EXHIBIT 10.1
PURCHASE AGREEMENT
This Purchase Agreement (the
“Agreement”) is made and entered into this 31st day of
August, 2009 by and among Michael G. Williams and Julie T. Williams
whose address is 308 Barn Side Lane, Eureka, Missouri 63025
(sometimes hereinafter referred to individually as
“Mike” or “Julie” and collectively as
“Sellers”) and Reliv International, Inc. a Delaware
corporation, having its address at 136 Chesterfield Industrial
Boulevard, Chesterfield, Missouri 63005 (hereinafter referred to as
“Purchaser”).
WHEREAS, Sellers are distributors of Reliv,
Inc., an Illinois corporation (“Reliv”), through an
independent distributorship designated as I.D. No. 87861101
(“Distributorship”); the Distributorship includes a
Distributor Agreement and associated rights and obligations as
provided in such Distributor Agreement in the form attached hereto
as Exhibit A;
WHEREAS, subject to and on the terms and
conditions contained herein, Sellers desire to sell, and Purchaser
desires to purchase from Sellers, all right title and interest in
and to the Distributorship, including without limitation, an
assignment to Purchaser of the Distributor Agreement and all rights
of Sellers thereunder, including the right to receive commissions
and other benefits and compensation as a distributor of Reliv;
and
WHEREAS, Sellers are indebted to Purchaser under
a Loan and Security Agreement dated April 20, 2007 (the “Loan
and Security Agreement”) for a loan having an outstanding
principal balance as of the date of this Agreement of Two Hundred
Sixteen Thousand One Hundred Eighteen Dollars and Ninety Cents
($216,118.90) (“Seller Indebtedness”).
NOW, THEREFORE, in consideration of the premises
and of the terms, covenants and conditions hereinafter contained,
the parties hereto agree as follows:
1.
Agreement to Sell and Purchase . Subject to and
on the terms and conditions provided herein, Sellers agree to sell,
transfer and assign to Purchaser all right, title and interest in,
and Purchaser agrees to purchase and assume all obligations of, the
Distributor Agreement and the Distributorship from and after the
date of Closing; provided, however, that Purchaser shall not assume
or become obligated with respect to any contract, commitment,
obligation or liability of Sellers or either of them, whether or
not under or related to the Distributor Agreement which shall have
accrued, been made or entered into prior to the date of
Closing. Assignment and transfer of the Distributor
Agreement and the Distributorship shall be made and effected by
means of an instrument of assignment (in form of Exhibit B attached
hereto and incorporated herein by reference) which shall be
executed and delivered by Sellers to Purchaser at the
Closing. By means of such sale, assignment and transfer
there shall be assigned and transferred to Purchaser all right,
title and interest in and to the Distributor Agreement and to the
Distributorship, free and clear of any and all liens, claims or
encumbrances, including without limitation all rights as a
distributor of Reliv under the Distributor Agreement and all rights
to receive compensation as a distributor of Reliv, from and after
the effective date of such assignment.
2.
Purchase Price and Payment . The purchase price
for the purchase of the Distributorship shall be Two Million Sixty
Thousand ($2,060,000.00) Dollars (the “Purchase
Price”). Payment of the Purchase Price shall be
made as follows:
a. Five
Hundred Thousand ($500,000.00) Dollars by wire transfer payable to
Sellers (or as Sellers shall direct) at Closing;
b. A
credit, at Closing, in the amount of Two Hundred Sixteen Thousand
One Hundred Eighteen Dollars and Ninety Cents ($216,118.90) against
the balance of the Purchase Price in payment of the Seller
Indebtedness (“Closing Credit”); and
c. The
remaining balance of One Million Three Hundred Forty-Three Thousand
Eight Hundred Eighty-One Dollars and Ten Cents ($1,343,881.10)
shall be paid by Purchasers, with interest at the rate of five
percent (5%) per annum, in eighty-four (84) equal monthly
installments of Eighteen Thousand Nine Hundred Ninety-Four Dollars
and Twenty-Nine Cents ($18,994.29), payable on the last day of each
month, commencing on September 30, 2009.
3.
Representations and Warranties of Sellers
. Sellers, jointly and severally, represent and warrant
to Purchaser, as of the date of this Agreement and as of the date
of Closing:
a. The
execution, delivery and performance of this Agreement have been
duly authorized and this Agreement has been validly executed and
delivered by the Sellers. This Agreement and all of the
documents and instruments delivered in connection with this
Agreement constitute valid and binding obligations of the Sellers
enforceable in accordance with their terms.
b. The
execution, delivery and performance of this Agreement by the
Sellers and consummation by the Sellers of the transactions
contemplated hereby, will not, with or without the giving of notice
and the lapse of time, or both, (i) violate any provision of law,
statute, rule, regulation or executive order to which they are
subject, (ii) violate any judgment, order, writ or decree of any
court applicable to them, or (iii) except as stated in Section 3.d.
of this Agreement, result in the breach of or conflict with any
term, covenant, condition or provision of, result in the
modification or termination of, constitute a default under or
result in the creation or imposition of any lien, security
interest, charge or encumbrance upon the Distributorship pursuant
to any corporate charter, by-laws, shareholders agreement,
commitment, contract or other agreement or instrument to which the
Sellers, or either of them, are a party or by which the
Distributorship is or may be bound or affected or from which the
Sellers derive benefit.
c. Neither
of the Sellers has sold, assigned, pledged, encumbered or
transferred any right, title or interest in or related to the
Distributorship, or made or entered into any contract, agreement or
commitment to sell, assign, transfer, pledge or encumber any right,
title or interest in or related to the Distributorship, and neither
has agreed, authorized, suffered or permitted any lien, claim or
encumbrance to be made, exist or continue with respect to the
Distributorship, except the lien established in favor of Purchaser
pursuant to the Loan and Security Agreement.
d. Except
with respect to the obligations of the Sellers, if
any, under that certain document entitled Development
Agreement (“Development Agreement”) between
Mike Williams and NY1313, LLC, a Texas limited liability company
(d/b/a Texas Big Apple),, neither of Sellers has made or entered
into any contract, agreement or commitment under which the
Distributorship or Purchaser, as purchaser of the Distributorship,
may be obligated or bound or which may affect the Distributorship
or Purchaser, as purchaser of the Distributorship.
e. Sellers
have good title to, and own outright, the Distributorship, free and
clear of all mortgages, claims, liens, charges, encumbrances,
security interests, restrictions on use or transfer or other
defects as to title, except the lien established in favor of Seller
pursuant to the Loan Agreement and except as set forth in Section
3.d. of this Agreement.
f. Each
of the Sellers acknowledges and agrees that:
(i) The
transactions provided for in this Agreement were proposed and
sought by them. None of Purchaser or any of its
officers, employees, agents or representatives proposed,
encouraged, suggested or sought to induce the Sellers to enter into
or make this Agreement;
(ii) None
of Purchaser, or any of its officers, directors, employees, agents
or representatives have made any statements, representations,
promises, commitments, assurances, agreements concerning or
relating in any way to the transactions herein, the Distributorship
or Reliv, except as is expressly set forth in this Agreement or any
exhibit hereto.
g. Sellers
have not engaged any broker, finder or advisor with regard to this
Agreement or the sale of the Distributorship.
h. Sellers
acknowledge that they have had full opportunity to review and
discuss this Agreement with an attorney of Sellers’
choosing. Sellers further acknowledge that they have
made their own independent determination of the value of the
Distributorship. Sellers further acknowledge that they
are entering into this Agreement of their own free choice without
inducement other than as recited in this
Agreement. Sellers have had full and adequate
opportunity to inform themselves of all matters relating to this
Agreement and the Distributorship.
i. There
is no action, suit, proceeding or claim by any Person pending, or
to the best of Sellers’ knowledge threatened, against either
of Sellers or their assets or goodwill, or against or affecting any
transactions contemplated by this Agreement.
j. Sellers
are not in default in any material respect under, or in violation
in any material respect of any of the terms of, any agreement,
contract, instrument, lease or other commitment to which they, or
either of them, is a party or by which they or any of their assets
are bound, and Sellers are in compliance in all material respects
with all applicable provisions of laws, rules, regulations,
licenses, permits, approvals and orders of any foreign, Federal,
State or local governmental authority.
k. All
representations and warranties contained in this Agreement shall
survive the execution and delivery of this Agreement for a period
of two (2) years.
4.
Representations and Warranties of Purchaser . Purchaser
represents and warrants to Sellers, as of the date of this
Agreement and as of the date of Closing:
a. Purchaser
is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, has full power
and authority to carry on its business as and where now conducted
, and is duly qualified to transact business in the State of
Missouri.
b. Purchaser
has full power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. This Agreement and
the other agreements delivered by Purchaser pursuant hereto, have
been duly authorized, executed and delivered by Purchaser and
constitute the legal, valid and binding obligations of Purchaser
enforceable against Purchaser in accordance with their respective
terms.
c. The
execution, delivery and performance of this Agreement by Purchaser
and the consummation by Purchaser of the transactions contemplated
hereby (including without limitation the execution, delivery and
performance of the agreements, instruments and other Closing
documents delivered by Purchaser and Seller pursuant hereto) do not
and will not conflict with or result in any violation of, or
default under, any provision of the Articles of Incorporation or
Bylaws of Purchaser, or any mortgage, indenture, lease, agreement
or other instrument, permit, franchise, license, judgment, order,
decree, statute, law, executive order, ordinance, restriction, rule
or regulation applicable to Purchaser.
d. No
license, consent, approval, order, authorization, report,
registration or declaration of or filing with any person or entity
is required in connection with the execution and delivery of this
Agreement by Purchaser or the consummation of any of the
transactions contemplated hereby.
e. Purchaser
has not engaged any broker, finder or advisor with regard to this
Agreement or the sale of the Distributorship.
f. Purchaser
acknowledges that it has had full opportunity to review and discuss
this Agreement with an attorney of Purchaser’s choosing.
Purchaser further acknowledges that it has made its own independent
determination of the value of the Distributorship. Purchaser
further acknowledges that it is entering into this Agreement of its
own free choice without inducement other than as recited in this
Agreement. Purchaser has had full and adequate opportunity to
inform itself of all matters relating to this Agreement, the
Distributorship, and the Development Agreement.
g. Purchaser
acknowledges that neither of the Sellers has made any statements,
representations, promises, commitments, assurances, agreements
concerning or relating in any way to the transactions herein or the
Distributorship, except as is expressly set forth in this Agreement
or any exhibit hereto.
h. To
the best of the knowledge and belief of the Officers and Directors
of Purchaser, (i) neither of the Sellers is, as of the date of
Closing, in breach of any of the representations and warranties of
Sellers as set forth in Section 3 above, and (ii) no basis exists,
as of the date of Closing, to withhold any payment due Sellers
under this Agreement.
5.
Conditions to Closing .
a. The
obligations of Purchaser to perform its obligations at the Closing
as provided herein shall be subject to the occurrence or
performance of each of the following conditions on or before the
date of Closing:
(i) Sellers
shall have performed all obligations on their part to be performed
as provided herein prior to or at the date of Closing;
(ii) All
of the representations and warranties of Sellers shall be true and
correct as of the date hereof and as of the date of Closing;
and
(iii) Sellers
shall deliver to Purchaser, at Closing, each of the instruments and
documents provided herein to be delivered by Sellers to Purchaser
at Closing.
b. The
obligations of Sellers to perform their obligations at the Closing
as provided herein shall be subject to the occurrence or
performance of each of the following conditions on or before the
date of Closing:
(i) Purchaser
shall have performed all obligations on its part to be performed as
provided herein prior to or at the date of Closing;
(ii) All
of the representations and warranties of Purchaser herein shall be
true and correct as of the date of this Agreement and as of the
date of Closing;
(iii) Purchaser
shall deliver to Sellers, at Closing, each of the instruments and
documents provided herein to be delivered by Purchasers at Closing;
and
(iv) There
being no material adverse change in the condition of the Purchaser
on or before the date of Closing.
a. The
Closing of the transactions provided for herein shall take place at
the offices of Purchaser on August 31, 2009 at 10:00
A..M.
b. At
the Closing, Purchaser shall deliver to Sellers:
(i) An
original of this Agreement duly executed by a duly authorized
officer of Purchaser;
(ii) Certified
copies of resolutions of the Board of Directors of Purchaser
authorizing and approving this Agreement and the transactions
provided for herein;
(iii) Wire
transfer of Five Hundred Thousand Dollars ($500,000.00) to such
account(s) as directed by Sellers;
(iv) Executed
original of the Promissory Note noted and marked “Paid”
by a duly authorized officer of Purchaser;
(v) An
original of an Assignment and Transfer Agreement in the form of
Exhibit B attached hereto and incorporated herein by reference,
duly executed by a duly authorized officer of Purchaser;
(vi) An
original of a Mutual Release in the form of Exhibit C attached
hereto and incorporated herein by reference, duly executed by a
duly authorized officer of Purchaser;
(vii) An
original of the Acknowledgement of Closing Credit and Forgiveness
of Loan Balance Due in the form of Exhibit D attached hereto and
incorporated herein by reference, duly executed by a duly
authorized officer of Purchaser; and
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