresses or to
such other address as any party hereto shall specify in a notice to the other
parties hereto in accordance with the terms hereof:
If to Seller: Access Health Alternatives, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxx
Facsimile Transmission:
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If to Investor: Xxxxx Xxxx
00 Xxx Xxxxx Xxxxx
Xxxx, Xxxxxxx, Xxxxxx X0X 0X0
Facsimile Transmission:
(000) 000-0000
11.6 Amendments and Waivers. This Agreement may not be modified or
amended except by an instrument or instruments in writing signed by the party
against whom enforcement of any such modification or amendment is sought. The
Seller may, by an instrument in writing, waive compliance by Investor with any
term or provision of this Agreement on the part of Investor to be performed or
complied with. Investor may, by an instrument in writing, waive compliance by
Seller, with any term or provision of this Agreement on the part of Seller to be
performed or complied with. Any waiver of a breach of any term or provision of
this Agreement shall not be construed as a waiver of any subsequent breach.
11.7 Headings; Severability. The headings contained in this Agreement
are for convenience of reference only and shall not affect the interpretation or
construction hereof. Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions of
this Agreement in any other jurisdiction. If any provision of this Agreement is
so broad as to be unenforceable, such provision shall be interpreted to be only
so broad as is enforceable.
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11.8 Arbitration. Any controversy or claim arising out of or relating
to this Agreement, or the breach thereof, shall be settled by arbitration
administered by the American Arbitration Association ("AAA") in accordance with
its Commercial Rules (including its Emergency Interim Relief Procedures] and its
supplementary procedures for Securities Arbitration, and judgment on the award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof. The matter shall be heard in Orlando by a panel of three (3) AAA
arbitrators, one picked by Investor, one picked by Seller, and the third agreed
to by the two selected arbitrators. The Seller and Investor, or themselves and
their respective successors in interest, hereby irrevocably consent to such
jurisdiction, venue and binding arbitration, and hereby irrevocably waive any
claim of forum non conveniens or right to change such venue or to litigate the
underlying dispute in court.
11.9 Governing Law. This Agreement is made and executed and shall be
governed by the laws of the State of Florida, without regard to the conflicts of
law principles thereof.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized officers on the date first above written.
Access Health Alternatives, Inc.
By Seller: /s/ Xxxxxx X. Xxxxxx
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Xx. Xxxxxx X. Xxxxxx
Chief Executive Officer
By Investor: /s/ Xxxxx Xxxx
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Xxxxx Xxxx
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