Exhibit 16.1
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement") made this 4th day of
February 2004, by and between BIO-ONE CORPORATION, a corporation organized and
existing under the laws of Nevada with offices at 1630 Winter Springs Boulevard,
Winter Springs, Florida 32708 ("Purchaser"), and AMERICAN NUTRITIONAL EXCHANGE,
INC., a corporation organized and existing under the laws of Florida with
offices at 12260 SW 53rd Street, Suite 603, Cooper City, Florida 33330
("Seller").
W I T N E S S E T H:
WHEREAS, Seller is willing to sell to Purchaser and Purchaser is
willing to buy from Seller, upon the terms and conditions hereinafter set forth,
430 but not less than 430 Special Common Shares (hereinafter defined) of the
capital stock of the Seller
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. DEFINED TERMS
1.1 "DEFINED TERMS" Where used herein or in any amendments hereto, the
following terms shall have the following meanings except as defined otherwise in
this Agreement.
1.2 "SPECIAL COMMON STOCK" OR "SPECIAL COMMON SHARE(S)" means a special
share to be created by the Seller which share shall have the following
attributes: Each share shall rank parri passu with each and every common share
regarding the distribution of dividends, whether in cash or in kind, or any
other distributions including distributions on the sale or winding up of the
Company. Corporate matters requiring the vote of common shareholders shall
include and require the vote of Special Common Shareholders. Each Special Common
Share shall have 9.3 votes to be voted at any meeting of the Company that
requires the votes of common shares or common shareholders. The rights and
privileges of the Special Common Shares shall not be amended or changed without
the express consent of each and every holder of such shares. The charter and
by-laws of the Company shall be amended forthwith upon the execution of this
agreement to provide for the creation and issue of the Special Common Shares.
1.3 "BUSINESS" means the business operations presently and heretofore
carried on by Seller at its current place of business located at 12260 SW 53rd
Street, Suite 603, Cooper City, Florida 33330.
1.4 "BUSINESS DAY" means any day except Saturday, Sunday, or any
statutory holiday in the State of Florida.
1.5 "CLOSING DATE" means the 4th day of February 2004 or such other
date as may be mutually agreed upon in writing by the parties hereto.
1.6 "PURCHASE DOCUMENTS" means this Agreement and all other agreements,
documents or instruments to be executed in connection with this Agreement.
2. PURCHASE OF SPECIAL COMMON SHARES AND PURCHASE PRICE
2.1. Special Common Shares. Upon the terms and subject to the
conditions provided in this Agreement, Seller shall, at the Closing and as of
the Closing Date (as said terms are hereinafter defined), allot and deliver to
Purchaser, and Purchaser shall purchase from Seller, four hundred and thirty
(430) shares of Special Common Shares. The Special Common Shares sold hereunder
shall represent not less that Eighty Percent (80%) of the votes of all
shareholders of record, which shares shall be registered in the name of the
Purchaser at closing.
A. Upon the original issuance of the Special Common Shares by the
Seller to the Purchaser and until such time as the same is no longer required
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under the applicable requirements of the Securities Act or applicable state
securities laws, any certificate issued representing such Shares shall bear the
following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
THE SECURITIES LAWS OF ANY STATE."
2.2 Purchase Price. Purchaser shall pay to Seller for the Special
Common Shares a purchase price (the "Purchase Price") of One Million Dollars
($1,000,000) payable, in installments, as follows.
A. Purchaser's Obligations. At the Closing, Purchaser shall
provide an installment of One Hundred and Fifty Thousand Dollars ($150,000) cash
which cash shall be used for business development capital. In addition,
Purchaser shall provide installments of an additional One Hundred and Fifty
Thousand Dollars ($150,000) during 2003; Seventy Five Thousand Dollars ($75,000)
per month from January to April 2004; and Fifty Thousand Dollars ($50,000) on
the 15th day of each month and continuing until the Purchaser has invested a
total of $1,000,000 for on-going business development.
B. Notwithstanding that the payment for the Special Common
Shares is paid in installments as described in Sub Paragraph A of this
Paragraph, the Company shall issue the Special Common Shares without
restrictions or conditions which shares shall be treated as if they were fully
paid and non assessable.
C. Purchaser's Obligations. During 2004, Purchaser shall
provide a $1,000,000 Credit line available as follows:
(i.) Two Hundred and Fifty Thousand Dollars
($250,000) availability on January 31, 2004.
(ii.) Two Hundred and Fifty Thousand Dollars
($250,000) additional availability on April 30, 2004.
(iii.) Two Hundred and Fifty Thousand Dollars
($250,000) additional availability on July 31, 2004.
(iv.) Two Hundred and Fifty Thousand Dollars
($250,000) additional availability on October 31, 2004.
3. DOCUMENTS TO BE DELIVERED AT CLOSING
3.1. At the Closing:
A. Seller shall execute and deliver to Purchaser a copy of the
change of status of American Nutritional Exchange, Inc. from an "S" corporation
to a "C" corporation.
B. Seller shall execute and deliver to Purchaser the 430
Special Common Shares, which shall be delivered to the Purchaser free and clear
of any and all defects, liens, encumbrances, charges and equities whatsoever.
C. Purchaser shall pay to the Seller the initial installment
of the Purchase Price in immediately available funds for the Special Common
Shares in accordance with the terms of Section 2 hereof.
D. Seller shall deliver to Purchaser copies, certified by the
Secretary of Seller, of (i) certificates of good standing in the jurisdiction of
the Seller's incorporation and in each other jurisdiction in which the Seller is
doing or transacting business, and (ii) the written approval of the Board of
Directors of Seller authorizing this Agreement and the other agreements and
instruments to be delivered pursuant thereto and the transactions contemplated
hereby and thereby.
E. Purchaser shall deliver to Seller copies, certified by the
Secretary of Purchaser, of (i) certificates of good standing in the jurisdiction
of the Purchaser's incorporation and in each other jurisdiction in which the
Purchaser is doing or transacting business, and (ii) the written approval of the
Board of Directors of Purchaser authorizing this Agreement and the other
agreements and instruments to be delivered pursuant thereto and the transactions
contemplated hereby and thereby.
F. Seller shall deliver to the Purchaser all necessary
consents of third parties to the execution and delivery of this Agreement and
the consummation of the transactions contemplated.
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4. CLOSING. The Closing of the transaction contemplated by this
Agreement, and all deliveries to be made at such time in connection therewith
shall take place at the office of the Seller, such Closing to take place by
delivery of executed counterparts of this Agreement and all other documents,
instruments and certificates required to be delivered by Seller or Purchaser at
the Closing (Said Closing and said date thereof, herein referred to as the
"Closing" and the "Closing Date", respectively). The effective date of this
Agreement shall be the date of execution by the last signatory to this
Agreement.
5. REPRESENTATIONS AND WARRANTIES BY SELLER.
5.1. Seller represents and warrants to Purchaser as follows:
A. Seller is a corporation duly organized and validly existing
under the laws of the State of Florida. Seller has full power and authority to
conduct its business and issue the Special Common Shares and that the Special
Common Shares are free and clear of all liabilities of any kind or nature
without any liens or encumbrances.
B. The execution, delivery and performance of the Purchase
Documents by Seller, and the consummation of the transactions contemplated
hereby, will not with or without the giving of notice or the lapse of time or
both:
(i) violate any provision of law, statute, rule or
regulation to which Seller is subject,
(ii) violate any judgment, order, writ or decree to
which Seller is a party or by which it is or may
be bound; or
(iii) to the knowledge of Seller, result in the
breach of or conflict with any term, covenant, condition or provision of, or
result in the modification or termination of, or constitute a default under or
result in the creation or imposition of any lien, security interest, charge or
encumbrance upon the Common Stock being purchased hereunder, under the corporate
charter or by-laws or any other agreement, understanding or instrument to which
Seller is a party or by which it is or may be bound or affected.
C. All necessary corporate action has been taken by Seller to
authorize the execution, delivery and performance of the Purchase Documents. The
Purchase Documents have been duly and validly authorized, executed and delivered
by Seller and constitute the valid and binding obligation of Seller enforceable
against it in accordance with their respective terms.
D. All consents and approval required for the allotment of the
Special Common Shares to Purchaser hereunder, including without limitation all
amendments, modifications, and supplements, whether written or oral
("Agreements") and for performing Seller's obligations under the Purchase
Documents have been obtained or will be obtained. No consent of any court,
governmental agency or other public authority is required as a condition to the
enforceability of the Purchase Documents.
E. Seller has conducted its business in compliance with all
applicable federal, state and local laws, regulations and ordinances.
F. Seller has not received any notice that it is infringing
upon the research, development, processes, methods, techniques, inventions, know
how patents, patent rights, trade name, trademarks and service marks of any
other party.
G. There is (and has not been since its inception) no claim,
litigation, action, suit or proceeding, administrative or judicial, pending or
threatened against or affecting Seller, at law or in equity or before any
foreign, federal, state, local or other governmental authority, including,
without limitation, any claim, proceeding, or litigation for the purpose of
enjoining or preventing the consummation of this Agreement, or the transactions
contemplated hereby, or otherwise claiming this Agreement, or any of the
transactions contemplated hereby or the consummation thereof, is illegal or
otherwise improper, nor to Seller's knowledge is there any basis upon which any
such claim, litigation, action, suit or proceeding could be brought or
initiated. Seller is not (and has not been within the past three years) subject
to or in default under any judgment, order, writ, injunction or decree of any
court or any governmental authority, and no replevins, attachments, or
executions have been issued or are now in force against Seller. No petition in
bankruptcy or receivership has ever been filed by or against Seller.
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H. Total Sales for the six-month period ending June 30, 2003
are reported to be $4,236,459. Total Assets reported as of June 30, 2003 are
$1,461,234. Total Liabilities reported as of June 30, 2003 are $1,455,736. June
30, 2003 Income Statement and Balance Sheet are attached as Schedule A.
I. The net proceeds from the allotment and sale of the Special
Common Shares will be used as business development capital for the Seller to
build revenues to $20,000,000 annually and EBITDA to the 5% - 7% range during
the next three years. However, in no event shall the net proceeds be used by the
Seller for the payment (or loaned to any such person for the payment) of any
judgment, or other liability, incurred by any executive officer, officer,
director or employee of the Seller, except for any liability owed to such person
for services rendered, or if any judgment or other liability is incurred by such
person originating from services rendered to the Seller, or the Seller has
indemnified such person from liability. Three-year Revenue and EBITDA
projections are attached as Schedule B.
J. Seller has taken all corporate action required to authorize
the execution and delivery of this Agreement and the performance of its
obligations hereunder, including the issuance and allotment of the Special
Common Shares, and this Agreement has been duly executed and delivered by the
Seller and constitutes a valid and legally binding obligation of the Seller.
When issued to and the first installment is paid for by the Purchaser in
accordance with the terms of this Agreement, the Special Common Stock will be
duly and validly issued, fully paid and nonassessable, and the issuance of the
Special Common Stock will not be subject to any preemptive or similar rights
that have not been waived.
K. The authorized capital stock of the Seller consists of
5,000 shares of Common Stock, par value $.001 per share. The Seller will create,
before closing, 1,000 shares of Special Common Stock of the Seller. 1,000 shares
of Common Stock and no shares of Special Common Shares have been issued and are
outstanding as of the date hereof. All outstanding shares of Common Stock are
and will be duly authorized, validly issued, fully paid and non-assessable and
not subject to preemptive rights created by statute, the certificate of
incorporation or bylaws of the Seller or any agreement to which the Seller is a
party or by which it is bound and have been issued in compliance with federal
and state securities laws. There are no declared or accrued unpaid dividends
with respect to any shares of Common Stock.
L. Seller shall elect one person from Purchaser to its Board
of Directors. Initially Purchaser shall be represented by Frank Clark or Bernard
Shinder.
M. Upon the signing of the Agreement, the Seller's two
existing Shareholders shall enter into Executive Management Agreements at their
current compensation levels.
N. The Individual Shareholders, who are signatories to this
Agreement undertake and agree that they will not exercise their powers, whether
as directors, officers or shareholders of the Company to vote their shares so
that:
a. Any rights or privileges of the Special Common shares shall
be changed, altered or amended, and
b. Any further shares of any class shall be allotted or issued
without the express consent of the Buyer first had and obtained.
6. REPRESENTATIONS AND WARRANTIES OF PURCHASER
6.1 Purchaser hereby represents and warrants to Seller as follows:
A. Purchaser is a corporation duly organized and validly
existing under the laws of the State of Nevada has full power and authority to
own its property and conduct its business.
B. The execution, delivery and performance of this Agreement,
and the consummation of the transaction contemplated hereby, will not with or
without the giving of notice or the lapse of time or both:
(i) violate any provision of law, statute, rule or
regulation to which Purchaser is subject;
(ii) violate any judgment, order, writ or decree to
which Purchaser is a party or by which Purchaser
is bound; or
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(iii) result in the modification or termination of,
or constitute a default under the corporate
charter or by-laws or any other agreement, understanding or instrument to which
Purchaser is a party or by which Purchaser is or may be bound or affected.
C. All necessary corporate action has been taken by Purchaser
to authorize the execution, delivery and performance of this Agreement, and the
consummation of the transaction contemplated hereby. This Agreement has been
duly and validly authorized and is a binding obligation of Purchaser enforceable
against it in accordance with its terms.
D. Purchaser has the necessary finds to fulfill its
obligations under this Agreement.
E. Purchaser understands that the Common Stock constitutes
"restricted securities" within the meaning of Rule 144 under the Securities Act.
F. Purchaser acknowledges that after the Closing Date:
(i) Purchaser will exercise the right to vote percent
(80%) of the issued and outstanding shares
(of any class) of the Seller and the Seller's existing Shareholders will
exercise the right to vote twenty percent (20%) of the issued and outstanding
shares of the Seller;
(ii) Purchaser will receive thirty percent (30%) of
any future distribution of profits and the
Seller's two existing Shareholders would receive seventy percent (70%) thereof;
(iii) Purchaser would receive thirty percent (30%) of
any future distribution of proceeds in the event of a sale of Seller and the
Seller's two existing Shareholders would receive seventy percent (70%);
(iv) Purchaser would receive a first right of refusal
in the event that the Seller's two existing
Shareholders chose to sell their interest at a future date;
(v) Subject to the provision of Paragraph 5N,
Seller's two existing Shareholders shall have control
of the Board of Directors of Seller;
(vi) Seller's two existing Shareholders shall be the
final decision makers and shall manage the
Seller's business;
(vii) Purchaser will use its best efforts to provide
assistance to the Seller's two existing Shareholders to (a) facilitate the
development of the Seller's website; (b) facilitate the development of an
e-commerce platform; (c) identify additional product lines for distribution; (d)
facilitate the development of international distribution; (e) provide planning
support; (f) provide administrative support.
(viii) In the event that the Purchaser votes the
shares of the Seller in such a manner that results
in:
(a) a change in the composition of the Board
of Directors of the Seller contrary to the provisions of 6.1F (v) or 6.1F (vi)
of this agreement or
(b) a change in the distribution formula
contrary to the provisions of 6.1F(ii) of this agreement, then the two existing
Shareholders of the Seller referred to in 5.1M of this agreement may (but are
not required) to purchase all of the shares subscribed for by the Purchaser
("Selling Party") on the following terms and conditions:
(i.) the two existing Shareholders of the Seller
referred to in 5.1M of this agreement shall be
represented by Ismael Gonzalez who shall be empowered to bind all purchasing
parties ("Buying Parties").
(ii.) the Buying Parties shall notify the Selling
Party (by certified mail), in writing, within seven
(7) business days of such vote being recorded, of their intention to purchase
all but not less than all of the shares subscribed for by the Purchaser.
(iii.) within thirty (30) business days from the
recorded receipt of the notice, the Selling Party and the Buying Parties shall
each appoint a person who is a Certified Business Valuator, which Certified
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Business Valuators shall appoint a third, independent Certified Business
Valuator to value the shares agreed to be purchased pursuant to this paragraph.
The value of the shares shall be the average valuation arrived at by the three
business valuators. The cost of the valuators, including the independent
valuators shall be borne equally between the Selling Party and the Buying
Parties.
(iv.) the Seller shall cooperate fully with each
business valuator including full disclosure of books and records and such other
material as may be required to arrive at a valuation. The valuation shall be
completed no later than sixty (60) business days following the appointment of
the independent business valuation which valuation shall be certified to the
Selling Party and the Buying Parties. The transaction relating to the purchase
and sale of the shares subscribed for by the Purchaser shall close no later than
sixty (60) business day following the certification of value by the business
valuators whereupon the Buying Parties shall purchase such shares upon the
following terms: The Sellers shall make payments equal to the purchase price in
respect of part of the purchase price over the same time during which the Buyer
made installment payments in respect of the purchase of the Special Common
shares. The Sellers shall pay for the balance, if any, of the purchase price
over the next succeeding 24 months in equal monthly installments. During the
payment period, the Selling Parties shares of Stock shall be placed in trust
with Seller's Attorney and so long as Buyers are not more than forty-five (45)
days late on any payments, Buyers shall vote said shares. In the event that
Buyers are more than forty-five (45) days behind in payment, then in that event
the Selling Party shall vote said shares until such payments are brought
current. In the event that Buyers are more than ninety (90) days behind in
payment, then they shall be deemed in default and escrow agent is hereby
directed to return the share certificates to the Selling Party and the Selling
Party shall retain all payments made as liquidated and agreed upon damages.
7. CONDITIONS TO THE OBLIGATIONS OF SELLER TO CLOSE
7.1 All obligations of Seller hereunder are, at the option of Seller,
subject to the conditions that, at the Closing Date:
A. All representations and warranties made in this Agreement
by Purchaser shall be true and correct as of the Closing Date in all material
respects.
B. Seller shall have tendered the required documents and
certificates at the Closing as set forth in Section 3 hereof.
C. The first installment of the Purchase Price described in
Section 2.2 hereof due at the Closing shall have been paid by Purchaser.
D. All corporate action necessary to authorize (a) the
execution, delivery and performance by Seller of this Agreement and any other
agreements or instruments contemplated hereby to which Seller is a party and (b)
the consummation of the transactions and performance of its other obligations
contemplated hereby and thereby shall have been duly and validly taken by
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Seller, and the Purchaser shall have been furnished with copies of all
applicable resolutions adopted by the board of directors of Seller, certified by
the Secretary or Assistant Secretary of Seller.
8. CONDITIONS TO THE OBLIGATIONS OF PURCHASER TO CLOSE
8.01 All obligations of Purchaser hereunder are, at the option of
Purchaser, subject to the conditions that, at the Closing Date:
A. All representations and warranties of Purchaser contained
in this Agreement shall be true and correct as of the Closing Date in all
material respects.
B. Purchaser shall have performed all commitments hereunder up
to the Closing Date and shall have tendered the required documents, instruments
and certificates as set forth in Section 3 hereof.
C. No action, suit, proceeding or investigation by or before
any court, administrative agency or other governmental authority shall have been
instituted or threatened to restrain, prohibit or invalidate the transaction
contemplated by this Agreement or which may affect the right of Purchaser to own
the Special Common Shares after the Closing Date.
D. All corporate action, necessary to authorize (a) the
execution, delivery and performance by the Purchaser this Agreement and any
other agreements or instruments contemplated hereby or thereby to which
Purchaser is a party and (b) the consummation of the transactions contemplated
hereby and thereby shall have been duly and validly taken by Purchaser, and
Seller shall have been furnished with copies of all applicable resolutions of
Purchaser certified by the Secretary or Assistant Secretary of the Purchaser.
E. The Purchaser shall have obtained the approvals, consents
and authorizations of all third parties and/or governmental agencies necessary
for the communication of the transactions contemplated hereby in accordance with
the requirements of applicable laws and agreements.
9. INDEMNIFICATIONS
9.01 Seller agrees to indemnify and hold harmless Purchaser from:
A. Any and all damages or deficiencies resulting from any
misrepresentation, breach of warranty or non-fulfillment of any covenants on the
part of Seller under this Agreement.
B. Any and all actions, suits, proceedings, demands,
assessments, judgments, costs, reasonable attorneys fees, expenses incident to
any of the foregoing.
C. Any and all liabilities as they relate to the personal
property being transferred under this Purchase and Sale Agreement, which are not
specifically set forth.
9.02 Purchaser agrees to indemnify and hold Seller harmless from:
A. Any and all damages or deficiencies resulting from any
misrepresentation, breach of warranty or non- fulfillment of any covenant on the
part of Purchaser under this Agreement
B. Any and all actions, suits, proceeding, demands,
assessments, judgments, costs, reasonable attorney's fees and expenses incident
to any of the foregoing.
9.03 Any party having an indemnification claim hereunder (Indemnitee")
shall give the other party ("Indemnitor") prompt notice in writing of any claim
by any third party, which gives rise to a claim for indemnification hereunder,
and of any alleged breach of any of the representations and warranties contained
in this Agreement. As to any alleged breach of the representations or
warranties, written notice shall contain a statement setting forth the nature of
the alleged breach or breaches. The Indemnitor shall have thirty (30) days after
the delivery of such notice to cure or contest any such claim by a third party
or any such alleged breach or breaches. At its option, to be exercised within
thirty (30) days of such notice, the Indemnitor may defend against any such
action or proceeding with counsel of its choice, at the Indemnitor's expense, it
being understood, however, that the Indemnitor's designation of counsel shall be
subject to the approval of the indemnitee, which approval shall not be
unreasonably withhold. Additionally, at its own expense the Indemnitee may
participate in any such defense with counsel of its choice. As long as the
defense is being handled by the Indemnitor, the Indemnitee shall not settle any
such claim, action or proceeding without prior written consent of the
Indemnitor, except that if the Indemnitee does elect to settle the matter
without such consent, the Indemnitor shall be released from the terms of this
indemnification. Notwithstanding the foregoing, in the event the Indemnitor
elects not to defend any such claim, action, or proceeding, the Indemnitee may
do so, in which event the Indemnitor shall continue to indemnify the Indemnitee
for any liabilities, losses and damages incurred by the Indemnitee, including
any settlement payments and for the reasonable costs and expenses of this
counsel.
9.04 All indemnifications made herein by Purchaser and Seller shall
survive the closing of this transaction and shall enure to the benefit of the
Purchaser's and Seller's heirs, assigns, agents, principals, members and/or
shareholders.
10. TERMINATION DEFAULT REMEDIES
10.01. Termination. If either Purchaser or Seller materially defaults
in the due and timely performance of any of its warranties, covenants or
agreements or in the event of the failure to satisfy or fulfill any of the
conditions, the non-defaulting party may on the Closing Date give notice of
termination. The notice shall specify the default or defaults upon which the
notice is based. The termination shall be effective ten (10) days after the
Closing Date, unless the specified default or defaults have been cured on or
before the effective date of the termination.
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10.02. Default; Remedies. Notwithstanding Section 10.01, in the event
of a default, the non-defaulting party may seek specific performance of this
Agreement against the defaulting party from a court of competent jurisdiction,
or alternatively, such non-defaulting party may seek damages from the defaulting
party.
10.03. Litigation Costs. If any legal action or other proceeding is
brought for the enforcement of this Agreement or to remedy its breach, the
prevailing party in such action or proceeding shall be entitled to recover its
actual attorney's fees and other costs incurred in the action or proceeding, in
addition to such other relief to which it may be entitled.
11. MISCELLANEOUS.
11.01 This Agreement may not be assigned by Purchaser or Seller without
the prior written consent of the other party whose consent shall not be
unreasonably withheld.
11.02 Survival or Representations. The representations and warranties
set forth herein shall survive the execution of this Agreement.
11.03 Right of First Refusal. In the event that the Purchaser shall
wish to sell the Special Common Shares to anyone or, in the event that the
Purchaser shall receive a bona fide offer to purchase the Special Common Shares
from anyone, it shall first communicate the offer of sale or the bona fide offer
to the Seller who shall have 10 business days to accept or reject the offer of
sale or the bona fide offer on the same terms and conditions as are contained in
the bone fide offer. If the offer of sale or the bona fide offer is not
specifically accepted in the time limited herein, it shall be conclusively
deemed to have been rejected. If the offer of sale or the bona fide offer is
rejected by the Seller, the Purchaser shall be at liberty to sell the Special
Common shares to anyone or to the bona fide offeror on the same terms and
conditions as are contained in the offer of sale or the bona fide offer. If the
Special Common shares are not sold in the manner contemplated by this paragraph
then, if the Purchaser again wishes to sell the Special Common Shares to anyone
or receives another bona fide offer to purchase the Special Common Shares, it
shall again offer the shares to the Seller in the manner contemplated by this
paragraph. The provisions of this paragraph shall not apply if the transaction
relating to the sale of the Special Common shares is part of a transaction
involved in an initial public offering, secondary public offering, registration
of shares in contemplation of the Purchaser being a "selling shareholder" or any
other transaction involving the public distribution of securities in the United
States of America or elsewhere.
11.04 Share Legend. Each share certificate shall contain the following
legend on its face:
"Transfer of these shares is restricted, a full statement of
such restrictions will be provided to any requesting
shareholder without charge."
11.05 Entire Agreement. This Agreement, together with all documents
incorporated herein by reference constitutes the complete and exclusive
statement of the agreement between the parties hereto and supersedes any and all
prior express or implied agreements or understandings between the parties hereto
concerning the subject matter hereof. No amendment, waiver or other alteration
of this Agreement may be made except by mutual agreement in writing.
11.06 Governing Law and Disputes. This Agreement shall be in all
respects, governed by, construed, and enforced in accordance with the laws of
the State of Florida, including all matters of construction, validity and
performance. Any action to enforce or interpret the terms of this Agreement
shall be instituted and maintained in the state court located in Seminole
County, Florida. The Seller hereby consents to the jurisdiction of such court
and waives any objections to such jurisdiction. In any action or proceeding
arising out of this Agreement, the party prevailing in such action shall be
entitled to recover its reasonable attorney's fees and costs.
11.07 Captions. The captions herein are for the convenience of the
parties and are not to be constructed as part of the terms of this Agreement.
11.08 Waiver. Any waiver by either party of any breach of this
Agreement shall not be considered a waiver of any subsequent breach.
11.09 Notices. Any notice or other communication required or permitted
to be given hereunder shall be in writing and mailed by registered or certified
mail, postage prepaid return receipt requested, to the party to whom it is to be
given.
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11.10 Severability: If any term or provision of this Agreement is
determined to be illegal, unenforceable, or invalid in whole or in part for any
reason, such illegal, unenforceable, or invalid provisions or part(s) thereof
shall be stricken from this Agreement and such provision shall not affect the
legality, enforceability, or validity of the remainder of this section, then the
stricken provision shall be replaced, to the extent possible, with a legal,
enforceable, and valid provision that is similar in tenor to the stricken
provision as is legally possible.
11.11 Expenses. Each of the parties hereto shall bear its own expenses
in connection with the transactions contemplated.
11.12 Finders Fees. Neither Seller nor Purchaser has incurred any
liabilities for finders' fees or commission except for the finder's fee that
Purchaser is obligated to pay to Health Business Partners.
11.13 Additional Documentation: The parties agree that without the
payment of additional consideration, each party will provide the other with such
information as may be necessary to carry out the terms and conditions of this
Agreement.
11.14 Arbitration. If a dispute arises from or relates to this
Agreement or the breach thereof or otherwise from the relationship of the
parties and if the dispute cannot be settled through direct discussions, the
parties agree to endeavor first to settle the dispute in an amicable manner by
mediation administered by the American Arbitration Association under its
Commercial Mediation Rules before resorting to arbitration. Thereafter, any
unresolved controversy or claim arising from or relating to this Agreement or
breach thereof shall be settled by binding arbitration administered by the
American Arbitration Association in accordance with its Commercial Arbitration
Rules and judgment on the award rendered by the arbitrator(s) may be entered in
any court having jurisdiction thereof.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement under
seal on the day and year first above written.
SELLER:
ATTEST: AMERICAN NUTRITIONAL EXCHANGE, INC.
[Not Legible] /s/ Ismael Gonzalez
- -------------------- ------------------------------------
BY: ISMAEL GONZALEZ
ITS: President & CEO
[Not Legible] /s/ Donald Montellese
- -------------------- ------------------------------------
BY: DONALD MONTELLESE
ITS: Vice President
[Not Legible] /s/ Ismael Gonzalez
- -------------------- ------------------------------------
ISMAEL GONZALEZ
[Not Legible] /s/ Donald Montellese
- -------------------- ------------------------------------
DONALD MONTELLESE
PURCHASER:
ATTEST: BIO-ONE CORPORATION
[Not Legible] /s/ Armand Dauplaise
- -------------------- ------------------------------------
BY: ARMAND DAUPLAISE
ITS: President & CEO
9
EXHIBIT A
MINUTES OF THE BOARD OF DIRECTORS OF
AMERICAN NUTRITIONAL EXCHANGE, INC.
HELD ON FEBRUARY __, 2004
PRESENT: Ismael Gonzalez and Donald Montellese
BE IT RESOLVED THAT:
Ismael Gonzalez is hereby authorized to sign all documents and do all
such things as are necessary to complete, in all its terms an Agreement between
AMERICAN NUTIRTIONAL EXCHANGE, INC. ("Company") and BIO-ONE CORPORATION a copy
of which Agreement is attached to these minutes as Exhibit A.
The Company is and is hereby authorized to create 1,000 Special Common
Shares in such manner and upon such terms as are contained in the said
Agreement.
The Company is and is hereby authorized to issue and allot 430 Special
Common Shares to Bio-Corporation as fully paid and non-assessable shares upon
such terms as are contained in the said Agreement.
Bernard Shinder is hereby appointed to be a Director of the Company
until its next annual general meeting of shareholders.
- ------------------------------------
Ismael Gonzalez, Director
- ------------------------------------
Donald Montellese, Director
EXHIBIT B
REPRESENTATIONS AND WARRANTIES OF AMERICAN NUTRITIONAL EXCHANGE, INC.:
The undersigned, whether personally, or as officers, directors or
shareholders of AMERICAN NUTRITIONAL EXCHANGE, INC. ("Company") do warrant and
represent that the warranties and representations contained in Paragraph 5 of an
Agreement between the Company and Bio-One Corporation, a copy of which is
attached to this document as Exhibit B are true and correct.
The representation and warranties contained in said Agreement shall
survive the closing of the transaction referred to therein indefinitely.
Dated at Cooper City this ___ day of February, 2004
- ----------------------------------------------------------------
Ismael Gonzalez, personally and as Director of the Company
- ----------------------------------------------------------------
Donald Montellese, personally and as Director of the Company
EXHIBIT C
AMERICAN NUTRITIONAL EXCHANGE, INC.
ACKNOWLEDGEMENT OF RECEIPT OF FUNDS
Dated: February __, 2004
AMERICAN NUTRITIONAL EXCHANGE, INC. acknowledges the receipt of
$82,500, $367,500, and $250,000 in accordance with the provisions of Paragraph 2
of an Agreement between AMERCIAN NUTRITIONAL EXCHANGE, INC. and BIO-ONE
CORPORATION (annexed hereto as Exhibit A) in consideration and partial payment
of the issue and allotment of 430 Special Common Shares in accordance with the
terms of the Agreement.
AMERICAN NUTRITIONAL EXCHANGE, INC. acknowledges that the acceleration
of installments as provided by Paragraph 2 of the said Agreement is without
prejudice to BIO-ONE CORPORATION and should not be taken as a precedent to
accelerate any further payments to be made under such agreement.
- -------------------------------------
Ismael Gonzalez, President.