Exhibit 10.1
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT ("Agreement") effective as of the 28th day of
May, 2008, by and between ALTERNECARE HEALTH PRODUCTS, INC. ("Seller"), a
Florida corporation, and CAVIT SCIENCES, INC. ("CAVIT"), a Florida corporation.
W I T N E S S E T H:
WHEREAS, Seller desires to sell and CAVIT desires to purchase certain
assets of the Seller comprising Seller's supplement line and know how regarding
the Seller's supplement line.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained in this Agreement, the parties hereunto
agree as follows:
SECTION 1. SALE AND PURCHASE OF ASSETS.
1.1 TRANSFER OF ASSETS. Upon the terms and subject to the conditions of
this Agreement, CAVIT, will at the Closing (as hereinafter defined) acquire from
Seller the following assets (collectively, the "Assets"):
(a) Inventory (see attached Exhibit A);
(b) Promotional materials, displays and exhibits (see attached Exhibit A);
(c) Customer lists;
(d) Existing relationships with manufacturers and customers;
(f) Trademark (see attached Exhibit A); and
(g) Website(see attached Exhibit A)
1.2 EXCLUDED ASSETS. No assets will be transferred to CAVIT except as
provided in Section 1.1 above.
SECTION 2. NO ASSUMPTION OF LIABILITIES.
From and after the Closing, CAVIT shall not assume nor be liable for any
liabilities of Seller, whether contingent or otherwise, and whether or not such
liabilities are reflected on the books or records of Seller on the date hereof
or on the Closing Date.
SECTION 3. PURCHASE PRICE.
3.1 THE PURCHASE PRICE. The purchase price to be paid by CAVIT for all of
the Assets (the "Purchase Price") will be one hundred fifty thousand dollars
($150,000) comprised of the following:
- $50,000.00 as a note payable (see attached Exhibit C):
- $100,000.00 in CAVIT Stock in the form of 250,000 CAVIT restricted
common shares valued at $.40 per share.
Upon the execution of this Agreement, CAVIT shall execute a consulting
agreement with Xxxxxx Xxxxxxxx ("Xxxxxxxx") (see attached Exhibit D) for agreed
upon services by the parties on behalf of CAVIT in the amount of $2,000 a month
for an initial term of 6 months. $1,000 will be paid to Xxxxxxxx at the
beginning of each of the six months and $6,000 will be paid to Xxxxxxxx at the
end of the six month period. Prior to the six month anniversary of this
Agreement, if additional services are to be provided by Xxxxxxxx for CAVIT, the
parties shall agree upon the terms at that time.
3.2 ALLOCATION OF PURCHASE PRICE. The parties will agree upon the
allocation of the total Purchase Price of $150,000. The parties agree that any
tax returns or other tax information that may be filed with a government agency
shall be prepared and filed consistent with such allocation. CAVIT and Seller
will upon written request to the other, provide the requesting party with those
portions of the appropriate Internal Revenue Service forms which may be required
by the requesting party in connection with an examination of the requesting
party's tax returns.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller makes the representations and warranties to CAVIT set forth below.
4.1 DUE INCORPORATION. Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida.
4.2 CORPORATE POWER OF SELLER. Seller has the full legal right and power
and all authority and approval required to enter into, execute and deliver this
Agreement and to perform fully its obligations hereunder. Seller represents and
warrants that there are no liens or claims on the Assets and that the Assets
have not been pledged or used as security for any debt.
4.3 DUE AUTHORITY. Seller has all power and authority necessary to enable
it to carry out the transactions contemplated by this Agreement. The execution
and delivery of this Agreement and the consummation of the transactions
contemplated by it have been authorized by all necessary corporate action on the
part of Seller. This Agreement is a valid and binding agreement of Seller,
enforceable against Seller in accordance with its terms. Neither the execution
and delivery of this Agreement by Seller nor the consummation of the
transactions contemplated by this Agreement will violate, result in a breach of,
or constitute a default under, any agreement or instrument to which Seller is a
party or by which Seller is bound, or any order, rule or regulation of any court
or governmental agency having jurisdiction over Seller.
4.4 NO CONSENTS. No governmental filings, authorizations, approvals or
consents are required to permit Seller to fulfill all of its obligations under
this Agreement.
4.5 NO BREACH. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby will not (i)
violate any provision of the Articles of Incorporation or By-Laws of Seller;
(ii) violate, conflict with or result in the breach of any of the terms of,
result in a material modification of, otherwise give any other contracting party
the right to terminate, or constitute (or with notice or lapse of time or both)
a default under any contract or other agreement to which Seller is a party;
(iii) violate any order, judgment, injunction, award or decree of any court,
arbitrator or governmental or regulatory body against, or binding upon Seller,
or upon the properties or business of Seller; or (iv) violate any statute, law
or regulation of any jurisdiction applicable to Seller.
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4.6 COMPLIANCE WITH LAWS. Seller has complied in all material aspects with
all federal, state, county and local laws, ordinances, regulations, inspections,
orders, judgments, injunctions, awards or decrees applicable to Seller's
business.
4.7 ACTIONS AND PROCEEDINGS. There is no outstanding order, judgment,
injunction, award or decree of any court, governmental or regulatory body or
arbitration tribunal against or involving the Seller in respect of, or in
connection with, this transaction. There is no action, suit, claim or legal,
administrative or arbitration proceeding or, to the best knowledge of Seller
after due inquiry, any investigation (whether or not the defense thereof or
liabilities in respect thereof are covered by insurance) pending or, to the best
knowledge of Seller, in respect of or in connection with this transaction.
4.8 BROKERS' FEES. Neither seller nor its affiliates have any liability or
obligation to pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement for which CAVIT could
become liable or obligated.
4.9 NON-COMPETE CLAUSE. Seller agrees not to compete with CAVIT during the
term of three years from the date of this Agreement. Seller agrees that no
activity, employment, venture, business or other pursuit of Seller during the
three year non-compete term shall conflict with Seller's obligations under this
Agreement or be adverse to CAVIT'S interests during the three year non-compete
term.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF CAVIT. CAVIT represents and
warrants to Seller as follows:
5.1 DUE INCORPORATION. CAVIT is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida.
5.2 CORPORATE POWER OF CAVIT. CAVIT has the full legal right and power and
all authority and approval required to enter into, execute and deliver this
Agreement and to perform fully its obligations hereunder.
5.3 DUE AUTHORITY. CAVIT has all power and authority necessary to enable it
to carry out the transactions contemplated by this Agreement. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
by it have been authorized by all necessary corporate action on the part of
CAVIT, including shareholder approval, if required. This Agreement is a valid
and binding agreement of CAVIT, enforceable against CAVIT in accordance with its
terms. Neither the execution and delivery of this Agreement by CAVIT nor the
consummation of the transactions contemplated by this Agreement will violate,
result in a breach of, or constitute a default under, any agreement or
instrument to which CAVIT is a party or by which CAVIT is bound, or any order,
rule or regulation of any court or governmental agency having jurisdiction over
CAVIT.
5.4 NO BREACH. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby will not (i)
violate any provision of the Articles of Incorporation or By-Laws of CAVIT; (ii)
violate, conflict with or result in the breach of any of the terms of, result in
a material modification of, otherwise give any other contracting party the right
to terminate, or constitute (or with notice or lapse of time or both) a default
under any contract or other agreement to which CAVIT is a party; (iii) violate
any order, judgment, injunction, award or decree of any court, arbitrator or
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governmental or regulatory body against, or binding upon CAVIT, or upon the
properties or business of CAVIT; or (iv) violate any statute, law or regulation
of any jurisdiction applicable to CAVIT.
5.5 BROKERS' FEES. Neither CAVIT nor its affiliates have any liability or
obligation to pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement for which the Seller
could become liable or obligated.
SECTION 6. CLOSING ITEMS.
6.1 CAVIT'S Deliveries. At Closing, CAVIT shall deliver to Seller the
following documents:
(a) Note payable (see attached Exhibit C)and consulting agreement (see
attached Exhibit D) per Section 3.1 above;
(b) Letter of authorization to CAVIT'S transfer agent for the issuance of
250,000 shares of CAVIT restricted common stock per Section 3.1 above;
(c) A certified copy of a resolution of CAVIT'S Board of Directors
authorizing the execution and delivery of this Agreement and the
purchase of the Assets; and
(d) Other purchase documents: all such documents and instruments as Seller
may reasonably request in connection with the consummation of the
transaction contemplated by this Agreement.
6.2 SELLER'S DELIVERIES. At Closing, Seller shall deliver to CAVIT the
following documents:
(a) A Xxxx of Sale for the Assets in the form of Exhibit B attached hereto
and incorporated herein by reference, executed by Seller;
(b) A copy of a resolution of Seller's Board of Directors authorizing the
execution and delivery of this Agreement and the purchase of the
Assets;
(c) Other purchase documents: all such documents and instruments as CAVIT
may reasonably request in connection with the consummation of the
transaction contemplated by this Agreement;
(d) Executed detailed listing of product inventory, promotional materials,
displays and exhibits, as agreed upon by the parties, for CAVIT'S
approval;
(e) Executed assignment of trademark described in Exhibit A; and
(f) Executed assignment of domain rights and access codes of website
described in Exhibit A.
SECTION 7. INDEMNIFICATION.
7.1 INDEMNIFICATION BY SELLER. Seller shall indemnify, defend, and hold
CAVIT and its representatives, successors, and assigns, harmless from and
against any and all damage, loss, judgments, or liability and all expenses
(including reasonable attorneys' fees) incurred by any of the above-named
persons, resulting from or in connection with:
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(a) the Assets prior to the Closing Date, or
(b) Any material breach by Seller or any representation or covenant made
by Seller in, or any obligation of Seller under this Agreement.
7.2 INDEMNIFICATION BY CAVIT. CAVIT shall indemnify, defend, and hold
Seller and its representatives, successors, and assigns, harmless from and
against any and all damage, loss, judgments, or liability and all expenses
(including reasonable attorneys' fees) incurred by any of the above-named
persons, resulting from or in connection with any material breach by CAVIT or
any representation or covenant made by CAVIT in, or any obligation of CAVIT
under this Agreement.
SECTION 8. TERM AND TERMINATION
8.1 TERM. This Agreement shall become effective on the Effective Date and
shall remain in effect, unless earlier terminated pursuant to this Section 8.
8.2 TERMINATION FOR BREACH.
(a) BREACH OF CONSULTING AGREEMENT OR NOTE. If Xxxxxx Xxxxxxxx breaches
the Consulting Agreement with CAVIT, then such breach shall constitute
a breach of this Agreement. If CAVIT breaches the $50,000 note payable
to Seller ("Note") by defaulting on its payment terms, then such
breach shall constitute a breach of this Agreement.
(b) NOTICE. If either Party believes that the other is in material breach
of this Agreement with respect to one or more terms or conditions
hereof, then the Party holding such belief (the "Non-breaching Party")
may deliver written notice of such breach to the other Party (the
"Notified Party"). The Notified Party shall have thirty (30) days to
cure such breach to the extent involving non-payment of amounts due
hereunder, and thirty (30) days to either cure such breach for all
other material breaches, or, if cure of such breach other than
non-payment cannot reasonably be effected within such period, to
deliver to the Non-breaching Party a plan reasonably calculated to
cure such breach within a timeframe that is reasonably prompt in light
of the circumstances then prevailing. Following delivery of such a
plan, the notified Party shall devote Diligent Efforts to carry out
the plan and cure the breach. For purposes of this Section 8.2(b), a
breach by Xxxxxx Xxxxxxxx of the Consulting Agreement with CAVIT shall
constitute a breach of this Agreement and CAVIT shall give the above
notice to Seller and to Xxxxxx Xxxxxxxx and if the breach of the
Consulting Agreement is not cured within the above period of time,
then CAVIT may take whatever action it deems necessary against both
Seller and Xxxxxx Xxxxxxxx in accordance with this Section 8 and/or
the Consulting Agreement. For purposes of this Section 8.2(b), a
breach by CAVIT of the Note by defaulting on its payment terms, then
such breach shall constitute a breach of this Agreement and Seller
shall give the above notice to CAVIT and if the breach of the Note is
not cured within the above period of time, then Seller may take
whatever action it deems necessary against CAVIT in accordance with
this Section 8 and/or the Note.
(c) FAILURE TO CURE. If the Notified Party fails to cure a material breach
of this Agreement as provided for in Section 8.2(a), the Non-breaching
Party may terminate this Agreement either in its entirety or with
respect to one or more Products upon written notice to the Notified
Party.
8.3 TERMINATION FOR BANKRUPTCY/INSOLVENCY. Either Party may terminate this
Agreement (i) if, at any time, the other Party files in any court or agency
pursuant to any statute or regulation of any state or country, a petition in
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bankruptcy or insolvency or for reorganization or for an arrangement or for the
appointment of a receiver or trustee of Party or of its assets, or (ii) if the
other Party proposes a written agreement of composition or extension of its
debts, or (iii) if the other Party is served with an involuntary petition
against it, filed in any insolvency proceeding, and such petition is not
dismissed within sixty (60) days after the filing thereof, or (iv) if the other
Party proposes or is a party to any dissolution or liquidation, or (v) if the
other Party makes an assignment for the benefit of creditors.
8.4 SELLER'S RIGHTS UPON CERTAIN TERMINATIONS OF THE AGREEMENT OR AS TO
CERTAIN ASSETS OR Products. If Seller terminates this Agreement pursuant to
Section 8.2 for CAVIT'S material breach of this Agreement, in whole or in part,
then:
(a) REVERTED PRODUCTS. All Assets and Products, acquired pursuant to this
Agreement, shall thereafter be deemed to be "Reverted Products" and
shall become the sole property of Seller, after the Seller has
reimbursed CAVIT for all expenditures disbursed or accrued by CAVIT
relating to the Reverted Products.
(b) TRADEMARK LICENSE. After the applicable termination of this Agreement,
CAVIT shall immediately discontinue all use of the Seller's
intellectual property, including any trademarks or service marks.
CAVIT shall execute any documents required to assign its interest in
and to seller's intellectual property, and any goodwill that CAVIT has
acquired or developed in any of the foregoing, to Seller, after the
Seller has reimbursed CAVIT for all expenditures disbursed or accrued
by CAVIT relating to the intellectual property and goodwill that has
been developed.
(c) NOTE PAYABLE. After the applicable termination of this Agreement,
Seller shall release CAVIT from any remaining liabilities associated
with the note payable (see attached Exhibit C).
8.5 CAVIT'S RIGHTS UPON CERTAIN TERMINATIONS OF THE AGREEMENT. If CAVIT
terminates this Agreement pursuant to Section 8.2 for Seller's material breach
of this Agreement, in whole or in part, then:
(a) ASSETS AND PRODUCTS. All Assets and Products, acquired pursuant to this
Agreement, shall thereafter remain the sole property of CAVIT and the Seller
shall release CAVIT from any remaining liabilities associated with the note
payable (see attached Exhibit C).
SECTION 9. FURTHER ASSURANCES. The parties shall execute such documents and
other papers and take such further actions as may be reasonably required or
desirable to carry out the provisions hereof and the transactions contemplated
hereby. In addition and following the Closing, CAVIT and Seller shall grant to
the other reasonable access to the books and records of the Business so as to
permit, if necessary, the filing of tax returns, audits of tax returns or other
bona fide purposes.
SECTION 10. MISCELLANEOUS.
10.1 NOTICES. Any notice of other communication required or which may be
given hereunder shall be in writing and shall be delivered personally,
telegraphed, telexed, sent by facsimile transmission or sent by certified,
registered, or express mail, postage prepaid and shall be deemed given when so
delivered personally, telegraphed, telexed or sent by facsimile transmission or
if mailed, four (4) days after the date of mailing, as follows:
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If to Seller: Alternecare Products, Inc.
00000 Xxxxxxxxx 00xx Xx. Xxxxx 000
Xxxxxx Xxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxxxxx
Tel: 000-000-0000
If to CAVIT: Cavit Sciences, Inc.
0000 Xxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxx, CEO
Tel: 000-000-0000
Fax: 000-000-0000
Any party may be given notice in accordance with this Section if the receiving
party designates another address or person for receipt of notice hereunder, in
writing, to the party giving notice.
10.2 ENTIRE AGREEMENT. This Agreement (including the Exhibits hereto) and
any collateral agreements executed in connection with the consummation of the
transactions contemplated herein contain the entire agreement among the parties
with respect to the subject matter hereof and related transactions, and
supersede all prior agreements, written or oral, with respect thereto.
10.3 WAIVERS AND AMENDMENTS. This Agreement may be amended, modified,
superseded, cancelled, renewed or extended, and the terms and conditions hereof
may be waived, only by a written instrument signed by the parties or, in the
case of a waiver, by the party waiving compliance.
10.4 REMEDIES NOT EXCLUSIVE. The rights and remedies herein provided are
cumulative and are not exclusive of any rights or remedies which any party may
otherwise have at law or in equity. The rights and remedies of any party based
upon, arising out of or otherwise in respect of any inaccuracy in or breach of
any representation, warranty, covenant or agreement contained in this Agreement
shall in no way be limited by the fact that the act, omission, occurrence or
other state of facts upon which the claim of any inaccuracy or breach is based
may also be the subject matter of any other representation, warranty, covenant
or agreement contained in this Agreement (or in any other agreement between the
parties) as to which there is no inaccuracy or breach.
10.5 ARBITRATION. All disputes, controversies or claims arising out of,
or relating to, this agreement, or the making, performance or interpretation of
this agreement among the parties shall be finally and conclusively settled by
binding arbitration. A party to a dispute may commence an arbitration of the
dispute by notifying the other party to the dispute in writing of its desire to
submit the dispute to arbitration and such dispute will be submitted to
arbitration in accordance with the following:
(a) The arbitration will be conducted by a single arbitrator agreed to by
the parties, and if no agreement is reached within 30 days after the notice
which requested the arbitration, the appointment shall be made, on request of a
party, by the applicable court in the county of Palm Beach, State of Florida.
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(b) The parties agree that the decision of the arbitrator, including any
decision as to costs shall be final and shall not be appealed, provided that the
party prevailing in the arbitration shall be permitted to initiate and prosecute
judicial proceedings to enforce the award of the arbitrator. Each of the parties
hereby agrees that it shall submit to the jurisdiction of any court in which
such judicial enforcement proceedings are brought.
(c) Except as expressly provided herein, all arbitrations will be conducted
according to the laws governing commercial arbitrations in the State of Florida.
Any dispute referred to arbitration will be dealt with on an expeditious basis
with both parties using all reasonable commercial efforts to obtain and
implement a timely decision of the arbitrator.
(e) All costs of arbitration under this section shall be paid by the
parties to the dispute being arbitrated in such amount and proportions as the
arbitrator may determine. If the arbitrator does not make an award of costs, the
parties shall bear the costs of the arbitration equally and each party shall
bear its own costs.
(f) Unless otherwise mutually agreed by the parties, the place of
arbitration shall be Palm Beach County, State of Florida.
10.6 EXHIBITS. The exhibits to this Agreement are a part of this Agreement
as if set forth in full herein.
10.7 HEADINGS. The headings in this Agreement are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Agreement.
10.8 SEVERABILITY. If any term or provision of this Agreement, or the
application thereof to any person or circumstance shall, to any extent, be
determined by a court of competent jurisdiction to be invalid or unenforceable,
the remainder of this Agreement or the application of such term or provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this Agreement shall be valid and enforced to the fullest extend permitted by
law.
10.9 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed, shall constitute an original copy
hereof, but all of which together shall constitute but one and the same
document.
10.10 NO ASSIGNMENT. Neither this Agreement nor the Note (see Exhibit C)
may be assigned to a third party, except by operation of law, without the
written consent of the non-assigning parties which consent shall not be
unreasonably withheld.
10.11 FURTHER ASSURANCES. The parties shall execute such documents and
other papers and take such further actions as may be reasonably required or
desirable to carry out the provisions hereof and the transactions contemplated
hereby. In addition, and following the Closing, CAVIT and Seller shall grant to
the other reasonable access to the books and records of the Business so as to
permit, if necessary, the filing of tax returns, audits of tax returns or other
bona fide purposes.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
Cavit Sciences, Inc.
By: /s/ Xxxx X. Xxxx
-------------------------------
Name: Xxxx X. Xxxx
Title: President and CEO
Date: May 28, 2008
Alternecare Health Products, Inc.
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxxx
Title: President
Date: May 28, 2008
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EXHIBIT A
ASSET SCHEDULE
(a) INVENTORY:
Palletized cases containing approximately 7,000 containers of 11 of
Alternecare's products.
(b) PROMOTIONAL MATERIALS, DISPLAYS AND EXHIBITS:
Palletized items consisting of Alternecare's product brochures, kit
brochures, test brochures, counter displays, floor displays, booklets and
trade show display booth set up.
(f) TRADEMARK:
ALTERNECARE HEALTH PRODUCTS
(g) WEBSITE:
xxx.xxxxxxxxxxx.xxx
A-1
EXHIBIT B
XXXX OF SALE
KNOW ALL MEN BY THESE PRESENTS that ALTERNECARE HEALTH PRODUCTS, INC., a
Florida corporation ("Seller"), in consideration of that certain Asset Purchase
Agreement dated as of May 28, 2008 between CAVIT SCIENCES, INC., a Florida
corporation ("Purchaser"), and Seller (the "Purchase Agreement"), and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, has granted, conveyed, assigned, transferred and delivered to
Purchaser and by these presents does grant, convey, assign, transfer and deliver
to Purchaser, all of Seller's right, title, interest and benefit in and to the
Assets (as defined in the Purchase Agreement) free and clear of any and all
liabilities, liens, encumbrances, mortgages, security interests, pledges,
restrictions and claims of any kind or nature, contingent or otherwise, except
as expressly provided in the Purchase Agreement.
TO AND TO HOLD the same unto Purchaser, its successor and assigns forever.
AND Seller does, for itself and its successors and assigns, hereby
represents, warrants, covenants and agrees to and with Purchaser, its successors
and assigns, that it is the lawful owner of the Assets; that they are free from
any and all encumbrances, except as expressly provided in the Purchase
Agreement; that it has good and valid right to bargain, grant, transfer, convey
and deliver the same to Purchaser; and that it will warrant and defend title to
the Assets, unto Purchaser, its successors and assigns, against the lawful
claims and demands of all persons whomsoever.
Seller hereby constitutes and appoints Purchaser, its successors and
assigns, the true and lawful attorney or attorneys of Seller, with full power of
substitution, in the name of Purchaser or in the name of Seller, but by and on
behalf of and for the sole benefit of Purchaser, its successors and assigns, to
demand and receive from time to time any and all of the Assets, and from time to
time to institute and prosecute, in the name of Seller or otherwise, any and all
proceedings at law, in equity or otherwise which Purchaser or its successors
assigns may deem necessary or desirable in order to receive, collect, assert or
enforce any claim, right or title of any kind in or to the Assets hereby
transferred, assigned and conveyed to Purchaser and to defend and compromise any
and all actions, suits or proceedings in respect thereof and to do all such acts
and things and execute any instruments in relation thereto as Purchaser or its
successors or assigns shall deem advisable. Seller agrees that the foregoing
appointment made and the powers hereby granted are coupled with an interest and
shall be irrevocable by Seller or by its dissolution or in any manner or for any
reason.
Seller covenants and agrees that in the event that either (i) any of the
Assets covered in this Xxxx of Sale cannot be transferred or assigned by it
without the consent of or notice to a third party and in respect of which any
necessary consent or notice has not as of the date of delivery of this Xxxx of
Sale been given or obtained, or (ii) any such Assets are nonassignable in their
nature and will not pass by this Xxxx of Sale, the beneficial interest in and to
the same will in any event pass to Purchaser; and Seller covenants and agrees
(a) to hold, and hereby declare that it holds, such Assets in trust for, and for
the benefit of, Purchaser, (b) to use all reasonable means to obtain and to
secure such consent and give such notice as may be required to effect a valid
transfer or transfers of such Assets, and (c) to make or complete such transfer
or transfers as soon as reasonably possible.
B-1
Seller, for itself and its successors and assigns, further covenants and
agrees that it will at any time and from time to time, at the request of
Purchaser, its successors or assigns, do, execute and deliver, or cause to be
done, executed or delivered, all such further acts, transfers, assignments and
conveyances, for the better assuring, conveying and confirming unto Purchaser,
its successors or assigns, full right, title, interest and benefit in or to the
Assets as Purchaser, its successors or assigns shall reasonably require.
All of the terms and provisions of this Xxxx of Sale shall be binding upon
Seller and its successors and assigns and shall inure to the benefit of
Purchaser and its successors and assigns.
IN WITNESS WHEREOF, Seller has caused this Xxxx of Sale to be signed in its
name by its officer thereunto duly authorized and its corporate seal to be
hereunto affixed as of the 28th day of May 2008.
Alternecare Health Products, Inc.
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------------------
Xxxxxx Xxxxxxxx, President
B-2
EXHIBIT C
NOTE
MAY 28, 2008
1. BORROWER'S PROMISE TO PAY
In consideration for the sale, assignment and transfer of certain assets to
the undersigned by Alternecare Health Products, Inc. ("Holder") pursuant to that
certain Asset Purchase Agreement dated as of May 28, 2008, we ("Maker") promise
to pay U.S. $50,000.00 (this amount is called "principal") and interest, to the
order of the Holder pursuant to the following terms:
(1) This Corporate Promissory Note shall bear interest at the rate of 5%
per annum and shall be payable on or before One (1) year from date.
(2) This Corporate Promissory Note shall be paid with Maker's available
funds resulting from additional financing or revenue received by Maker. Funds to
pay this Note will be deemed available funds if payments toward this Note from
the funds will not, in Maker's opinion, impair the operations of Maker.
2. BORROWER'S RIGHT TO PREPAY
Maker has the right to make payments of principal and interest at any time
before they are due. A payment of principal only is known as a "prepayment."
When Maker tenders a prepayment, Maker will tell the Holder in writing that we
are doing so.
3. BORROWER'S FAILURE TO PAY AS REQUIRED
(A) DEFAULT
If Maker does not pay the principal balance of this Note pursuant to its
terms, Maker will be in default.
(B) NOTICE OF DEFAULT
If Maker is in default, the Holder may send us a written notice telling us
that if Maker will not pay the overdue amount by a certain date, the Holder may
require Maker to pay immediately the full amount of principal which has not been
paid.
(C) PAYMENT OF HOLDER'S COST AND EXPENSES
If the Holder has required Maker to pay immediately in full as described
above, the Note Holder will have the right to be paid back by Maker for all of
its costs and expenses in enforcing this Note to the extent not prohibited by
applicable law. Those expenses include, for example, reasonable attorney's fees.
Notwithstanding the foregoing, in the event that Maker is unable to raise equity
capital in an amount sufficient to pay this Note in full on the maturity date,
and Maker has used its best efforts to raise such equity capital, then Maker
shall execute appropriate assignments, bills of sale, etc. necessary to cause
the assets acquired from Holder by Maker to become the sole property of Holder,
whereupon this Note shall be cancelled and no money shall be due from Maker
hereunder.
C-1
4. GIVING OF NOTICES
Unless applicable law requires a different method, any notice that must be
given to the Maker under this Note will be given by delivering it or by mailing
it by first class mail to us at 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxx 000, Xxxx Xxxxx,
Xxxxxxx 00000.
5. NO RIGHT TO ASSIGN
Holder may not assign or transfer this Note to any third party.
WITNESS THE HAND OF THE UNDERSIGNED.
Cavit Sciences, Inc.
By: /s/ Xxxx X. Xxxx
-------------------------------
Xxxx X. Xxxx, President and CEO
C-2
EXHIBIT D
AGREEMENT TO ENGAGE XXXXXX XXXXXXXX
AS CONSULTANT
Xxxxxx Xxxxxxxx ("Xxxxxxxx" or the "Consultant"), hereby submits to CAVIT
Sciences, Inc. ("CAVIT" or the "Company') this Consulting Agreement (the
"Agreement") outlining the terms pursuant to which Xxxxxxxx would be willing to
act as Consultant.
I. ENGAGEMENT
CAVIT hereby engages and retains Xxxxxxxx as Consultant to perform the
Services (as that term is hereinafter defined) and Xxxxxxxx hereby accepts
such appointment on the terms and subject to the conditions hereinafter set
forth and agrees to use his best efforts in providing such services.
II. INDEPENDENT CONTRACTOR
Xxxxxxxx shall be, and in all respects be deemed an independent contractor
in the performance of his duties hereunder, any law of any jurisdiction to
the contrary notwithstanding.
A. In relation to any income tax to be paid on the compensation stated in
this Agreement, Xxxxxxxx shall be solely responsible for making all
payments on behalf of himself, including those required by law, and
CAVIT shall in no event be liable for any debts or other liabilities
of Xxxxxxxx.
X. Xxxxxxxx shall not, by reason of this Agreement or the performance of
the Services, be or be deemed to be, an employee, agent, partner,
co-venturer or controlling person of CAVIT, and Xxxxxxxx shall have no
power to enter into any agreement on behalf of, or otherwise bind
CAVIT. Without limiting the foregoing, Xxxxxxxx shall not enter into
any contract or commitment on behalf of CAVIT.
C. Subject to Section II D hereof, Xxxxxxxx shall not have or be deemed
to have, fiduciary obligations or duties to CAVIT and shall be free to
pursue, conduct and carry on for his own account (or for the account
of others) such activities, employments, ventures, businesses and
other pursuits as Xxxxxxxx in its sole, absolute and unfettered
discretion, may elect.
D. Notwithstanding the above, no activity, employment, venture, business
or other pursuit of Xxxxxxxx during the term of this agreement shall
conflict with Xxxxxxxx'x obligations under this Agreement or be
adverse to CAVIT'S interests during the term of this Agreement.
D-1
III. SERVICES
Xxxxxxxx agrees to serve as Consultant to CAVIT and to provide and/or
perform the following, hereafter collectively referred to as the
"Services":
A. Assist CAVIT in efforts to advance its lines of supplement products,
provide guidance, advice and assistance regarding the general
direction of the Company and to provide advice in regard to CAVIT'S
goal of seeking contacts and introductions with supplement
manufacturers, distributors and customers and additional
business/business relationships that will be of benefit to CAVIT.
Participate, consult with, advise and assist CAVIT and/or any of its
affiliates in its negotiations in pursuing a form of Business
Combination with CAVIT. As used in this Agreement, the term "Business
Combination" shall be deemed to mean any form of merger, acquisition,
joint venture, licensing agreement, product sales and/or marketing,
distribution, combination and/or consolidation, etc. involving CAVIT
and/or any of its affiliates and any other entity. As used herein, the
term "investment" shall include the contribution of anything of value
by a Candidate to CAVIT, its subsidiaries or affiliates.
B. Assist CAVIT with its business development by assisting in the
preparation of CAVIT"S business plan, marketing plan, budgets, and
various presentations relating primarily to the MD Solution and
Alternecare product lines.
C. Assist CAVIT with the execution of its marketing and branding plans.
X. Xxxxxxxx shall devote such time and effort, as the parties deem
commercially reasonable and adequate under the circumstances to the
affairs of CAVIT to render the consulting services contemplated by
this agreement. Xxxxxxxx is not responsible for the performance of any
services, which may be rendered hereunder without CAVIT providing the
necessary information in writing prior thereto, nor shall Xxxxxxxx
include any services that constitute the rendering of any legal
opinions or performance of work that is in the ordinary purview of a
Certified Public Accountant. Xxxxxxxx cannot guarantee results on
behalf of CAVIT, but shall pursue all reasonable avenues available
through his network of contacts. At such time as an interest is
expressed by a third party in CAVIT'S needs, Xxxxxxxx shall notify
CAVIT and consult with and advise it as to the source of such interest
and any terms and conditions of such interest. The acceptance and
consumption of any transaction is subject to acceptance of the terms
and conditions by CAVIT in its sole discretion. It is understood that
the compensation paid hereunder is being paid by CAVIT to have
Xxxxxxxx remain available to participate with, consult with, advise
and assist CAVIT on transactions on an as-needed basis, during the
term of this Agreement.
D-2
E. In conjunction with the Services, Xxxxxxxx agrees to:
1. Make himself available for telephone conferences, meetings and
work sessions with the employees and associates of CAVIT during
normal business hours, when the Services for CAVIT are not
conflicting with Xxxxxxxx'x other business ventures.
2. Consult with, advise and assist CAVIT'S management in evaluating
presentations and proposals and participating in presentations
with Candidate(s).
3. Attend and participate in meetings between CAVIT and
manufacturers, distributors, customer Candidates and other third
parties as required.
4. Assist in development of CAVIT'S distribution channels.
IV. EXPENSES
Expenses incurred by Xxxxxxxx in the rendering of his services hereunder
shall be paid by Xxxxxxxx, unless authorized by CAVIT, in writing that the
expenses will be paid by CAVIT, during the term of this Agreement
V. COMPENSATION
CAVIT agrees that Xxxxxxxx shall be entitled to compensation as follows:
Xxxxxxxx shall receive $12,000 per the following schedule:
$1,000 at the beginning of each month upon execution of this Agreement; and
$6,000 on the six month anniversary of the execution of this Agreement.
VI. REPRESENTATIONS, WARRANTIES AND COVENANTS
X. Xxxxxxxx acknowledges that by the very nature of his relationship with
CAVIT he will, from time to time, have knowledge of or access to
material non-public information (as such term is defined by the
Exchange Act) Xxxxxxxx hereby agrees and covenants that:
1. Xxxxxxxx will utilize his commercially reasonable efforts to
safeguard and prevent the dissemination of such information to
third parties unless authorized in writing by CAVIT to do so as
may be necessary in the performance of its Services under this
Agreement.
2. Xxxxxxxx will not, in any way, utilize or otherwise include such
information, in actual form or in substantive content, in its
analysis for, preparation of or release of any CAVIT literature
or other communication(s) relating to CAVIT, including, but not
limited to: Press Releases, letters to investors and telephone or
other personal communication(s) with potential or current
investors.
D-3
B. The execution, delivery and performance of this Agreement, in the time
and manner herein specified, will not conflict with, result in a
breach of, or constitute a default under any existing agreement,
indenture, or other instrument to which either CAVIT or Xxxxxxxx is a
party or by which either entity may be bound or affected.
C. Both CAVIT and Xxxxxxxx have full legal authority to enter into this
Agreement and to perform the same in the time and manner contemplated.
VII. TERM, TERMINATION AND OPTION
The term of this Agreement shall be for six months from the execution of
this Agreement. Upon termination of this Agreement, no further payments
shall be due to Xxxxxxxx by CAVIT. Prior to the termination of this
Agreement, both CAVIT and Xxxxxxxx have agreed to discuss the terms of a
potential relationship between the parties on a continuing basis.
VIII. CONFIDENTIAL DATA
Xxxxxxxx shall not divulge to others, any trade secret or confidential
information, knowledge, or data concerning or pertaining to the business
and affairs of CAVIT, obtained by Xxxxxxxx as a result of his engagement
hereunder, unless authorized, in writing by CAVIT. CAVIT shall not divulge
to others, any trade secret or confidential information, knowledge, or data
concerning or pertaining to the business and affairs of Xxxxxxxx, obtained
as a result of its engagement hereunder, unless authorized, in writing, by
Xxxxxxxx.
Xxxxxxxx shall not be required in the performance of his duties to divulge
to CAVIT, or any officer, director, agent or employee of CAVIT, any secret
or confidential information, knowledge, or data concerning any other
person, firm or entity (including, but not limited to, any such person,
firm or entity which may be a competitor or potential competitor of CAVIT
which Xxxxxxxx may have or be able to obtain other than as a result of the
relationship established by this Agreement.
IX. OTHER MATERIAL TERMS AND CONDITIONS
INDEMNITY. The parties hereto agree to provide indemnification to each
other.
PROVISIONS. Neither termination nor completion of the assignment shall
affect the provisions of this Agreement, and the Indemnification
Provisions, which are incorporated herein, which shall remain operative and
in full force and effect.
D-4
ADDITIONAL INSTRUMENTS. Each of the parties shall from time to time, at the
request of others, execute, acknowledge and deliver to the other party any
and all further instruments that may be reasonably required to give full
effect and force to the provisions of this Agreement.
ENTIRE AGREEMENT. Each of the parties hereby covenants that this Agreement,
together with the exhibits attached hereto as earlier referenced, is
intended to and does contain and embody herein all of the understandings
and agreements, both written or oral, of the parties hereby with respect to
the subject matter of this Agreement, and that there exists no oral
agreement or understanding or expressed or implied liability, whereby the
absolute, final and unconditional character and nature of this Agreement
shall be in any way invalidated, empowered or affected. There are no
representations, warranties or covenants other than those set forth herein.
Notwithstanding anything to the contrary in this paragraph, a breach by
Xxxxxxxx of this Agreement shall constitute a breach by Alternecare Health
Products, Inc. of the Asset Purchase Agreement with CAVIT (to which a copy
of this Agreement is attached as Exhibit D).
DISPUTES.All disputes, controversies or claims arising out of, or relating
to, this Agreement, or the making, performance or interpretation of this
Agreement among the parties shall be finally and conclusively settled by
binding arbitration. The arbitration will be conducted by a single
arbitrator, agreed to by the parties, in the county of Palm Beach, State of
Florida
ASSIGNMENTS. The benefits of the Agreement shall inure to the respective
successors and assignees of the parties hereto and of the indemnified
parties hereunder and their successors and assigns and representatives, and
the obligations and liabilities assumed in this Agreement by the parties
hereto shall be binding upon their respective successors and assigns,
provided that the rights and obligations of CAVIT under this Agreement may
not be assigned or delegated without the prior written consent of Xxxxxxxx,
and any such purported assignment shall be null and void. Notwithstanding
the foregoing, Xxxxxxxx may assign any portion of his Compensation as
outlined herein to his employees, affiliates, sub-contractors or
subsidiaries in his sole discretion.
ORIGINALS. This Agreement may be executed in any number of counterparts,
each of which so executed shall be deemed an original and constitute one
and the same agreement. Facsimile copies with signatures shall be given the
same legal effect as an original.
ADDRESSES OF PARTIES. Each party shall at all times keep the other informed
of its principal place of business if different from that stated herein,
and shall promptly notify the other of any change, giving the address of
the new place of business or residence.
D-5
MODIFICATION AND WAIVER. A modification or waiver of any of the provisions
of this Agreement shall be effective only if made in writing and executed
with the same formality as this Agreement. The failure of any party to
insist upon strict performance of any of the provisions of this Agreement
shall not be construed as a waiver of any subsequent default of the same or
similar nature or of any other nature.
APPROVED AND AGREED:
Xxxxxx Xxxxxxxx Cavit Sciences, Inc.
/s/ Xxxxxx Xxxxxxxx /s/ Xxxx X Xxxx
----------------------------------- -----------------------------------
Xxxxxx Xxxxxxxx By: Xxxx X Xxxx
Its: CEO
5/28/2008 5/28/2008
--------- ---------
Date of execution Date of execution
D-6
