EXCHANGE AGREEMENT
Dated June 1, 1997,
AMONG
MANNATECH, INCORPORATED,
AND THE
LIMITED PARTNERS
OF
POWER THREE PARTNERS, LTD.,
ELEVEN POINT PARTNERS, LTD.,
AND
BETA M PARTNERS, LTD.
TABLE OF CONTENTS
PAGE
----
1. The Merger. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. The Exchange. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3. Representations, Warranties, Covenants and Agreements of Partners . . . 2
3.1 Representations and Warranties . . . . . . . . . . . . . . . . . 2
3.2 Securities Laws Representations. . . . . . . . . . . . . . . . . 3
3.3 Consent to Assignment. . . . . . . . . . . . . . . . . . . . . . 5
4. Representations, Warranties, Covenants and Agreements of Mannatech. . . 5
4.1 Representations and Warranties . . . . . . . . . . . . . . . . . 5
4.2 Partnership Tax Return . . . . . . . . . . . . . . . . . . . . . 6
5. Mutual Releases . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5.1 Mannatech Release of Partners. . . . . . . . . . . . . . . . . . 6
5.2 Partners Release of Mannatech. . . . . . . . . . . . . . . . . . 6
6. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
6.1 Termination. . . . . . . . . . . . . . . . . . . . . . . . . . . 7
6.2 Effect of Termination. . . . . . . . . . . . . . . . . . . . . . 8
7. General Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
7.1 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
7.2 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
7.3 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
7.4 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . 9
7.3 Choice of Law; Amendments; Headings. . . . . . . . . . . . . . . 9
7.6 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
7.7 Assignments and Third Parties. . . . . . . . . . . . . . . . . . 10
7.8 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . 10
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EXCHANGE AGREEMENT
This Exchange Agreement (this "Agreement") is made and entered into
effective as of June 1, 1997 (the "Execution Date"), among Mannatech,
Incorporated, a Texas corporation ("Mannatech"), and the limited partners of the
Partnerships (as hereinafter defined) who are identified on Schedule 1 to this
Agreement and whose signatures are set forth below (collectively, the
"Partners", and individually, a "Partner").
RECITALS
A. The Partners are the owners of one hundred percent (100%) of the
outstanding limited partnership interests (the "'Partnership Interests") of
Power Three Partners, Ltd., a Texas limited partnership ("Power Three"), Eleven
Point Partners, Nd., a Texas limited partnership ("Eleven Point"), and Beta M
Partners, Ltd., a Texas limited partnership ("Beta M") (the "Partnerships). The
Partnership Interests represent ninety-eight percent (98.0%) of all the
partnership interests of the Partnerships. Each of the Partnerships was formed
and organized under the terms of an Agreement of Limited Partnership dated
December 22, 1994 (the "Partnership Agreements").
B. Power Three and Eleven Point own all the outstanding limited
partnership interests of Dynamic Eight Partners, Ltd., a Texas limited
partnership ("Dynamic Eight").
C. Mannatech and Dynamic Eight entered into a Marketing Services
Agreement dated December 27, 1994 (the "Marketing Agreement").
D. Beta M and Mannatech entered into a License Agreement dated December
27, 1994 (the "License Agreement").
E. In exchange for shares of the $0.01 par value common stock of
Mannatech shown on Schedule 1 to this Agreement (the "Shares"), Mannatech has
agreed to acquire the Partnership Interests from the Partners and the Partners
have agreed to transfer and assign the Partnership Interests to Mannatech, all
in accordance with the terms and conditions of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual agreements
of the parties set forth herein, and other good and valuable consideration, the
receipt and legal sufficiency of which are hereby acknowledged, Mannatech and
the Partners agree as follows:
1. THE MERGER. Under the terms of an Agreement and Plan of Merger dated
June 1, 1997 (the "Merger Agreement"), the corporate general partner of each of
the Partnerships and the corporate general partner of Dynamic Eight (the
"General Partners") have agreed to merge with and into Mannatech, with Mannatech
being the surviving entity in such merger (the
1
"Merger"). The Partners own all the issued and outstanding common stock of the
General Partners. Subject to the terms of the Merger Agreement, the Merger will
become effective at a date and time (the "Effective Time") which will be the
date of the filing of Articles of Merger with the Secretary of State of the
State of Texas or such later effective date and time as may be specified in the
Articles of Merger. Subject to the terms of this Agreement, the effectiveness of
the transactions contemplated by this Agreement is specifically conditioned upon
the Effective Time having occurred. At such time as the Effective Time may
occur, the terms of this Agreement and the transactions contemplated hereby
which are to be effective as of the Effective Time shall become effective and
fully binding on each of the parties hereto without any further action on the
part of the parties hereto other than the delivery of certificates evidencing
the Shares as contemplated by Section 2(b) below. If this Agreement is
terminated prior to the Effective Time, the rights and obligations of the
parties shall be as set forth in Section 6.2 below. The shares of Mannatech
Common Stock which are to be issued to the Partners as a result of the Merger
are referred to herein as the "Merger Shares."
2. THE EXCHANGE.
Upon the terms and subject to the conditions of this Agreement, effective
as of the Effective Time:
(a) The Partners assign and transfer to Mannatech all the Partnership
Interests. The Partnership Interests include all the Partners'
respective interests in the Partnerships, including, without
limitation, all the Partners' (i) capital accounts in the
Partnership and (ii) rights to income, losses and distributions
of the Partnership from and after the Effective Time (all as more
particularly described in the Partnership Agreements). The
Partners grant to Mannatech or its assigns the right to be
substituted as a limited partner of the Partnerships with respect
to the limited partnership interests assigned. The Partnership
Interests are transferred and assigned subject to all the terms
and provisions of the respective Partnership Agreements.
(b) Mannatech shall cause to be issued and delivered to the Partners
duly-executed certificates evidencing the Shares, registered in
the names of the Partners, which certificates shall be registered
in the name of and issued to and delivered to the Partners as set
forth on Schedule 1 hereto.
3. REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS OF PARTNERS.
3.1 REPRESENTATIONS AND WARRANTIES. The Partners jointly and
severally represent and warrant to Mannatech as follows:
(a) ENCUMBRANCES. The transfer and assignment of the Partnership
Interests as provided for in this Agreement will transfer to
Mannatech valid legal title to one hundred percent (100%) of the
outstanding limited partnership
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interests of the Partnerships, free and clear of all claims,
liens, charges and encumbrances of any kind or nature whatsoever
other than restrictions and encumbrances provided for under the
terms of the Partnership Agreements. Schedule 1 correctly sets
forth each Partner's Partnership Interest in each Partnership.
(b) GENERAL PARTNERSHIP INTERESTS. The General Partners are the sole
general partners of their respective Partnerships, and own 100%
of the outstanding general partnership interests of their
respective Partnerships.
(c) MARKETING AGREEMENT. None of the rights, duties or
responsibilities of Dynamic Eight under the Marketing Agreement
have been assigned or delegated or subjected to any claim, lien,
charge or encumbrance of any kind or nature whatsoever.
(d) LICENSE AGREEMENT. None of the rights, duties or responsibilities
of Beta M under the License Agreement have been assigned or
delegated or subjected to any claim, lien, charge or encumbrance
of any kind or nature whatsoever.
(e) ORGANIZATION. Each of the Partnerships is a duly organized and
validly existing Texas limited partnership.
(f) BINDING EFFECT. This Agreement is a legal, valid and binding
obligation of each of the Partners, enforceable against the
Partners in accordance with its terms.
(g) NO VIOLATION. The execution, delivery and performance of this
Agreement by the Partners will not conflict with or constitute a
breach of any of the terms or provisions of, or a default under,
any of the Partnership Agreements or any other agreement to which
any Partner is a party or by which any Partner is bound.
3.2 SECURITIES LAWS REPRESENTATIONS. The Partners severally represent and
warrant to Mannatech as follows:
(a) Each Partner is fully familiar with the business and financial
affairs of Mannatech and has had access to such information
regarding the business and financial affairs of Mannatech as he
has deemed necessary to enable him to make an informed investment
decision with respect to the acquisition of the Shares and the
Merger Shares.
(b) Each Partner is able to evaluate the merits and risks of an
investment in Mannatech common stock. Each Partner is able to
bear the economic risk
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of an investment in the Shares and the Merger Shares including,
without limiting the generality of the foregoing, the risk of
losing all or any part of his investment in the Shares and the
Merger Shares.
(c) Each Partner is acquiring the Shares and the Merger Shares to be
acquired by him for his own account for the purpose of investment
and not as a nominee or agent for the benefit of any other
person, the Shares are not being acquired with a view to or for
sale in connection with the distribution thereof within the
meaning of the Securities Act of 1933, as amended (the
"Securities Act"), and the rules and regulations promulgated
thereunder, nor does any Partner have any present intention of
distributing or selling any Shares or Merger Shares to be
acquired by him.
(d) Each Partner has been afforded an opportunity to ask questions
about and receive answers and responses concerning the business
and financial affairs of Mannatech from persons authorized to act
on behalf of Mannatech, and the opportunity to obtain any
additional information as such Partner deems necessary to verify
the accuracy of information furnished to such Partner by
Mannatech. No representation has been made to any Partner as to
the profits, losses or cash flow, if any, which may be realized
by Mannatech or its shareholders in the future.
(e) The Partners understand and agree that neither the Shares nor the
Merger Shares may be sold, transferred or assigned unless they
are subsequently registered under the Securities Act or an
exemption from registration under the Securities Act is
available. Each Partner understands that the Shares and the
Merger Shares have not been registered under the Securities Act
or under the laws of any state, that Mannatech does not
contemplate and is under no obligation to so register the Shares
or the Merger Shares, and that he has not been granted any right
to have any of the Shares or the Merger Shares registered under
the Securities Act or to have Mannatech take any action to enable
an exemption under the Securities Act to be available to such
Partner.
(f) Each Partner consents to the placing of the following legend on
each certificate issued to him representing any of the Shares or
the Merger Shares:
"THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR THE LAWS OF ANY STATE, AND MAY BE SOLD, PLEDGED, HYPOTHECATED,
ASSIGNED OR OTHERWISE TRANSFERRED ONLY IF A REGISTRATION
STATEMENT WITH RESPECT THERETO IS IN
4
EFFECT PURSUANT TO THE PROVISIONS OF SUCH ACTS OR IF, IN THE
OPINION OF COUNSEL, WHICH OPINION AND COUNSEL SHALL BE
SATISFACTORY TO MANNATECH, INCORPORATED AND ITS COUNSEL, AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACTS IS
AVAILABLE."
3.3 CONSENT TO ASSIGNMENT. As required by Sections 5.1.1 and 6.2 of each
of the Partnership Agreements, each of the Partners consents to the transfer and
assignment of the Partnership Interests to Mannatech.
4. REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS OF MANNATECH.
4.1 REPRESENTATIONS AND WARRANTIES. Mannatech represents and warrants to
the Partners as follows:
(a) ORGANIZATION. Mannatech is a duly organized and validly existing
Texas corporation, and has all requisite corporate power and
authority to own and operate its properties and assets and to
carry on its business as now conducted.
(b) CAPITALIZATION. Mannatech has an authorized capitalization of
10,000,000 shares of Common Stock of which, on the Execution
Date, 10,000 shares are issued and outstanding. Except for
options which have been granted to present or former employees of
Mannatech to purchase shares of Mannatech Common Stock, there are
no outstanding options, warrants, calls, subscription rights or
other rights to acquire any shares of capital stock of Mannatech
or any agreement for the issuance of such shares.
(c) AUTHORIZATION. Mannatech has all requisite corporate power and
authority to execute, deliver and perform this Agreement and to
perform the transactions contemplated by this Agreement.
Mannatech has taken all requisite corporate action to authorize
the execution, delivery and performance of this Agreement. This
Agreement is the legal, valid and binding obligation of
Mannatech, enforceable against Mannatech in accordance with its
terms.
(d) STATUS OF SHARES. The Shares will be validly issued and
outstanding, fully paid and nonassessable, with no personal
liability attaching to the ownership thereof.
(e) NO VIOLATION. The execution, delivery and performance of this
Agreement by Mannatech will not conflict with or constitute a
breach of any of the terms or provisions of, or a default under,
the Articles of Incorporation or
5
Bylaws of Mannatech, or any agreement to which Mannatech is a
party or by which Mannatech is bound.
(f) PARTNERSHIP AGREEMENT. Mannatech has been provided with a copy of
and has reviewed and is familiar with the terms of each of the
Partnership Agreements.
4.2 PARTNERSHIP TAX RETURN. Mannatech shall prepare and timely file a
short-year federal income tax return for the Partnership covering the period
commencing January 1, 1997, and ending on the date on which the Effective Time
occurs (the "Return"). Not later than fifteen days prior to the date such return
is to be filed, Mannatech will provide the Partners with a copy of such return
and give the Partners an opportunity to provide Mannatech with comments with
respect thereto. All income and losses reported on the Return shall be allocated
to the Partners in accordance with their respective interests in the Partnership
prior to the Effective Time. Any payments made under the Marketing Agreement or
the License Agreement after the Effective Time with respect to periods of time
prior to the Effective Time shall be (i) distributed to the Partners and (ii)
accounted for as Partnership income prior to the Effective Time and reflected in
Partnership income on the Return. Except as provided for in the preceding
sentence and notwithstanding the provisions of Section 3.3.1 of the Partnership
Agreements, no Partner shall be allocated any portion of Partnership income or
losses which arise from any business or activity of the Partnership on or after
the Effective Time.
5. MUTUAL RELEASES.
5.1 MANNATECH RELEASE OF PARTNERS. Except for any claim with respect to or
arising out of any representation, warranty, covenant or agreement of the
Partners, or any of them, expressly set forth in this Agreement, effective as of
the Effective Time Mannatech releases and discharges each of the Partners and
each of their respective successors and assigns, individually and collectively,
of and from any and all liabilities, actions, causes of action, claims, demands,
damages, costs and expenses of whatsoever kind or character, known or unknown,
arising out of, with respect to, by reason of, or in any manner relating to or
on account of the business, management, operation or affairs of any of the
Partnerships or Dynamic Eight or any act or omission of any Partner in
connection therewith, or any benefit received by any Partner under this
Agreement or the Merger Agreement, including, without limitation, the Shares and
the Merger Shares.
5.2 PARTNERS RELEASE OF MANNATECH. Except for any claim with respect to or
arising out of any representation, warranty, covenant or agreement of Mannatech
expressly set forth in this Agreement, effective as of the Effective Time the
Partners, and each of them, release and discharge Mannatech and each of its
officers, directors, employees, agents, stockholders, successors, and assigns,
individually and collectively, of and from any and all liabilities, actions,
causes of action, claims, demands, damages, costs and expenses of whatsoever
kind or character, known or unknown, arising out of, with respect to, by reason
of, or in any manner relating to or on account of the business, management,
operation or affairs of any of the Partnerships or
6
Dynamic Eight or any act or omission of Mannatech in connection therewith;
PROVIDED, HOWEVER, that the Partners specifically retain and do not waive or
release any claim for any compensation due to the Partnerships under the terms
of the Marketing Agreement or the License Agreement for periods of time prior to
the Effective Time, which compensation, if any, shall be paid to the Partners as
provided for in Section 4.2 above.
6. TERMINATION.
6.1 TERMINATION. This Agreement may be terminated at any time prior to
the Effective Time:
(a) By Mannatech or any Partner in his or its sole and absolute discretion
(which termination shall not be a breach of this Agreement) if the
Effective Time has not occurred within ninety (90) days after the date
of this Agreement; PROVIDED, HOWEVER, that no party may exercise a
right of termination pursuant to this Section 6.1(a) if an event
preventing the Effective Time from occurring shall be due to the
willful failure of the party seeking to terminate this Agreement to
perform or observe in any material respect any of the covenants or
agreements set forth herein to be performed or observed by such party;
(b) By mutual consent of Mannatech and a Majority in Interest of the
Partners (as hereinafter defined);
(c) By a Majority in Interest of the Partners (as hereinafter defined) if
at any time prior to the Effective Time any of the following shall
occur and not be cured to the reasonable satisfaction of such
Partners:
(i) Any representation or warranty of Mannatech set forth in
Section 4.1 shall have been false when made or at any time
prior to the Effective Time;
(ii) There has been any material adverse change in the financial
condition or prospects of Mannatech;
(iii) The Merger Agreement shall have been terminated in accordance
with its terms;
(iv) The Board of Directors of Mannatech shall have failed to take
all proper action to authorize the execution, delivery and
performance of this Agreement; or
(v) Any suit, action or other proceeding is pending or (to the
knowledge of any party) threatened before any court or
governmental agency seeking to restrain, prohibit or obtain
damages or other relief in connection with this Agreement or
the consummation of the transactions contemplated hereby.
7
As used in Section 6.1(b) and this Section 6.1(c) "Majority in
Interest of the Partners" shall mean Partners who, in the event of the
issuance of the Shares as contemplated by Section 2.1(b) above and
Schedule 1 hereto, will own more than fifty percent (50%) of all the
Shares.
(d) By Mannatech if at any time prior to the Effective Time any of the
following shall occur and not be cured to the reasonable satisfaction
of Mannatech:
(i) Any representation or warranty of the Partners set forth in
Section 3.1 or 3.2 shall have been false when made or any time
prior to the Effective Time.
(ii) The Merger Agreement shall have been terminated in accordance
with its terms; or
(iii) Any suit, action or other proceeding is pending or (to the
knowledge of any party) threatened before any court or
governmental agency seeking to restrain, prohibit or obtain
damages or other relief in connection with this Agreement or
the consummation of the transactions contemplated hereby.
6.2 EFFECT OF TERMINATION. In the event of the termination of this
Agreement without breach by any party hereto, this Agreement shall become void
and have no effect, without any liability on the part of any party or its
directors, officers or shareholders. Nothing contained in this Section 6.2 shall
relieve any party hereto of any liability for a breach of this Agreement.
8
7. GENERAL PROVISIONS.
7.1 SURVIVAL. All representations, warranties, covenants and agreements
set forth in this Agreement shall survive the Effective Time and the closing of
the transactions contemplated by this Agreement.
7.2 EXPENSES. Mannatech shall pay all costs and expenses of Mannatech and
the Partners incidental to the negotiation, preparation and carrying out of this
Agreement.
7.3 NOTICES. All notices that are required or may be given pursuant to the
terms of this Agreement shall be in writing and delivered personally or by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows, and shall be deemed to have been given upon delivery to
the addressee or upon the third business day after such mailing, whichever is
earlier:
If to Mannatech: Mannatech, Incorporated
000 X. Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: President
With copy to: Xx. Xxxxxx Xxxxxx
000 X. Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
If to the Partners: Xx. Xxxx X. Xxxxxx
000 X. Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
With copy to: Xx. Xxxxx X. Xxxxx, Xx.
Xxxxxxxx & Xxxxxxxxx, P.C.
000 X. Xx. Xxxx'x, Xxxxx 000
Xxx Xxxxxxx, Xxxxx 00000
7.4 ENTIRE AGREEMENT. This Agreement supersedes all prior agreements
between the parties (written or oral) with respect to the subject matter hereof,
and is intended as a complete and exclusive statement of the terms of the
agreement between the parties.
7.5 CHOICE OF LAW; AMENDMENTS; HEADINGS. This Agreement shall be governed
by the internal laws of the State of Texas (without regard to the choice of law
provisions thereof). This Agreement may not be changed or terminated orally, but
only by a written instrument executed by each of the parties hereto. The
headings contained in this Agreement are for reference purposes only and shall
not affect the meaning or interpretation of this Agreement.
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7.6 WAIVER. No provision of this Agreement may be waived unless in writing
signed by all the parties hereto. No waiver by any party of any default,
misrepresentation or breach of warranty or covenant hereunder shall be deemed to
extend to any prior or subsequent default, misrepresentation or breach of
warranty or covenant hereunder or affect in any way any rights arising by virtue
of any prior or subsequent such occurrence.
7.7 ASSIGNMENTS AND THIRD PARTIES. Except as specifically contemplated by
this Agreement, no party hereto shall assign this Agreement or any of its rights
hereunder without the prior written consent of the other parties. Except as
otherwise provided herein, this Agreement shall be binding upon and enure to the
benefit of the parties hereto and their respective successors and assigns, and
shall specifically inure to the benefit of the partners and shareholders of the
Partners, as the case may be.
7.8 FURTHER ASSURANCES. Mannatech and the Partners agree to take such
further actions and to deliver or cause to be delivered such other instruments
and documents as may reasonably be requested for the purpose of carrying out
this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
Execution Date.
MANNATECH
Mannatech, Incorporated
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Xxxxxx X. Xxxxxx, President
PARTNERS
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxx X. Xxxxxx
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The Xxxxxxxx Family Partnership, Ltd.
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxxx, General Partner
/s/ Xxxxxxx X. Xxxx
----------------------------------------
Xxxxxxx X. Xxxx
/s/ Xxxx X. Xxxxxxx
----------------------------------------
Xxxx X. Xxxxxxx
/s/ Xxx X. Xxxxxxx
----------------------------------------
Xxx X. Xxxxxxx
/s/ Xxx Xxxxxxx
----------------------------------------
Xxx Xxxxxxx
/s/ Xxxx X. Xxxxxx
----------------------------------------
Xxxx X. Xxxxxx
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SCHEDULE 1
TO
EXCHANGE AGREEMENT
NUMBER OF SHARES
LIMITED PARTNER TO BE RECEIVED
--------------- --------------
Xxxxxxx X. Xxxxxxxx 2,787.62
Xxxxxxx X. Xxxxxxxx 1,481.12
Xxxxxx X. Xxxxxx 3,005.48
The Xxxxxxxx Family Partnership, Ltd. 1,524.36
Xxxxxxx X. Xxxx 223.01
Xxxx X. Xxxxxxx 223.01
Xxx X. Xxxxxxx 223.01
Xxxx X. Xxxxxx 223.01
12
