UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

_____________________________

 

FORM 8-K

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported): October 27, 2015 (October 21, 2015)

 

TWINLAB CONSOLIDATED HOLDINGS, INC.

 

(Exact name of registrant as specified in its charter)

 

Nevada   000-55181   46-3951742
(State or other jurisdiction of   (Commission File Number)   (IRS Employer
incorporation)       Identification No.)

 

632 Broadway, Suite 201, New York, NY   10012
(Address of principal executive offices)    (Zip Code)

 

 

Registrant’s telephone number, including area code (212) 651-8500

 

 

 

(Former name or former address, if changed since last report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 

  

Item 1.01 Entry into a Material Definitive Agreement.

 

On October 21, 2015, Twinlab Consolidated Holdings, Inc. (the “Company”) entered into separate Stock Purchase Agreements with five (5) investors (collectively, the “SPAs”). Pursuant to the SPAs, the Company issued and sold to the investors, each such investor an “accredited investor” as defined in Regulation D (“Reg. D”) promulgated under the Securities Act of 1933, as amended (the “Securities Act”), on October 21, 2015 an aggregate of 3,448,276 shares of the Company’s common stock, par value $0.001 per share (“Common Stock”), for an aggregate purchase price of $1,000,000.04.

 

On October 21, 2015, the Company and Thomas A. Tolworthy, the Company’s President and Chief Executive Officer, entered into a Surrender Agreement (the “Surrender Agreement”). Pursuant to the Surrender Agreement, Mr. Tolworthy agreed to surrender an aggregate of 3,448,276 shares of Common Stock. The shares of Common Stock contributed to the Company pursuant to the Surrender Agreement are in addition to the shares of Common Stock that Mr. Tolworthy is required to surrender to the Company pursuant to the Original Surrender Agreement as previously defined and disclosed in the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on October 8, 2015.

 

The foregoing descriptions of the (i) SPAs and (ii) Surrender Agreement are qualified in their entirety by reference to the full text of such documents, which documents are exhibits to this Report.

 

Item 3.02 Unregistered Sales of Equity Securities.

 

The information set forth in Item 1.01 regarding the SPAs is hereby incorporated by reference in answer to Item 3.02.

 

The Company issued the above-referenced shares of Common Stock to each of the investors described in Item 1.01 in reliance upon the exemption from registration of Rule 506 of Reg. D under the Securities Act, for private offerings not involving a public distribution. The shares of Common Stock were issued directly by the Company and did not involve a public offering or general solicitation. Each investor was afforded an opportunity for effective access to the files and records of the Company that contained the relevant information needed to make its investment decision, including the Company’s financial statements and periodic reports under the Securities Exchange Act of 1934, as amended. The Company reasonably believed that each investor, immediately prior to the issuance of the above-referenced shares of Common Stock, had such knowledge and experience in the Company’s financial and business matters that it was capable of evaluating the merits and risks of its investment. Each investor had the opportunity to speak with the Company’s management on several occasions prior to its investment decision. There were no commissions paid on the issuance of the above-referenced shares of Common Stock.

 

 

 

Item 9.01 Financial Statements and Exhibits.

 

(d) Exhibits.      

 

Exhibit 10.106 Stock Purchase Agreement, dated as of October 21, 2015, by and between Twinlab Consolidated Holdings, Inc. and Jonathan B. Rubini.
   
Exhibit 10.107 Stock Purchase Agreement, dated as of October 21, 2015, by and between Twinlab Consolidated Holdings, Inc. and Clare Bertucio.
   
Exhibit 10.108 Stock Purchase Agreement, dated as of October 21, 2015, by and between Twinlab Consolidated Holdings, Inc. and Michael Corrigan.
   
Exhibit 10.109 Stock Purchase Agreement, dated as of October 21, 2015, by and between Twinlab Consolidated Holdings, Inc. and the Jonathan B. Rubini 2009 Family Exempt Trust, created under the Jonathan B. Rubini Family Trust, under trust agreement dated October 9, 2009.
   
Exhibit 10.110 Stock Purchase Agreement, dated as of October 21, 2015, by and between Twinlab Consolidated Holdings, Inc. and Mark Kroloff.
   
Exhibit 10.111 Surrender Agreement, dated as of October 21, 2015, by and between Twinlab Consolidated Holdings, Inc. and Thomas A. Tolworthy.

 

 

 

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

Date: October 27, 2015 TWINLAB CONSOLIDATED HOLDINGS, INC.
     
     
By: /s/ Thomas A. Tolworthy
Thomas A. Tolworthy
President and Chief Executive Officer

 

 

 

  

EXHIBIT INDEX 

 

Exhibit No. Description
   
Exhibit 10.106 Stock Purchase Agreement, dated as of October 21, 2015, by and between Twinlab Consolidated Holdings, Inc. and Jonathan B. Rubini.
   
Exhibit 10.107 Stock Purchase Agreement, dated as of October 21, 2015, by and between Twinlab Consolidated Holdings, Inc. and Clare Bertucio.
   
Exhibit 10.108 Stock Purchase Agreement, dated as of October 21, 2015, by and between Twinlab Consolidated Holdings, Inc. and Michael Corrigan.
   
Exhibit 10.109 Stock Purchase Agreement, dated as of October 21, 2015, by and between Twinlab Consolidated Holdings, Inc. and the Jonathan B. Rubini 2009 Family Exempt Trust, created under the Jonathan B. Rubini Family Trust, under trust agreement dated October 9, 2009.
   
Exhibit 10.110 Stock Purchase Agreement, dated as of October 21, 2015, by and between Twinlab Consolidated Holdings, Inc. and Mark Kroloff.
   
Exhibit 10.111 Surrender Agreement, dated as of October 21, 2015, by and between Twinlab Consolidated Holdings, Inc. and Thomas A. Tolworthy.

 

 

 

 

Exhibit 10.106

 

STOCK PURCHASE AGREEMENT

 

THIS STOCK PURCHASE AGREEMENT (this " Agreement "), dated as of October 21, 2015, is entered into between Twinlab Consolidated Holdings, Inc., a Nevada corporation with its principal place of business at 632 Broadway, Suite 201, New York, New York 10012 (" Company "), and Jonathan B. Rubini, with an address of 813 D Street, Suite 200, Anchorage, AK 99501 (" Purchaser ").

 

RECITALS

 

A.           Company and Purchaser are executing and delivering this Agreement in reliance upon the exemption from securities registration afforded by Section 4(a)(2) of the Securities Act of 1933, as amended (the “ Securities Act ”), and Rule 506 of Regulation D (“ Regulation D ”) as promulgated by the United States Securities and Exchange Commission (the “ Commission ”) under the Securities Act.

 

B.           Purchaser wishes to purchase, and Company wishes to sell, upon the terms and conditions stated in this Agreement, an aggregate of 1,724,138 shares of common stock, par value $0.001 per share (the “ Common Stock ”), of Company, at an aggregate purchase price of $500,000.02 (the 1,724,138 shares of Common Stock to be purchased by Purchaser hereunder are referred to herein as the “ Shares ”).

 

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

1.           Purchase and Sale . Subject to the terms and conditions set forth herein, at the Closing (as defined in Section 2 ), Company shall issue and sell to Purchaser, and Purchaser shall purchase from Company, the Shares. The aggregate purchase price for the Shares shall be $500,000.02 (the " Purchase Price "), to be paid by Purchaser by wire transfer of immediately available funds to an account designated in writing by Company.

 

2.           Closing . Subject to the terms and conditions contained in this Agreement, the purchase and sale of the Shares contemplated hereby shall take place at a closing (the " Closing ") to be held on October 21, 2015 (the " Closing Date ") at the offices of Wilk Auslander LLP, 1515 Broadway, 43 rd Floor, New York, New York 10036, or at such other place or on such other date as Purchaser and Company may mutually agree upon in writing. At the Closing, Company shall irrevocably and unconditionally instruct its transfer agent West Coast Stock Transfer, Inc. (the “ Transfer Agent ”) to deliver to Purchaser a stock certificate or certificates evidencing the Shares, and Purchaser shall deliver to the Company the Purchase Price by wire transfer of immediately available funds to an account designated in writing by Company.

 

 

 

 

3.           Closing Deliveries .

 

(a)           On or prior to the Closing, Company shall issue, deliver or cause to be delivered to Purchaser the following:

 

(i)          this Agreement, duly executed by Company; and

 

(ii)         an irrevocable and unconditional instruction to the Transfer Agent to issue to Purchaser a certificate(s) representing the Shares;

 

(b)           On or prior to the Closing, Purchaser shall deliver or cause to be delivered to Company the following:

 

(i)          this Agreement, duly executed by Purchaser; and

 

(ii)         the Purchase Price for the Shares in United States dollars and in immediately available funds, by wire transfer to Company’s account as previously provided to Purchaser.

 

4.           Closing Conditions .

 

(a)          The obligation of Company to issue and sell the Shares to Purchaser hereunder is subject to the satisfaction of the following conditions as of the Closing:

 

(i)          the representations and warranties of Purchaser in Section 6 hereof shall be true and correct on and as of the Closing Date with the same effect as though made at and as of such date;

 

(ii)         Purchaser shall have performed and complied in all material respects with all agreements and conditions required by this Agreement to be performed or complied with by it prior to or on the Closing Date; and

 

(iii)        Purchaser shall have obtained any and all consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the transactions contemplated herein.

 

(b)          The obligation of Purchaser to purchase the Shares from Company is subject to the satisfaction of the following conditions as of the Closing:

 

(i)          the representations and warranties of Company in Section 5 hereof shall be true and correct on and as of the Closing Date with the same effect as though made at and as of such date;

 

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(ii)         Company shall have performed and complied in all material respects with all agreements and conditions required by this Agreement to be performed or complied with by it prior to or on the Closing Date; and

 

(iii)        Company shall have obtained any and all consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the transactions contemplated herein.

 

5.           Representations and Warranties of Company . Company hereby represents and warrants to Purchaser as follows:

 

(a)          Company is an entity duly incorporated, validly existing and in good standing under the laws of the State of Nevada, with the requisite corporate power and authority to own or lease and use its properties and assets and to carry on its business as currently conducted. Company is not in violation of any of the provisions of its articles of incorporation or bylaws. Company is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, would not have a Material Adverse Effect. “ Material Adverse Effect ” means a material adverse effect on the results of operations, assets, business or financial condition of Company, except that any of the following, either alone or in combination, shall not be deemed a Material Adverse Effect: (i) effects caused by changes or circumstances affecting general market conditions in the U.S. economy or which are generally applicable to the industry in which Company operates provided that such effects are not borne disproportionately by Company, (ii) effects resulting from or relating to the announcement or disclosure of the sale of the Shares or other transactions contemplated by this Agreement, or (iii) effects caused by any event, occurrence or condition resulting from or relating to the taking of any action in accordance with this Agreement.

 

(b)          Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder. The execution and delivery of this Agreement by the Company and the consummation by it of the transactions contemplated hereby (including, but not limited to, the sale and delivery of the Shares) have been duly authorized by all necessary corporate action on the part of Company, and no further corporate action is required by Company, its Board of Directors or its stockholders in connection therewith other than in connection with the Required Approvals (as hereinafter defined). This Agreement has been duly executed by the Company and is the legal, valid and binding obligation of the Company enforceable against Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally the enforcement of, creditors’ rights and remedies or by other equitable principles of general application or insofar as indemnification and contribution provisions may be limited by applicable law.

 

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(c)          The execution, delivery and performance by Company of this Agreement and the consummation by Company of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) do not and will not (i) conflict with or violate any provisions of Company’s articles of incorporation or bylaws or otherwise result in a violation of the organizational documents of Company, (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any Encumbrance upon any of the properties or assets of Company or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any Material Contract (as hereinafter defined) or (iii) subject to the Required Approvals, result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which Company is subject (including federal and state securities laws and regulations and the rules and regulations, assuming the correctness of the representations and warranties made by Purchaser herein, of any self regulatory organization to which Company or its securities are subject), or by which any property or asset of Company is bound or affected), except in the case of clause (ii) and clause (iii) such as would not individually have a Material Adverse Effect. “ Material Contract means any contract of Company that has been filed as an exhibit to the SEC Reports pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K (including, for purposes hereof, any contracts that are required to be filed as an exhibit to a Form 10). “ Encumbrance ” means any mortgage, deed of trust, pledge, hypothecation, assignment, security interest, lien (whether statutory or otherwise), charge, claim, encumbrance or preference, priority or other security agreement or preferential arrangement held or asserted in respect of any asset or property of any kind or nature whatsoever, including any conditional sale or other title retention agreement, any lease having substantially the same economic effect as any of the foregoing, and the filing of, or agreement to give, any financing statement under the UCC or comparable law of any jurisdiction.

 

(d)          Company is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority or other person or entity in connection with the execution, delivery and performance by Company of the transactions contemplated by this Agreement and any agreement executed in connection herewith (including the issuance of the Shares), other than (i) the filing with the Commission of one or more registration statements, (ii) filings required by applicable state securities laws, (iii) the filing of a Notice of Sale of Securities on Form D with the Commission under Regulation D of the Securities Act, (iv) filing of a report on Form 8-K disclosing the Company’s entry into this Agreement and (v) those that have been made or obtained prior to the date of this Agreement (collectively, the “ Required Approvals ”).

 

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(e)          The Shares have been duly authorized and, when issued and paid for in accordance with the terms of this Agreement, will be duly and validly issued, fully paid and nonassessable and free and clear of all Encumbrances suffered or permitted by Company, other than restrictions on transfer provided for in this Agreement or imposed by applicable securities laws, and shall not be subject to preemptive or similar rights. Assuming the accuracy of the representations and warranties of Purchaser in this Agreement, the Shares will be issued in compliance with all applicable federal and state securities laws.

 

(f)          There are no actions, suits, claims, investigations or other legal proceedings pending or, to the Company’s Knowledge, threatened against or by Company that challenge or seek to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement. “ Company’s Knowledge ” means with respect to any statement made to the knowledge of Company, that the statement is based upon the actual knowledge of the officers of Company who, as of the date hereof, have responsibility for the matter or matters that are the subject of the statement.

 

(g)          Company has filed all reports, schedules, forms, statements and other documents required to be filed by it under the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), including pursuant to Section 13(a) or 15(d) thereof, for twelve (12) months preceding and including the date hereof (or such shorter period as Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the “ SEC Reports ”), on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension.

 

(h)          The financial statements of Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with U.S. Generally Accepted Accounting Principles (“ GAAP ”) applied on a consistent basis during the periods involved, except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of Company and its consolidated subsidiaries taken as a whole as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, year-end audit adjustments.

 

(i)          Assuming the accuracy of Purchaser’s representations and warranties set forth in Section 6 of this Agreement (without giving effect to any materiality qualifiers therein), no registration under the Securities Act is required for the offer and sale of the Shares by Company to Purchaser under this Agreement.

 

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(j)          No broker, finder or investment banker is entitled to any brokerage, finder's or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Company.

 

6.           Representation and Warranties of Purchaser .

 

(a)          Purchaser is a resident of the State of Alaska.

 

(b)          Purchaser has all requisite power and authority to enter into this Agreement, to carry out its obligations hereunder and to consummate the transactions contemplated hereby. The execution and delivery by Purchaser of this Agreement, the performance by Purchaser of its obligations hereunder and the consummation by Purchaser of the transactions contemplated hereby have been duly authorized on the part of Purchaser. This Agreement has been duly executed and delivered by Purchaser and (assuming due authorization, execution and delivery by Company) this Agreement constitutes a legal, valid and binding obligation of Purchaser enforceable against Purchaser in accordance with its terms.

 

(c)          Purchaser is acquiring the Shares solely for its own account for investment purposes and not with a view to, or for offer or sale in connection with, any distribution thereof. Purchaser acknowledges that the Shares are not registered under the Securities Act, or any state securities laws, and that the Shares may not be transferred or sold except pursuant to the registration provisions of the Securities Act or pursuant to an applicable exemption therefrom and subject to state securities laws and regulations, as applicable.

 

(d)          No governmental, administrative or other third party consents or approvals are required by or with respect to Purchaser in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.

 

(e)          There are no actions, suits, claims, investigations or other legal proceedings pending or, to the knowledge of Purchaser, threatened against or by Purchaser that challenge or seek to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement.

 

(f)          Purchaser understands that the Shares are “restricted securities” and have not been registered under the Securities Act or any applicable state securities law and is acquiring the Shares as principal for its own account and not with a view to, or for distributing or reselling such Shares or any part thereof in violation of the Securities Act or any applicable state securities laws, provided, however , that by making the representations herein, Purchaser does not agree to hold any of the Shares for any minimum period of time and reserves the right, subject to the provisions of this Agreement, at all times to sell or otherwise dispose of all or any part of such Shares pursuant to an effective registration statement under the Securities Act or under an exemption from such registration and in compliance with applicable federal and state securities laws. Purchaser is acquiring the Shares hereunder in the ordinary course of its business. Purchaser does not presently have any agreement, plan or understanding, directly or indirectly, with any Person to distribute or effect any distribution of any of the Shares (or any Shares which are derivatives thereof) to or through any person or entity; Purchaser is not a registered broker-dealer under Section 15 of the Exchange Act or an entity engaged in a business that would require it to be so registered as a broker-dealer.

 

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(g)          At the time Purchaser was offered the Shares, it was, and at the date hereof it is, an “accredited investor” as defined in Rule 501(a) under the Securities Act. Purchaser has previously delivered an Accredited Investor Questionnaire to Company indicating that Purchaser is an “accredited investor.” As of the date of this Agreement, circumstances have not changed such that Purchaser would not be an “accredited investor.”

 

(h)          Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Shares, and has so evaluated the merits and risks of such investment. Purchaser is able to bear the economic risk of an investment in the Shares and, at the present time, is able to afford a complete loss of such investment.

 

(i)          Purchaser acknowledges that it has been afforded (i) the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of Company concerning the terms and conditions of the offering of the Shares and the merits and risks of investing in the Shares; (ii) access to information about Company and its respective financial condition, results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity to obtain such additional information that Company possesses or can acquire without unreasonable effort or expense that is necessary to make an informed investment decision with respect to the investment. Neither such inquiries nor any other investigation conducted by or on behalf of Purchaser or its representatives or counsel shall modify, amend or affect Purchaser’s right to rely on the truth, accuracy and completeness of Company’s representations and warranties contained in this Agreement. Purchaser has sought such accounting, legal and tax advice as it has considered necessary to make an informed decision with respect to its acquisition of the Shares.

 

(j)          Purchaser understands that the Shares are being offered and sold to it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that Company is relying in part upon the truth and accuracy of, and Purchaser’s compliance with, the representations, warranties, agreements, acknowledgements and understandings of Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of Purchaser to acquire the Shares.

 

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(k)          Purchaser understands that no United States federal or state agency or any other government or governmental agency has passed on or made any recommendation or endorsement of the Shares or the fairness or suitability of the investment in the Shares nor have such authorities passed upon or endorsed the merits of the offering of the Shares.

 

(l)          No broker, finder or investment banker is entitled to any brokerage, finder's or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Purchaser.

 

7.           Transfer Restrictions .

 

(a)           Notwithstanding any other provision of this Agreement, Purchaser covenants that the Shares may be disposed of only pursuant to an effective registration statement under, and in compliance with the requirements of, the Securities Act, or pursuant to an available exemption from, or in a transaction not subject to, the registration requirements of the Securities Act, and in compliance with any applicable state and federal securities laws. In connection with any transfer of the Shares other than (i) pursuant to an effective registration statement, (ii) to Company, (iii) to an affiliate of Purchaser, (iv) pursuant to Rule 144 under the Securities Act (“ Rule 144 ”) ( provided that Purchaser provides Company with reasonable assurances (in the form of seller and broker representation letters if required) that the securities may be sold pursuant to such rule) or Rule 144A, (v) pursuant to Rule 144 without the requirement that Company be in compliance with the current public information requirements of Rule 144 and without other restriction following the applicable holding period or (vi) in connection with a bona fide pledge, Company may require the transferor thereof to provide to Company an opinion of counsel selected by the transferor and reasonably acceptable to Company, the form and substance of which opinion shall be reasonably satisfactory to Company, to the effect that such transfer does not require registration of such transferred Shares under the Securities Act. As a condition of transfer, any such transferee shall agree in writing to be bound by the terms of this Agreement and shall have the rights of Purchaser under this Agreement.

 

(b)          Certificates evidencing the Shares shall bear any legend as required by the “Blue Sky” laws of any state and a restrictive legend in substantially the following form until such time as they are not required under Section 7(c) (and a stock transfer order may be placed against transfer of the certificates for the Shares):

 

THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OR (B) AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL REASONABLY SATISFACTORY TO COMPANY.

 

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In addition, if Purchaser is an affiliate of Company, certificates evidencing the Shares issued to Purchaser shall bear a customary “affiliates” legend.

 

(c)          Subject to Company’s right to request an opinion of counsel as set forth in Section 7(a), the legend set forth in Section 7(b) above shall be removable and Company shall issue or cause to be issued a certificate without such legend or any other legend (except for any “affiliates” legend as set forth in Section 7(b)) to the holder of the applicable Shares upon which it is stamped if (i) such Shares are registered for resale under the Securities Act (provided that, if Purchaser is selling pursuant to the effective registration statement registering the Shares for resale, Purchaser agrees to only sell such Shares during such time that such registration statement is effective and not withdrawn or suspended, and only as permitted by such registration statement), (ii) such Shares are sold or transferred in compliance with Rule 144 (if the transferor is not an affiliate of Company), including without limitation in compliance with the current public information requirements of Rule 144 if applicable to Company at the time of such sale or transfer, and the holder and its broker have delivered customary documents reasonably requested by Company’s transfer agent and/or Company counsel in connection with such sale or transfer, or (iii) such Shares are eligible for sale under Rule 144 without the requirement that Company be in compliance with the current public information requirements of Rule 144 and without other restriction and Company counsel has provided written confirmation of such eligibility to the transfer agent. Any fees (with respect to the transfer agent, Company counsel or otherwise) associated with the removal of such legend shall be borne by Company. At such time as a legend is no longer required for certain Shares, Company will no later than three (3) business days following the delivery by Purchaser to Company or the transfer agent (with concurrent notice and delivery of copies to Company) of a legended certificate representing such Shares (endorsed or with stock powers attached, signatures guaranteed, and otherwise in form necessary to affect the reissuance and/or transfer, and together with such other customary documents as the transfer agent and/or Company counsel shall reasonably request), deliver or cause to be delivered to the transferee of Purchaser or Purchaser, as applicable, a certificate representing such Shares that is free from all restrictive and other legends. Company may not make any notation on its records or give instructions to the transfer agent that enlarge the restrictions on transfer set forth in this Section 7(c).

 

(d)          Purchaser hereunder acknowledges its primary responsibilities under the Securities Act and accordingly will not sell or otherwise transfer the Shares or any interest therein without complying with the requirements of the Securities Act. Purchaser acknowledges that the delivery of the Shares and any removal of any legends from certificates representing the Shares as set forth in this Section 7 is predicated on Company’s reliance upon Purchaser’s acknowledgement in this Section 7(d).

 

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8.           Survival . All representations and warranties contained herein shall survive the execution and delivery of this Agreement and the Closing hereunder.

 

9.           Indemnification . Company shall indemnify Purchaser and hold Purchaser harmless against and in respect of any and all losses, liabilities, damages, obligations, claims, Encumbrances, costs and expenses (including, without limitation, reasonable attorneys' fees) incurred by Purchaser resulting from any breach of any representation, warranty, covenant or agreement made by Company herein or in any instrument or document delivered to Purchaser pursuant hereto.

 

10.          Further Assurances . Following the Closing, each of the parties hereto shall execute and deliver such additional documents, instruments, conveyances and assurances, and take such further actions as may be reasonably required to carry out the provisions hereof and give effect to the transactions contemplated by this Agreement.

 

11.          Termination . This Agreement may be terminated at any time prior to the Closing (a) by the mutual written consent of Purchaser and Company or (b) by either Purchaser or Company if (i) a breach of any provision of this Agreement has been committed by the other party and such breach has not been cured within 10 days following receipt by the breaching party of written notice of such breach, or (ii) the Closing does not occur by November 1, 2015. Upon termination, all further obligations of the parties under this Agreement shall terminate without liability of any party to the other parties to this Agreement, except that no such termination shall relieve any party from liability for any fraud or willful breach of this Agreement.

 

12.          Expenses . The Company agrees to pay all reasonable expenses, including legal fees and disbursements, incurred by Purchaser in connection with this Agreement and the transactions contemplated hereby.

 

13.          Notices . All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a " Notice ") shall be in writing and addressed to the parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this section). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or e-mail of a PDF document (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

 

14.          Entire Agreement . This Agreement constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.

 

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15.          Successor and Assigns . This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. No party may assign any of its rights or obligations hereunder without the prior written consent of the other parties hereto, which consent shall not be unreasonably withheld or delayed.

 

16.          Headings . The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.

 

17.          Amendment and Modification; Waiver . This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

 

18.          Severability . If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

 

19.          Governing Law; Submission to Jurisdiction . This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction). Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in the federal courts of the United States or the courts of the State of New York in each case located in the city of New York and County of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or any proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

 

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20.          Counterparts . This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

 

[SIGNATURE PAGE FOLLOWS]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first written above.

 

  TWINLAB CONSOLIDATED HOLDINGS, INC.
     
  By: /s/ Thomas A. Tolworthy
  Name: Thomas A. Tolworthy
  Title: Chief Executive Officer and President

 

 

  JONATHAN B. RUBINI
     
  By: /s/ Jonathan B. Rubini
  Jonathan B. Rubini

 

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Exhibit 10.107

 

STOCK PURCHASE AGREEMENT

 

THIS STOCK PURCHASE AGREEMENT (this " Agreement "), dated as of October 21, 2015, is entered into between Twinlab Consolidated Holdings, Inc., a Nevada corporation with its principal place of business at 632 Broadway, Suite 201, New York, New York 10012 (" Company "), and Clare Bertucio, with an address of 813 D Street, Suite 200, Anchorage, AK 99501 (" Purchaser ").

 

RECITALS

 

A.           Company and Purchaser are executing and delivering this Agreement in reliance upon the exemption from securities registration afforded by Section 4(a)(2) of the Securities Act of 1933, as amended (the “ Securities Act ”), and Rule 506 of Regulation D (“ Regulation D ”) as promulgated by the United States Securities and Exchange Commission (the “ Commission ”) under the Securities Act.

 

B.           Purchaser wishes to purchase, and Company wishes to sell, upon the terms and conditions stated in this Agreement, an aggregate of 344,828 shares of common stock, par value $0.001 per share (the “ Common Stock ”), of Company, at an aggregate purchase price of $100,000.12 (the 344,828 shares of Common Stock to be purchased by Purchaser hereunder are referred to herein as the “ Shares ”).

 

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

1.           Purchase and Sale . Subject to the terms and conditions set forth herein, at the Closing (as defined in Section 2 ), Company shall issue and sell to Purchaser, and Purchaser shall purchase from Company, the Shares. The aggregate purchase price for the Shares shall be $100,000.12 (the " Purchase Price "), to be paid by Purchaser by wire transfer of immediately available funds to an account designated in writing by Company.

 

2.           Closing . Subject to the terms and conditions contained in this Agreement, the purchase and sale of the Shares contemplated hereby shall take place at a closing (the " Closing ") to be held on October 21, 2015 (the " Closing Date ") at the offices of Wilk Auslander LLP, 1515 Broadway, 43 rd Floor, New York, New York 10036, or at such other place or on such other date as Purchaser and Company may mutually agree upon in writing. At the Closing, Company shall irrevocably and unconditionally instruct its transfer agent West Coast Stock Transfer, Inc. (the “ Transfer Agent ”) to deliver to Purchaser a stock certificate or certificates evidencing the Shares, and Purchaser shall deliver to the Company the Purchase Price by wire transfer of immediately available funds to an account designated in writing by Company.

 

 

 

 

3.           Closing Deliveries .

 

(a)           On or prior to the Closing, Company shall issue, deliver or cause to be delivered to Purchaser the following:

 

(i)          this Agreement, duly executed by Company; and

 

(ii)         an irrevocable and unconditional instruction to the Transfer Agent to issue to Purchaser a certificate(s) representing the Shares;

 

(b)           On or prior to the Closing, Purchaser shall deliver or cause to be delivered to Company the following:

 

(i)          this Agreement, duly executed by Purchaser; and

 

(ii)         the Purchase Price for the Shares in United States dollars and in immediately available funds, by wire transfer to Company’s account as previously provided to Purchaser.

 

4.           Closing Conditions .

 

(a)          The obligation of Company to issue and sell the Shares to Purchaser hereunder is subject to the satisfaction of the following conditions as of the Closing:

 

(i)          the representations and warranties of Purchaser in Section 6 hereof shall be true and correct on and as of the Closing Date with the same effect as though made at and as of such date;

 

(ii)         Purchaser shall have performed and complied in all material respects with all agreements and conditions required by this Agreement to be performed or complied with by it prior to or on the Closing Date; and

 

(iii)        Purchaser shall have obtained any and all consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the transactions contemplated herein.

 

(b)          The obligation of Purchaser to purchase the Shares from Company is subject to the satisfaction of the following conditions as of the Closing:

 

(i)          the representations and warranties of Company in Section 5 hereof shall be true and correct on and as of the Closing Date with the same effect as though made at and as of such date;

 

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(ii)         Company shall have performed and complied in all material respects with all agreements and conditions required by this Agreement to be performed or complied with by it prior to or on the Closing Date; and

 

(iii)        Company shall have obtained any and all consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the transactions contemplated herein.

 

5.           Representations and Warranties of Company . Company hereby represents and warrants to Purchaser as follows:

 

(a)          Company is an entity duly incorporated, validly existing and in good standing under the laws of the State of Nevada, with the requisite corporate power and authority to own or lease and use its properties and assets and to carry on its business as currently conducted. Company is not in violation of any of the provisions of its articles of incorporation or bylaws. Company is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, would not have a Material Adverse Effect. “ Material Adverse Effect ” means a material adverse effect on the results of operations, assets, business or financial condition of Company, except that any of the following, either alone or in combination, shall not be deemed a Material Adverse Effect: (i) effects caused by changes or circumstances affecting general market conditions in the U.S. economy or which are generally applicable to the industry in which Company operates provided that such effects are not borne disproportionately by Company, (ii) effects resulting from or relating to the announcement or disclosure of the sale of the Shares or other transactions contemplated by this Agreement, or (iii) effects caused by any event, occurrence or condition resulting from or relating to the taking of any action in accordance with this Agreement.

 

(b)          Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder. The execution and delivery of this Agreement by the Company and the consummation by it of the transactions contemplated hereby (including, but not limited to, the sale and delivery of the Shares) have been duly authorized by all necessary corporate action on the part of Company, and no further corporate action is required by Company, its Board of Directors or its stockholders in connection therewith other than in connection with the Required Approvals (as hereinafter defined). This Agreement has been duly executed by the Company and is the legal, valid and binding obligation of the Company enforceable against Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally the enforcement of, creditors’ rights and remedies or by other equitable principles of general application or insofar as indemnification and contribution provisions may be limited by applicable law.

 

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(c)          The execution, delivery and performance by Company of this Agreement and the consummation by Company of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) do not and will not (i) conflict with or violate any provisions of Company’s articles of incorporation or bylaws or otherwise result in a violation of the organizational documents of Company, (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any Encumbrance upon any of the properties or assets of Company or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any Material Contract (as hereinafter defined) or (iii) subject to the Required Approvals, result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which Company is subject (including federal and state securities laws and regulations and the rules and regulations, assuming the correctness of the representations and warranties made by Purchaser herein, of any self regulatory organization to which Company or its securities are subject), or by which any property or asset of Company is bound or affected), except in the case of clause (ii) and clause (iii) such as would not individually have a Material Adverse Effect. “ Material Contract means any contract of Company that has been filed as an exhibit to the SEC Reports pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K (including, for purposes hereof, any contracts that are required to be filed as an exhibit to a Form 10). “ Encumbrance ” means any mortgage, deed of trust, pledge, hypothecation, assignment, security interest, lien (whether statutory or otherwise), charge, claim, encumbrance or preference, priority or other security agreement or preferential arrangement held or asserted in respect of any asset or property of any kind or nature whatsoever, including any conditional sale or other title retention agreement, any lease having substantially the same economic effect as any of the foregoing, and the filing of, or agreement to give, any financing statement under the UCC or comparable law of any jurisdiction.

 

(d)          Company is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority or other person or entity in connection with the execution, delivery and performance by Company of the transactions contemplated by this Agreement and any agreement executed in connection herewith (including the issuance of the Shares), other than (i) the filing with the Commission of one or more registration statements, (ii) filings required by applicable state securities laws, (iii) the filing of a Notice of Sale of Securities on Form D with the Commission under Regulation D of the Securities Act, (iv) filing of a report on Form 8-K disclosing the Company’s entry into this Agreement and (v) those that have been made or obtained prior to the date of this Agreement (collectively, the “ Required Approvals ”).

 

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(e)          The Shares have been duly authorized and, when issued and paid for in accordance with the terms of this Agreement, will be duly and validly issued, fully paid and nonassessable and free and clear of all Encumbrances suffered or permitted by Company, other than restrictions on transfer provided for in this Agreement or imposed by applicable securities laws, and shall not be subject to preemptive or similar rights. Assuming the accuracy of the representations and warranties of Purchaser in this Agreement, the Shares will be issued in compliance with all applicable federal and state securities laws.

 

(f)          There are no actions, suits, claims, investigations or other legal proceedings pending or, to the Company’s Knowledge, threatened against or by Company that challenge or seek to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement. “ Company’s Knowledge ” means with respect to any statement made to the knowledge of Company, that the statement is based upon the actual knowledge of the officers of Company who, as of the date hereof, have responsibility for the matter or matters that are the subject of the statement.

 

(g)          Company has filed all reports, schedules, forms, statements and other documents required to be filed by it under the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), including pursuant to Section 13(a) or 15(d) thereof, for twelve (12) months preceding and including the date hereof (or such shorter period as Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the “ SEC Reports ”), on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension.

 

(h)          The financial statements of Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with U.S. Generally Accepted Accounting Principles (“ GAAP ”) applied on a consistent basis during the periods involved, except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of Company and its consolidated subsidiaries taken as a whole as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, year-end audit adjustments.

 

(i)          Assuming the accuracy of Purchaser’s representations and warranties set forth in Section 6 of this Agreement (without giving effect to any materiality qualifiers therein), no registration under the Securities Act is required for the offer and sale of the Shares by Company to Purchaser under this Agreement.

 

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(j)          No broker, finder or investment banker is entitled to any brokerage, finder's or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Company.

 

6.           Representation and Warranties of Purchaser .

 

(a)          Purchaser is a resident of the State of Alaska.

 

(b)          Purchaser has all requisite power and authority to enter into this Agreement, to carry out its obligations hereunder and to consummate the transactions contemplated hereby. The execution and delivery by Purchaser of this Agreement, the performance by Purchaser of its obligations hereunder and the consummation by Purchaser of the transactions contemplated hereby have been duly authorized on the part of Purchaser. This Agreement has been duly executed and delivered by Purchaser and (assuming due authorization, execution and delivery by Company) this Agreement constitutes a legal, valid and binding obligation of Purchaser enforceable against Purchaser in accordance with its terms.

 

(c)          Purchaser is acquiring the Shares solely for its own account for investment purposes and not with a view to, or for offer or sale in connection with, any distribution thereof. Purchaser acknowledges that the Shares are not registered under the Securities Act, or any state securities laws, and that the Shares may not be transferred or sold except pursuant to the registration provisions of the Securities Act or pursuant to an applicable exemption therefrom and subject to state securities laws and regulations, as applicable.

 

(d)          No governmental, administrative or other third party consents or approvals are required by or with respect to Purchaser in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.

 

(e)          There are no actions, suits, claims, investigations or other legal proceedings pending or, to the knowledge of Purchaser, threatened against or by Purchaser that challenge or seek to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement.

 

(f)          Purchaser understands that the Shares are “restricted securities” and have not been registered under the Securities Act or any applicable state securities law and is acquiring the Shares as principal for its own account and not with a view to, or for distributing or reselling such Shares or any part thereof in violation of the Securities Act or any applicable state securities laws, provided, however , that by making the representations herein, Purchaser does not agree to hold any of the Shares for any minimum period of time and reserves the right, subject to the provisions of this Agreement, at all times to sell or otherwise dispose of all or any part of such Shares pursuant to an effective registration statement under the Securities Act or under an exemption from such registration and in compliance with applicable federal and state securities laws. Purchaser is acquiring the Shares hereunder in the ordinary course of its business. Purchaser does not presently have any agreement, plan or understanding, directly or indirectly, with any Person to distribute or effect any distribution of any of the Shares (or any Shares which are derivatives thereof) to or through any person or entity; Purchaser is not a registered broker-dealer under Section 15 of the Exchange Act or an entity engaged in a business that would require it to be so registered as a broker-dealer.

 

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(g)          At the time Purchaser was offered the Shares, it was, and at the date hereof it is, an “accredited investor” as defined in Rule 501(a) under the Securities Act. Purchaser has previously delivered an Accredited Investor Questionnaire to Company indicating that Purchaser is an “accredited investor.” As of the date of this Agreement, circumstances have not changed such that Purchaser would not be an “accredited investor.”

 

(h)          Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Shares, and has so evaluated the merits and risks of such investment. Purchaser is able to bear the economic risk of an investment in the Shares and, at the present time, is able to afford a complete loss of such investment.

 

(i)          Purchaser acknowledges that it has been afforded (i) the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of Company concerning the terms and conditions of the offering of the Shares and the merits and risks of investing in the Shares; (ii) access to information about Company and its respective financial condition, results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity to obtain such additional information that Company possesses or can acquire without unreasonable effort or expense that is necessary to make an informed investment decision with respect to the investment. Neither such inquiries nor any other investigation conducted by or on behalf of Purchaser or its representatives or counsel shall modify, amend or affect Purchaser’s right to rely on the truth, accuracy and completeness of Company’s representations and warranties contained in this Agreement. Purchaser has sought such accounting, legal and tax advice as it has considered necessary to make an informed decision with respect to its acquisition of the Shares.

 

(j)          Purchaser understands that the Shares are being offered and sold to it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that Company is relying in part upon the truth and accuracy of, and Purchaser’s compliance with, the representations, warranties, agreements, acknowledgements and understandings of Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of Purchaser to acquire the Shares.

 

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(k)          Purchaser understands that no United States federal or state agency or any other government or governmental agency has passed on or made any recommendation or endorsement of the Shares or the fairness or suitability of the investment in the Shares nor have such authorities passed upon or endorsed the merits of the offering of the Shares.

 

(l)          No broker, finder or investment banker is entitled to any brokerage, finder's or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Purchaser.

 

7.           Transfer Restrictions .

 

(a)           Notwithstanding any other provision of this Agreement, Purchaser covenants that the Shares may be disposed of only pursuant to an effective registration statement under, and in compliance with the requirements of, the Securities Act, or pursuant to an available exemption from, or in a transaction not subject to, the registration requirements of the Securities Act, and in compliance with any applicable state and federal securities laws. In connection with any transfer of the Shares other than (i) pursuant to an effective registration statement, (ii) to Company, (iii) to an affiliate of Purchaser, (iv) pursuant to Rule 144 under the Securities Act (“ Rule 144 ”) ( provided that Purchaser provides Company with reasonable assurances (in the form of seller and broker representation letters if required) that the securities may be sold pursuant to such rule) or Rule 144A, (v) pursuant to Rule 144 without the requirement that Company be in compliance with the current public information requirements of Rule 144 and without other restriction following the applicable holding period or (vi) in connection with a bona fide pledge, Company may require the transferor thereof to provide to Company an opinion of counsel selected by the transferor and reasonably acceptable to Company, the form and substance of which opinion shall be reasonably satisfactory to Company, to the effect that such transfer does not require registration of such transferred Shares under the Securities Act. As a condition of transfer, any such transferee shall agree in writing to be bound by the terms of this Agreement and shall have the rights of Purchaser under this Agreement.

 

(b)          Certificates evidencing the Shares shall bear any legend as required by the “Blue Sky” laws of any state and a restrictive legend in substantially the following form until such time as they are not required under Section 7(c) (and a stock transfer order may be placed against transfer of the certificates for the Shares):

 

THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OR (B) AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL REASONABLY SATISFACTORY TO COMPANY.

 

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In addition, if Purchaser is an affiliate of Company, certificates evidencing the Shares issued to Purchaser shall bear a customary “affiliates” legend.

 

(c)          Subject to Company’s right to request an opinion of counsel as set forth in Section 7(a), the legend set forth in Section 7(b) above shall be removable and Company shall issue or cause to be issued a certificate without such legend or any other legend (except for any “affiliates” legend as set forth in Section 7(b)) to the holder of the applicable Shares upon which it is stamped if (i) such Shares are registered for resale under the Securities Act (provided that, if Purchaser is selling pursuant to the effective registration statement registering the Shares for resale, Purchaser agrees to only sell such Shares during such time that such registration statement is effective and not withdrawn or suspended, and only as permitted by such registration statement), (ii) such Shares are sold or transferred in compliance with Rule 144 (if the transferor is not an affiliate of Company), including without limitation in compliance with the current public information requirements of Rule 144 if applicable to Company at the time of such sale or transfer, and the holder and its broker have delivered customary documents reasonably requested by Company’s transfer agent and/or Company counsel in connection with such sale or transfer, or (iii) such Shares are eligible for sale under Rule 144 without the requirement that Company be in compliance with the current public information requirements of Rule 144 and without other restriction and Company counsel has provided written confirmation of such eligibility to the transfer agent. Any fees (with respect to the transfer agent, Company counsel or otherwise) associated with the removal of such legend shall be borne by Company. At such time as a legend is no longer required for certain Shares, Company will no later than three (3) business days following the delivery by Purchaser to Company or the transfer agent (with concurrent notice and delivery of copies to Company) of a legended certificate representing such Shares (endorsed or with stock powers attached, signatures guaranteed, and otherwise in form necessary to affect the reissuance and/or transfer, and together with such other customary documents as the transfer agent and/or Company counsel shall reasonably request), deliver or cause to be delivered to the transferee of Purchaser or Purchaser, as applicable, a certificate representing such Shares that is free from all restrictive and other legends. Company may not make any notation on its records or give instructions to the transfer agent that enlarge the restrictions on transfer set forth in this Section 7(c).

 

(d)          Purchaser hereunder acknowledges its primary responsibilities under the Securities Act and accordingly will not sell or otherwise transfer the Shares or any interest therein without complying with the requirements of the Securities Act. Purchaser acknowledges that the delivery of the Shares and any removal of any legends from certificates representing the Shares as set forth in this Section 7 is predicated on Company’s reliance upon Purchaser’s acknowledgement in this Section 7(d).

 

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8.           Survival . All representations and warranties contained herein shall survive the execution and delivery of this Agreement and the Closing hereunder.

 

9.           Indemnification . Company shall indemnify Purchaser and hold Purchaser harmless against and in respect of any and all losses, liabilities, damages, obligations, claims, Encumbrances, costs and expenses (including, without limitation, reasonable attorneys' fees) incurred by Purchaser resulting from any breach of any representation, warranty, covenant or agreement made by Company herein or in any instrument or document delivered to Purchaser pursuant hereto.

 

10.          Further Assurances . Following the Closing, each of the parties hereto shall execute and deliver such additional documents, instruments, conveyances and assurances, and take such further actions as may be reasonably required to carry out the provisions hereof and give effect to the transactions contemplated by this Agreement.

 

11.          Termination . This Agreement may be terminated at any time prior to the Closing (a) by the mutual written consent of Purchaser and Company or (b) by either Purchaser or Company if (i) a breach of any provision of this Agreement has been committed by the other party and such breach has not been cured within 10 days following receipt by the breaching party of written notice of such breach, or (ii) the Closing does not occur by November 1, 2015. Upon termination, all further obligations of the parties under this Agreement shall terminate without liability of any party to the other parties to this Agreement, except that no such termination shall relieve any party from liability for any fraud or willful breach of this Agreement.

 

12.          Expenses . The Company agrees to pay all reasonable expenses, including legal fees and disbursements, incurred by Purchaser in connection with this Agreement and the transactions contemplated hereby.

 

13.          Notices . All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a " Notice ") shall be in writing and addressed to the parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this section). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or e-mail of a PDF document (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

 

14.          Entire Agreement . This Agreement constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.

 

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15.          Successor and Assigns . This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. No party may assign any of its rights or obligations hereunder without the prior written consent of the other parties hereto, which consent shall not be unreasonably withheld or delayed.

 

16.          Headings . The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.

 

17.          Amendment and Modification; Waiver . This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

 

18.          Severability . If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

 

19.          Governing Law; Submission to Jurisdiction . This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction). Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in the federal courts of the United States or the courts of the State of New York in each case located in the city of New York and County of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or any proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

 

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20.          Counterparts . This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

 

[SIGNATURE PAGE FOLLOWS]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first written above.

 

  TWINLAB CONSOLIDATED HOLDINGS, INC.
   
  By: /s/ Thomas A. Tolworthy
  Name: Thomas A. Tolworthy
  Title: Chief Executive Officer and President

 

 

  CLARE BERTUCIO
   
  By: /s/ Clare Bertucio
  Clare Bertucio

 

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Exhibit 10.108

 

STOCK PURCHASE AGREEMENT

 

THIS STOCK PURCHASE AGREEMENT (this " Agreement "), dated as of October 21, 2015, is entered into between Twinlab Consolidated Holdings, Inc., a Nevada corporation with its principal place of business at 632 Broadway, Suite 201, New York, New York 10012 (" Company "), and Michael Corrigan, with an address of 24609 Plover Way, Malibu, CA 90265 (" Purchaser ").

 

RECITALS

 

A.           Company and Purchaser are executing and delivering this Agreement in reliance upon the exemption from securities registration afforded by Section 4(a)(2) of the Securities Act of 1933, as amended (the “ Securities Act ”), and Rule 506 of Regulation D (“ Regulation D ”) as promulgated by the United States Securities and Exchange Commission (the “ Commission ”) under the Securities Act.

 

B.           Purchaser wishes to purchase, and Company wishes to sell, upon the terms and conditions stated in this Agreement, an aggregate of 172,413 shares of common stock, par value $0.001 per share (the “ Common Stock ”), of Company, at an aggregate purchase price of $49,999.77 (the 172,413 shares of Common Stock to be purchased by Purchaser hereunder are referred to herein as the “ Shares ”).

 

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

1.           Purchase and Sale . Subject to the terms and conditions set forth herein, at the Closing (as defined in Section 2 ), Company shall issue and sell to Purchaser, and Purchaser shall purchase from Company, the Shares. The aggregate purchase price for the Shares shall be $49,999.77 (the " Purchase Price "), to be paid by Purchaser by wire transfer of immediately available funds to an account designated in writing by Company.

 

2.           Closing . Subject to the terms and conditions contained in this Agreement, the purchase and sale of the Shares contemplated hereby shall take place at a closing (the " Closing ") to be held on October 21, 2015 (the " Closing Date ") at the offices of Wilk Auslander LLP, 1515 Broadway, 43 rd Floor, New York, New York 10036, or at such other place or on such other date as Purchaser and Company may mutually agree upon in writing. At the Closing, Company shall irrevocably and unconditionally instruct its transfer agent West Coast Stock Transfer, Inc. (the “ Transfer Agent ”) to deliver to Purchaser a stock certificate or certificates evidencing the Shares, and Purchaser shall deliver to the Company the Purchase Price by wire transfer of immediately available funds to an account designated in writing by Company.

 

 

 

 

3.           Closing Deliveries .

 

(a)           On or prior to the Closing, Company shall issue, deliver or cause to be delivered to Purchaser the following:

 

(i)          this Agreement, duly executed by Company; and

 

(ii)         an irrevocable and unconditional instruction to the Transfer Agent to issue to Purchaser a certificate(s) representing the Shares;

 

(b)           On or prior to the Closing, Purchaser shall deliver or cause to be delivered to Company the following:

 

(i)          this Agreement, duly executed by Purchaser; and

 

(ii)         the Purchase Price for the Shares in United States dollars and in immediately available funds, by wire transfer to Company’s account as previously provided to Purchaser.

 

4.           Closing Conditions .

 

(a)          The obligation of Company to issue and sell the Shares to Purchaser hereunder is subject to the satisfaction of the following conditions as of the Closing:

 

(i)          the representations and warranties of Purchaser in Section 6 hereof shall be true and correct on and as of the Closing Date with the same effect as though made at and as of such date;

 

(ii)         Purchaser shall have performed and complied in all material respects with all agreements and conditions required by this Agreement to be performed or complied with by it prior to or on the Closing Date; and

 

(iii)        Purchaser shall have obtained any and all consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the transactions contemplated herein.

 

(b)          The obligation of Purchaser to purchase the Shares from Company is subject to the satisfaction of the following conditions as of the Closing:

 

(i)          the representations and warranties of Company in Section 5 hereof shall be true and correct on and as of the Closing Date with the same effect as though made at and as of such date;

 

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(ii)         Company shall have performed and complied in all material respects with all agreements and conditions required by this Agreement to be performed or complied with by it prior to or on the Closing Date; and

 

(iii)        Company shall have obtained any and all consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the transactions contemplated herein.

 

5.           Representations and Warranties of Company . Company hereby represents and warrants to Purchaser as follows:

 

(a)          Company is an entity duly incorporated, validly existing and in good standing under the laws of the State of Nevada, with the requisite corporate power and authority to own or lease and use its properties and assets and to carry on its business as currently conducted. Company is not in violation of any of the provisions of its articles of incorporation or bylaws. Company is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, would not have a Material Adverse Effect. “ Material Adverse Effect ” means a material adverse effect on the results of operations, assets, business or financial condition of Company, except that any of the following, either alone or in combination, shall not be deemed a Material Adverse Effect: (i) effects caused by changes or circumstances affecting general market conditions in the U.S. economy or which are generally applicable to the industry in which Company operates provided that such effects are not borne disproportionately by Company, (ii) effects resulting from or relating to the announcement or disclosure of the sale of the Shares or other transactions contemplated by this Agreement, or (iii) effects caused by any event, occurrence or condition resulting from or relating to the taking of any action in accordance with this Agreement.

 

(b)          Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder. The execution and delivery of this Agreement by the Company and the consummation by it of the transactions contemplated hereby (including, but not limited to, the sale and delivery of the Shares) have been duly authorized by all necessary corporate action on the part of Company, and no further corporate action is required by Company, its Board of Directors or its stockholders in connection therewith other than in connection with the Required Approvals (as hereinafter defined). This Agreement has been duly executed by the Company and is the legal, valid and binding obligation of the Company enforceable against Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally the enforcement of, creditors’ rights and remedies or by other equitable principles of general application or insofar as indemnification and contribution provisions may be limited by applicable law.

 

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(c)          The execution, delivery and performance by Company of this Agreement and the consummation by Company of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) do not and will not (i) conflict with or violate any provisions of Company’s articles of incorporation or bylaws or otherwise result in a violation of the organizational documents of Company, (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any Encumbrance upon any of the properties or assets of Company or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any Material Contract (as hereinafter defined) or (iii) subject to the Required Approvals, result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which Company is subject (including federal and state securities laws and regulations and the rules and regulations, assuming the correctness of the representations and warranties made by Purchaser herein, of any self regulatory organization to which Company or its securities are subject), or by which any property or asset of Company is bound or affected), except in the case of clause (ii) and clause (iii) such as would not individually have a Material Adverse Effect. “ Material Contract means any contract of Company that has been filed as an exhibit to the SEC Reports pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K (including, for purposes hereof, any contracts that are required to be filed as an exhibit to a Form 10). “ Encumbrance ” means any mortgage, deed of trust, pledge, hypothecation, assignment, security interest, lien (whether statutory or otherwise), charge, claim, encumbrance or preference, priority or other security agreement or preferential arrangement held or asserted in respect of any asset or property of any kind or nature whatsoever, including any conditional sale or other title retention agreement, any lease having substantially the same economic effect as any of the foregoing, and the filing of, or agreement to give, any financing statement under the UCC or comparable law of any jurisdiction.

 

(d)          Company is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority or other person or entity in connection with the execution, delivery and performance by Company of the transactions contemplated by this Agreement and any agreement executed in connection herewith (including the issuance of the Shares), other than (i) the filing with the Commission of one or more registration statements, (ii) filings required by applicable state securities laws, (iii) the filing of a Notice of Sale of Securities on Form D with the Commission under Regulation D of the Securities Act, (iv) filing of a report on Form 8-K disclosing the Company’s entry into this Agreement and (v) those that have been made or obtained prior to the date of this Agreement (collectively, the “ Required Approvals ”).

 

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(e)          The Shares have been duly authorized and, when issued and paid for in accordance with the terms of this Agreement, will be duly and validly issued, fully paid and nonassessable and free and clear of all Encumbrances suffered or permitted by Company, other than restrictions on transfer provided for in this Agreement or imposed by applicable securities laws, and shall not be subject to preemptive or similar rights. Assuming the accuracy of the representations and warranties of Purchaser in this Agreement, the Shares will be issued in compliance with all applicable federal and state securities laws.

 

(f)          There are no actions, suits, claims, investigations or other legal proceedings pending or, to the Company’s Knowledge, threatened against or by Company that challenge or seek to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement. “ Company’s Knowledge ” means with respect to any statement made to the knowledge of Company, that the statement is based upon the actual knowledge of the officers of Company who, as of the date hereof, have responsibility for the matter or matters that are the subject of the statement.

 

(g)          Company has filed all reports, schedules, forms, statements and other documents required to be filed by it under the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), including pursuant to Section 13(a) or 15(d) thereof, for twelve (12) months preceding and including the date hereof (or such shorter period as Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the “ SEC Reports ”), on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension.

 

(h)          The financial statements of Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with U.S. Generally Accepted Accounting Principles (“ GAAP ”) applied on a consistent basis during the periods involved, except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of Company and its consolidated subsidiaries taken as a whole as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, year-end audit adjustments.

 

(i)          Assuming the accuracy of Purchaser’s representations and warranties set forth in Section 6 of this Agreement (without giving effect to any materiality qualifiers therein), no registration under the Securities Act is required for the offer and sale of the Shares by Company to Purchaser under this Agreement.

 

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(j)          No broker, finder or investment banker is entitled to any brokerage, finder's or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Company.

 

6.           Representation and Warranties of Purchaser .

 

(a)          Purchaser is a resident of the State of California.

 

(b)          Purchaser has all requisite power and authority to enter into this Agreement, to carry out its obligations hereunder and to consummate the transactions contemplated hereby. The execution and delivery by Purchaser of this Agreement, the performance by Purchaser of its obligations hereunder and the consummation by Purchaser of the transactions contemplated hereby have been duly authorized on the part of Purchaser. This Agreement has been duly executed and delivered by Purchaser and (assuming due authorization, execution and delivery by Company) this Agreement constitutes a legal, valid and binding obligation of Purchaser enforceable against Purchaser in accordance with its terms.

 

(c)          Purchaser is acquiring the Shares solely for its own account for investment purposes and not with a view to, or for offer or sale in connection with, any distribution thereof. Purchaser acknowledges that the Shares are not registered under the Securities Act, or any state securities laws, and that the Shares may not be transferred or sold except pursuant to the registration provisions of the Securities Act or pursuant to an applicable exemption therefrom and subject to state securities laws and regulations, as applicable.

 

(d)          No governmental, administrative or other third party consents or approvals are required by or with respect to Purchaser in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.

 

(e)          There are no actions, suits, claims, investigations or other legal proceedings pending or, to the knowledge of Purchaser, threatened against or by Purchaser that challenge or seek to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement.

 

(f)          Purchaser understands that the Shares are “restricted securities” and have not been registered under the Securities Act or any applicable state securities law and is acquiring the Shares as principal for its own account and not with a view to, or for distributing or reselling such Shares or any part thereof in violation of the Securities Act or any applicable state securities laws, provided, however , that by making the representations herein, Purchaser does not agree to hold any of the Shares for any minimum period of time and reserves the right, subject to the provisions of this Agreement, at all times to sell or otherwise dispose of all or any part of such Shares pursuant to an effective registration statement under the Securities Act or under an exemption from such registration and in compliance with applicable federal and state securities laws. Purchaser is acquiring the Shares hereunder in the ordinary course of its business. Purchaser does not presently have any agreement, plan or understanding, directly or indirectly, with any Person to distribute or effect any distribution of any of the Shares (or any Shares which are derivatives thereof) to or through any person or entity; Purchaser is not a registered broker-dealer under Section 15 of the Exchange Act or an entity engaged in a business that would require it to be so registered as a broker-dealer.

 

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(g)          At the time Purchaser was offered the Shares, it was, and at the date hereof it is, an “accredited investor” as defined in Rule 501(a) under the Securities Act. Purchaser has previously delivered an Accredited Investor Questionnaire to Company indicating that Purchaser is an “accredited investor.” As of the date of this Agreement, circumstances have not changed such that Purchaser would not be an “accredited investor.”

 

(h)          Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Shares, and has so evaluated the merits and risks of such investment. Purchaser is able to bear the economic risk of an investment in the Shares and, at the present time, is able to afford a complete loss of such investment.

 

(i)          Purchaser acknowledges that it has been afforded (i) the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of Company concerning the terms and conditions of the offering of the Shares and the merits and risks of investing in the Shares; (ii) access to information about Company and its respective financial condition, results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity to obtain such additional information that Company possesses or can acquire without unreasonable effort or expense that is necessary to make an informed investment decision with respect to the investment. Neither such inquiries nor any other investigation conducted by or on behalf of Purchaser or its representatives or counsel shall modify, amend or affect Purchaser’s right to rely on the truth, accuracy and completeness of Company’s representations and warranties contained in this Agreement. Purchaser has sought such accounting, legal and tax advice as it has considered necessary to make an informed decision with respect to its acquisition of the Shares.

 

(j)          Purchaser understands that the Shares are being offered and sold to it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that Company is relying in part upon the truth and accuracy of, and Purchaser’s compliance with, the representations, warranties, agreements, acknowledgements and understandings of Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of Purchaser to acquire the Shares.

 

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(k)          Purchaser understands that no United States federal or state agency or any other government or governmental agency has passed on or made any recommendation or endorsement of the Shares or the fairness or suitability of the investment in the Shares nor have such authorities passed upon or endorsed the merits of the offering of the Shares.

 

(l)          No broker, finder or investment banker is entitled to any brokerage, finder's or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Purchaser.

 

7.           Transfer Restrictions .

 

(a)           Notwithstanding any other provision of this Agreement, Purchaser covenants that the Shares may be disposed of only pursuant to an effective registration statement under, and in compliance with the requirements of, the Securities Act, or pursuant to an available exemption from, or in a transaction not subject to, the registration requirements of the Securities Act, and in compliance with any applicable state and federal securities laws. In connection with any transfer of the Shares other than (i) pursuant to an effective registration statement, (ii) to Company, (iii) to an affiliate of Purchaser, (iv) pursuant to Rule 144 under the Securities Act (“ Rule 144 ”) ( provided that Purchaser provides Company with reasonable assurances (in the form of seller and broker representation letters if required) that the securities may be sold pursuant to such rule) or Rule 144A, (v) pursuant to Rule 144 without the requirement that Company be in compliance with the current public information requirements of Rule 144 and without other restriction following the applicable holding period or (vi) in connection with a bona fide pledge, Company may require the transferor thereof to provide to Company an opinion of counsel selected by the transferor and reasonably acceptable to Company, the form and substance of which opinion shall be reasonably satisfactory to Company, to the effect that such transfer does not require registration of such transferred Shares under the Securities Act. As a condition of transfer, any such transferee shall agree in writing to be bound by the terms of this Agreement and shall have the rights of Purchaser under this Agreement.

 

(b)          Certificates evidencing the Shares shall bear any legend as required by the “Blue Sky” laws of any state and a restrictive legend in substantially the following form until such time as they are not required under Section 7(c) (and a stock transfer order may be placed against transfer of the certificates for the Shares):

 

THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OR (B) AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL REASONABLY SATISFACTORY TO COMPANY.

 

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In addition, if Purchaser is an affiliate of Company, certificates evidencing the Shares issued to Purchaser shall bear a customary “affiliates” legend.

 

(c)          Subject to Company’s right to request an opinion of counsel as set forth in Section 7(a), the legend set forth in Section 7(b) above shall be removable and Company shall issue or cause to be issued a certificate without such legend or any other legend (except for any “affiliates” legend as set forth in Section 7(b)) to the holder of the applicable Shares upon which it is stamped if (i) such Shares are registered for resale under the Securities Act (provided that, if Purchaser is selling pursuant to the effective registration statement registering the Shares for resale, Purchaser agrees to only sell such Shares during such time that such registration statement is effective and not withdrawn or suspended, and only as permitted by such registration statement), (ii) such Shares are sold or transferred in compliance with Rule 144 (if the transferor is not an affiliate of Company), including without limitation in compliance with the current public information requirements of Rule 144 if applicable to Company at the time of such sale or transfer, and the holder and its broker have delivered customary documents reasonably requested by Company’s transfer agent and/or Company counsel in connection with such sale or transfer, or (iii) such Shares are eligible for sale under Rule 144 without the requirement that Company be in compliance with the current public information requirements of Rule 144 and without other restriction and Company counsel has provided written confirmation of such eligibility to the transfer agent. Any fees (with respect to the transfer agent, Company counsel or otherwise) associated with the removal of such legend shall be borne by Company. At such time as a legend is no longer required for certain Shares, Company will no later than three (3) business days following the delivery by Purchaser to Company or the transfer agent (with concurrent notice and delivery of copies to Company) of a legended certificate representing such Shares (endorsed or with stock powers attached, signatures guaranteed, and otherwise in form necessary to affect the reissuance and/or transfer, and together with such other customary documents as the transfer agent and/or Company counsel shall reasonably request), deliver or cause to be delivered to the transferee of Purchaser or Purchaser, as applicable, a certificate representing such Shares that is free from all restrictive and other legends. Company may not make any notation on its records or give instructions to the transfer agent that enlarge the restrictions on transfer set forth in this Section 7(c).

 

(d)          Purchaser hereunder acknowledges its primary responsibilities under the Securities Act and accordingly will not sell or otherwise transfer the Shares or any interest therein without complying with the requirements of the Securities Act. Purchaser acknowledges that the delivery of the Shares and any removal of any legends from certificates representing the Shares as set forth in this Section 7 is predicated on Company’s reliance upon Purchaser’s acknowledgement in this Section 7(d).

 

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8.           Survival . All representations and warranties contained herein shall survive the execution and delivery of this Agreement and the Closing hereunder.

 

9.           Indemnification . Company shall indemnify Purchaser and hold Purchaser harmless against and in respect of any and all losses, liabilities, damages, obligations, claims, Encumbrances, costs and expenses (including, without limitation, reasonable attorneys' fees) incurred by Purchaser resulting from any breach of any representation, warranty, covenant or agreement made by Company herein or in any instrument or document delivered to Purchaser pursuant hereto.

 

10.          Further Assurances . Following the Closing, each of the parties hereto shall execute and deliver such additional documents, instruments, conveyances and assurances, and take such further actions as may be reasonably required to carry out the provisions hereof and give effect to the transactions contemplated by this Agreement.

 

11.          Termination . This Agreement may be terminated at any time prior to the Closing (a) by the mutual written consent of Purchaser and Company or (b) by either Purchaser or Company if (i) a breach of any provision of this Agreement has been committed by the other party and such breach has not been cured within 10 days following receipt by the breaching party of written notice of such breach, or (ii) the Closing does not occur by November 1, 2015. Upon termination, all further obligations of the parties under this Agreement shall terminate without liability of any party to the other parties to this Agreement, except that no such termination shall relieve any party from liability for any fraud or willful breach of this Agreement.

 

12.          Expenses . The Company agrees to pay all reasonable expenses, including legal fees and disbursements, incurred by Purchaser in connection with this Agreement and the transactions contemplated hereby.

 

13.          Notices . All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a " Notice ") shall be in writing and addressed to the parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this section). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or e-mail of a PDF document (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

 

14.          Entire Agreement . This Agreement constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.

 

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15.          Successor and Assigns . This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. No party may assign any of its rights or obligations hereunder without the prior written consent of the other parties hereto, which consent shall not be unreasonably withheld or delayed.

 

16.          Headings . The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.

 

17.          Amendment and Modification; Waiver . This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

 

18.          Severability . If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

 

19.          Governing Law; Submission to Jurisdiction . This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction). Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in the federal courts of the United States or the courts of the State of New York in each case located in the city of New York and County of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or any proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

 

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20.          Counterparts . This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

 

[SIGNATURE PAGE FOLLOWS]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first written above.

 

  TWINLAB CONSOLIDATED HOLDINGS, INC.
     
  By: /s/ Thomas A. Tolworthy
  Name: Thomas A. Tolworthy
  Title: Chief Executive Officer and President

 

 

  MICHAEL CORRIGAN
   
  By: /s/ Michael Corrigan
  Michael Corrigan

 

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Exhibit 10.109

 

STOCK PURCHASE AGREEMENT

 

THIS STOCK PURCHASE AGREEMENT (this " Agreement "), dated as of October 21, 2015, is entered into between Twinlab Consolidated Holdings, Inc., a Nevada corporation with its principal place of business at 632 Broadway, Suite 201, New York, New York 10012 (" Company "), and the Jonathan B. Rubini 2009 Family Exempt Trust, created under the Jonathan B. Rubini Family Trust, under trust agreement dated October 9, 2009, with an address of 813 D Street, Suite 200, Anchorage, AK 99501 (" Purchaser ").

 

RECITALS

 

A.           Company and Purchaser are executing and delivering this Agreement in reliance upon the exemption from securities registration afforded by Section 4(a)(2) of the Securities Act of 1933, as amended (the “ Securities Act ”), and Rule 506 of Regulation D (“ Regulation D ”) as promulgated by the United States Securities and Exchange Commission (the “ Commission ”) under the Securities Act.

 

B.           Purchaser wishes to purchase, and Company wishes to sell, upon the terms and conditions stated in this Agreement, an aggregate of 862,069 shares of common stock, par value $0.001 per share (the “ Common Stock ”), of Company, at an aggregate purchase price of $250,000.01 (the 862,069 shares of Common Stock to be purchased by Purchaser hereunder are referred to herein as the “ Shares ”).

 

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

1.           Purchase and Sale . Subject to the terms and conditions set forth herein, at the Closing (as defined in Section 2 ), Company shall issue and sell to Purchaser, and Purchaser shall purchase from Company, the Shares. The aggregate purchase price for the Shares shall be $250,000.01 (the " Purchase Price "), to be paid by Purchaser by wire transfer of immediately available funds to an account designated in writing by Company.

 

2.           Closing . Subject to the terms and conditions contained in this Agreement, the purchase and sale of the Shares contemplated hereby shall take place at a closing (the " Closing ") to be held on October 21, 2015 (the " Closing Date ") at the offices of Wilk Auslander LLP, 1515 Broadway, 43 rd Floor, New York, New York 10036, or at such other place or on such other date as Purchaser and Company may mutually agree upon in writing. At the Closing, Company shall irrevocably and unconditionally instruct its transfer agent West Coast Stock Transfer, Inc. (the “ Transfer Agent ”) to deliver to Purchaser a stock certificate or certificates evidencing the Shares, and Purchaser shall deliver to the Company the Purchase Price by wire transfer of immediately available funds to an account designated in writing by Company.

 

 

 

 

3.           Closing Deliveries .

 

(a)           On or prior to the Closing, Company shall issue, deliver or cause to be delivered to Purchaser the following:

 

(i)          this Agreement, duly executed by Company; and

 

(ii)         an irrevocable and unconditional instruction to the Transfer Agent to issue to Purchaser a certificate(s) representing the Shares; and

 

(b)           On or prior to the Closing, Purchaser shall deliver or cause to be delivered to Company the following:

 

(i)          this Agreement, duly executed by Purchaser; and

 

(ii)         the Purchase Price for the Shares in United States dollars and in immediately available funds, by wire transfer to Company’s account as previously provided to Purchaser.

 

4.           Closing Conditions .

 

(a)          The obligation of Company to issue and sell the Shares to Purchaser hereunder is subject to the satisfaction of the following conditions as of the Closing:

 

(i)          the representations and warranties of Purchaser in Section 6 hereof shall be true and correct on and as of the Closing Date with the same effect as though made at and as of such date;

 

(ii)         Purchaser shall have performed and complied in all material respects with all agreements and conditions required by this Agreement to be performed or complied with by it prior to or on the Closing Date; and

 

(iii)        Purchaser shall have obtained any and all consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the transactions contemplated herein.

 

(b)          The obligation of Purchaser to purchase the Shares from Company is subject to the satisfaction of the following conditions as of the Closing:

 

(i)          the representations and warranties of Company in Section 5 hereof shall be true and correct on and as of the Closing Date with the same effect as though made at and as of such date;

 

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(ii)         Company shall have performed and complied in all material respects with all agreements and conditions required by this Agreement to be performed or complied with by it prior to or on the Closing Date; and

 

(iii)        Company shall have obtained any and all consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the transactions contemplated herein.

 

5.           Representations and Warranties of Company . Company hereby represents and warrants to Purchaser as follows:

 

(a)          Company is an entity duly incorporated, validly existing and in good standing under the laws of the State of Nevada, with the requisite corporate power and authority to own or lease and use its properties and assets and to carry on its business as currently conducted. Company is not in violation of any of the provisions of its articles of incorporation or bylaws. Company is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, would not have a Material Adverse Effect. “ Material Adverse Effect ” means a material adverse effect on the results of operations, assets, business or financial condition of Company, except that any of the following, either alone or in combination, shall not be deemed a Material Adverse Effect: (i) effects caused by changes or circumstances affecting general market conditions in the U.S. economy or which are generally applicable to the industry in which Company operates provided that such effects are not borne disproportionately by Company, (ii) effects resulting from or relating to the announcement or disclosure of the sale of the Shares or other transactions contemplated by this Agreement, or (iii) effects caused by any event, occurrence or condition resulting from or relating to the taking of any action in accordance with this Agreement.

 

(b)          Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder. The execution and delivery of this Agreement by the Company and the consummation by it of the transactions contemplated hereby (including, but not limited to, the sale and delivery of the Shares) have been duly authorized by all necessary corporate action on the part of Company, and no further corporate action is required by Company, its Board of Directors or its stockholders in connection therewith other than in connection with the Required Approvals (as hereinafter defined). This Agreement has been duly executed by the Company and is the legal, valid and binding obligation of the Company enforceable against Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally the enforcement of, creditors’ rights and remedies or by other equitable principles of general application or insofar as indemnification and contribution provisions may be limited by applicable law.

 

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(c)          The execution, delivery and performance by Company of this Agreement and the consummation by Company of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) do not and will not (i) conflict with or violate any provisions of Company’s articles of incorporation or bylaws or otherwise result in a violation of the organizational documents of Company, (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any Encumbrance upon any of the properties or assets of Company or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any Material Contract (as hereinafter defined) or (iii) subject to the Required Approvals, result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which Company is subject (including federal and state securities laws and regulations and the rules and regulations, assuming the correctness of the representations and warranties made by Purchaser herein, of any self regulatory organization to which Company or its securities are subject), or by which any property or asset of Company is bound or affected), except in the case of clause (ii) and clause (iii) such as would not individually have a Material Adverse Effect. “ Material Contract means any contract of Company that has been filed as an exhibit to the SEC Reports pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K (including, for purposes hereof, any contracts that are required to be filed as an exhibit to a Form 10). “ Encumbrance ” means any mortgage, deed of trust, pledge, hypothecation, assignment, security interest, lien (whether statutory or otherwise), charge, claim, encumbrance or preference, priority or other security agreement or preferential arrangement held or asserted in respect of any asset or property of any kind or nature whatsoever, including any conditional sale or other title retention agreement, any lease having substantially the same economic effect as any of the foregoing, and the filing of, or agreement to give, any financing statement under the UCC or comparable law of any jurisdiction.

 

(d)          Company is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority or other person or entity in connection with the execution, delivery and performance by Company of the transactions contemplated by this Agreement and any agreement executed in connection herewith (including the issuance of the Shares), other than (i) the filing with the Commission of one or more registration statements, (ii) filings required by applicable state securities laws, (iii) the filing of a Notice of Sale of Securities on Form D with the Commission under Regulation D of the Securities Act, (iv) filing of a report on Form 8-K disclosing the Company’s entry into this Agreement and (v) those that have been made or obtained prior to the date of this Agreement (collectively, the “ Required Approvals ”).

 

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(e)          The Shares have been duly authorized and, when issued and paid for in accordance with the terms of this Agreement, will be duly and validly issued, fully paid and nonassessable and free and clear of all Encumbrances suffered or permitted by Company, other than restrictions on transfer provided for in this Agreement or imposed by applicable securities laws, and shall not be subject to preemptive or similar rights. Assuming the accuracy of the representations and warranties of Purchaser in this Agreement, the Shares will be issued in compliance with all applicable federal and state securities laws.

 

(f)          There are no actions, suits, claims, investigations or other legal proceedings pending or, to the Company’s Knowledge, threatened against or by Company that challenge or seek to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement. “ Company’s Knowledge ” means with respect to any statement made to the knowledge of Company, that the statement is based upon the actual knowledge of the officers of Company who, as of the date hereof, have responsibility for the matter or matters that are the subject of the statement.

 

(g)          Company has filed all reports, schedules, forms, statements and other documents required to be filed by it under the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), including pursuant to Section 13(a) or 15(d) thereof, for twelve (12) months preceding and including the date hereof (or such shorter period as Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the “ SEC Reports ”), on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension.

 

(h)          The financial statements of Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with U.S. Generally Accepted Accounting Principles (“ GAAP ”) applied on a consistent basis during the periods involved, except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of Company and its consolidated subsidiaries taken as a whole as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, year-end audit adjustments.

 

(i)          Assuming the accuracy of Purchaser’s representations and warranties set forth in Section 6 of this Agreement (without giving effect to any materiality qualifiers therein), no registration under the Securities Act is required for the offer and sale of the Shares by Company to Purchaser under this Agreement.

 

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(j)          No broker, finder or investment banker is entitled to any brokerage, finder's or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Company.

 

6.           Representation and Warranties of Purchaser .

 

(a)          Purchaser is an existing trust formed and registered under the laws of the State of Alaska.

 

(b)          Purchaser has all requisite power and authority to enter into this Agreement, to carry out its obligations hereunder and to consummate the transactions contemplated hereby. The execution and delivery by Purchaser of this Agreement, the performance by Purchaser of its obligations hereunder and the consummation by Purchaser of the transactions contemplated hereby have been duly authorized by all requisite trust action on the part of Purchaser. This Agreement has been duly executed and delivered by Purchaser and (assuming due authorization, execution and delivery by Company) this Agreement constitutes a legal, valid and binding obligation of Purchaser enforceable against Purchaser in accordance with its terms.

 

(c)          Purchaser is acquiring the Shares solely for its own account for investment purposes and not with a view to, or for offer or sale in connection with, any distribution thereof. Purchaser acknowledges that the Shares are not registered under the Securities Act, or any state securities laws, and that the Shares may not be transferred or sold except pursuant to the registration provisions of the Securities Act or pursuant to an applicable exemption therefrom and subject to state securities laws and regulations, as applicable.

 

(d)          No governmental, administrative or other third party consents or approvals are required by or with respect to Purchaser in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.

 

(e)          There are no actions, suits, claims, investigations or other legal proceedings pending or, to the knowledge of Purchaser, threatened against or by Purchaser that challenge or seek to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement.

 

(f)          Purchaser understands that the Shares are “restricted securities” and have not been registered under the Securities Act or any applicable state securities law and is acquiring the Shares as principal for its own account and not with a view to, or for distributing or reselling such Shares or any part thereof in violation of the Securities Act or any applicable state securities laws, provided, however , that by making the representations herein, Purchaser does not agree to hold any of the Shares for any minimum period of time and reserves the right, subject to the provisions of this Agreement, at all times to sell or otherwise dispose of all or any part of such Shares pursuant to an effective registration statement under the Securities Act or under an exemption from such registration and in compliance with applicable federal and state securities laws. Purchaser is acquiring the Shares hereunder in the ordinary course of its business. Purchaser does not presently have any agreement, plan or understanding, directly or indirectly, with any Person to distribute or effect any distribution of any of the Shares (or any Shares which are derivatives thereof) to or through any person or entity; Purchaser is not a registered broker-dealer under Section 15 of the Exchange Act or an entity engaged in a business that would require it to be so registered as a broker-dealer.

 

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(g)          At the time Purchaser was offered the Shares, it was, and at the date hereof it is, an “accredited investor” as defined in Rule 501(a) under the Securities Act. Purchaser has previously delivered an Accredited Investor Questionnaire to Company indicating that Purchaser is an “accredited investor.” As of the date of this Agreement, circumstances have not changed such that Purchaser would not be an “accredited investor.”

 

(h)          Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Shares, and has so evaluated the merits and risks of such investment. Purchaser is able to bear the economic risk of an investment in the Shares and, at the present time, is able to afford a complete loss of such investment.

 

(i)          Purchaser acknowledges that it has been afforded (i) the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of Company concerning the terms and conditions of the offering of the Shares and the merits and risks of investing in the Shares; (ii) access to information about Company and its respective financial condition, results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity to obtain such additional information that Company possesses or can acquire without unreasonable effort or expense that is necessary to make an informed investment decision with respect to the investment. Neither such inquiries nor any other investigation conducted by or on behalf of Purchaser or its representatives or counsel shall modify, amend or affect Purchaser’s right to rely on the truth, accuracy and completeness of Company’s representations and warranties contained in this Agreement. Purchaser has sought such accounting, legal and tax advice as it has considered necessary to make an informed decision with respect to its acquisition of the Shares.

 

(j)          Purchaser understands that the Shares are being offered and sold to it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that Company is relying in part upon the truth and accuracy of, and Purchaser’s compliance with, the representations, warranties, agreements, acknowledgements and understandings of Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of Purchaser to acquire the Shares.

 

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(k)          Purchaser understands that no United States federal or state agency or any other government or governmental agency has passed on or made any recommendation or endorsement of the Shares or the fairness or suitability of the investment in the Shares nor have such authorities passed upon or endorsed the merits of the offering of the Shares.

 

(l)          No broker, finder or investment banker is entitled to any brokerage, finder's or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Purchaser.

 

7.           Transfer Restrictions .

 

(a)           Notwithstanding any other provision of this Agreement, Purchaser covenants that the Shares may be disposed of only pursuant to an effective registration statement under, and in compliance with the requirements of, the Securities Act, or pursuant to an available exemption from, or in a transaction not subject to, the registration requirements of the Securities Act, and in compliance with any applicable state and federal securities laws. In connection with any transfer of the Shares other than (i) pursuant to an effective registration statement, (ii) to Company, (iii) to an affiliate of Purchaser, (iv) pursuant to Rule 144 under the Securities Act (“ Rule 144 ”) ( provided that Purchaser provides Company with reasonable assurances (in the form of seller and broker representation letters if required) that the securities may be sold pursuant to such rule) or Rule 144A, (v) pursuant to Rule 144 without the requirement that Company be in compliance with the current public information requirements of Rule 144 and without other restriction following the applicable holding period or (vi) in connection with a bona fide pledge, Company may require the transferor thereof to provide to Company an opinion of counsel selected by the transferor and reasonably acceptable to Company, the form and substance of which opinion shall be reasonably satisfactory to Company, to the effect that such transfer does not require registration of such transferred Shares under the Securities Act. As a condition of transfer, any such transferee shall agree in writing to be bound by the terms of this Agreement and shall have the rights of Purchaser under this Agreement.

 

(b)          Certificates evidencing the Shares shall bear any legend as required by the “Blue Sky” laws of any state and a restrictive legend in substantially the following form until such time as they are not required under Section 7(c) (and a stock transfer order may be placed against transfer of the certificates for the Shares):

 

THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OR (B) AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL REASONABLY SATISFACTORY TO COMPANY.

 

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In addition, if Purchaser is an affiliate of Company, certificates evidencing the Shares issued to Purchaser shall bear a customary “affiliates” legend.

 

(c)          Subject to Company’s right to request an opinion of counsel as set forth in Section 7(a), the legend set forth in Section 7(b) above shall be removable and Company shall issue or cause to be issued a certificate without such legend or any other legend (except for any “affiliates” legend as set forth in Section 7(b)) to the holder of the applicable Shares upon which it is stamped if (i) such Shares are registered for resale under the Securities Act (provided that, if Purchaser is selling pursuant to the effective registration statement registering the Shares for resale, Purchaser agrees to only sell such Shares during such time that such registration statement is effective and not withdrawn or suspended, and only as permitted by such registration statement), (ii) such Shares are sold or transferred in compliance with Rule 144 (if the transferor is not an affiliate of Company), including without limitation in compliance with the current public information requirements of Rule 144 if applicable to Company at the time of such sale or transfer, and the holder and its broker have delivered customary documents reasonably requested by Company’s transfer agent and/or Company counsel in connection with such sale or transfer, or (iii) such Shares are eligible for sale under Rule 144 without the requirement that Company be in compliance with the current public information requirements of Rule 144 and without other restriction and Company counsel has provided written confirmation of such eligibility to the transfer agent. Any fees (with respect to the transfer agent, Company counsel or otherwise) associated with the removal of such legend shall be borne by Company. At such time as a legend is no longer required for certain Shares, Company will no later than three (3) business days following the delivery by Purchaser to Company or the transfer agent (with concurrent notice and delivery of copies to Company) of a legended certificate representing such Shares (endorsed or with stock powers attached, signatures guaranteed, and otherwise in form necessary to affect the reissuance and/or transfer, and together with such other customary documents as the transfer agent and/or Company counsel shall reasonably request), deliver or cause to be delivered to the transferee of Purchaser or Purchaser, as applicable, a certificate representing such Shares that is free from all restrictive and other legends. Company may not make any notation on its records or give instructions to the transfer agent that enlarge the restrictions on transfer set forth in this Section 7(c).

 

(d)          Purchaser hereunder acknowledges its primary responsibilities under the Securities Act and accordingly will not sell or otherwise transfer the Shares or any interest therein without complying with the requirements of the Securities Act. Purchaser acknowledges that the delivery of the Shares and any removal of any legends from certificates representing the Shares as set forth in this Section 7 is predicated on Company’s reliance upon Purchaser’s acknowledgement in this Section 7(d).

 

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8.           Survival . All representations and warranties contained herein shall survive the execution and delivery of this Agreement and the Closing hereunder.

 

9.           Indemnification . Company shall indemnify Purchaser and hold Purchaser harmless against and in respect of any and all losses, liabilities, damages, obligations, claims, Encumbrances, costs and expenses (including, without limitation, reasonable attorneys' fees) incurred by Purchaser resulting from any breach of any representation, warranty, covenant or agreement made by Company herein or in any instrument or document delivered to Purchaser pursuant hereto.

 

10.          Further Assurances . Following the Closing, each of the parties hereto shall execute and deliver such additional documents, instruments, conveyances and assurances, and take such further actions as may be reasonably required to carry out the provisions hereof and give effect to the transactions contemplated by this Agreement.

 

11.          Termination . This Agreement may be terminated at any time prior to the Closing (a) by the mutual written consent of Purchaser and Company or (b) by either Purchaser or Company if (i) a breach of any provision of this Agreement has been committed by the other party and such breach has not been cured within 10 days following receipt by the breaching party of written notice of such breach, or (ii) the Closing does not occur by November 1, 2015. Upon termination, all further obligations of the parties under this Agreement shall terminate without liability of any party to the other parties to this Agreement, except that no such termination shall relieve any party from liability for any fraud or willful breach of this Agreement.

 

12.          Expenses . The Company agrees to pay all reasonable expenses, including legal fees and disbursements, incurred by Purchaser in connection with this Agreement and the transactions contemplated hereby.

 

13.          Notices . All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a " Notice ") shall be in writing and addressed to the parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this section). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or e-mail of a PDF document (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

 

14.          Entire Agreement . This Agreement constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.

 

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15.          Successor and Assigns . This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. No party may assign any of its rights or obligations hereunder without the prior written consent of the other parties hereto, which consent shall not be unreasonably withheld or delayed.

 

16.          Headings . The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.

 

17.          Amendment and Modification; Waiver . This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

 

18.          Severability . If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

 

19.          Governing Law; Submission to Jurisdiction . This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction). Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in the federal courts of the United States or the courts of the State of New York in each case located in the city of New York and County of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or any proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

 

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20.          Counterparts . This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

 

[SIGNATURE PAGE FOLLOWS]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first written above.

 

  TWINLAB CONSOLIDATED HOLDINGS, INC.
   
  By: /s/ Thomas A. Tolworthy
  Name: Thomas A. Tolworthy
  Title: Chief Executive Officer and President

 

 

  JONATHAN B. RUBINI FAMILY EXEMPT TRUST, created under the Jonathan B. Rubini Family Trust, under trust agreement dated October 9, 2009
     
  By: /s/ Mark Kroloff
  Mark Kroloff, Trustee

 

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Exhibit 10.110

 

STOCK PURCHASE AGREEMENT

 

THIS STOCK PURCHASE AGREEMENT (this " Agreement "), dated as of October 21, 2015, is entered into between Twinlab Consolidated Holdings, Inc., a Nevada corporation with its principal place of business at 632 Broadway, Suite 201, New York, New York 10012 (" Company "), and Mark Kroloff, with an address of 813 D Street, Suite 200, Anchorage, AK 99501 (" Purchaser ").

 

RECITALS

 

A.           Company and Purchaser are executing and delivering this Agreement in reliance upon the exemption from securities registration afforded by Section 4(a)(2) of the Securities Act of 1933, as amended (the “ Securities Act ”), and Rule 506 of Regulation D (“ Regulation D ”) as promulgated by the United States Securities and Exchange Commission (the “ Commission ”) under the Securities Act.

 

B.           Purchaser wishes to purchase, and Company wishes to sell, upon the terms and conditions stated in this Agreement, an aggregate of 344,828 shares of common stock, par value $0.001 per share (the “ Common Stock ”), of Company, at an aggregate purchase price of $100,000.12 (the 344,828 shares of Common Stock to be purchased by Purchaser hereunder are referred to herein as the “ Shares ”).

 

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

1.           Purchase and Sale . Subject to the terms and conditions set forth herein, at the Closing (as defined in Section 2 ), Company shall issue and sell to Purchaser, and Purchaser shall purchase from Company, the Shares. The aggregate purchase price for the Shares shall be $100,000.12 (the " Purchase Price "), to be paid by Purchaser by wire transfer of immediately available funds to an account designated in writing by Company.

 

2.           Closing . Subject to the terms and conditions contained in this Agreement, the purchase and sale of the Shares contemplated hereby shall take place at a closing (the " Closing ") to be held on October 21, 2015 (the " Closing Date ") at the offices of Wilk Auslander LLP, 1515 Broadway, 43 rd Floor, New York, New York 10036, or at such other place or on such other date as Purchaser and Company may mutually agree upon in writing. At the Closing, Company shall irrevocably and unconditionally instruct its transfer agent West Coast Stock Transfer, Inc. (the “ Transfer Agent ”) to deliver to Purchaser a stock certificate or certificates evidencing the Shares, and Purchaser shall deliver to the Company the Purchase Price by wire transfer of immediately available funds to an account designated in writing by Company.

 

 

 

 

3.           Closing Deliveries .

 

(a)           On or prior to the Closing, Company shall issue, deliver or cause to be delivered to Purchaser the following:

 

(i)          this Agreement, duly executed by Company; and

 

(ii)         an irrevocable and unconditional instruction to the Transfer Agent to issue to Purchaser a certificate(s) representing the Shares;

 

(b)           On or prior to the Closing, Purchaser shall deliver or cause to be delivered to Company the following:

 

(i)          this Agreement, duly executed by Purchaser; and

 

(ii)         the Purchase Price for the Shares in United States dollars and in immediately available funds, by wire transfer to Company’s account as previously provided to Purchaser.

 

4.           Closing Conditions .

 

(a)          The obligation of Company to issue and sell the Shares to Purchaser hereunder is subject to the satisfaction of the following conditions as of the Closing:

 

(i)          the representations and warranties of Purchaser in Section 6 hereof shall be true and correct on and as of the Closing Date with the same effect as though made at and as of such date;

 

(ii)         Purchaser shall have performed and complied in all material respects with all agreements and conditions required by this Agreement to be performed or complied with by it prior to or on the Closing Date; and

 

(iii)        Purchaser shall have obtained any and all consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the transactions contemplated herein.

 

(b)          The obligation of Purchaser to purchase the Shares from Company is subject to the satisfaction of the following conditions as of the Closing:

 

(i)          the representations and warranties of Company in Section 5 hereof shall be true and correct on and as of the Closing Date with the same effect as though made at and as of such date;

 

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(ii)         Company shall have performed and complied in all material respects with all agreements and conditions required by this Agreement to be performed or complied with by it prior to or on the Closing Date; and

 

(iii)        Company shall have obtained any and all consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the transactions contemplated herein.

 

5.           Representations and Warranties of Company . Company hereby represents and warrants to Purchaser as follows:

 

(a)          Company is an entity duly incorporated, validly existing and in good standing under the laws of the State of Nevada, with the requisite corporate power and authority to own or lease and use its properties and assets and to carry on its business as currently conducted. Company is not in violation of any of the provisions of its articles of incorporation or bylaws. Company is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, would not have a Material Adverse Effect. “ Material Adverse Effect ” means a material adverse effect on the results of operations, assets, business or financial condition of Company, except that any of the following, either alone or in combination, shall not be deemed a Material Adverse Effect: (i) effects caused by changes or circumstances affecting general market conditions in the U.S. economy or which are generally applicable to the industry in which Company operates provided that such effects are not borne disproportionately by Company, (ii) effects resulting from or relating to the announcement or disclosure of the sale of the Shares or other transactions contemplated by this Agreement, or (iii) effects caused by any event, occurrence or condition resulting from or relating to the taking of any action in accordance with this Agreement.

 

(b)          Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder. The execution and delivery of this Agreement by the Company and the consummation by it of the transactions contemplated hereby (including, but not limited to, the sale and delivery of the Shares) have been duly authorized by all necessary corporate action on the part of Company, and no further corporate action is required by Company, its Board of Directors or its stockholders in connection therewith other than in connection with the Required Approvals (as hereinafter defined). This Agreement has been duly executed by the Company and is the legal, valid and binding obligation of the Company enforceable against Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally the enforcement of, creditors’ rights and remedies or by other equitable principles of general application or insofar as indemnification and contribution provisions may be limited by applicable law.

 

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(c)          The execution, delivery and performance by Company of this Agreement and the consummation by Company of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) do not and will not (i) conflict with or violate any provisions of Company’s articles of incorporation or bylaws or otherwise result in a violation of the organizational documents of Company, (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any Encumbrance upon any of the properties or assets of Company or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any Material Contract (as hereinafter defined) or (iii) subject to the Required Approvals, result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which Company is subject (including federal and state securities laws and regulations and the rules and regulations, assuming the correctness of the representations and warranties made by Purchaser herein, of any self regulatory organization to which Company or its securities are subject), or by which any property or asset of Company is bound or affected), except in the case of clause (ii) and clause (iii) such as would not individually have a Material Adverse Effect. “ Material Contract means any contract of Company that has been filed as an exhibit to the SEC Reports pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K (including, for purposes hereof, any contracts that are required to be filed as an exhibit to a Form 10). “ Encumbrance ” means any mortgage, deed of trust, pledge, hypothecation, assignment, security interest, lien (whether statutory or otherwise), charge, claim, encumbrance or preference, priority or other security agreement or preferential arrangement held or asserted in respect of any asset or property of any kind or nature whatsoever, including any conditional sale or other title retention agreement, any lease having substantially the same economic effect as any of the foregoing, and the filing of, or agreement to give, any financing statement under the UCC or comparable law of any jurisdiction.

 

(d)          Company is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority or other person or entity in connection with the execution, delivery and performance by Company of the transactions contemplated by this Agreement and any agreement executed in connection herewith (including the issuance of the Shares), other than (i) the filing with the Commission of one or more registration statements, (ii) filings required by applicable state securities laws, (iii) the filing of a Notice of Sale of Securities on Form D with the Commission under Regulation D of the Securities Act, (iv) filing of a report on Form 8-K disclosing the Company’s entry into this Agreement and (v) those that have been made or obtained prior to the date of this Agreement (collectively, the “ Required Approvals ”).

 

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(e)          The Shares have been duly authorized and, when issued and paid for in accordance with the terms of this Agreement, will be duly and validly issued, fully paid and nonassessable and free and clear of all Encumbrances suffered or permitted by Company, other than restrictions on transfer provided for in this Agreement or imposed by applicable securities laws, and shall not be subject to preemptive or similar rights. Assuming the accuracy of the representations and warranties of Purchaser in this Agreement, the Shares will be issued in compliance with all applicable federal and state securities laws.

 

(f)          There are no actions, suits, claims, investigations or other legal proceedings pending or, to the Company’s Knowledge, threatened against or by Company that challenge or seek to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement. “ Company’s Knowledge ” means with respect to any statement made to the knowledge of Company, that the statement is based upon the actual knowledge of the officers of Company who, as of the date hereof, have responsibility for the matter or matters that are the subject of the statement.

 

(g)          Company has filed all reports, schedules, forms, statements and other documents required to be filed by it under the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), including pursuant to Section 13(a) or 15(d) thereof, for twelve (12) months preceding and including the date hereof (or such shorter period as Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the “ SEC Reports ”), on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension.

 

(h)          The financial statements of Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with U.S. Generally Accepted Accounting Principles (“ GAAP ”) applied on a consistent basis during the periods involved, except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of Company and its consolidated subsidiaries taken as a whole as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, year-end audit adjustments.

 

(i)          Assuming the accuracy of Purchaser’s representations and warranties set forth in Section 6 of this Agreement (without giving effect to any materiality qualifiers therein), no registration under the Securities Act is required for the offer and sale of the Shares by Company to Purchaser under this Agreement.

 

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(j)          No broker, finder or investment banker is entitled to any brokerage, finder's or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Company.

 

6.           Representation and Warranties of Purchaser .

 

(a)          Purchaser is a resident of the State of Alaska.

 

(b)          Purchaser has all requisite power and authority to enter into this Agreement, to carry out its obligations hereunder and to consummate the transactions contemplated hereby. The execution and delivery by Purchaser of this Agreement, the performance by Purchaser of its obligations hereunder and the consummation by Purchaser of the transactions contemplated hereby have been duly authorized on the part of Purchaser. This Agreement has been duly executed and delivered by Purchaser and (assuming due authorization, execution and delivery by Company) this Agreement constitutes a legal, valid and binding obligation of Purchaser enforceable against Purchaser in accordance with its terms.

 

(c)          Purchaser is acquiring the Shares solely for its own account for investment purposes and not with a view to, or for offer or sale in connection with, any distribution thereof. Purchaser acknowledges that the Shares are not registered under the Securities Act, or any state securities laws, and that the Shares may not be transferred or sold except pursuant to the registration provisions of the Securities Act or pursuant to an applicable exemption therefrom and subject to state securities laws and regulations, as applicable.

 

(d)          No governmental, administrative or other third party consents or approvals are required by or with respect to Purchaser in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.

 

(e)          There are no actions, suits, claims, investigations or other legal proceedings pending or, to the knowledge of Purchaser, threatened against or by Purchaser that challenge or seek to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement.

 

(f)          Purchaser understands that the Shares are “restricted securities” and have not been registered under the Securities Act or any applicable state securities law and is acquiring the Shares as principal for its own account and not with a view to, or for distributing or reselling such Shares or any part thereof in violation of the Securities Act or any applicable state securities laws, provided, however , that by making the representations herein, Purchaser does not agree to hold any of the Shares for any minimum period of time and reserves the right, subject to the provisions of this Agreement, at all times to sell or otherwise dispose of all or any part of such Shares pursuant to an effective registration statement under the Securities Act or under an exemption from such registration and in compliance with applicable federal and state securities laws. Purchaser is acquiring the Shares hereunder in the ordinary course of its business. Purchaser does not presently have any agreement, plan or understanding, directly or indirectly, with any Person to distribute or effect any distribution of any of the Shares (or any Shares which are derivatives thereof) to or through any person or entity; Purchaser is not a registered broker-dealer under Section 15 of the Exchange Act or an entity engaged in a business that would require it to be so registered as a broker-dealer.

 

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(g)          At the time Purchaser was offered the Shares, it was, and at the date hereof it is, an “accredited investor” as defined in Rule 501(a) under the Securities Act. Purchaser has previously delivered an Accredited Investor Questionnaire to Company indicating that Purchaser is an “accredited investor.” As of the date of this Agreement, circumstances have not changed such that Purchaser would not be an “accredited investor.”

 

(h)          Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Shares, and has so evaluated the merits and risks of such investment. Purchaser is able to bear the economic risk of an investment in the Shares and, at the present time, is able to afford a complete loss of such investment.

 

(i)          Purchaser acknowledges that it has been afforded (i) the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of Company concerning the terms and conditions of the offering of the Shares and the merits and risks of investing in the Shares; (ii) access to information about Company and its respective financial condition, results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity to obtain such additional information that Company possesses or can acquire without unreasonable effort or expense that is necessary to make an informed investment decision with respect to the investment. Neither such inquiries nor any other investigation conducted by or on behalf of Purchaser or its representatives or counsel shall modify, amend or affect Purchaser’s right to rely on the truth, accuracy and completeness of Company’s representations and warranties contained in this Agreement. Purchaser has sought such accounting, legal and tax advice as it has considered necessary to make an informed decision with respect to its acquisition of the Shares.

 

(j)          Purchaser understands that the Shares are being offered and sold to it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that Company is relying in part upon the truth and accuracy of, and Purchaser’s compliance with, the representations, warranties, agreements, acknowledgements and understandings of Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of Purchaser to acquire the Shares.

 

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(k)          Purchaser understands that no United States federal or state agency or any other government or governmental agency has passed on or made any recommendation or endorsement of the Shares or the fairness or suitability of the investment in the Shares nor have such authorities passed upon or endorsed the merits of the offering of the Shares.

 

(l)          No broker, finder or investment banker is entitled to any brokerage, finder's or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Purchaser.

 

7.           Transfer Restrictions .

 

(a)           Notwithstanding any other provision of this Agreement, Purchaser covenants that the Shares may be disposed of only pursuant to an effective registration statement under, and in compliance with the requirements of, the Securities Act, or pursuant to an available exemption from, or in a transaction not subject to, the registration requirements of the Securities Act, and in compliance with any applicable state and federal securities laws. In connection with any transfer of the Shares other than (i) pursuant to an effective registration statement, (ii) to Company, (iii) to an affiliate of Purchaser, (iv) pursuant to Rule 144 under the Securities Act (“ Rule 144 ”) ( provided that Purchaser provides Company with reasonable assurances (in the form of seller and broker representation letters if required) that the securities may be sold pursuant to such rule) or Rule 144A, (v) pursuant to Rule 144 without the requirement that Company be in compliance with the current public information requirements of Rule 144 and without other restriction following the applicable holding period or (vi) in connection with a bona fide pledge, Company may require the transferor thereof to provide to Company an opinion of counsel selected by the transferor and reasonably acceptable to Company, the form and substance of which opinion shall be reasonably satisfactory to Company, to the effect that such transfer does not require registration of such transferred Shares under the Securities Act. As a condition of transfer, any such transferee shall agree in writing to be bound by the terms of this Agreement and shall have the rights of Purchaser under this Agreement.

 

(b)          Certificates evidencing the Shares shall bear any legend as required by the “Blue Sky” laws of any state and a restrictive legend in substantially the following form until such time as they are not required under Section 7(c) (and a stock transfer order may be placed against transfer of the certificates for the Shares):

 

THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OR (B) AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL REASONABLY SATISFACTORY TO COMPANY.

 

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In addition, if Purchaser is an affiliate of Company, certificates evidencing the Shares issued to Purchaser shall bear a customary “affiliates” legend.

 

(c)          Subject to Company’s right to request an opinion of counsel as set forth in Section 7(a), the legend set forth in Section 7(b) above shall be removable and Company shall issue or cause to be issued a certificate without such legend or any other legend (except for any “affiliates” legend as set forth in Section 7(b)) to the holder of the applicable Shares upon which it is stamped if (i) such Shares are registered for resale under the Securities Act (provided that, if Purchaser is selling pursuant to the effective registration statement registering the Shares for resale, Purchaser agrees to only sell such Shares during such time that such registration statement is effective and not withdrawn or suspended, and only as permitted by such registration statement), (ii) such Shares are sold or transferred in compliance with Rule 144 (if the transferor is not an affiliate of Company), including without limitation in compliance with the current public information requirements of Rule 144 if applicable to Company at the time of such sale or transfer, and the holder and its broker have delivered customary documents reasonably requested by Company’s transfer agent and/or Company counsel in connection with such sale or transfer, or (iii) such Shares are eligible for sale under Rule 144 without the requirement that Company be in compliance with the current public information requirements of Rule 144 and without other restriction and Company counsel has provided written confirmation of such eligibility to the transfer agent. Any fees (with respect to the transfer agent, Company counsel or otherwise) associated with the removal of such legend shall be borne by Company. At such time as a legend is no longer required for certain Shares, Company will no later than three (3) business days following the delivery by Purchaser to Company or the transfer agent (with concurrent notice and delivery of copies to Company) of a legended certificate representing such Shares (endorsed or with stock powers attached, signatures guaranteed, and otherwise in form necessary to affect the reissuance and/or transfer, and together with such other customary documents as the transfer agent and/or Company counsel shall reasonably request), deliver or cause to be delivered to the transferee of Purchaser or Purchaser, as applicable, a certificate representing such Shares that is free from all restrictive and other legends. Company may not make any notation on its records or give instructions to the transfer agent that enlarge the restrictions on transfer set forth in this Section 7(c).

 

(d)          Purchaser hereunder acknowledges its primary responsibilities under the Securities Act and accordingly will not sell or otherwise transfer the Shares or any interest therein without complying with the requirements of the Securities Act. Purchaser acknowledges that the delivery of the Shares and any removal of any legends from certificates representing the Shares as set forth in this Section 7 is predicated on Company’s reliance upon Purchaser’s acknowledgement in this Section 7(d).

 

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8.           Survival . All representations and warranties contained herein shall survive the execution and delivery of this Agreement and the Closing hereunder.

 

9.           Indemnification . Company shall indemnify Purchaser and hold Purchaser harmless against and in respect of any and all losses, liabilities, damages, obligations, claims, Encumbrances, costs and expenses (including, without limitation, reasonable attorneys' fees) incurred by Purchaser resulting from any breach of any representation, warranty, covenant or agreement made by Company herein or in any instrument or document delivered to Purchaser pursuant hereto.

 

10.          Further Assurances . Following the Closing, each of the parties hereto shall execute and deliver such additional documents, instruments, conveyances and assurances, and take such further actions as may be reasonably required to carry out the provisions hereof and give effect to the transactions contemplated by this Agreement.

 

11.          Termination . This Agreement may be terminated at any time prior to the Closing (a) by the mutual written consent of Purchaser and Company or (b) by either Purchaser or Company if (i) a breach of any provision of this Agreement has been committed by the other party and such breach has not been cured within 10 days following receipt by the breaching party of written notice of such breach, or (ii) the Closing does not occur by November 1, 2015. Upon termination, all further obligations of the parties under this Agreement shall terminate without liability of any party to the other parties to this Agreement, except that no such termination shall relieve any party from liability for any fraud or willful breach of this Agreement.

 

12.          Expenses . The Company agrees to pay all reasonable expenses, including legal fees and disbursements, incurred by Purchaser in connection with this Agreement and the transactions contemplated hereby.

 

13.          Notices . All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a " Notice ") shall be in writing and addressed to the parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this section). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or e-mail of a PDF document (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

 

14.          Entire Agreement . This Agreement constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.

 

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15.          Successor and Assigns . This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. No party may assign any of its rights or obligations hereunder without the prior written consent of the other parties hereto, which consent shall not be unreasonably withheld or delayed.

 

16.          Headings . The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.

 

17.          Amendment and Modification; Waiver . This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

 

18.          Severability . If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

 

19.          Governing Law; Submission to Jurisdiction . This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction). Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in the federal courts of the United States or the courts of the State of New York in each case located in the city of New York and County of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or any proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

 

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20.          Counterparts . This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

 

[SIGNATURE PAGE FOLLOWS]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first written above.

 

  TWINLAB CONSOLIDATED HOLDINGS, INC.
     
  By: /s/ Thomas A. Tolworthy
  Name: Thomas A. Tolworthy
  Title: Chief Executive Officer and President

 

 

  MARK KROLOFF
     
  By: /s/ Mark Kroloff
  Mark Kroloff

 

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Exhibit 10.111

 

SURRENDER AGREEMENT

 

This SURRENDER AGREEMENT (this “ Agreement ”) dated as of October 21, 2015, by and between Twinlab Consolidated Holdings, Inc., a Nevada corporation (“ Company ”), and Thomas A. Tolworthy (“ Transferor ”).

 

WITNESSETH :

 

WHEREAS , the Company, on the one hand, and each of the purchasers listed on Exhibit A hereto (each a “ Purchaser ” and collectively, the “ Purchasers ”) respectively, on the other hand, are parties to Stock Purchase Agreements dated October 21, 2015 (the " Purchase Agreements ") pursuant to which the Company shall issue and sell to each Purchaser a number of shares of the Company’s common stock, par value $.001 per share (the “ Common Stock ”), at a purchase price as set forth in Exhibit A, which shall in the aggregate result in the sale of a total of 3,448,276 shares of Common Stock to the Purchasers for an aggregate purchase price of $1,000,000.04;

 

WHEREAS , Transferor is the holder of 48,306,898 shares of Common Stock of which 9,306,898 shares are subject to a Surrender Agreement between the Transferor and the Company, dated September 3, 2014 (the “ Original Surrender Agreement ”);

 

WHEREAS , it is a condition to the consummation of the transactions contemplated by the Purchase Agreements that immediately prior to the consummation of the transactions contemplated thereby that the Transferor contributes, transfers, assigns, conveys and delivers to the Company, and the Company accepts and acquires from Transferor, 3,448,276 shares of Common Stock pursuant to the terms of this Agreement; and

 

WHEREAS , in order to induce the Purchasers to purchase the shares provided for by the Purchase Agreements, the Transferor desires to surrender 3,448,276 shares of Common Stock held by him pursuant to the terms and conditions of this Agreement.

 

NOW, THEREFORE , in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

1.            Surrender of Common Stock .

 

(a)           In consideration of one dollar ($1.00), the receipt and sufficiency of which are hereby acknowledged by Transferor, concurrently with the closing of the transactions contemplated by the Purchase Agreements, Transferor hereby irrevocably agrees to contribute, transfer, assign, convey and deliver to the Company 3,448,276 shares of Common Stock (the “ Surrendered Shares ”), free and clear of any mortgage, pledge, lien, encumbrance, charge, security, security interest or other claim against title; it being agreed that (i) all such Surrendered Shares shall be surrendered pursuant solely to this Agreement and not from shares owned by Transferor and subject to the Original Surrender Agreement, and (ii) 9,306,898 shares held by Transferor shall remain subject to surrender to the Company pursuant to the Original Surrender Agreement. As a result of such surrender and transfer, the parties hereto agree and affirm that Transferor shall have absolutely and irrevocably released any and all of his interests in all of the Surrendered Shares. Concurrently with the execution of this Agreement, the Transferor is delivering to the Company a stock certificate which represents the Surrendered Shares and will execute a stock power if requested by the Company.

 

 

 

 

(b)           The Company agrees that the Surrendered Shares shall be placed in the Company’s treasury to offset shares of Common Stock issued to the Purchasers pursuant to the terms of the Purchase Agreement.

 

2.            Acknowledgements, Representations, Warranties and Agreement of Transferor . In connection with the execution of this Agreement and in order to induce Purchasers to consummate the transactions described above, Transferor hereby represents, warrants and agrees that Transferor has good and marketable title to the Surrendered Shares, free and clear of any mortgage, pledge, lien, encumbrance, charge, security, security interest or other claim against title, other than general restrictions under federal and state securities laws.

 

3.            Covenant of Transferor . From and after the date of this Agreement, Transferor shall execute and deliver (or cause to be executed and delivered) such further instruments of conveyance and transfer and take such additional action as the Company may reasonably request to effect, consummate, confirm or evidence the contribution to the Company of the Surrendered Shares. Transferor hereby agrees to indemnify and hold harmless the Company from any losses or damage, fees, costs or expenses that may be incurred by the Company due to a breach of this Agreement by Transferor.

 

4.            Miscellaneous .

 

(a)           Amendment . Neither this Agreement nor any provision hereof may be changed, waived, discharged or terminated orally or by course of dealing, but only by a statement in writing signed by the party against which enforcement of the change, waiver, discharge or termination is sought.

 

(b)           Notices . All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand; (b) on the first business day following date sent if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent (if such date is a business day at the recipient’s address, otherwise on the next business day at the recipient’s address) by facsimile or e-mail of a PDF document (with confirmation of receipt by recipient); in each case a party’s refusal or willful avoidance of delivery shall be deemed to constitute delivery. Such communications must be sent to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 4(b)):

 

  If to the Company: Twinlab Consolidated Holdings, Inc.
    632 Broadway, Suite 201
    New York, NY 10012
    Facsimile: (212) 505-5413
    E-mail: rneuwirth@twinlab.com
    Attention: General Counsel

 

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  To Transferor: Mr. Thomas Tolworthy
    c/o Twinlab Consolidated Holdings, Inc.
    632 Broadway, Suite 201
    New York, NY 10012
    Facsimile: (212) 505-5413
    E-mail: ttolworthy@twinlab.com

 

(c)           Parties in Interest . All the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto, whether so expressed or not.

 

(d)           Headings . The headings of the sections and paragraphs of this Agreement have been inserted for convenience of reference only and do not constitute a part of this Agreement.

 

(e)           Choice of Law . It is the intention of the parties that the internal laws, and not the laws of conflicts, of the State of New York should govern the enforceability and validity of this Agreement, the construction of its terms and the interpretation of the rights and duties of the parties hereto.

 

(f)           Counterparts . This Agreement and any amendments hereto may be signed in counterparts and, to the extent signed and delivered by means of a facsimile machine or by .pdf, .tif, .gif, .jpeg or similar attachment to electronic mail, shall be treated in all manner and respects as an original contract and shall be considered to have the same binding legal effects as if it were the original signed version thereof delivered in person.

 

(g)           Entire Agreement . This Agreement constitutes the entire agreement between the Company and Transferor with respect to the subject matter hereof and supersedes all prior agreements and understandings related to such subject matter.

 

[ The Remainder of this Page Intentionally Left Blank ]

 

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IN WITNESS WHEREOF, Transferor and the Company have executed this Agreement as of the date first written above.

 

  COMPANY:
   
  Twinlab Consolidated Holdings, Inc.
     
  By: /s/ Richard H. Neuwirth
    Name:  Richard H. Neuwirth
    Title:    Chief Legal Officer & Secretary
     
     
  TRANSFEROR:
   
  THOMAS A. TOLWORTHY
     
  By: /s/ Thomas A. Tolworthy

 

[ Signature Page to Surrender Agreement ]

 

 

 

 

EXHIBIT A

 

    Purchase     Shares  
    Price     Purchased  
             
John Rubini   $ 500,000.02       1,724,138 shares  
                 
Rubini Trust*   $ 250,000.01       862,069 shares  
                 
Clare Bertucio   $ 100,000.12       344,828 shares  
                 
Mark Kroloff   $ 100,000.12       344,828 shares  
                 
Michael Corrigan   $ 49,999.77       172,413 shares  
                 
Total:   $ 1,000,000.04       3,448,276 shares  

 

* Full Name: Jonathan B. Rubini 2009 Family Exempt Trust, created under the Jonathan B. Rubini Family Trust, under trust agreement dated October 9, 2009

 

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