Exhibit 10
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT by and between VIRIDAX CORPORATION,, a
Florida corporation, hereinafter sometimes referred to as "Viridax" ) and
MYCOBIS CORPORATION, a State of Washington corporation, ( hereinafter sometimes
referred to as "Mycobis").
WHEREAS, Mycobis desires to sell certain bacteriophage-based products
used for the treatment of certain infections to Viridax, including the
technological support required for the legally approved application of such
products, under the terms and conditions as hereinafter set forth in this
Agreement; and
WHEREAS, Viridax is willing to purchase the said products as identified
herein under the terms and conditions as hereinafter set forth in this
Agreement; and
WHEREAS, the respective board of directors of both corporations have
approved and adopted this Agreement and the transactions contemplated thereby,
NOW THEREFORE, under the mutual covenants and conditions as contained
herein and for other good and valuable consideration, receipt of which is
mutually acknowledged, it is agreed as follows:
ARTICLE 1. RECITALS
The parties hereto agree that the foregoing recitals are true and
correct and incorporated herein by this reference.
ARTICLE 2. ASSETS TO BE PURCHASED AND SUPPORT
The assets being purchased pursuant to this Agreement consist of
biological materials identified as Staphylococcus aureus Bacteriophages (Lytic
Product Candidate Phages, R1, R2 and R2), all as more particularly described as
Exhibit "A" as attached to and incorporated into this Agreement including a
referenced General Conveyance Agreement and Xxxx of Sale attached to and
incorporated into this Agreement, identified as Exhibit "B". It is understood
and agreed that Mycobis, acting through its directors and officers, shall
provide such technological and administrative support as shall be necessary for
Viridax to take the assets as purchased from the existing stage through to
commercial realization.
ARTICLE 3. PURCHASE PRICE AND ISSUANCE OF
The purchase price for all assets being purchased under this Agreement
is Two Million (2,00,000) shares of the voting common stock of Viridax,
represented by a stock certificate duly issued by Viridax in the name of
"MYCOBIS CORPORATION"
The shares as issued are duly authorized but previously unissued shares
of Viridax and are "restricted securities" as defined by Rule 144 of the Rules
and Regulations promulgated the United States Securities and Exchange Commission
under the Securities Act of 1933, as amended. Mycobis represents herein that it
is acquiring said shares for investment purposes only. The shares as issued
under this Agreement are being issued pursuant to an exemption from the
registration requirements of the Securities Act of 1933, as amended, under
Section 4(2) thereof and the Rules and Regulations promulgated thereunder, The
certificate representing the shares acquired by Mycobis shall bear a restrictive
legend in the following form:
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"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT" ), THE SECURITIES HAVE
BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF A CURRENT AND EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT WITH RESPECT TO SUCH SHARES OR AN OPINION OF THE
ISSUER'S COUNSEL TO THE EFFECT THAT REGISTRATION IS NOT REQUIRED UNDER THE ACT."
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF VIRIDAX
Viridax hereby represents, warrants and agrees that:
SECTION 4.1. Organization, Good Standing and Corporate Power of
Viridax. Viridax is a corporation duly organized, validly existing and presently
in good standing under the laws of the State of Florida, is duly qualified to do
business and is in good standing as a foreign corporation in each jurisdiction
in which such qualification is necessary, and has the corporate power and
authority to own its properties and assets and to transact the business in which
it is engaged.
SECTION 4.2. Capitalization of Viridax. The authorized capital stock of
Viridax consists of 50,000,000 shares of common stock, par value $0.001 per
share, of which 3,900,000 shares are issued and outstanding. All shares of
Viridax stock currently issued and outstanding have been duly authorized,
validly issued and are fully paid and non-assessable. There are no preemptive
rights, or other outstanding rights, options, warrants conversion rights, stock
appreciation rights, redemption rights, repurchase rights, calls, agreements or
commitments of any character obligating Viridax to issue any shares of its
capital stock or any security representing the night to acquire, purchase or
otherwise receive any such stock. The Viridax shares when issued pursuant to
this Agreement, will be duly authorized, validly issued, fully paid, and
non-assessable.
SECTION 4.3. Charter Documents. Copies of Viridax's Articles of
Incorporation and By-Laws and amendments thereto, have been made available to
Mycobis prior to the date hereof.
SECTION 4.4. Corporate Documents. The most recent Viridax shareholders'
list and corporate minute books, which have been made available to the Company,
are complete and accurate as of the date hereof, and the corporate minute books
contain the recorded minutes of all corporate meetings of shareholders and
directors. There are no shareholder agreements, voting agreements, registration
right agreements or other such agreements among shareholders or with Viridax.
SECTION 4.5. Corporate Authority. Viridax has all requisite corporate
power and authority and has taken all corporate actions necessary in order to
execute, deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated herein, including obtaining the
approval of this Agreement by its Board of Directors. The execution and delivery
of this Agreement, the consummation of the transactions contemplated hereby and
compliance by Viridax with the provisions hereof will not:
(a) Conflict with or result in a breach of any provisions of, or
constitute a default (or an event which, with notice or lapse of time or both,
would constitute a default) under or result in the creation of any lien,
security interest, charge or encumbrance upon any of the properties or assets of
Viridax under, any of the terms, conditions or provisions of the Articles of
Incorporation or By-Laws of Viridax, or any note, bond, mortgage, indenture,
license, lease, agreement or any instrument or obligation to which Viridax is a
party or by which it is bound, or
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(b) Violate any order, writ, injunction, decree, statute, rule or
regulation applicable to Viridax or any of its properties or assets. Assuming
due execution and delivery by the parties hereto, this Agreement is the valid
and binding agreement of Viridax enforceable against Viridax in accordance with
its respective terms, except as such enforceability may be limited by applicable
bankruptcy laws or creditors' rights generally or by general principles of
equity.
SECTION 4.6. Absence of Certain Changes. Since April 15, 2005, except
as disclosed otherwise herein Viridax:
(a) has not ( i ) issued or sold any promissory note, stock, bond,
option or other corporate security of which it was an issuer or other obligor, (
ii ) discharged or satisfied any lien or encumbrance or paid any obligation or
liability, absolute or contingent, direct of indirect, ( iii ) incurred or
suffered to be incurred any liability or obligation other than in the ordinary
and usual course of business, ( iv ) caused or permitted any lien, encumbrance
or security interest to be created or arise on or in any of its properties or
assets, (v) declared, set aside or made any dividend, payment or other
distribution to any shareholder or purchased or redeemed or agreed to purchase
or redeem any shares of its capital stock, ( vi ) reclassified its shares of
capital stock, or ( vii ) entered into any agreement or transaction except in
the ordinary and usual course of business or in connection with the execution
and performance of this Agreement
(b) except for liabilities incurred in connection with this Agreement
or the transactions contemplated herein, has conducted its business only in the
ordinary course. there has not been (i) any event or occurrence which could have
a material adverse effect on Viridax's business or assets, (ii) except insofar
as may have been or required by a change in GAAP, any change in accounting
methods. principles or practices by Viridax materially affecting its, assets.
Liabilities or business or
(c) made any tax election that individually or in the aggregate could
reasonably be expected to have a material adverse effect on Viridax's business
or assets, or any of its tax attributes or any settlement or compromise of any
material income tax liability.
SECTION 4.7. Tax Returns and Payments. Viridax has filed with the
appropriate governmental authority all tax returns, whether based upon income,
sales or franchise, as required by law to be filed on or before the date of this
Agreement, and Viridax has paid all taxes to be due on said returns, any
assessments made against Viridax and all other taxes, fees and similar charges
imposed on Viridax by any governmental authority. No tax liens have been filed
and no claims are being assessed and no returns are under audit with respect to
any such taxes, fees or other similar charges.
SECTION 4.8. Compliance with Law and Government Regulations. Viridax is
in compliance with and is not in violation of applicable federal, state, local
or foreign statutes, laws and regulations (including without limitation, any
applicable building, zoning or other law, ordinance or regulation) affecting its
properties or the operation of its business. Viridax is not subject to any
order, decree, judgment or other sanction of any court, administrative agency or
other tribunal.
SECTION 4.9. Litigation. There is no material litigation, arbitration,
proceeding or investigation pending or threatened to which Viridax is a party or
which may result in any material adverse change in the business or condition,
financial or otherwise, Viridax or in any of its properties or assets, or which
might result in any liability on the part of Viridax, or which questions the
validity of this Agreement or of any action taken or to be taken pursuant to or
in connection with the provisions of this Agreement and, to the best knowledge
of Viridax there is no basis for any such litigation, arbitration, proceeding or
investigation.
SECTION 4.10. Environmental Matters. There are no actions, proceedings
or investigations pending or, to Viridax's best knowledge after making
appropriate investigation, threatened before any federal or state environmental
regulatory body, or before any federal or state court.
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SECTION 4.11. Government Consent. Other than as may be required in
connection with the transactions contemplated by this Agreement, no notices,
reports or other filings are required to be made nor are any consents,
registrations, approvals, permits, authorizations or designations required to be
obtained by Viridax from any court, governmental or regulatory authority,
agency, commission, body or other governmental entity, except those that the
failure to make or obtain are not, individually or in the aggregate, reasonably
likely to have a material adverse effect or prevent, materially delay or
materially impair the ability of Viridax to consummate the transactions
contemplated by this Agreement.
SECTION 4.12. Employee Benefit Plans. Viridax is not a party to, or
bound by, any bonus, deferred compensation, incentive compensation, stock
purchase, stock option, severance or termination pay, hospitalization or other
medical, life or other insurance, supplemental unemployment benefits,
profit-sharing, pension, or retirement plan, program, agreement or arrangement,
other employee benefit plan, program, agreement or arrangement (other than
arrangements involving the payment of wages), sponsored, maintained or
contributed to or required to be contributed to by Viridax or any of its
subsidiaries or by an trade or business.
SECTION 4.13. Accuracy of Information Furnished. No representation,
statement, or information contained in this Agreement (including the schedules)
or any contract or document executed in connection herewith or delivered
pursuant hereto, or thereto or made available or furnished to Mycobis or its
representatives by Viridax or its representatives contains any untrue statement
of a material fact, or omits any material fact necessary to make the information
contained therein not misleading.
ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF MYCOBIS.
Mycobis hereby represents warrants, and agrees that:
SECTION 5.1. Organization, Good Standing and Corporate Power of
Mycobis. Mycobis is a corporation duly organized, validly existing and presently
in good standing under the laws of the State of Florida, is duly qualified to do
business and is. in good standing as a foreign corporation in each jurisdiction
in which such qualification is necessary, and has the corporate power and
authority to own its properties and assets and to transact the business in which
it is engaged. Mycobis does not own any stock or other interest in, any other
corporation nor is there any other corporation over which Mycobis may be deemed
to be in control because of factors or relationships other than the quantity of
stock or other interest owned.
SECTION 5.2. Charter Documents. Complete and correct copies of
Mycobis's Articles of Association and Memorandum of Association and all
amendments thereto (collectively, the "Charter Documents"), have been delivered
to Viridax.
SECTION 5.3. Capitalization of the Company. The authorized capital
stock of the Company consists of 5,000,000 shares of no par common stock. All
shares of Mycobis Stock currently issued and outstanding have been duly
authorized, validly issued, and are fully paid and non-assessable. There are no
preemptive rights, or other outstanding rights, options, warrants, conversion
rights, stock appreciation rights, redemption rights, repurchase rights, calls,
agreements or commitments of any character obligating Mycobis to issue any
shares of its capital stock or any security representing the right to acquire,
purchase or otherwise receive any such stock.
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SECTION 5.4. Authority. Mycobis (also referred to as the "Company") and
the holders of all the outstanding shares of the Company stock have approved
this Agreement and duly authorized the execution and delivery hereof. Mycobis
has full power, authority and legal right to enter into this Agreement, to
consummate the transactions contemplated hereby, and to take all corporate
action necessary to authorize the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby and compliance by
Mycobis with the provisions hereof will not (a) conflict with or result in a
breach of any provisions of, or constitute a default (or an event which, with
notice or lapse of time or both, would constitute a default) under, or result in
the creation of any lien, security interest, charge or encumbrance upon any of
the properties or assets of Mycobis under, any of the terms, conditions or
provisions of the Company's organizational documents, or any note, bond,
mortgage, indenture, license, agreement or any instrument or obligation to which
the Company is party or by which it is bound; or (b) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to the Company or any
of its properties or assets. Assuming due execution and delivery by the parties
hereto, this Agreement represents the valid and binding agreement of the Company
enforceable against the Company in accordance with its respective term, except
as such enforceability may be limited by applicable bankruptcy laws or
creditors' rights generally or by general principles or equity.
SECTION 5.5. Absence of Certain Changes. Since April 15, 2005, except as
disclosed herein, Mycobis:
(a) has not (i) issued or sold any promissory note, stock, bond, option or
other corporate security of which it was an issuer or other obligor, (ii)
discharged or satisfied any lien or encumbrance or paid any obligation or
liability, absolute or contingent, direct or indirect , (iii) incurred or
suffered to be incurred any liability or obligation other than in the ordinary
and usual course of business, (iv) caused or permitted any lien, encumbrance or
security interest to be created or arise on or in any of its properties or
assets, (v) declared, set aside or made any dividend, payment or other
distribution to any shareholder or purchased or redeemed or agreed to purchase
or redeem any shares of its capital stock, (vi) reclassified its shares of
capital stock, or (vii) entered into any agreement or transaction except in the
ordinary and usual course of business or in connection with the execution and
performance of this Agreement.
(b) except for liabilities incurred in connection with this Agreement or
the transactions contemplated hereby, has conducted its business only in the
ordinary course, and there has not been (i) any event or occurrence which could
have a material adverse effect on the Company's business or assets, (ii) except
insofar as may have been or required by a change in GAAP, any change in
accounting methods, principles or practices by the Company materially affecting
its assets, liabilities or business or
(c) made any tax election that individually or in the aggregate could
reasonably be expected to have a material adverse effect on the Company's
business or assets, or any of the its tax attributes or any settlement or
compromise of any material income tax liability.
SECTION 5.6. Compliance with Law and Government Regulations. The Company
is in material compliance with all applicable local and foreign statutes, laws
and regulations (including without limitation, any applicable building, zoning
or other law, ordinance or regulation) affecting its properties or operation of
their businesses. The Company is not subject to any order, decree, judgment or
other sanction of any court, administrative agency or other tribunal.
SECTION 5.7. Litigation. There is no material litigation, arbitration,
proceeding or investigation pending or threatened to which Mycobis is a party or
which may result in any material change in the business or condition, financial
or otherwise, of the Company in any of its properties or assets, or which if
determined against the Company, or which might result in any liability on the
part of the Company, or which questions the validity of this Agreement or of any
action taken or to be taken pursuant to or in connection with the provisions of
this Agreement, and to the best knowledge of the Company, there is no basis for
any such litigation, arbitration, proceeding or investigation.
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SECTION 5.8. Environmental Matters. There are no actions, proceedings or
investigations pending or, to the Company's best knowledge after making
appropriate investigation, threatened before any governmental environmental
regulatory body, or before any court.
SECTION 5.9 Governmental Consent. No notices, reports or other filings are
required to be made nor are any consents, registrations, approvals, permits,
authorizations or designations required to be obtained by Mycobis from any
court, governmental or regulatory authority, agency, commission, body or other
governmental entity, in connection with the execution and delivery of this
Agreement by the Company or the carrying out and consummation of any
transactions contemplated hereby.
SECTION 5.10. Full Disclosure. None of the representations and warranties
made by Mycobis and the Shareholders herein, or in any schedule, certificate or
memorandum furnished or to be furnished by the Company, contains any untrue
statement of material fact , or omits any material fact, the omission of which
would be misleading.
ARTICLE 6. ADDITIONAL AGREEMENTS
SECTION 6.1. Expenses. All costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby, will be paid by the
party incurring such expense or as otherwise agreed to herein.
SECTION 6.2. Necessary Actions. Subject to the terms and conditions,
herein provided, each of :the parties hereto agrees to use all reasonable
efforts to take, or cause to be taken, all action and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transactions contemplated by
this Agreement In the event at any time after the Closing, any further action is
necessary or desirable to carry out the purposes of this Agreement, the proper
executive officers and/or directors of Viridax or Mycobis as the case may be,
will take all such necessary action.
ARTICLE 7. MISCELLANEOUS
SECTION 7.1. Notices. Any notice to any party hereto pursuant to this
Agreement will be in writing and given by Certified or Registered Mail or by
facsimile, addressed as follows:
If to Mycobis: Mycobis Corporation
00000 00xx Xxxxx, X.X.
Xxxxxxx, XX 00000-0000
If to Viridax: Viridax Corporation
000 XX 0xx Xxxxx
Xxxx Xxxxx, XX 00000
Additional notices are to be given as to each party, at such other address
as should be designated in writing complying as to delivery with the terms of
this Section 7.1. All such notices will be effective when received.
SECTION 7.2. No Personal Liability. This Agreement will not create or be
deemed to create any personal liability or obligation on the part of any direct
or indirect shareholder of the parties hereto, or any of their respective
officers, directors, employees, agents or representative.
SECTION 7.3. Parties in Interest. This Agreement will inure to the benefit
of and be binding upon the parties hereto and the respective successors and
assigns. Nothing in this Agreement is intended to confer, expressly or by
implication, upon any other person any rights or remedies under or by reason of
this Agreement.
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SECTION 7.4. Counterparts. This Agreement may be executed in one or
more counterparts, each of which will be deemed an original and all together
will constitute one document. The delivery by facsimile of an executed
counterpart of this Agreement will be deemed to be an original and will have the
full force and effect of an original executed copy,
SECTION 7.5. Severability. The provisions of this Agreement will be
deemed severable and the invalidity or unenforceability of any provision hereof
will not affect the validity or enforceability of any of the other provisions
hereof. If any provisions of this Agreement, or the application thereof to any
person or any circumstance, is illegal, invalid or unenforceable, (a) a suitable
and equitable provision will be substituted therefor in order to carry out, so
far as may be valid and enforceable, the intent and purpose of such invalid or
unenforceable provision, and (b) the remainder of this Agreement and the
application of such provision to other persons or circumstances will not be
affected by such invalidity or unenforceability, nor will such invalidity or
enforceability affect the validity Or enforceability of such provision, or the
application thereof, in any other jurisdiction.
SECTION 7.6. Headings. The Article and Section headings are provided
herein for convenience of reference only and do not constitute a part of this
Agreement and will not be deemed to limit or otherwise affect any of the
provisions hereof.
SECTION 7.7. Governing Law. This Agreement will be deemed to be made in
and in all respects will be interpreted, construed and governed by and in
accordance with the of the State of Florida without regard to the conflict of
law principles thereof.
SECTION 7.8. Closing. This Agreement shall be deemed closed as of the
date of execution hereof, at which time the shares identified in ARTICLE 3.
shall be delivered to Mycobis.
SECTION 7.9. Survival of Representations and Warranties. All terms,
conditions, representations and warranties set forth in this Agreement or in any
instrument, certificate, opinion, or other writing providing for in it, will
survive the Closing and the delivery of the Shares of Viridax common stock to be
issued hereunder at the Closing for a period of one year after Closing,
regardless of any investigation made by or on behalf of any of the parties
hereto.
SECTION 7.10. Assignability. This Agreement will not be assignable by
operation of law or otherwise and any attempted assignment of this Agreement in
violation of this subsection will be void.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement in a manner legally binding upon them as of the 18th day of April,
2005.
VIRIDAX CORPORATION,
By: /s/ Xxxxx X. XxXxxx
-------------------------------------
Xxxxx X. XxXxxx
President
MYCOBIS CORPORATION
By /s/ Xxxxxxx X. Honour
--------------------------------------
Xxxxxxx X. Honour
President
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EXHIBIT "A"
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Staphylococcus aureus Phages
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ID Number Source Date Specificity
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R1 Enriched Soil 4.04 S. aureus
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R2 Enriched Soil 4.04 S. aureus
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R3 Enriched Soil 4.04 S. aureus
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Staphylococcus aureus Hosts
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ID Number Source Date Specificity
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19655 ATCC
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EXHIBIT "B"
TO
ASSET PURCHASE AGREEMENT
GENERAL CONVEYANCE ASSIGNMENT AND XXXX OF SALE
FOR VALUE RECEIVED, the undersigned MYCOBIS CORPORATION hereby assigns,
conveys, transfers, and delivers to VIRIDAX CORPORATION, a corporation organized
under Florida law, each and all of the "Assets" as such term is defined in the
ASSET PURCHASE AGREEMENT and as listed on Exhibit "A", dated as of April 18,
2005 between the said parties.
This instrument is executed and delivered pursuant to the ASSET
PURCHASE AGREEMENT, and is not intended to, and shall not alter, affect, or
diminish in any manner whatsoever the representations, warranties and covenants
made by the parties in the said Agreement, all of which shall survive the
execution and delivery of this instrument to the extent provided in the said
Agreement.
MYCOBIS CORPORATION binds itself and its successors and assigns to
forever warrant and defend, all and singular, title to the Assets conveyed
hereunder unto VIRIDAX CORPORATION, its successors and assigns, against every
person claiming the same or any part thereof.
MYCOBIS CORPORATION hereby binds itself and its successors and assigns
to deliver such other certificates, assignments, conveyances, assurances,
instruments and documents as VIRIDAX CORPORATION, shall deem necessary to effect
the transactions contemplated hereby and in the ASSET PURCHASE AGREEMENT and to
vest in MOLIRIS CORPORATION good and market title to the Assets.
IN WITNESS WHEREOF, undersigned has duly executed this instrument on
April 18, 2004.
MYCOBIS CORPORATION
By: /s/ Xxxxxxx Honour
------------------------------
Xxxxxxx Honour, President
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