Exhibit 10.1
ACQUISITION AGREEMENT
THIS AGREEMENT made effective on the 14th day of March, 2005.
BETWEEN:
SHIMOCO LLC;
(the "Vendor")
AND:
SAGAX, INC., a Delaware corporation, with an address at 00
Xxxxxx Xxxxxx, Xxxxxxxx Xxxxxxx, Xxxxxx, 00000 (the "Company")
AND:
MIV THERAPEUTICS, INC., a Nevada corporation, with an address
at Xxxx 0, 0000 Xxx Xxxxxx, Xxxxxxxxx, XX, X0X 0X0;
(the "Purchaser")
WHEREAS:
A. The Company carries on the business of developing endovascular devices.
B. The Vendor has agreed to sell, and the Purchaser has agreed to purchase, 100%
of the issued and outstanding shares of the Company and all assets and
undertakings of the Company, as a going concern, on the terms and subject to the
conditions provided in this Agreement.
THIS AGREEMENT WITNESSES that in consideration of the premises and the
covenants, agreements, representations, warranties and payments contained
in this Agreement, the parties agree as follows:
1. PURCHASE AND SALE OF ASSETS
1.1 Description of Assets
Upon the terms and subject to the conditions of this Agreement, the Vendor
agrees to sell, assign and transfer to the Purchaser, and the Purchaser agrees
to purchase from the Vendor 100 common shares of the Company which constitutes
100% of the issued and outstanding shares of the Company. The purchase by the
Purchaser includes all the assets of the Company's business of every kind and
description wherever situate including the following:
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(a) all right and interest of the Vendor to all patents and patent
applications, registered and unregistered trademarks, trade or
brand names, copyrights, designs, restrictive covenants and
other industrial or intellectual property used in connection
with the Company (the "Intangible Property"), including the
Intangible Property described in the Schedule of Intangible
Property;
(b) all inventories (the "Inventories") of the Company;
(c) the accounts receivable, trade accounts noted receivable and
other debts owing to the Company, and the full benefit of all
securities for cash accounts, notes or debts (the
"Receivables");
(d) the benefit of all unfilled orders received by the Company or
in connection with the Company, and all other contracts,
engagements or commitments, whether written or oral, to which
the Vendor is entitled in connection with the Company, and in
particular all right, title and interest of the Vendor in, to
and under the material agreements and contracts (the "Material
Contracts") described in the Schedule of Material Contracts;
(e) the prepaid expenses (the "Prepaid Expenses") of the Company;
and,
(f) the goodwill of the Company and the right of the Purchaser to
represent itself as carrying on the Company's business in
continuation of and in succession to the Vendor and the right
to use the name "SagaX Inc." or any variation thereof as part
of or in connection with the Company's business (the
"Goodwill"),
all of which are collectively called the "Assets".
2. PURCHASE PRICE AND ALLOCATION
2.1 The purchase price payable by the Purchaser to the Vendor for the common
shares of the Company and all of the Company's assets will be a total of
4,200,000 restricted common shares in the capital stock of the Purchaser,
subject to Rule 144 of the SECURITIES ACT OF 1933, to be issued subject to the
terms in paragraph 2.2.
2.2 The Purchaser agrees to issue 2,000,000 restricted common shares of the
Purchaser to the Vendor within thirty (30) days of the effective date of this
Agreement, an additional 1,100,000 restricted common shares of the Purchaser to
the Vendor on successful completion of large animal trials, and a final
1,100,000 restricted common shares of the Purchaser to the Vendor on CE Xxxx
approval relating to the Company's products, for an aggregate of 4,200,000
restricted common shares.
2.3 If the Purchaser's management decides to abandon the Company's
neuro-vascular embolic stent filter medical device project; or if the Purchaser
is placed into receivership; or if the Purchaser fails to fund the Company with
at least $150,000 worth of cash or S-8 stock, in any six month period, then the
Vendor, or its nominee, may repurchase the Company, including all of its
intellectual property, in exchange for the return of all of the Purchaser's
common shares issued for the purchase of the Company up until such time and a
cash payment equal to 125% of all cash advanced to the Company by the Purchaser.
2.4 The Purchaser will finance the Company using commercially best efforts up to
the amount of US$730,290 for the period of January - December 2005.
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2.5 In additional to the financing described in paragraph 2.4, the Purchaser
will pay US$145,000 to the Vendor for debt reduction, of which US$80,000 will be
paid in cash with the balance to be paid in common stock at US$0.25 per share.
2.7 The right to repurchase the Company, subject to the conditions in paragraph
2.3, expires one year after the effective date of this Agreement.
2.8 The Company will provide the Purchaser with a detailed budget acceptable to
the CFO of the Purchaser and the Company will adhere to the use of proceeds
contained in said budget, unless amended in writing with the agreement of the
Purchaser.
3. REPRESENTATIONS AND WARRANTIES OF THE VENDOR
The Vendor represents and warrants to the Purchaser as follows, with the intent
that the Purchaser will rely on the representations and warranties in entering
into this Agreement, and in concluding the purchase and sale contemplated by
this Agreement.
3.1 Capacity to Sell
The Vendor is an individual who owns 100% of the issued and outstanding shares
of the Company. The Vendor has the power and capacity to own and dispose of the
Assets and to carry on the Company's business as now being conducted by it, and
to enter into this Agreement and carry out its terms to the full extent.
3.2 Authority to Sell
The execution and delivery of this Agreement and the completion of the
transaction contemplated by this Agreement have been duly and validly authorized
by all necessary action on the part of the Vendor, and this Agreement
constitutes a legal, valid and binding obligation of the Vendor enforceable
against the Vendor in accordance with its terms except as may be limited by laws
of general application affecting the rights of creditors.
3.3 Sale Will Not Cause Default
Neither the execution and delivery of this Agreement, nor the completion of the
purchase and sale contemplated by this Agreement will:
(a) violate any of the terms and provisions of any order, decree,
statute, bylaw, regulation, covenant or restriction applicable
to the Vendor, the Company or any of the Assets;
(b) give any person the right to terminate, cancel or remove any
of the Assets; or
(c) result in any fees, duties, taxes, assessments or other
amounts relating to any of the Assets becoming due or payable
by the Purchaser in connection with the purchase and sale,
except as otherwise provided in this Agreement or any Schedule
to this Agreement.
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3.4 Assets
The Vendor owns and possesses and has a good marketable title to the Assets free
and clear of all mortgages, liens, charges, pledges, security interest,
encumbrances or other claims.
3.5 Books and Records
The books and records of the Vendor and the Company fairly and correctly set out
and disclose in all material respects, in accordance with generally accepted
accounting principles, the financial position of the Vendor and the Company and
all material financial transactions of the Vendor and the Company relating to
the Company's business have been accurately recorded in those books and records.
3.6 Material Change
Since the date of the balance sheet included in the Statements there has not
been:
(a) any material change in the financial condition of the
Company's business, its liabilities or the Assets other than
changes in the ordinary course of business, none of which has
been materially adverse;
(b) any damage, destruction, loss or other event (whether or not
covered by insurance) materially and adversely affecting the
Assets or the Company's business;
3.7 Litigation
There is no litigation or administrative or governmental proceeding or inquiry
pending, or to the knowledge of the Vendor, threatened against or relating to
the Vendor, the Company's business, or any of the Assets, nor does the Vendor
know of or have reasonable grounds to believe that there is any basis for any
such action, proceeding or inquiry.
3.8 Conformity With Laws
All governmental licenses and permits required for the conduct in the ordinary
course of the operations of the Company's business and the uses to which the
Assets have been put, have been obtained and are in good standing and such
conduct and uses are not in breach of any statute, bylaw, regulation, covenant,
restriction, plan or permit, including those regulating the discharge of
materials into the environment and the storage, treatment and disposal of waste
or otherwise relating to the protection of the environment and the health and
safety of persons. For greater certainty, the Assets have not been used in a
manner that does or will give rise to any obligation of restoration or removal
or any liability for the costs of restoration or removal or for the payment of
damages to any third party.
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3.9 Forward Commitments
All outstanding forward commitments by or on behalf of the Vendor or the Company
for the purchase or sale of the Inventories have been made in accordance with
established price lists of the Company or its suppliers, or if otherwise, then
in accordance with the Company's normal business custom in varying those
established price lists.
3.10 Employees
The Company has no employees.
3.11 Material Contracts
The Schedule of Material Contracts contains a true and correct listing of each
written or oral contract of the following types to be acquired or assumed by the
Purchaser:
(a) contracts or commitments out of the ordinary course of
business;
(b) contracts or commitments involving an obligation to pay in the
aggregate $1,000 or more or of a duration greater than one
year;
(c) contracts or commitments affecting ownership of, or title to,
or any interest in real estate or in personal property;
(d) contracts or commitments in respect of the Intangible
Property;
(e) except as prohibited by statute or regulation, contracts or
commitments in respect of bonuses, incentive compensation,
pensions, group insurance or employee welfare plans, all of
which are fully funded as determined by an independent and
reputable firm of actuaries employed by the Vendor; and
(f) employment contracts, consultant contracts or commitments
other than unwritten employment contracts of indefinite
duration entered into in the ordinary course of the Company's
business.
3.12 No Defaults
Except as otherwise expressly disclosed in this Agreement or in any Schedule to
this Agreement, there has not been any default in any obligation to be performed
under any Material Contract, each of which is in good standing and in full force
and effect, unaltered, except as set forth in the Schedule of Material
Contracts.
3.13 Accuracy of Representations
No certificate furnished by or on behalf of the Vendor or the Company to the
Purchaser at closing in respect of the representations, warranties or covenants
of the Vendor will contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements contained in the
certificate not misleading.
4. COVENANTS OF THE VENDOR
4.1 Determination of Net Book Values
The Vendor will cause his auditors, certified public accountants, to determine
as of the day immediately preceding closing, the net book value of the
Receivables, Inventories and Prepaid Expenses, in accordance with generally
accepted accounting principles, and furnish to each of the Vendor and Purchaser
a certificate of such determination.
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4.2 Conduct of Business
Until closing, the Vendor will conduct the Company's business diligently and
only in the ordinary course and will use his best efforts to preserve the Assets
intact and to preserve, for the Purchaser, the Company's relationship with its
suppliers, customers and others having business relations with it.
4.3 Access by Purchaser
The Vendor will give to the Purchaser and Purchaser's counsel, accountants and
other representatives full access, during normal business hours throughout the
period prior to closing, to all of the properties, books, contracts, commitments
and records of the Vendor and the Company relating to the Company's business and
the Assets, and will furnish to the Purchaser during that period all such
information as the Purchaser may reasonably request.
4.4 Covenant of Indemnity
The Vendor will indemnify and hold harmless the Purchaser from and against:
(a) any and all liabilities, whether accrued, absolute, contingent
or otherwise, existing at closing and which are not agreed to
be assumed by the Purchaser under this Agreement;
(b) any and all damage or deficiencies resulting from any
misrepresentation, breach of warranty or non-fulfillment of
any covenant on the part of the Vendor under this Agreement or
from any misrepresentation in or omission from any certificate
or other instrument furnished or to be furnished to the
Purchaser under this Agreement; and
(c) any and all actions, suits, proceedings, demands, assessments,
judgments, costs and legal and other expenses incident to any
of the foregoing.
5. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Vendor as follows; with the intent
that the Vendor will rely on these representations and warranties in entering
into this Agreement, and in concluding the purchase and sale contemplated by
this Agreement.
5.1 Status of Purchaser
The Purchaser is a corporation duly incorporated, validly existing and in good
standing under the laws of Nevada, has the power and capacity to enter into this
Agreement and carry out its terms.
5.2 Authority to Purchase
The execution and delivery of this Agreement and the completion of the
transaction contemplated by this Agreement has been duly and validly authorized
by all necessary corporate action on the part of the Purchaser, and this
Agreement constitutes a legal, valid and binding obligation of the Purchaser
enforceable against the Purchaser in accordance with its terms except as limited
by laws of general application affecting the rights of creditors.
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6. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS
6.1 Vendor's Representations, Warranties and Covenants
All statements contained in any certificate or other instrument delivered by or
on behalf of the Vendor under this Agreement or in connection with the
transaction contemplated by this Agreement will be deemed to be representations
and warranties by the Vendor. All representations, warranties, covenants and
agreements made by the Vendor in this Agreement or under this Agreement will,
unless otherwise expressly stated, survive closing and any investigation at any
time made by or on behalf of the Vendor or the Purchaser subject to the
provisions of this Agreement and will continue in full force and effect for the
benefit of the Purchaser.
6.2 Limitation on Vendor's Indemnity
No claim by the Purchaser under the covenant of indemnity contained in this
Agreement or for damages or other relief in respect of breach of warranty or
breach of covenant by the Vendor under this Agreement will be valid unless
written notice of the claim is given by the Purchaser to the Vendor before the
expiration of 30 months after closing.
6.3 Purchaser's Representations, Warranties and Covenants
All representation, warranties, covenants and agreements made by the Purchaser
in this Agreement or under this Agreement will, unless otherwise expressly
stated, survive closing and any investigation at any time made by or on behalf
of the Vendor or the Purchaser and will continue in full force and effect for
the benefit of the Vendor.
7. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE PURCHASER
All obligations of the Purchaser under this Agreement are subject to the
fulfillment at or before closing of the following conditions:
7.1 Vendor's Representations and Warranties
The Vendor's representations and warranties contained in this Agreement and in
any certificate or document delivered under this Agreement or in connection with
the transactions contemplated by this Agreement will be true at and as of
closing as if such representations and warranties were made at and as of such
time.
7.2 Vendor's Covenants
The Vendor will have performed and complied with all agreements, covenants and
conditions required by this Agreement to be performed or complied with by it
before or at closing.
The foregoing conditions are for the exclusive benefit of the Purchaser and any
such condition may be waived in whole or in part by the Purchaser at or before
closing by delivering to the Vendor a written waiver to that effect signed by
the Purchaser.
8. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE VENDOR
All obligations of the Vendor under this Agreement are subject to the
fulfillment, before or at closing, of the following conditions:
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8.1 Purchaser's Representations and Warranties
The Purchaser's representations and warranties contained in this Agreement will
be true at and as of closing as though such representations and warranties were
made as of such time.
8.2 Purchaser's Covenants
The Purchaser will have performed and complied with all covenants, agreements
and conditions required by this Agreement to be performed or complied with by it
at or before closing.
8.3 Consents of Third Parties
All consents or approvals required to be obtained by the Vendor for the purpose
of selling, assigning or transferring the Assets have been obtained, provided
that this condition may only be relied upon by the Vendor if the Vendor has
diligently exercised its best efforts to procure all such consents or approvals
and the Purchaser has not waived the need for all such consents or approvals.
Each of the foregoing conditions is for the exclusive benefit of the Vendor and
any such condition may be waived in whole or part by the Vendor at or before
closing by delivering to the Purchaser a written waiver to that effect signed by
the Vendor.
9. CLOSING
9.1 Time of Closing
Subject to the terms and conditions of this Agreement, the purchase and sale of
the Assets will be completed at a closing to be held at such time and date as
agreed upon in writing between the parties.
9.2 Place of Closing
The closing will take place at the offices of the Purchaser's solicitors,
000-000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx.
9.3 Documents to be Delivered by the Vendor
At the closing the Vendor will deliver or cause to be delivered to the
Purchaser:
(a) all deeds of conveyance, bills of sale, transfer and
assignments in form and content satisfactory to the
Purchaser's counsel, appropriate to effectively vest a good
and marketable title to the Assets in the Purchaser to the
extent contemplated by this Agreement, and immediately able to
be registered in all places where registration of such
instruments is required;
(b) all consents or approvals required to be obtained by the
Vendor or the Company for the purpose of validly assigning the
Material contracts;
(c) possession of the Assets;
(d) duly executed releases of, or evidence to the reasonable
satisfaction of the Purchaser as to the discharge of any and
all liabilities which the Purchaser has not agreed to assume
and which may be enforceable against any of the Assets being
purchased under this Agreement;
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(e) certified copies of those resolutions of the shareholders and
directors of the Company required to be passed to authorize
the execution, delivery and implementation of this Agreement
and of all documents to be delivered by the Vendor under this
Agreement;
(f) the certificate of the Vendor's auditors prepared under
section 4.1 of this Agreement; and,
(g) a statement of the Assumed Liabilities signed by the Vendor.
9.4 Documents to be Delivered by the Purchaser
At the closing the Purchaser will deliver or cause to be delivered:
(a) a share certificate payable to the Vendor or its nominees.
(b) a legal opinion from the Vendor's legal counsel that this
agreement is binding and that the Vendor is duly authorized to
transfer ownership of 100% of the Assets, and that Saga X owns
the legal title to the patents listed in the Schedule of
Intangible Property.
10. RISK OF LOSS
From the date of this Agreement to closing, the Assets will be and remain at the
risk of the Vendor. If any of the assets are lost, damaged or destroyed before
closing, the Purchaser may, in lieu of terminating this Agreement, elect by
notice in writing to the Vendor to complete the purchase to the extent possible
without reduction of the purchase price, in which event all proceeds of any
insurance or compensation in respect of such loss, damage or destruction will be
payable to the Purchaser and all right and claim of the Vendor to any such
amounts not paid by closing will be assigned to the Purchaser.
11. UNCOLLECTED RECEIVABLES
If any part of the Receivables sold under this Agreement are not collected by
the Purchaser in full within 180 days after closing, the Vendor will pay to the
Purchaser an amount equal to the excess of the uncollected amounts over the
provision for doubtful accounts reflected in the auditors' determination of the
net book value thereof, upon receipt of a reassignment by the Purchaser of the
uncollected part of those accounts. Payment on account not appropriated by the
Vendor will be applied to the oldest account owing by the Payor.
12. FURTHER ASSURANCES
The parties will execute such further and other documents and do such further
and other things as may be necessary to carry out and give effect to the intent
of this Agreement.
13. NOTICE
All notices required or permitted to be given under this Agreement will be in
writing and personally delivered to the address of the intended recipient set
forth on the first page of this Agreement or at such other address as may from
time to time be notified by any of the parties in the manner provided in this
Agreement.
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14. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties and there
are no representations or warranties, express or implied, statutory or otherwise
and no collateral agreements other than as expressly set forth or referred to in
this Agreement.
15. TIME OF THE ESSENCE
Time will be the essence of this Agreement.
16. APPLICABLE LAW
This Agreement will be governed by and interpreted in accordance with the laws
of British Columbia, Canada, and the parties agree to attorn to the jurisdiction
of the Supreme Court of British Columbia.
17. SUCCESSORS AND ASSIGNS
This Agreement will enure to the benefit of and be binding upon the parties and
their respective successors and assigns.
18. HEADINGS
The headings appearing in this Agreement are inserted for convenience of
reference only and will not affect the interpretation of this Agreement.
IN WITNESS WHEREOF the parties have executed this Agreement at New York, New
York, USA, as of the day and year first above written.
M.I.V. Therapeutics, Inc.
(the "Purchaser") (the "Vendor")
/s/ Xxxx Xxxxxxx /s/ X. Xxxxxx
---------------- -------------
per: Xxxx Xxxxxxx per: Xx. Xxx Xxxxxx
Chairman, President & CEO title: President
SagaX Inc.
(the "Company")
/s/ X. Xxxxxx
-------------
Xx. Xxx Xxxxxx
President
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SCHEDULE I
SCHEDULE OF INTANGIBLE PROPERTY
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SCHEDULE II
SCHEDULE OF MATERIAL CONTRACTS
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