EXHIBIT 10.3
TECHNOLOGY PURCHASE AGREEMENT
THIS AGREEMENT is made as of August 8, 2003 ("Effective Date").
BETWEEN: VITALSTATE CANADA LTD., (formerly, NUVO WAY INC.), a
corporation incorporated under the laws of Canada, with its
principal place of business located at 0000 Xxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxx, X0X 0X0
(hereinafter referred to as the "Purchaser");
AND: 0000-0000 XXXXXX INC., a company incorporated under the laws
of the Province of Quebec, with its principal place of
business located at 000 Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxx, X0X
0X0
(hereinafter referred to as the "Vendor");
AND: XXXXXXX XXXXXX, an individual having a place of residence at
000 Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxx X0X 0X0
(hereinafter referred to as the "Inventor");
AND: XXXXXXXX XXXXXX, an individual having a place of residence at
0000 Xxxxxx Xxxxxxxx, Xxxxxxxx, Xxxxxx X0X 0X0
(hereinafter referred to as the "Co-inventor")
AND: VITALSTATE, INC., a corporation incorporated under the laws of
New York, with a place of business located at 0000 Xxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxx, X0X 0X0
(hereinafter referred to as the "Intervenor");
WHEREAS the Vendor desires to sell and the Purchaser desires to
purchase the Patent Rights and any other Intellectual Property Rights Vendor may
own in the Technology, all as defined below, subject to the terms and conditions
hereinafter set forth;
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WHEREAS the Purchaser is a wholly owned subsidiary of the Intervenor;
WHEREAS the parties wish to settle and waive certain claims and debts
as amongst them and the parties acknowledge that such settlements and waivers
were material inducements for entering into this agreement;
WHEREAS the Inventor and Co-inventor agree to assist with the
maintenance, defense and prosecution of the Purchaser's rights in the Patent
Rights and in the Technology and covenant not to xxx the Purchaser in respect
thereof;
WHEREAS the Inventor further agrees to grant the Purchaser a right of
refusal in respect of future inventions in the Field of the Purchaser's
activities;
NOW THEREFORE, in consideration of the premises and the covenants and
agreements herein contained, the parties hereto agree as follows:
Article 1 - INTERPRETATION
1.1 Definitions
In this Agreement, unless something in the subject matter or context is
inconsistent therewith:
"Agreement" means this agreement including Schedules A, B, C, D and E, and all
amendments made hereto by written agreement between the parties.
"Business" means the business of the creation, production, sale and marketing of
products and processes related to sports nutrition, animal nutrition;
pharmaceutical and/or over the counter ("OTC") delivery technology, including
actijube(TM) technology and extensions thereof as these apply in the healthfood,
functional food and nutraceutical industries. Notwithstanding the generality of
the foregoing, the Business does not include the creation, production, sale and
marketing of prohormones.
"Business Day" means a calendar day excluding Saturdays, Sundays and statutory
holidays in the Province of Quebec or the State of New York.
"Claims" means all disputes or claims related to or arising from the Patent
Rights and the Technology, including, without limiting the generality of the
foregoing, all disputes or claims, if any, as regards to the matters described
in or relating to: i) the license agreement between the Purchaser and the Vendor
dated November 7, 2001 (the "License Agreement"); ii) the amending agreement
between the Purchaser and the Vendor dated September 25, 2002 (the "Amending
Agreement"); iii) the notice of termination, sent to the Purchaser on May 25,
2003 (the "Notice of Termination"); iv) the call for arbitration sent by the
Vendor to the Purchaser, dated July 3, 2003 (the "Call for Arbitration"); or v)
the consulting agreement between the Vendor and the Purchaser (to which the
Inventor was an intervening party) dated June 1, 2002 (the "Consulting
Agreement"), copies of which documents are set forth in Schedule A hereto.
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"Closing" has the meaning set out in Section 3.3.
"Confidential Information" has the meaning set out in Section 6.1.
"Debts" means all amounts owed by Vendor to Purchaser as at Closing, including,
without limiting the generality of the foregoing, $28,084.26 CDN claimed as owed
by the Vendor to the Purchaser in respect of loans, office equipment and other
matters, and $46,500 CDN claimed as owed by Vendor to the Purchaser in respect
of the unpaid balance for the purchase of 300 shares in the capital stock of the
Purchaser, details of which Debts are attached as Schedule B hereto.
"Excluded Patent Application" means the draft patent application in respect of a
novel protein delivery system referred to as MBM file No. 1047-107 DR.
"Field" means the field of low temperature, confectionary type system utilizing
a solvent, including, but not limited to, polyhydric alcohols, as the carrier
medium for nutraceutical or pharmaceutical delivery, in order to uniformly
disperse and/or protect the activity of bioactives in nutraceuticals and
pharmaceuticals. The Field also includes the field of the invention described in
the Excluded Patent Application as at the Closing, as demonstrable by the
Inventor's business records.
"Intellectual Property Rights" means all patents, trademarks, copyrights, trade
secrets, know-how, domain names, industrial designs as well as all registrations
and applications therefor, whether issued or pending, and all rights to apply
for the same, anywhere in the world, and all other intellectual property rights.
"Inventions" means the inventions described in the Patent Applications and the
Other Patent Applications.
"Litigation" means any current or future claim by a third party to the effect
that the Patent Rights violate their Intellectual Property Rights or by the
Purchaser to the effect that a third party is violating: (i) confidentiality
obligations in respect of the Technology; (ii) the Purchaser's Patent Rights; or
(iii) the Purcharser's Intellectual Property Rights in the Technology, Products
or Process. Without limiting the generality of the foregoing, Litigation
includes: (i) the current litigation between the Purchaser and Dreampac, LLC in
the United States District court, District of Wisconsin captioned, "Dreampak,
LLC v. Vitalstate, Inc. and Vitalstate, Ltd., Case No. 03-C-0303" (the
"Wisconsin Action"); and (ii) the current litigation between the Purchaser and
Dreampak, LLC in the United States District Court, District of New Jersey
captioned, "Vitalstate Canada, Ltd. and Confab Laboratories, Inc. v. Dreamapak,
LLC, Ally Gamay, Xxxxxxxx Xxxxxxxxx, Xxxxxx Xxxxxx, Temco Packaging, Inc.,
Xxxxxxx "Xxxxx" Xxxxxxxx d/b/a Temco Packaging, Xxxx Xxx and XYZ Corporation,
Case No. 03-CV-01760" (the "New Jersey Action").
"Other Patent Applications" means the patent applications and related
Technology, developed by the Inventor in the context of services rendered under
the Consulting Agreement, referred to as follows: (i) MBM File No. 831-116PR,
U.S. Provisional Application: "Chitosan-Based
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Microsphere Delivery System for Bioactives", Serial No. 60/430,697, Priority
date/Filed: December 4, 2002; and (ii) MBM File No. 831-117PR, U.S. Provisional
Application: "Extraction Resistant Delivery System for Opioids", Serial No.
60/432.239, Priority date/Filed: December 11, 2002.
"Parties" means the Purchaser, the Vendor, the Inventor, the Co-inventor and the
Intervenor.
"Patent Applications" means the US and International patent applications
referred to in Schedule C hereto.
"Patent Rights" means all patented and patentable rights, title and interest in
the Technology including, without limitation, all of the corresponding rights,
title and interest in and to any patent or patent application in Canada, the
United States or any corresponding patent or patent application in a foreign
jurisdiction which may issue therefrom (including the Patent Applications and
the Other Patent Applications), and any improvements, modifications and
additions thereto and to any, divisional, continuation, continuation-in-part,
reissue, re-examination and substitute patent applications and renewals
claiming, or relating to, the Technology and any patents which may issue
therefrom, as well any right of action to maintain, defend or prosecute such
Patent Rights.
"Purchase Price" has the meaning set out in Section 3.1.
"Related Entities" means agents, assigns, employees, trustees, receivers,
corporations, parents, subsidiaries, related companies, related entities,
licensees, affiliates, predecessors, successors, shareholders, officers,
directors, partners, attorneys, representatives, heirs, executors,
administrators and any other related persons or entities.
"Technology" means the subject matter relating to any low temperature,
confectionary type system utilizing a solvent, including, but not limited to,
polyhydric alcohols, as the carrier medium for nutraceutical or pharmaceutical
delivery, in order to uniformly disperse and/or protect the activity of
bioactives in nutraceuticals and pharmaceuticals, including the Inventions and
any of the Vendor's know-how, data, chemical structures, manufacturing
processes, formulae, recipes, compositions, rights to materials, including
biological materials, discoveries, trade secrets, proprietary information and
improvements related thereto.
"Territory" has the meaning set forth in Section 6.4 hereof.
1.2 Headings
The division of this Agreement into Articles and Sections and the
insertion of headings are for convenience of reference only and will not affect
the construction or interpretation of this Agreement. The terms "hereof",
"hereunder" and similar expressions refer to this Agreement and not to any
particular Article, Section or other portion hereof and include any agreement
supplemental hereto. Unless something in the subject matter or context is
inconsistent therewith, references herein to Articles and Sections are to
Articles and Sections of this Agreement.
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1.3 Extended Meanings
In this Agreement words importing the singular number only include the
plural and vice versa, words importing any gender include all genders and words
importing persons include individuals, partnerships, associations, trusts,
unincorporated organizations and corporations.
1.4 Currency
Unless otherwise indicated, all references to currency herein are to
lawful money of Canada.
1.5 Schedules
The following Schedules attached hereto are incorporated by reference
and deemed to be part hereof:
Schedule A - Claims
Schedule B - Debts
Schedule C - Patent Applications
Schedule D - Vendor Assignments
Schedule E - Inventor and Co-inventor Assignments
Schedule F - Warrants
Article 2 - TERMS
2.1 Purchase and Sale of Patent Rights and Technology
Upon and subject to the terms and conditions hereof, the Vendor hereby
sells to the Purchaser and the Purchaser hereby purchases from the Vendor the
Patent Rights and any other Intellectual Property Rights Vendor may own in the
Technology.
2.2 Assignment of Patent Rights
Effective upon Closing, Vendor hereby assigns, sells, conveys and
transfers to Purchaser its entire worldwide rights, title and interests in and
to the Patent Rights, as well as all its Intellectual Property Rights in the
Technology. In particular and not by way of limitation, Vendor assigns, upon
Closing, its entire worldwide rights in and to the Patent Applications, pursuant
to the terms of the assignment agreements set forth in Schedule D hereto. In
addition, the Inventor hereby assigns, sells, conveys and transfers to Purchaser
his entire worldwide rights in and to the Other Patent Applications, pursuant to
the terms of the assignment agreements set forth in Schedule E hereto.
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2.3 Vendor's and Inventor's Release and Settlement of Claims
Except to enforce the terms of this Agreement, Vendor and the Inventor,
on behalf of themselves and the Related Entities who may claim through them, if
any, hereby release and forever discharge the Purchaser and each of its Related
Entities from any and all claims and causes of action, actions, suits,
proceedings, defenses, contracts, affirmative defenses, obligations,
liabilities, demands, damages, losses, costs, attorneys' fees or expenses of any
nature which the Vendor and/or the Inventor has had, owned or held from the
beginning of time to date of this Agreement arising out of the Claims. The
parties acknowledge that this Agreement constitutes a "transaction contract" for
the purposes of Article 2631 of the Civil Code of Quebec.
2.4 Purchaser's Release and Settlement of Debts
Except to enforce the terms of this Agreement, the Purchaser, on behalf
of itself and the Related Entities who may claim through it, if any, hereby
releases and forever discharges the Vendor and each of its Related Entities from
any and all claims and causes of action, actions, suits, proceedings, defenses,
contracts, affirmative defenses, obligations, liabilities, demands, damages,
losses, costs, attorneys' fees or expenses of any nature which the Purchaser has
had, owned or held from the beginning of time to date of this Agreement arising
out of the Debts.
2.5 Vendor's covenant not to xxx
Except to enforce the terms of this Agreement, the Vendor covenants and
agrees not to bring any claims or causes of action, action, suits, proceedings,
defenses, affirmative defenses, obligations, liabilities, demands, damages,
losses, costs, attorneys' fees or expenses of any nature against the Purchaser
or its Related Entities regarding the Claims or the Purchaser's rights in the
Patent Rights, the Other Patent Applications and Technology and further
covenants and agrees that this Agreement is a bar to any such claims and causes
of action, actions, suits, proceedings, defenses, affirmative defenses,
obligations, liabilities, demands, damages, losses, costs, attorneys' fees or
expenses of any nature against the Purchaser or its Related Entities.
2.6 Purchaser's covenant not to xxx
Except to enforce the terms of this Agreement, the Purchaser covenants
and agrees not to bring any claims or causes of action, action, suits,
proceedings, defenses, affirmative defenses, obligations, liabilities, demands,
damages, losses, costs, attorneys' fees or expenses of any nature against the
Vendor or its Related Entities regarding the Debts and further covenants and
agrees that this Agreement is a bar to any such claims and causes of action,
actions, suits, proceedings, defenses, affirmative defenses, obligations,
liabilities, demands, damages, losses, costs, attorneys' fees or expenses of any
nature against the Vendor or its Related Entities.
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2.7 Inventor's and Co-inventor's covenant not to xxx
The Inventor and Co-inventor covenant and agree not to bring any claims
or causes of action, action, suits, proceedings, defenses, affirmative defenses,
obligations, liabilities, demands, damages, losses, costs, attorneys' fees or
expenses of any nature against the Purchaser or its Related Entities regarding
the Claims or the Purchaser's rights to the Patent Rights, the Other Patent
Applications and Technology and further covenant and agree that this Agreement
is a bar to any such claims and causes of action, actions, suits, proceedings,
defenses, affirmative defenses, contracts, obligations, liabilities, demands,
damages, losses, costs, attorneys' fees or expenses of any nature against the
Purchaser or its Related Entities.
2.8 Maintenance, Defense and Prosecution
The Vendor, the Inventor and/or the Co-inventor shall assist and
cooperate with the Purchaser in the maintenance, defense and prosecution of the
Patent Rights and the Purchaser's Intellectual Property Rights in the Technology
and the Other Patent Applications. In particular, without limiting the
generality of the foregoing, the Vendor and/or the Inventor shall assist the
Purchaser, at Purchaser's expense, in maintaining, defending or prosecuting such
rights in the event of Litigation. Moreover, the Vendor and/or the Inventor
shall execute all such applications, forms and other documents needed to carry
out the purposes of this Agreement and, in particular, needed to maintain,
defend or prosecute the Purchaser's rights, including its Patent Rights and its
Intellectual Property Rights in the Technology and the Other Patent
Applications.
2.9 Right of First Offer and Refusal
At any time during the term of this Agreement, should the Inventor
invent new technology in the Field, Inventor shall immediately notify Purchaser
in writing. The Inventor shall provide a full disclosure of such technology,
subject to the terms of an appropriate non-disclosure agreement. Purchaser shall
have a ninety (90) day time-limited option, from receipt of notice, to negotiate
in good faith and in accordance with industry standards and customs, license or
assignment rights to the new technology. If an agreement cannot be reached
within the ninety (90) day period, the negotiation period may be extended by
mutual agreement for an additional thirty (30) days. If Inventor and Purchaser
fail to reach an agreement within the one hundred and twenty (120) days,
Inventor shall be free to negotiate rights in the new technology with any third
party, subject to Inventor's compliance with the non-competition and
non-solicitation provisions set forth in Article 6. In the event that the
Inventor does not accept the Purchaser's offer in the course of negotiations
regarding any such technology, if any, and in the event that the Inventor offers
to sell or license the technology to a third party, the Purchaser shall have a
right of first refusal (exercisable within five business days of notice of the
accepted offer) to acquire or license the said technology from the Inventor on
terms no less favourable than those accepted by the said third party.
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ARTICLE 3 - CONSIDERATION
3.1 Purchase Price
In consideration for the sale and assignment of all its rights,
including its Patent Rights and its Intellectual Property Rights in the
Technology, Purchaser will pay the Vendor the amount of $180,000 US plus QST and
GST (the "Purchase Price"). The Purchase Price will be payable as specified in
Section 3.3 below, by bank draft payable to the Vendor through XxXxxxxx Xxxxxxxx
LLP in trust.
3.2 Issuance of Warrants
In consideration for the Inventor's undertakings and waivers set forth
in Article 2 hereof, Intervenor will issue the Inventor warrants for the
purchase of 300,000 shares of the common stock of the Intervenor, pursuant to
the warrant agreement set forth as Schedule F hereto.
3.3 Payment of Purchase Price and Closing
The Parties agree that Purchaser shall pay to Vendor the Purchase
Price: (i) upon delivery by the Vendor of four (4) originally executed copies of
this Agreement including the assignment agreements in the form attached as
Schedules D and E; and (ii) upon delivery by the Inventor of all Confidential
Information referred to in Section 6.3. Such payment by the Purchaser shall
constitute closing of the technology purchase transaction contemplated in this
Agreement ("Closing").
3.4 Effects of Breach of Representative, Warranties and Conditions
Purchaser's payments under Section 3.3 above shall be subject to and
conditional upon all of Inventor's and Vendor's representations, warranties and
conditions contained in Section 4.1, being true and accurate as of the Closing,
as well as the delivery of all assignment and sale documents, as specified
above, failing which the Purchaser may, at its sole option and without limiting
its other legal rights and remedies, either:
(a) rescind this Agreement upon notice to the Vendor and the
Inventor, and thereby be released from all the Purchaser's
obligations hereunder (except those in which it may then be in
default) while retaining the right to enforce the obligations
of the Vendor and/or the Inventor; or
(b) waive compliance with such by the Vendor and/or the Inventor,
on such further terms as may be agreed upon, and proceed to
complete the within transactions.
ARTICLE 4 - REPRESENTATIONS, WARRANTIES, AND CONDITIONS
4.1 Vendor's and Inventor's Representations, Warranties and Conditions
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The Vendor and Inventor solidarily represent and warrant to the
Purchaser that:
(a) the Inventor has the legal capacity and right to enter into
and execute this Agreement and to grant the rights described
herein;
(b) the Inventor has not entered into, granted or become subject
to, and will not enter into, grant or become subject to, any
agreement, right or obligation which will prevent the
Purchaser from exercising the rights granted to it herein;
(c) the consummation of the transactions herein contemplated and
the compliance with the terms, conditions and provisions of
this Agreement will not conflict with, or result in a breach
of, or constitute a default under any of the terms, conditions
or provisions of any agreement or instrument to which the
Inventor is bound;
(d) the Inventor has not entered into, granted or become subject
to, and will not enter into, grant or become subject to, any
agreement, right or obligation, which will prevent him from
performing his obligations herein.
(e) the Vendor is a corporation duly incorporated under the laws
of Quebec with the corporate power to own its assets and to
carry on its business and has made all necessary filings under
all applicable corporate, securities and taxation laws or any
other laws to which the Vendor is subject;
(f) subject to approval of Vendor's board of directors, which
shall be deemed conclusive upon Vendor's tender of the duly
executed Patent Rights assignments to Purchaser, the Vendor
has good and sufficient power, authority and right to enter
into and deliver this Agreement and to transfer the legal and
beneficial title and ownership of the Patent Rights and its
Intellectual Property Rights in the Technology to the
Purchaser free and clear of all liens, charges, encumbrances
and any other rights of others;
(g) this Agreement constitutes a valid and legally binding
obligation of the Vendor, enforceable against the Vendor in
accordance with its terms subject to applicable bankruptcy,
insolvency, reorganization and other laws of general
application limiting the enforcement of creditors' rights
generally;
(h) there is no contract, option or any other right of another
binding upon or which at any time in the future may become
binding upon the Vendor to license, sell, transfer, assign,
pledge, charge, mortgage or in any other way dispose of or
encumber the Patent Rights and its Intellectual Property
Rights in the Technology other than pursuant to the provisions
of this Agreement;
(i) the Vendor is the sole owner of the right, title, and interest
in the Patent Rights and the Technology;
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(j) with the exception of the rights granted to the Purchaser
under the License Agreement (which agreement will
automatically terminate by mutual agreement of the parties
thereto upon Closing), the Vendor has the sole and exclusive
right to use the Patent Rights and Technology and the Vendor
has not granted any right or license to use the Patent Rights
and Technology to any other person;
(k) there are no actions, suits or proceedings (whether or not
purportedly on behalf of the Vendor) pending or threatened
against or adversely affecting, or which could adversely
affect the Patent Rights or before or by any federal,
provincial, municipal or other governmental court, department,
commission, board, bureau, agency or instrumentality, domestic
or foreign, whether or not insured, and which might involve
the possibility of any lien, charge, encumbrance or any other
right of another against the Patent Rights;
(l) neither the Inventor, the Vendor, nor their Related Entities,
have any other pending patents and patent applications
relating to the Inventions; and
(m) the invention described in the Excluded Patent Application was
not invented during the term of the Consulting Agreement
(which terminated by mutual agreement of the parties on April
15, 2003), as demonstrable by the Inventor's business records.
Notwithstanding the generality of the foregoing, nothing herein should
be construed as a representation or warranty to the effect that the Patent
Applications or the Other Patent Applications will result in issued patents.
4.2 Survival of Vendor's and Inventor's Representations, Warranties and
Conditions
The representations and warranties of the Vendor and the Inventor set
forth in Section 4.1 will survive the Closing herein provided for and,
notwithstanding such Closing, will continue in full force and effect for the
benefit of the Purchaser until the expiry of the last patent, if any, derived
from the Patent Applications or the Other Patent Applicatons.
4.3 Purchaser's Representations and Warranties and Conditions
The Purchaser represents and warrants to the Vendor that:
(a) the Purchaser is a corporation duly incorporated, organized
and subsisting under the laws of Canada;
(b) the Purchaser has good and sufficient power, authority and
right to enter into and deliver this Agreement and to complete
the transactions to be completed by it contemplated hereunder;
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(c) this Agreement constitutes a valid and legally binding
obligation of the Purchaser, enforceable against it in
accordance with its terms subject to applicable bankruptcy,
insolvency, reorganization and other laws of general
application limiting the enforcement of creditors' rights
generally and to the fact that specific performance is an
equitable remedy available only in the discretion of the
court; and
(d) it has not entered into, granted or become subject to, any
agreement, right or obligation, which will prevent it from
performing its obligations herein.
4.4 Survival of Purchaser's Representations, Warranties and Conditions
The representations and warranties of the Purchaser set forth in
Section will survive the Closing herein provided for and, notwithstanding such
Closing, will continue in full force and effect for the benefit of the Vendor
for a period of two (2) years from the date of Closing.
ARTICLE 5 - INDEMNITIES
5.1 Vendor and Inventor's Indemnification
The Vendor and the Inventor hereby solidarily indemnify the Purchaser
against, and agree to hold the Purchaser and its Related Entities harmless from,
all losses, liabilities and expenses (including but not limited to, reasonable
fees and expenses of counsel) incurred directly or indirectly because:
(a) any matter which is the subject of a representation, warranty
or condition of the Vendor or the Inventor in this Agreement
is not as represented or warranted; or
(b) the Vendor or the Inventor fails to fulfill in any respect its
obligations under this Agreement or under any document
delivered in accordance with this Agreement which is required
after the Closing.
5.2 Purchaser Indemnification
The Purchaser hereby indemnifies the Vendor and the Inventor against,
and agrees to hold the Vendor harmless from, all losses, liabilities and
expenses (including but not limited to, reasonable fees and expenses of counsel)
incurred directly or indirectly because:
(a) any matter which is the subject of a representation, warranty
or condition of the Purchaser in this Agreement is not as
represented or warranted; or
(b) the Purchaser fails to fulfill in any respect its obligations
under this Agreement or under any document delivered in
accordance with this Agreement which is required after the
Closing.
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ARTICLE 6 - NON-DISCLOSURE, NON-COMPETITION AND NON-SOLICITATION
6.1 Definition of Confidential Information
"Confidential Information" means any and all information that is
confidential in nature or that is treated as being confidential by the Purchaser
and that is or has already been disclosed by or on behalf of the Purchaser to
the Vendor or the Inventor, whether such information is or has been conveyed
verbally or in written or electronic or other tangible form, and whether such
information is acquired directly or indirectly, including, but not limited to
all technology, data, know-how, trade secrets, specifications, concepts, ideas,
techniques, prototypes, models, all technical, financial, research or business
information, and all internal reports, materials, biological, chemical or
otherwise, other documents containing or regarding any of the foregoing.
Confidential Information does not include any information which:
(a) is publicly available at the time of disclosure, or
(b) is subsequently becomes publicly available through no fault of
the party receiving the information, or
(c) becomes publicly available in the course of obtaining patent
protection, or
(d) is rightfully acquired by the party receiving the information
from a third party who is not in breach of an agreement to
keep such information confidential, or
(e) is disclosed in compliance with a government or judicial
order.
The Vendor and the Inventor acknowledge that the Confidential
Information is extremely valuable to the Purchaser.
6.2 Non-Disclosure of Confidential Information
Unless otherwise required by law or expressly authorized in writing by
the Purchaser, the Vendor and the Inventor shall not, at any time during or
after the Closing, directly or indirectly, in any capacity whatsoever, except in
connection with the strict performance of obligations to be performed hereunder,
divulge, disclose or communicate to any person, moral or physical, entity, firm
or any other third party, or utilize directly or indirectly for the Vendor's or
the Inventor's personal benefit or for the benefit of any competitor of the
Purchaser, any Confidential Information.
6.3 Delivery Upon Closing
Confidential Information and all embodiments thereof (including any
information on computer disk and any reproductions) shall remain the sole
property of the Purchaser, and
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immediately upon Closing, the Inventor and/or the Vendor shall deliver to the
Purchaser all correspondence, drawings, manuals, letters, notes, notebooks,
reports, programs, plans, proposals, financial documents, or any other documents
concerning the Purchaser's customers, dealer network, marketing strategies,
products and/or processes which contain Confidential Information.
6.4 Covenant not to Compete
During the period of twelve (12) months after the Closing, neither the
Vendor, nor the Inventor shall, on their own behalf or on behalf of another,
either alone or in combination with others, directly or indirectly, in any
capacity whatsoever (including, without limitation, as an employee, employer,
principal, agent, joint venture, partner, shareholder or other equityholder,
independent contractor, licensor, licensee, franchisor, franchisee, distributor,
consultant, supplier or trustee):
(a) engage anywhere in Canada, in the United States of America, in
Europe, in Australia or in Asia (hereinafter the "Territory")
in any aspect of the Business for purposes which are
competitive with the Business as conducted by the Purchaser;
(b) have any ownership, profit sharing or equity interest in any
business, firm, corporation, joint venture, partnership or
other entity engaged in any aspect of the Business in the
Territory (other than 5% or less of a publicly traded
company); or
(c) consult with or assist any person, moral or physical (other
than the Purchaser or its Related Entities) who or which is
engaged in any aspect of the Business in the Territory for
purposes which are competitive with the Business as conducted
by the Purchaser.
Notwithstanding the generality of the foregoing, nothing in this
Section shall prevent the Inventor from conducting research and development in
the Field and in the scope of the Business, so long as the Inventor does not
disclose or attempt to commercialize the results of such research and
development during the term of this non-compete obligation. In addition,
notwithstanding the generality of the foregoing, this Section shall not apply to
the Inventor's novel protein delivery system as described in the patent
application referred to as MBM File No: 1047-107 DR to be filed within thirty
(30) days of Closing (the "Excluded Patent Application").
6.5 Covenant of Non-Solicitation
During the period of twelve (12) months after the Closing, neither the
Vendor nor the Inventor shall, on their own behalf or on behalf of another,
either alone or in combination with others, directly or indirectly, in any
capacity whatsoever (including, without limitation, as an employee, employer,
principal, agent, joint venturer, partner, shareholder, or other equityholder,
independent contractor, licensor, licensee, franchisor, franchisee, distributor,
consultant, supplier or trustee):
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(a) solicit or assist any third party to solicit any employees of
the Purchaser or its Related Entities to become an officer,
director, employee or agent of the Vendor, Inventor or such
third party, or otherwise entice away from the employment of
the Corporation any employee of the Purchaser; or
(b) canvass or solicit (or procure or assist the canvassing or the
soliciting of) any customer of the Purchaser or its Related
Entities for purposes that are competitive with the Business
as conducted by the Purchaser; or
(c) accept (or procure or assist the acceptance of) any business
from any customer of the Purchaser or its Related Entities for
purposes that are competitive with the Business as conducted
by the Purchaser or its Related Entities.
ARTICLE 7 - GENERAL
7.1 Entire Agreement
This Agreement constitutes the entire agreement among and between the
parties with respect to the subject matter hereof and supersedes and replaces
all prior and contemporaneous communications, whether written or oral, including
the License Agreement, the Amending Agreement and the Consulting Agreement.
7.2 Further Assurances
Each of the Parties hereto will from time to time execute and deliver
all such further documents and instruments and do all acts and things, either
before or after the Closing, reasonably require to effectively carry out or
better evidence or perfect the full intent and meaning of this Agreement. The
Parties hereby undertake to file with all appropriate authorities within thirty
(30) days of the Closing, all documents necessary to register the transaction
described herein.
7.3 Time of the Essence
Time is of the essence of this Agreement.
7.4 Fees
Each of the Parties hereto will pay their respective legal and
accounting costs and expenses incurred in connection with the preparation,
execution and delivery of this Agreement and all documents and instruments
executed pursuant hereto and any other costs and expenses whatsoever and
howsoever incurred. In the event of a default of any provision of this
Agreement, the non-defaulting party shall be entitled to recover all attorney's
fees and costs
14
incurred in enforcing its rights hereunder, including, without limitation,
expert witness and travel fees.
7.5 Amendments and Waivers
No amendment to this Agreement will be valid or binding unless set
forth in writing and duly executed by both of the Parties hereto. No waiver of
any breach of any provision of this Agreement will be effective or binding
unless made in writing and signed by the party purporting to give the same and,
unless otherwise provided, will be limited to the specific breach waived.
7.6 Notices
Any demand, notice or other communication to be given in connection
with this Agreement will be given in writing and will be given by personal
delivery, by registered mail or by electronic means of communication addressed
to the recipient as follows:
To the Purchaser:
Vitalstate Canada Ltd.
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx
X0X 0X0
To the Vendor:
0000-0000 Xxxxxx Inc.
000 Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxx
X0X 0X0
To the Inventor:
Xxxxxxx Xxxxxx
000 Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxx
X0X 0X0
To the Co-inventor:
Xxxxxxxx Xxxxxx
8804 Xxxxxx Xxxxxxxx
Xxxxxxxx, Xxxxxx
X0X 0X0
15
To the Intervenor:
Vitalstate, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx
X0X 0X0
or to such other address, individual or electronic communication number as may
be designated by notice given by either Party to the other. Any demand, notice
or other communication given by personal delivery will be conclusively deemed to
have been given on the day of actual delivery thereof and, if given by
registered mail, on the fifth Business Day following the deposit thereof in the
mail and, if given by electronic communication, on the day of transmittal
thereof if given during the normal business hours of the recipient and on the
Business Day during which such normal business hours next occur if not given
during such hours on any day. If the Party giving any demand, notice or other
communication knows or ought reasonably to know of any difficulties with the
postal system that might affect the delivery of mail, any such demand, notice or
other communication may not be mailed but must be given by personal delivery or
by electronic communication.
7.7 Survival
Articles 2, 3, 4, 5 and 6, as well as Section 7.7, shall survive and
not merge in the Closing or in the completion of the other transactions
specified in this Agreement.
7.8 Arbitration
Should any dispute arise between the Parties under this Agreement that
cannot be resolved by negotiation, the Party must submit such to binding
arbitration to be conducted in Montreal, Quebec in accordance with the rules of
arbitration set forth in the Quebec Code of Civil Procedure and in the Civil
Code of Quebec. This obligation shall not apply should a Party seek immediate
injunctive or equitable relief.
7.9 Governing Law
This Agreement shall be governed by the laws of the Province of Quebec,
Canada and interpreted and construed in accordance with the local and internal
laws, without the application of principles of conflict of law. The Parties
attorn and agree to submit to the sole and exclusive jurisdiction of a court of
competent jurisdiction within the Province of Quebec in relation to all disputes
arising out of or in connection with this Agreement.
7.10 Counterpart and Partial Execution
This Agreement may be executed in counterparts, each of which when so
executed shall be deemed to be an original and all counterparts together shall
constitute one and the same instrument. A signed counterpart provided by way of
facsimile transmission shall be as binding upon the Parties as an originally
signed counterpart.
16
7.11 Language
The Parties have required that this Agreement and all documents
relating thereto be drawn-up in English. Les parties ont demande que cette
convention ainsi que tous les documents qui s'y rattachent soient rediges en
anglais.
17
IN WITNESS WHEREOF the Parties hereto have caused this Agreement to be executed
by their own hand, or by their duly authorized and empowered officers and
representatives as of the Effective Date.
VITALSTATE CANADA LTD. 0000-0000 XXXXXX INC.
Per: /s/ Xxxxxxx Xxxxx Per: /s/ Xxxxxx Xxxxxx
----------------- -----------------
Title: President Title: President
Date: August 8, 2003 Date: August 8, 2003
-------------- --------------
XXXXXXX XXXXXX XXXXXXXX XXXXXX
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxxxx Xxxxxx
------------------------ -------------------------
Date: August 8, 2003 Date: August 8, 2003
-------------- --------------
VITALSTATE, INC.
Per: /s/ Xxxxxxx Xxxxx
---------------------------
Title: CEO
Date: August 8, 2003
18
SCHEDULE A
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is made and entered into as
of the 1st day of June, 2002 by and among
Vitalstate Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx X0X 0X0
Xxxxxx,
Vitalstate Canada Ltd.
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx X0X 0X0
Xxxxxx,
(Vitalstate Inc. and Vitalstate Canada Ltd.
and are hereinafter referred to both singly and
collectively as the "Corporation"*)
0000-0000 Xxxxxx Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxx X0X 0X0
(the "Consultant")
WHEREAS the Corporation is engaged in the business of the creation,
production, sale and marketing of nutraceuticals (hereinafter the "Business");
WHEREAS the Corporation wishes to employ the Consultant as its director
of new product development and the Consultant agrees to be so employed, in
accordance with terms, covenants and conditions hereinafter set forth;
NOW, THEREFORE, FOR THE REASONS SET FORTH ABOVE, AND IN CONSIDERATION
OF THE MUTUAL PREMISES AND AGREEMENTS HEREINAFTER SET FORTH, THE PARTIES HERETO
ACKNOWLEDGE AND AGREE AS FOLLOWS:
1. NATURE AND TERM OF SERVICES
1.1 The Corporation hereby employs, engages and hires the Consultant as director
of new product development of Vitalstate Inc. and Vitalstate Canada Ltd., and
the Consultant hereby accepts and agrees to such hiring, engagement and
employment.
1.2 Nature of Services. The Consultant agrees that he shall provide his services
to the Corporation on a full-time basis, the whole according to the terms and
conditions hereinafter set forth, as an Consultant to the Corporation, and his
duties as such an Consultant shall include, but not be limited to, those set
forth from time to time by the Corporations' respective boards of directors. In
addition, the Consultant shall use his best efforts to promote the interests of
the Corporation (hereinafter the "Services").
19
1.3 Term. The term of this Agreement (the "Term") shall commence June 1, 2002
and shall continue for a 1 year term ending on May 31, 2003. The Term shall be
automatically renewable at the option of the Consultant for an additional 1 year
period, however, subject to earlier termination as provided herein.
2. COMPENSATION
2.1 Salary. In consideration for the Services to be rendered pursuant to this
Agreement, and in further consideration for the confidentiality, non-competition
and non-solicitation covenants described in Article 3 hereof, the Corporation
shall pay the Consultant an initial base annual salary of CDN$90,000 per annum
(hereinafter the "Salary") subject to the normal deductions at source, payable
in bi-monthly installments. During the Term, the annual base Salary shall be
reviewed periodically by the Corporation for possible increase.
2.2 Bonuses. Consultant will be eligible to receive an annual bonus payable in
cash and/or shares and/or options of Vitalstate Inc., the amount of which shall
not exceed fifty percent (50%) of Consultant's Salary. Both the amount and terms
of payment, if any, shall be determined at the sole and absolute discretion of
the Board of Directors of Corporation, or a compensation committee thereof.
2.3 Other Benefits. Consultant shall also be eligible to participate in any
benefit programs of the Corporation, including but not limited to life,
disability or health insurance, pension, retirement or other benefit plans
adopted by the Corporation for the general and overall benefit of all executive
and key employees of the Corporation.
2.4 Expense Reimbursement. The Corporation will reimburse the Consultant for all
documented and approved expenses incurred by the Consultant in the performance
of his duties under this Agreement, to be paid in accordance with the
Corporation's practices in effect from time to time.
3. CONFIDENTIAL INFORMATION AND NON-COMPETITION
3.1 Definition of Confidential Information. For the purposes of this Agreement,
the term "Confidential Information" shall mean, but shall not be limited to, any
technical or non-technical data, formulae, patterns, compilations, programs,
patents, trade secrets, devices, methods, techniques, drawings, designs,
processes, procedures, improvements, models, experimental work, manuals,
financial data, financial information, business forecast information, cash
requirement information, organization information, valuation information,
technical information, scientific information, research information, lists of
actual or potential customers or suppliers, of the Corporation and any
information regarding any of the Corporation's marketing, sales or dealer
network, which is not generally known to the public through legitimate origins.
The Corporation and the Consultant acknowledge and agree that such Confidential
Information is extremely valuable to the Corporation. In the event that any part
of the Confidential Information becomes generally known to the public through
legitimate origins (other than by breach of this Agreement by the Consultant),
that part of the Confidential Information shall no longer be deemed Confidential
Information for the purposes of this Agreement, but the Consultant shall
continue to be bound by the terms of this Agreement as to all other Confidential
Information.
20
3.2 Non-Disclosure of Confidential Information. Unless otherwise required by law
or expressly authorized in writing by the Corporation, the Consultant shall not,
at any time during or after the Term, directly or indirectly, in any capacity
whatsoever, except in connection with services to be performed hereunder,
divulge, disclose or communicate to any person, moral or physical, entity, firm
or any other third party, or utilize for the Consultant's personal benefit or
for the benefit of any competitor of the Corporation, any Confidential
Information.
3.3 Delivery Upon Termination. Confidential Information and all embodiments
thereof (including any information on computer disk and any reproductions) shall
remain the sole property of the Corporation, and immediately upon request to
this effect or immediately upon termination of this Agreement for any reason,
the Consultant shall promptly deliver to the Corporation all correspondence,
drawings, manuals, letters, notes, notebooks, reports, programs, plans,
proposals, financial documents, or any other documents concerning the
Corporation's customers, dealer network, marketing strategies, products and/or
processes which contain Confidential Information.
3.4 Covenant Not To Compete. During the Term, and for a period of twelve (12)
months after the termination of the Agreement, the Consultant shall not, on his
own behalf or on behalf of another, either alone or in combination with others,
directly or indirectly, in any capacity whatsoever (including, without
limitation, as an employee, employer, principal, agent, joint venture, partner,
shareholder or other equityholder, independent contractor, licensor, licensee,
franchisor, franchisee, distributor, consultant, supplier or trustee):
(i) engage anywhere in Canada and the United States of
America (hereinafter the "Territory") in any aspect
of the Business for purposes which are competitive
with the Business as conducted by the Corporation;
(ii) have any ownership or equity interest in any
business, firm, corporation, joint venture,
partnership or other entity engaged in any aspect of
the Business in the Territory (other than 5% or less
of a publicly traded company); or
(iii) consult with or assist any person, moral or physical
(other than the Corporation) who or which is engaged
in any aspect of the Business in the Territory for
purposes which are competitive with the Business as
conducted by the Corporation.
3.5 Covenant of Non-Solicitation. During the Term, and for a period of twelve
(12) months after the termination of this Agreement, the Consultant shall not,
on his own behalf or on behalf of another, either alone or in combination with
others, directly or indirectly, in any capacity whatsoever (including, without
limitation, as an employee, employer, principal, agent, joint venturer, partner,
shareholder, or other equityholder, independent contractor, licensor, licensee,
franchisor, franchisee, distributor, consultant, supplier or trustee):
21
(i) solicit or assist any third party to solicit any
employees of the Corporation to become an officer,
director, employee or agent of the Corporation or
such third party, or otherwise entice away from the
employment of the Corporation any employee of the
Corporation; or
(ii) (a) canvass or solicit (or procure or assist the
canvassing or the soliciting of) any
customer of the Corporation for purposes
which are competitive with the Business as
conducted by the Corporation; or
(b) accept (or procure or assist the acceptance
of) any business from any customer of the
Corporation for purposes which are
competitive with the Business as conducted
by the Corporation.
3.6 Assignment of Consultation Inventions. The Consultant shall disclose and
assign to the Corporation any and all materials of a proprietary nature,
including, but not limited to, material subject to protection as Confidential
Information, trade secrets or as patentable or copyrightable ideas, which the
Consultant may conceive, invent, create or discover, either solely or jointly
with another or others, during the Term, in connection with the rendering of
Services hereunder and which relates to or is capable of use in connection with
the business of the Corporation or any services or products offered, performed,
produced, used, sold or being developed by the Corporation at the time said
material is developed.
3.7 Additional Documentation. The Consultant will, upon request of the
Corporation, either during or at any time after the termination of this
Agreement, execute and deliver all papers, including applications for patents or
copyrights, and do such other acts (solely at the Corporation 's expense) as may
be necessary to obtain and to maintain proprietary rights in the Confidential
Information specified in Section 3.6 above and the materials specified in
Section 3.6 above, in any and all countries and to vest title thereto in the
Corporation.
3.8 Other Remedies. In the event that the Consultant breaches any of the terms
contained in this Section 3, the Consultant stipulates that said breach will
result in immediate and irreparable harm to the business and goodwill of the
Corporation and that damages, if any, and remedies at law for such breach would
be inadequate. In addition to any and all such remedies available to the
Corporation, the Corporation shall therefore be entitled to apply for and
receive from any court of competent jurisdiction an injunction to restrain any
violation of this Agreement and for such further relief as the court may deem
just and proper.
3.9 Continuing Obligations. The obligations, duties and liabilities of the
Consultant pursuant to Section 3 of this Agreement are continuing, absolute and
unconditional and shall remain in full force and effect as provided therein
despite any termination of this Agreement for any reason whatsoever, including,
but not limited to, the expiration of the Term.
22
4. TERMINATION
4.1 Termination for Cause; Death or Disability of Consultant. In the event of a
material breach by the Consultant under this Agreement, or upon his death or
permanent disability such that the Consultant cannot perform the Services
hereunder, this Agreement may be terminated by the Corporation without notice or
penalty. Notwithstanding the foregoing, any Salary earned by the Consultant
prior to such termination, death or disability shall remain payable by the
Corporation to the Consultant or his estate. For purposes of this Agreement,
permanent disability means the Consultant has been unable, for three consecutive
months, to perform the Consultant's duties under this Agreement, as a result of
physical or mental illness or injury.
4.2 Termination by Consultant. This Agreement may be terminated at any time by
Consultant upon three (3) months prior written notice to Corporation.
4.3 Termination by Corporation without Cause. This Agreement may be terminated
at any time by Corporation without cause, for any reason whatsoever, upon
payment to Consultant of an amount equivalent to his base salary, payable
bi-monthly for a period of twelve (12) months.
5. MISCELLANEOUS
5.1 Assignment. Except as provided in this Section 5.1, the Consultant and the
Corporation acknowledge and agree that the covenants, terms and provisions
contained in this Agreement and the rights of the parties hereunder cannot be
transferred, sold, assigned, pledged, or hypothecated; provided, however that
this Agreement shall be binding upon and shall enure to the benefit of the
Corporation and any successor to or assignee of all or substantially all of the
business and property of the Corporation. In addition, the Corporation may
assign its rights hereunder to a direct or indirect subsidiary, affiliated
company, or division of the Corporation without the consent of the Consultant.
5.2 Capacity. The Consultant hereby represents and warrants that, in entering
into this Agreement, he is not in violation of any contract or agreement,
whether written or oral, with any other person, moral or physical, firm,
partnership, corporation or any other entity to which he is a party or by which
he is bound and will not violate or interfere with the rights of any other
person, firm, partnership, corporation or other entity.
5.3 Entire Agreement. This Agreement contains the entire agreement between the
parties and shall not be modified except in writing by the parties hereto.
Furthermore, the parties hereto specifically agree that all prior agreements,
whether written or oral, relating to the Services to the Corporation shall be of
no further force or effect from and after the date hereof.
5.4 Severability. If any phrase, clause or provision of this Agreement is
declared invalid or unenforceable by a court of competent jurisdiction, such
phrase, clause or provision shall be deemed severable from this Agreement, but
will not effect any other provisions of this Agreement, which otherwise shall
remain in full force and effect. If any restriction or limitation in this
Agreement is deemed to be unreasonable, onerous and unduly restrictive by a
court of competent jurisdiction, it shall not be stricken in its entirety and
held totally void and unenforceable, but shall remain effective to the maximum
extent permissible within reasonable bounds.
23
5.5 Waiver. The waiver by the Corporation or the Consultant of any breach of any
term or condition of this Agreement shall not be deemed to constitute the waiver
of any other breach of the same or any other term or condition hereof.
5.6 Governing Law. The parties hereto agree that this Agreement shall be
construed as to both validity and performance and shall be enforced in
accordance with and governed by the laws of Quebec applicable therein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
VITALSTATE INC.
By: /s/ Xxxxxxx Xxxxx
--------------------------------------
Name: Xxxxxxx Xxxxx
Title: President and Chief Executive
Officer
VITALSTATE CANADA LTD.
By: /s/ Xxxxxxx Xxxxx
---------------------------------------
Name: Xxxxxxx Xxxxx
Title: President and Chief Executive
Officer
0000-0000 XXXXXX INC.
By: /s/ Xxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx
Title: President
24
INTERVENTION
to the Consulting Agreement
dated June 1, 2002
AND TO THESE PRESENTS intervenes Xxxxxxx Xxxxxx, acting in his personal
capacity, who hereby declares having taken cognizance of all of the provisions
contained in this Agreement, with which he declares himself to be entirely
satisfied and familiar.
The undersigned hereby agrees to be bound in his personal capacity by the
obligations set forth in Section 3 of this Agreement.
DATED AT Montreal, this 1st day of June, 2002.
/s/ Xxxxxxx Xxxxxx
------------------------------
Xxxxxxx Xxxxxx
25
License Agreement dated November 7, 2001
(Filed herewith as Exhibit 10.1)
26
Amending Agreement dated September 25, 2002
(Filed herewith as Exhibit 10.2)
27
CAMPBELL, COHEN, XXXXXXXX
AVOCATS
BARRISTERS AND SOLICITORS
(SOCIETE XXXXXXXX)
000 XXXXXXX, XXXXX 000 TEL: (000) 000 0000
WESTMOUNT, QUEBEC, CANADA FAX: (000) 000-0000
H3Z 3L5 E-MAIL:
XXXXX00000@xxx.xxx
NOTICE OF TERMINATION
---------------------
BY BAILIFF
----------
WITHOUT PREJUDICE
-----------------
TO: VITALSTATE CANADA LTD.
0000 Xxxxxxx Xxx.
Xxxxxxxx, Xxxxxx
X0X 0X0
Attention: President
--------------------
Re: 0000-0000 XXXXXX INC.
and NUVO WAY INC.
(NOW VITALSTATE CANADA LTD.)
License Agreement dated 7 November, 2001
------------------------------------------------
Dear Sir/Madam:
We are the general attorneys for 0000-0000 Xxxxxx Inc. and we have been
instructed to advise you as follows:
1. On the 7 November, 2001, you did execute with our client a License
Agreement for the use by your Company of the "License Technology" more
fully described in Section 1.1.(i) under the heading "DELIVERY SYSTEM
FOR CREATINE" developed by Xxxxxxx Xxxxxx and Xxxxxxxx Xxxxxx with the
intellectual property rights therefore resting with our client;
2. Article 3.2.2 thereof reads as follows:
"3.2.2. Where Licensee does not require governmental approval(s) to
market and /or sell Licensed Products(s) in a Territory, Licensee
agrees to bring to market and achieve sales of Licensed Product(s) of
not less than two hundred thousand dollars CDN ($200,000.00 CDN) in at
least one such Territory within eighteen (18) months of the execution
of this Agreement."
(emphasis added)
3. You have omitted, failed and neglected to discharge your obligations
under the said Section 3.2.2;
4. Consequently, our client herewith invokes one of the "Remedies" set
forth in Article 3.3, being Section (A) thereof, which reads as
follows:
"3.3 Remedies. In the event that Licensee does not substantially
meet one or more of the performance criteria set forth in this
Article III, Licensor, at its discretion, shall have the right
to: (A) terminate all license rights granted Licensee under
this License Agreement, whereupon Licensor may. in its sole
discretion, grant licenses to the Licensed Technology to
licensees other than Licensee upon any terms and without any
obligation to compensate, in any way, Licensee in connection
therewith ..." (emphasis added)
5. As this Agreement was executed on the 7 November, 2001, and eighteen
(18) months shall have expired by the 7 May, 2003, and you have not as
aforesaid discharged your said obligations under Section 3.2.2, our
client is within its legal and contractual rights to forward this
Notice to you terminating all License Rights In the Agreement by the
said latter date of the 7 May, 2003;
28
CAMPBELL, COHEN, XXXXXXXX
WITHOUT PREJUDICE TO THE FOREGOING, AND UNDER STRICT RESERVE THEREOF, OUR CLIENT
WOULD BE PREPARED TO ENTER INTO A NEW LICENSING AGREEMENT UNDER THE FOLLOWING
TERMS AND CONDITIONS PROVIDED THAT YOUR WRITTEN CONSENT TO ALL OF THESE CHANGES
IS RECEIVED AT OUR OFFICES BY NO LATER THAN THE CLOSE OF BUSINESS ON THE 17 MAY,
2003:
1 There be a USD $75,000.00 Signing Bonus paid to our client;
2. There be a USD $75,000.00 Annual Licensing Fee payable quarterly in
advance;
3. There be a Royalty Charge of five percent (5%) of gross revenue payable
within thirty (30) days of the end of each quarter upon the interim
unaudited financial statements prepared by the Company's auditors
within that delay;
4. This Agreement would avail for a period of ten (10) years commencing 18
May, 2003;
5. All other provisions of the original Licensing Agreement herewith
terminated which are compatible with these changes shall be replicated
in the new Agreement;
Consequently as at the Close of Business on the 7 May, 2003, you are absolutely
forbidden under penalty of law to exercise any rights granted to you under the
said License Agreement and you are to return any and all pertinent documents
with respect thereto, and to advise all persons with whom you have effected
business under the said Agreement of the termination and removal of your
Licensee's rights.
AND DO YOU GOVERN YOURSELF ACCORDING.
Montreal, May 5, 2003
CAMPBELL, COHEN, XXXXXXXX
Per: /s/ Xxxxx X. Xxxxxxxx
---------------------------
Xxxxx X. Xxxxxxxx, Attorney
29
CALL FOR ARBITRATION
REQUESTED BY 0000-0000 XXXXXX INC.
PURSUANT TO SECTION 10.10,
LICENSE AGREEMENT OF 7 NOVEMBER, 2001
-------------------------
I. BACKGROUND
On the 7 November, 2001, 0000-0000 Xxxxxx Inc., hereinafter referred to
as the "Licensor", did execute with Nuvo Way Inc. (now Vitalstate
Canada hereinafter referred to as the "Licensee", a License Agreement
hereinafter referred to as the "Agreement", with respect to the usage
by the Licensee under the terms and conditions therein denoted of that
certain Intellectual Property owned by the "Licensor" and summarily
described as a "Delivery System for Creatine"; a copy of the Agreement
has been appended to these presents as Schedule "A";
On the 25 September, 2002, the said Agreement was amended and a copy of
same has been appended to these presents as Schedule "B";
On the 5 May, 2003, the Licensor, through its undersigned attorneys,
did serve upon the Licensee a Notice of Termination of the Agreement on
the grounds that the Licensee did not achieve sales of the licensed
Product to that certain sum and in that certain period denoted in the
Agreement; a copy of this Notice has been appended to these presents as
Schedule "C";
On the 7 May, 2003, counsel to the Licensee responded to the said
Notice, rejected the allegations, and denied that the "Licensor" had a
right to verify the sales records of the Licensee; a copy of that
Counsel's letter has been appended to these presents as Schedule "D";
30
On the 12 May, 2003, the said letter was answered by the Licensor's
undersigned Counsel, noting that any sub-License Agreement the Licensee
would grant required certain conditions to be inserted therein pursuant
to the Agreement, as well as a percentage remuneration for all
sub-License sales and concluding to a request for a copy of all
contracts entered by the Licensee for the Intellectual Property in
question, together with all sales records; a copy of this Letter has
been appended to these presents as Schedule "E";
In early June 2003 Licensee's Counsel orally offered to discharge a
lump sum payment to the Licensor to effectively terminate the
Agreement.
On the 9 June, 2003, Licensor's Counsel responded to same by noting
that the oral offer was wholly insufficient and that unless the said
documents were provided to the Licensor and a new Agreement entered
under the specified terms and conditions by the 12 June, 2003, a
request for inter alia, Arbitration under Section 10.10 of the
Agreement would be effected; a copy of that Letter has been appended
hereto as Schedule "F";
On the 11 June, 2003, Licensee's Counsel responded, denying Licensor's
right to receive the requested documents and annexing a Purchase Order
to Licensee dated 9 January, 2003, with the Purchaser's name blanked
out; a copy of that Letter has been appended hereto as Schedule "G";
31
II. TERMS OF ARBITRATION
In the light of the above Background, and given the terms of Section
10.10 of the Agreement, the Licensor respectfully submits the following
questions to be determined by the Arbitrator(s):
i) Whether or not Section 2.2 of the Agreement permits the
Licensor to examine all sub-Licensing and Sales Agreements
entered by the Licensee to determine whether or not such
sub-agreements required the insertion of those certain clauses
contained in the said Section 2.2;
ii) Whether or not Section 4.1.4 of the Agreement further enables
the Licensor to examine all sales records of the Licensee to
determine if they come within the ambit of the five percent
(5%) sub-License fee due to the Licensor;
iii) If ii) is answered in the affirmative, whether or not the
Licensor has the right to audit such figures;
Whether or not the Licensee failed to discharge its sales
obligations in that time frame stipulated in Section 3.2.2 of
the Agreement;
v) Whether or not any finding against the Licensee respecting any
one of the above Complaints warrants a conclusion as to the
Termination of the Agreement noted in Sections 3.3 and 8.2
thereof;
Whether or not the conduct of the Licensee warrants
resiliation of the Agreement;
32
III. CONDITIONS OF ARBITRATION
The Licensor proposes either the Hon. Xxxx Xxxx, former chief Justice
of the Superior Court for the Province of Quebec or the Xxxxxxxxx
Xxxxxxxx Xxxxxxx, former Associate Chief Justice of the same Court. The
Licensor has not as yet contracted either of these jurists respecting
this matter.
The Licensor is satisfied that each nominee could act as a sole
Arbitrator and proposes that his decision would be binding upon both
parties.
The costs shall be fixed by the Arbitrator.
The Licensor has deposited in Trust with its Counsel the sum of
$10,000.00 and the Licensee is called upon to immediately effect the
same deposit with its Counsel in Trust;
IV. Delay to respond
The Licensee is called upon to respond to these presents within a delay
of ten (10) days in writing to the undersigned Counsel in the following
fashion:
i) Agree to the appointment of one of the suggested nominees as
the sole binding Arbitrator;
ii) If not, to suggest the name of an alternative sole Arbitrator;
iii) IF not, to agree to an Arbitration Panel of Three persons, and
nominate one of them, with the two nominees themselves
appointing the Third Member of the Panel;
33
iv) Accept the foregoing Terms of Arbitration, suggest amendments
thereto, or submit its own Terms of Arbitration;
v) Agree to convene the Arbitration Panel and to set its terms,
conditions and remuneration as quickly as possible.
THE WHOLE RESPECTFULLY SUBMITED.
MONTREAL, July 3, 2003
9103-3019 QUEBEC INC.
Per: /s/ Xxxxxx Xxxxxx
--------------------
Xxxxxx Xxxxxx, duly authorized
as she so declares
34
Schedule B
March 22, 2002
To: Nuvo Way Inc. ("Nuvo Way")
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx
X0X 0X0
To whom it may concern,
The undersigned hereby authorizes Nuvo Way to deduct from my bi-monthly
consulting fees, in equal consecutive bi-monthly instalments, one thousand five
hundred dollars ($1,500) each for a period of 30 months. The first instalment
shall be deducted as of the first of the month following the date of closing of
the proposed reverse acquisition by Nuvo Way of Harmony Trading Corp and shall
be remitted to Xxxx Xxxxxx on my behalf on the first of every month.
Said amounts represent payment of the purchase price for the 300 shares in the
capital stock of Nuvo Way owned by Xxxx Xxxxxx and sold to the undersigned.
Yours truly,
9103-3019 Quebec Inc.
/s/ Xxxxxx Xxxxxx
---------------------------
per: Xxxxxx Xxxxxx
35
Date Memo Amount Details:
9103-3019
7/3/2001 Advance 2,200.00 Loan
7/3/2001 Advance - to be repaid 5,000.00 Loan
7/23/2001 Advance to 0000-0000 Xxxxxx Inc. 3,000.00 Loan
8/24/2001 Advance 2,000.00 Loan
9/26/2001 Consulting - X. Xxxxxx 2,500.00 Cheque payable to 9103 for
12/10/2001 Office Furniture 2,543.20 Office Furniture
12/10/2001 Dell 2,050.90 Computer
Net Labs
5/2/2001 Fat Fighter 19,294.10
5/15/2001 Fat Fighter
7,500.00 Product never received
1,290.16 Product never received
8,790.16
Total: $ 28,084.26
36
SCHEDULE C
PATENT APPLICATIONS TO BE ASSIGNED
MBM File No: 831-103PCT
PCT Patent Application No. PCT/CA02/01441
Filed: September 25, 2002
Claims priority to:
Canadian Patent Application No. 2,358,045
US Provisional Patent Application No. 60/348,584
US Provisional Patent Application No. 60/396,548
A Carbohydrate-Based Delivery System for
Creatine and other Bioactive Ingredients
Published: April 3, 2003
Status: Pending
MBM File No: 831-103US
US Patent Application: (early) National Entry of
PCT Patent Application No. PCT/CA02/01441
FIled: September 25, 2002
National Entry Date: May 7, 2003
A Carbohydrate-Based Delivery System for
Creatine and Other Bioactive Ingredients
Status: Pending
MBM File No: 831-104PCT
PCT Patent Application No. PCT/CA03/00411
Filed: March 25, 2003
Claims priority to: US Provisional Application No. 60/372,438
Delivery Systems for Functional Ingredients
Status: Not Yet Published, Pending
MBM File No: 831-104US
US Patent Application: (early) National Entry of
PCT Patent Application No. PCT/CA03/00411
FIled: March 25, 2003
Delivery Systems for Functional Ingredients
Status: Pending
37
MBM File No: 831-114PCT
PCT Patent Application No. PCT/CA02/01442
FIled: September 25, 2002
Claims priority to:
Canadian Patent Application No. 2,358,045
US Provisional Patent Application No. 60/348,584
US Provisional Patent Application No. 60/396,548
A Starch-Based Delivery System for Creatine
Status: Published April 3, 2003, Pending
MBM File No: 831-114US
United States Patent Application No.10/297,983
(early National Entry of PCT Patent Application No. PCT/CA02/01442)
FIled: September 25, 2002
A Starch-Based Delivery System for Creatine
Status: Pending
MBM File No.: 831-106PCT
New PCT Patent Application
Claims Priority to: US Provisional Patent Application N. 60/396,731
Filed: July 18, 2003
Transmucosal Delivery System
Status: Pending
MBM File No.: 831-107PR
US Provisional Patent Application No. 60/402,863
Filed: August 13, 2002
Multi-Phase Delivery System
Status: Pending; PCT to be Filed
38
Schedule D
ASSIGNMENT OF INVENTION
WHEREAS, 0000-0000 Xxxxxx Inc., a company incorporated under the laws of the
Province of Quebec, having a principal place of business at 000 Xxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxx X0X 0X0, Xxxxxx (hereinafter "ASSIGNOR"), has certain rights,
title and interest to the invention relating to:
MULTI-PHASE PATENT DELIVERY SYSTEM as described and claimed in the
United States Provisional Patent Application filed on August 13, 2002
under Application No. 60/402,863;
and WHEREAS, Vitalstate Canada Ltd., having a principal place of business at
0000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxx X0X 0X0, Xxxxxx (hereinafter "ASSIGNEE"),
is desirous of obtaining certain rights, title and interest in, to and under
said invention and application.
NOW, THEREFORE, in consideration of the sum of One Dollar ($1.00) to it
in hand paid, and other good and valuable consideration, the receipt of which is
hereby acknowledged, ASSIGNOR does hereby sell, assign, transfer and set over,
unto the said ASSIGNEE, its successors, legal representatives and assigns, all
of its entire right, title, interest throughout the world in, to and under said
invention; all improvements, modifications and additions to said invention and
to all corresponding rights, title and interest in and to any patent which may
be granted thereon; said application and all divisions, renewals, continuations,
continuation-in-part applications thereto, and all corresponding patents which
may be granted thereon and all reissues and extensions thereof; all
corresponding United States and/or foreign patent applications and patents
relating to said invention and improvements, modifications and additions
thereto, and to any divisions, continuations, continuation-in-part applications,
reissues and renewals of the aforementioned patents; and all applications for
industrial property protection, including, without limitation, all applications
for patents, utility models, and designs which may hereafter be filed for said
invention in any country throughout the world together with the right to file
such applications and the right to claim for the same priority rights derived
from said application under any international agreements, conventions, treaties
and the domestic laws of the country in which any such application is filed, as
may be applicable; and all forms of industrial property protection, including,
without limitation, patents, utility models, inventors' certificates and designs
which may be granted for said invention in any country throughout the world and
all extensions, renewals and reissues thereof; all rights and privileges
pertaining to any patent applications and Letters Patents relating to said
invention and application throughout the world, including, without limitation,
all causes of action, claims, demands and other rights, for or arising from any
past infringement thereof, as well as the fruits of any of the above, including,
without limitation, royalties, damages, punitive damages, loss of profits or the
like;
AND ASSIGNOR HEREBY agrees, without charge (excluding travel,
accommodations and the like), and at the request of the ASSIGNEE, its successors
and assigns, to execute any and all divisional, continuation,
continuation-in-part applications, reissue and substitute applications the
United States of America and in any corresponding foreign jurisdiction for said
invention and improvements, modifications and additions to said invention, and
acknowledge and agree that all rights therein shall vest in the ASSIGNEES, its
successors, and assignees, whereby said United States or foreign Letters Patent
will be held and enjoyed by said ASSIGNEES, its successors and assigns, to the
full extent of the term for which said Letters Patent will be granted, as fully
and entirely as the same would have been held and enjoyed by the undersigned if
the this assignment had not been made;
AND ASSIGNOR HEREBY agrees, without charge (excluding travel,
accommodations and the like), and at the request of the ASSIGNEE, its successors
and assigns, to execute any and all documents required by the ASSIGNOR to fully
and properly vest the aforementioned rights in the ASSIGNEE; to do
39
all things which the ASSIGNEE, its successors and assigns, shall consider
necessary or desirable for securing, maintaining and enforcing the rights and
property specified herein above, including testifying in all legal proceedings;
to communicate all facts known by ASSIGNOR relating to the inventions and the
history thereof;
AND ASSIGNOR HEREBY authorizes and requests the Commissioner of Patents
or the like Official of any country, whose duty it is to issue patents or other
evidence of forms of industrial property protection on applications as
aforesaid, to issue the same in and to the said ASSIGNEE, its successors, legal
representatives and assigns, in accordance with the terms of this instrument;
AND ASSIGNOR HEREBY covenants and agrees that it has full right to
convey all of its interest herein assigned, and that it has not executed, and
will not execute, any agreement in conflict herewith; has not copied or used
information that may be subject to a trade-secret owned or under the control of
a third party; the present assignment is complementary to any previous
assignment, if any, in favour of the ASSIGNEE;
AND in the event of disagreement between the ASSIGNOR and ASSIGNEE
(hereinafter the "Parties"), this Assignment of Invention shall be interpreted
in accordance with the Laws in effect in the Province of Quebec.
Le(s) soussigne(s) desire(nt) que la presente cession soit en anglais. The
undersigned requests) that the present assignment be in English.
SIGNED at Montreal CANADA.
-----------------------------------------------------,
City Country
this 8th day of August , 2003.
------------- ----------
/s/ Xxxxxxxx Xxxxxx /s/ Xxxxxx Xxxxxx
----------------------- --------------------------------
(signature of witness) (signature of duly authorised signatory for ASSIGNOR)
Name: Xxxxxxxx Xxxxxx Name: Xxxxxx Xxxxxx
Title: Title: President
Where Applicable:
State/Province of Quebec )
------ )
Country of CANADA )
-------------
On this 8th day of August, 2003, before me, a Notary Public in and for the
State/Province aforesaid, personally appeared Xxxxxx Xxxxxx, to me known and
know to me to be the person of that name, who signed and sealed the foregoing
instrument, and he acknowledged the same to be his free act and deed.
/s/ illegible
-----------------------
Notary Public
40
ACKNOWLEDGMENT OF ASSIGNMENT OF INVENTION
I, XXXXXXX XXXXX, a duly authorised signatory on behalf representative of
Vitalstate Canada Ltd. having a principal place of business at 0000 Xxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxx X0X 0X0, Xxxxxx, acknowledge the attached Assignment of
Invention from 0000-0000 Xxxxxx Inc. to Vitalstate Canada Ltd. dated Aug 08,
2003, regarding all rights, title and interest throughout the world in, to and
under the invention relating to MULTI-PHASE PATENT DELIVERY SYSTEM.
SIGNED at Montreal Canada,
--------------------------------
City Country
this 8th day of August, 2003.
---- -------
/s/ Xxxxxxx Xxxxx
----------------------------------------------------
(signature of duly authorised signatory for ASSIGNOR)
Name:
Title:
I, Xxxxxxxx Xxxxxx declare that I was personally present
------------------------------------- and did see,
(Name of Notary, Attorney, or Witness)
Xxxxxxx Xxxxx duly sign and execute the above
-------------------------------------- acknowledgement.
(Name of Signing Authority for Assignee)
/s/ Xxxxxxxx Xxxxxx
----------------------------------------------
(Signature of Notary, Attorney, or Witness)
41
ASSIGNMENT OF INVENTION
WHEREAS, 0000-0000 Xxxxxx Inc., a company incorporated under the laws of the
Province of Quebec, having a principal place of business at 000 Xxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxx X0X 0X0, Xxxxxx (hereinafter "ASSIGNOR"), has certain rights,
title and interest to the invention relating to:
DELIVERY SYSTEMS FOR FUNCTIONAL INGREDIENTS as described and claimed in
the International Patent Application filed on March 25, 2003 under
Application No. PCT/CA03/00411 and claiming priority to United States
Provisional Patent Application No. 60/372,438;
and WHEREAS, Vitalstate Canada Ltd., having a principal place of business at
0000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxx X0X 0X0, Xxxxxx (hereinafter "ASSIGNEE"),
is desirous of obtaining certain rights, title and interest in, to and under
said invention and application.
NOW, THEREFORE, in consideration of the sum of One Dollar ($1.00) to it
in hand paid, and other good and valuable consideration, the receipt of which is
hereby acknowledged, ASSIGNOR does hereby sell, assign, transfer and set over,
unto the said ASSIGNEE, its successors, legal representatives and assigns, all
of its entire right, title, interest throughout the world in, to and under said
invention; all improvements, modifications and additions to said invention and
to all corresponding rights, title and interest in and to any patent which may
be granted thereon; said application and all divisions, renewals, continuations,
continuation-in-part, national phase applications thereto, and all corresponding
patents which may be granted thereon and all reissues and extensions thereof;
all corresponding foreign patent applications and patents relating to said
invention and improvements, modifications and additions thereto, and to any
divisions, continuations, continuation-in-part applications, reissues and
renewals of the aforementioned patents; and all applications for industrial
property protection, including, without limitation, all applications for
patents, utility models, and designs which may hereafter be filed for said
invention in any country throughout the world together with the right to file
such applications and the right to claim for the same priority rights derived
from said application under any international agreements, conventions, treaties
and the domestic laws of the country in which any such application is filed, as
may be applicable; and all forms of industrial property protection, including,
without limitation, patents, utility models, inventors' certificates and designs
which may be granted for said invention in any country throughout the world and
all extensions, renewals and reissues thereof; all rights and privileges
pertaining to any patent applications and Letters Patents relating to said
invention and application throughout the world, including, without limitation,
all causes of action, claims, demands and other rights, for or arising from any
past infringement thereof, as well as the fruits of any of the above, including,
without limitation, royalties, damages, punitive damages, loss of profits or the
like;
AND ASSIGNOR HEREBY agrees, without charge (excluding travel,
accommodations and the like), and at the request of the ASSIGNEE, its successors
and assigns, to execute any and all divisional, continuation,
continuation-in-part applications, reissue and substitute applications in any
corresponding foreign jurisdiction for said invention and improvements,
modifications and additions to said invention, and acknowledge and agree that
all rights therein shall vest in the ASSIGNEES, its successors, and assignees,
whereby said foreign Letters Patent will be held and enjoyed by said ASSIGNEES,
its successors and assigns, to the full extent of the term for which said
Letters Patent will be granted, as fully and entirely as the same would have
been held and enjoyed by the undersigned if the this assignment had not been
made;
AND ASSIGNOR HEREBY agrees, without charge (excluding travel,
accommodations and the like), and at the request of the ASSIGNEE, its successors
and assigns, to execute any and all documents
42
required by the ASSIGNOR to fully and properly vest the aforementioned rights in
the ASSIGNEE; to do all things which the ASSIGNEE, its successors and assigns,
shall consider necessary or desirable for securing, maintaining and enforcing
the rights and property specified herein above, including testifying in all
legal proceedings; to communicate all facts known by ASSIGNOR relating to the
inventions and the history thereof;
AND ASSIGNOR HEREBY authorizes and requests the Commissioner of Patents
or the like Official of any country, whose duty it is to issue patents or other
evidence of forms of industrial property protection on applications as
aforesaid, to issue the same in and to the said ASSIGNEE, its successors, legal
representatives and assigns, in accordance with the terms of this instrument;
AND ASSIGNOR HEREBY covenants and agrees that it has full right to
convey all of its interest herein assigned, and that it has not executed, and
will not execute, any agreement in conflict herewith; has not copied or used
information that may be subject to a trade-secret owned or under the control of
a third party; the present assignment is complementary to any previous
assignment, if any, in favour of the ASSIGNEE;
AND in the event of disagreement between the ASSIGNOR and ASSIGNEE
(hereinafter the "Parties"), this Assignment of Invention shall be interpreted
in accordance with the Laws in effect in the Province of Quebec.
Le(s) soussigne(s) desire(nt) que la presente cession soit en anglais. The
undersigned request(s) that the present assignment be in English.
SIGNED at Montreal CANADA,
--------------------------------------------
City Country
this 8th day of August, 2003.
----- ------
/s/ Xxxxxxxx Xxxxxx /s/ Xxxxxx Xxxxxx
----------------------- --------------------------------
(signature of witness) (signature of duly authorised signatory for ASSIGNOR)
Name: Xxxxxxxx Xxxxxx Name: Xxxxxx Xxxxxx
Title: Title: President
Where Applicable:
State/Province of Quebec )
------ )
Country of CANADA )
-------------
On this 8th day of August, 2003, before me, a Notary Public in and for the
State/Province aforesaid, personally appeared Xxxxxx Xxxxxx, to me known and
know to me to be the person of that name, who signed and sealed the foregoing
instrument, and he acknowledged the same to be his free act and deed.
/s/ illegible
-----------------------
Notary Public
43
ACKNOWLEDGMENT OF ASSIGNMENT OF INVENTION
I, XXXXXXX XXXXX, a duly authorised signatory on behalf representative of
Vitalstate Canada Ltd. having a principal place of business at 0000 Xxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxx X0X 0X0, Xxxxxx, acknowledge the attached Assignment of
Invention from 0000-0000 Xxxxxx Inc. to Vitalstate Canada Ltd. date Aug 08,
2003, regarding all rights, title and interest throughout the world in, to and
under the invention relating to DELIVERY SYSTEMS FOR FUNCTIONAL INGREDIENTS.
SIGNED at Montreal Canada,
------------------------------------
City Country
this 8th day of August, 2003.
---- ------
/s/ Xxxxxxx Xxxxx
-----------------------------------------------------
(signature of duly authorised signatory for ASSIGNOR)
Name:
Title:
I, Xxxxxxxx Xxxxxx declare that I was personally present
------------------------------------- and did see
(Name of Notary, Attorney, or Witness)
Xxxxxxx Xxxxx duly sign and execute the above
-------------------------------------- acknowledgement.
(Name of Signing Authority for Assignee)
/s/ Xxxxxxxx Xxxxxx
----------------------------------------------
(Signature of Notary, Attorney, or Witness)
44
ASSIGNMENT OF INVENTION
WHEREAS, 0000-0000 Xxxxxx Inc., a company incorporated under the laws of the
Province of Quebec, having a principal place of business at 000 Xxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxx X0X 0X0, Xxxxxx (hereinafter "ASSIGNOR"), has certain rights,
title and interest to the invention relating to:
A STARCH-BASED DELIVERY SYSTEM FOR CREATINE as described and claimed in
the International Patent Application filed on September 25, 2002 under
Application No. PCT/CA02/01442 and claiming priority to Canadian Patent
Application No. 2,358,045 and United States Provisional Patent
Applications Nos. 60/348,584 and 60/396,548;
and WHEREAS, Vitalstate Canada Ltd., having a principal place of business at
0000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxx X0X 0X0, Xxxxxx (hereinafter "ASSIGNEE"),
is desirous of obtaining certain rights, title and interest in, to and under
said invention and application.
NOW, THEREFORE, in consideration of the sum of One Dollar ($1.00) to it
in hand paid, and other good and valuable consideration, the receipt of which is
hereby acknowledged, ASSIGNOR does hereby sell, assign, transfer and set over,
unto the said ASSIGNEE, its successors, legal representatives and assigns, all
of its entire right, title, interest throughout the world in, to and under said
invention; all improvements, modifications and additions to said invention and
to all corresponding rights, title and interest in and to any patent which may
be granted thereon; said application and all divisions, renewals, continuations,
continuation-in-part, national phase applications thereto, and all corresponding
patents which may be granted thereon and all reissues and extensions thereof;
all corresponding foreign patent applications and patents relating to said
invention and improvements, modifications and additions thereto, and to any
divisions, continuations, continuation-in-part applications, reissues and
renewals of the aforementioned patents; and all applications for industrial
property protection, including, without limitation, all applications for
patents, utility models, and designs which may hereafter be filed for said
invention in any country throughout the world together with the right to file
such applications and the right to claim for the same priority rights derived
from said application under any international agreements, conventions, treaties
and the domestic laws of the country in which any such application is filed, as
may be applicable; and all forms of industrial property protection, including,
without limitation, patents, utility models, inventors' certificates and designs
which may be granted for said invention in any country throughout the world and
all extensions, renewals and reissues thereof; all rights and privileges
pertaining to any patent applications and Letters Patents relating to said
invention and application throughout the world, including, without limitation,
all causes of action, claims, demands and other rights, for or arising from any
past infringement thereof, as well as the fruits of any of the above, including,
without limitation, royalties, damages, punitive damages, loss of profits or the
like;
AND ASSIGNOR HEREBY agrees, without charge (excluding travel,
accommodations and the like), and at the request of the ASSIGNEE, its successors
and assigns, to execute any and all divisional, continuation,
continuation-in-part applications, reissue and substitute applications in any
corresponding foreign jurisdiction for said invention and improvements,
modifications and additions to said invention, and acknowledge and agree that
all rights therein shall vest in the ASSIGNEES, its successors, and assignees,
whereby said foreign Letters Patent will be held and enjoyed by said ASSIGNEES,
its successors and assigns, to the full extent of the term for which said
Letters Patent will be granted, as fully and entirely as the same would have
been held and enjoyed by the undersigned if the this assignment had not been
made;
AND ASSIGNOR HEREBY agrees, without charge (excluding travel,
accommodations and the like), and at the request of the ASSIGNEE, its successors
and assigns, to execute any and all documents
45
required by the ASSIGNOR to fully and properly vest the aforementioned rights in
the ASSIGNEE; to do all things which the ASSIGNEE, its successors and assigns,
shall consider necessary or desirable for securing, maintaining and enforcing
the rights and property specified herein above, including testifying in all
legal proceedings; to communicate all facts known by ASSIGNOR relating to the
inventions and the history thereof;
AND ASSIGNOR HEREBY authorizes and requests the Commissioner of Patents
or the like Official of any country, whose duty it is to issue patents or other
evidence of forms of industrial property protection on applications as
aforesaid, to issue the same in and to the said ASSIGNEE, its successors, legal
representatives and assigns, in accordance with the terms of this instrument;
AND ASSIGNOR HEREBY covenants and agrees that it has full right to
convey all of its interest herein assigned, and that it has not executed, and
will not execute, any agreement in conflict herewith; has not copied or used
information that may be subject to a trade-secret owned or under the control of
a third party; the present assignment is complementary to any previous
assignment, if any, in favour of the ASSIGNEE;
AND in the event of disagreement between the ASSIGNOR and ASSIGNEE
(hereinafter the "Parties"), this Assignment of Invention shall be interpreted
in accordance with the Laws in effect in the Province of Quebec.
Le(s) soussigne(s) desire(nt) que la presente cession soit en anglais. The
undersigned requests) that the present assignment be in English.
SIGNED at Montreal CANADA,
--------------------------------------------
City Country
this 8th day of August, 2003.
----- ------
/s/ Xxxxxxxx Xxxxxx /s/ Xxxxxx Xxxxxx
----------------------- --------------------------------
(signature of witness) (signature of duly authorised signatory for ASSIGNOR)
Name: Xxxxxxxx Xxxxxx Name: Xxxxxx Xxxxxx
Title: Title: President
46
Where Applicable:
State/Province of Quebec )
------------------- )
Country of CANADA )
--------------------------
On this 8th day of August, 2003, appeared before me, a Notary Public in
and for the State/Province aforesaid, personally Xxxxxx Xxxxxx to me known and
know to me to be the person of that name, who signed and sealed the foregoing
instrument, and he acknowledged the same to be his free act and deed.
/s/ illegible
-----------------------
Notary Public
47
ACKNOWLEDGMENT OF ASSIGNMENT OF INVENTION
I, XXXXXXX XXXXX, a duly authorised signatory on behalf representative of
Vitalstate Canada Ltd. having a principal place of business at 0000 Xxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxx X0X 0X0, Xxxxxx, acknowledge the attached Assignment of
Invention from 0000-0000 Xxxxxx Inc. to Vitalstate Canada Ltd. dated Aug 08,
2003, regarding all rights, title and interest throughout the world in, to and
under the invention relating to A STARCH-BASED DELIVERY SYSTEM FOR CREATINE.
SIGNED at Montreal Canada,
------------------------------------
City Country
this 8th day of August, 2003.
---- ------
/s/ Xxxxxxx Xxxxx
-----------------------------------------------------
(signature of duly authorised signatory for ASSIGNOR)
Name:
Title:
I, Xxxxxxxx Xxxxxx declare that I was personally present
------------------------------------- and did see
(Name of Notary, Attorney, or Witness)
Xxxxxxx Xxxxx duly sign and execute the above
-------------------------------------- acknowledgement.
(Name of Signing Authority for Assignee)
/s/ Xxxxxxxx Xxxxxx
----------------------------------------------
(Signature of Notary, Attorney, or Witness)
48
ASSIGNMENT OF INVENTION
WHEREAS, 0000-0000 Xxxxxx Inc., a company incorporated under the laws of the
Province of Quebec, having a principal place of business at 000 Xxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxx X0X 0X0, Xxxxxx (hereinafter "ASSIGNOR"), has certain rights,
title and interest to the invention relating to:
A CARBOHYDRATE-BASED DELIVERY SYSTEM FOR CREATINE AND OTHER BIOACTIVE
INGREDIENTS as described and claimed in the International Patent
Application filed on September 25, 2002 under Application No.
PCT/CA02/01441 and claiming priority to Canadian Patent Application No.
2,358,045 and United States Provisional Patent Applications Nos.
60/348,584 and 60/396,548;
and WHEREAS, Vitalstate Canada Ltd., having a principal place of business at
0000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxx X0X 0X0, Xxxxxx (hereinafter "ASSIGNEE"),
is desirous of obtaining certain rights, title and interest in, to and under
said invention and application.
NOW, THEREFORE, in consideration of the sum of One Dollar ($1.00) to it
in hand paid, and other good and valuable consideration, the receipt of which is
hereby acknowledged, ASSIGNOR does hereby sell, assign, transfer and set over,
unto the said ASSIGNEE, its successors, legal representatives and assigns, all
of its entire right, title, interest throughout the world in, to and under said
invention; all improvements, modifications and additions to said invention and
to all corresponding rights, title and interest in and to any patent which may
be granted thereon; said application and all divisions, renewals, continuations,
continuation-in-part, national phase applications thereto, and all corresponding
patents which may be granted thereon and all reissues and extensions thereof;
all corresponding foreign patent applications and patents relating to said
invention and improvements, modifications and additions thereto, and to any
divisions, continuations, continuation-in-part applications, reissues and
renewals of the aforementioned patents; and all applications for industrial
property protection, including, without limitation, all applications for
patents, utility models, and designs which may hereafter be filed for said
invention in any country throughout the world together with the right to file
such applications and the right to claim for the same priority rights derived
from said application under any international agreements, conventions, treaties
and the domestic laws of the country in which any such application is filed, as
may be applicable; and all forms of industrial property protection, including,
without limitation, patents, utility models, inventors' certificates and designs
which may be granted for said invention in any country throughout the world and
all extensions, renewals and reissues thereof; all rights and privileges
pertaining to any patent applications and Letters Patents relating to said
invention and application throughout the world, including, without limitation,
all causes of action, claims, demands and other rights, for or arising from any
past infringement thereof, as well as the fruits of any of the above, including,
without limitation, royalties, damages, punitive damages, loss of profits or the
like;
AND ASSIGNOR HEREBY agrees, without charge (excluding travel,
accommodations and the like), and at the request of the ASSIGNEE, its successors
and assigns, to execute any and all divisional, continuation,
continuation-in-part applications, reissue and substitute applications in any
corresponding foreign jurisdiction for said invention and improvements,
modifications and additions to said invention, and acknowledge and agree that
all rights therein shall vest in the ASSIGNEES, its successors, and assignees,
whereby said foreign Letters Patent will be held and enjoyed by said ASSIGNEES,
its successors and assigns, to the full extent of the term for which said
Letters Patent will be granted, as fully and entirely as the same would have
been held and enjoyed by the undersigned if the this assignment had not been
made;
49
AND ASSIGNOR HEREBY agrees, without charge (excluding travel,
accommodations and the like), and at the request of the ASSIGNEE, its successors
and assigns, to execute any and all documents required by the ASSIGNOR to fully
and properly vest the aforementioned rights in the ASSIGNEE; to do all things
which the ASSIGNEE, its successors and assigns, shall consider necessary or
desirable for securing, maintaining and enforcing the rights and property
specified herein above, including testifying in all legal proceedings; to
communicate all facts known by ASSIGNOR relating to the inventions and the
history thereof;
AND ASSIGNOR HEREBY authorizes and requests the Commissioner of Patents
or the like Official of any country, whose duty it is to issue patents or other
evidence of forms of industrial property protection on applications as
aforesaid, to issue the same in and to the said ASSIGNEE, its successors, legal
representatives and assigns, in accordance with the terms of this instrument;
AND ASSIGNOR HEREBY covenants and agrees that it has full right to
convey all of its interest herein assigned, and that it has not executed, and
will not execute, any agreement in conflict herewith; has not copied or used
information that may be subject to a trade-secret owned or under the control of
a third party; the present assignment is complementary to any previous
assignment, if any, in favour of the ASSIGNEE;
AND in the event of disagreement between the ASSIGNOR and ASSIGNEE
(hereinafter the "Parties"), this Assignment of Invention shall be interpreted
in accordance with the Laws in effect in the Province of Quebec.
Le(s) soussigne(s) desire(nt) que la presente cession soit en anglais. The
undersigned request(s) that the present assignment be in English.
SIGNED at Montreal CANADA,
--------------------------------------------
City Country
this 8th day of August, 2003.
----- ------
/s/ Xxxxxxxx Xxxxxx /s/ Xxxxxx Xxxxxx
----------------------- --------------------------------
(signature of witness) (signature of duly authorised signatory for ASSIGNOR)
Name: Xxxxxxxx Xxxxxx Name: Xxxxxx Xxxxxx
Title: Title: President
Where Applicable:
State/Province of Quebec )
------ )
Country of CANADA )
-------------
On this 8th day of August, 2003, before me, a Notary Public in and for the
State/Province aforesaid, personally appeared Xxxxxx Xxxxxx, to me known and
know to me to be the person of that name, who signed and sealed the foregoing
instrument, and he acknowledged the same to be his free act and deed.
/s/ illegible
-----------------------
Notary Public
50
ACKNOWLEDGMENT OF ASSIGNMENT OF INVENTION
I, XXXXXXX XXXXX, a duly authorised signatory on behalf representative of
Vitalstate Canada Ltd. having a principal place of business at 0000 Xxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxx X0X 0X0, Xxxxxx, acknowledge the attached Assignment of
Invention from 0000-0000 Xxxxxx Inc. to Vitalstate Canada Ltd. dated Aug 08,
2003, regarding all rights, title and interest throughout the world in, to and
under the invention relating to A CARBOHYDRATE-BASED DELIVERY SYSTEM FOR
CREATINE AND OTHER BIOACTIVE INGREDIENTS.
SIGNED at Montreal Canada,
------------------------------------
City Country
this 8th day of August, 2003.
---- ------
/s/ Xxxxxxx Xxxxx
-----------------------------------------------------
(signature of duly authorised signatory for ASSIGNOR)
Name:
Title:
I, Xxxxxxxx Xxxxxx declare that I was personally present
------------------------------------- and did see
(Name of Notary, Attorney, or Witness)
Xxxxxxx Xxxxx duly sign and execute the above
-------------------------------------- acknowledgement.
(Name of Signing Authority for Assignee)
/s/ Xxxxxxxx Xxxxxx
----------------------------------------------
(Signature of Notary, Attorney, or Witness)
51
ASSIGNMENT OF INVENTION
WHEREAS, 0000-0000 Xxxxxx Inc., a company incorporated under the laws of the
Province of Quebec, having a principal place of business at 000 Xxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxx X0X 0X0, Xxxxxx (hereinafter "ASSIGNOR"), has certain rights,
title and interest to the invention relating to:
TRANSMUCOSAL DELIVERY SYSTEM as described and claimed in the
International Patent Application filed on July 18, 2003 under
Application No. ______________ and claiming priority to United States
Provisional Patent Applications No. 60/396,731;
and WHEREAS, Vitalstate Canada Ltd., having a principal place of business at
0000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxx X0X 0X0, Xxxxxx (hereinafter "ASSIGNEE"),
is desirous of obtaining certain rights, title and interest in, to and under
said invention and application.
NOW, THEREFORE, in consideration of the sum of One Dollar ($1.00) to it
in hand paid, and other good and valuable consideration, the receipt of which is
hereby acknowledged, ASSIGNOR does hereby sell, assign, transfer and set over,
unto the said ASSIGNEE, its successors, legal representatives and assigns, all
of its entire right, title, interest throughout the world in, to and under said
invention; all improvements, modifications and additions to said invention and
to all corresponding rights, title and interest in and to any patent which may
be granted thereon; said application and all divisions, renewals, continuations,
continuation-in-part, national phase applications thereto, and all corresponding
patents which may be granted thereon and all reissues and extensions thereof;
all corresponding foreign patent applications and patents relating to said
invention and improvements, modifications and additions thereto, and to any
divisions, continuations, continuation-in-part applications, reissues and
renewals of the aforementioned patents; and all applications for industrial
property protection, including, without limitation, all applications for
patents, utility models, and designs which may hereafter be filed for said
invention in any country throughout the world together with the right to file
such applications and the right to claim for the same priority rights derived
from said application under any international agreements, conventions, treaties
and the domestic laws of the country in which any such application is filed, as
may be applicable; and all forms of industrial property protection, including,
without limitation, patents, utility models, inventors' certificates and designs
which may be granted for said invention in any country throughout the world and
all extensions, renewals and reissues thereof; all rights and privileges
pertaining to any patent applications and Letters Patents relating to said
invention and application throughout the world, including, without limitation,
all causes of action, claims, demands and other rights, for or arising from any
past infringement thereof, as well as the fruits of any of the above, including,
without limitation, royalties, damages, punitive damages, loss of profits or the
like;
AND ASSIGNOR HEREBY agrees, without charge (excluding travel,
accommodations and the like), and at the request of the ASSIGNEE, its successors
and assigns, to execute any and all divisional, continuation,
continuation-in-part applications, reissue and substitute applications in any
corresponding foreign jurisdiction for said invention and improvements,
modifications and additions to said invention, and acknowledge and agree that
all rights therein shall vest in the ASSIGNEES, its successors, and assignees,
whereby said foreign Letters Patent will be held and enjoyed by said ASSIGNEES,
its successors and assigns, to the full extent of the term for which said
Letters Patent will be granted, as fully and entirely as the same would have
been held and enjoyed by the undersigned if the this assignment had not been
made;
AND ASSIGNOR HEREBY agrees, without charge (excluding travel,
accommodations and the like), and at the request of the ASSIGNEE, its successors
and assigns, to execute any and all documents required by the ASSIGNOR to fully
and properly vest the aforementioned rights in the ASSIGNEE; to do
52
all things which the ASSIGNEE, its successors and assigns, shall consider
necessary or desirable for securing, maintaining and enforcing the rights and
property specified herein above, including testifying in all legal proceedings;
to communicate all facts known by ASSIGNOR relating to the inventions and the
history thereof;
AND ASSIGNOR HEREBY authorizes and requests the Commissioner of Patents
or the like Official of any country, whose duty it is to issue patents or other
evidence of forms of industrial property protection on applications as
aforesaid, to issue the same in and to the said ASSIGNEE, its successors, legal
representatives and assigns, in accordance with the terms of this instrument;
AND ASSIGNOR HEREBY covenants and agrees that it has full right to
convey all of its interest herein assigned, and that it has not executed, and
will not execute, any agreement in conflict herewith; has not copied or used
information that may be subject to a trade-secret owned or under the control of
a third party; the present assignment is complementary to any previous
assignment, if any, in favour of the ASSIGNEE;
AND in the event of disagreement between the ASSIGNOR and ASSIGNEE
(hereinafter the "Parties"), this Assignment of Invention shall be interpreted
in accordance with the Laws in effect in the Province of Quebec.
Le(s) soussigne(s) desire(nt) que la presente cession soit en anglais. The
undersigned request(s) that the present assignment be in English.
The undersigned hereby grants to the firm of MBM & CO. whose full post office
address is X.X. Xxx 000, Xxxxxxx X, Xxxxxx, Xxxxxxx, Xxxxxx, X0X 0X0, the power
to insert on this assignment any further information which may be necessary or
desirable in order to comply with any patent rules or regulations for
recordation of this document.
SIGNED at Montreal CANADA,
--------------------------------------------
City Country
this 8th day of August, 2003.
----- ------
/s/ Xxxxxxxx Xxxxxx /s/ Xxxxxx Xxxxxx
----------------------- --------------------------------
(signature of witness) (signature of duly authorised signatory for ASSIGNOR)
Name: Xxxxxxxx Xxxxxx Name: Xxxxxx Xxxxxx
Title: Title: President
Where Applicable:
State/Province of Quebec )
------ )
Country of CANADA )
-------------
On this 8th day of August, 2003, before me, a Notary Public in and for the
State/Province aforesaid, personally appeared Xxxxxx Xxxxxx, to me known and
know to me to be the person of that name, who signed and sealed the foregoing
instrument, and he acknowledged the same to be his free act and deed.
/s/ illegible
-----------------------
Notary Public
53
ACKNOWLEDGMENT OF ASSIGNMENT OF INVENTION
I, XXXXXXX XXXXX, a duly authorised signatory on behalf representative of
VitalState Canada Ltd. having a principal place of business at 0000 Xxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxx X0X 0X0, Xxxxxx, acknowledge the attached Assignment of
Invention from 0000-0000 Xxxxxx Inc. to VitalState Canada Ltd. dated aUG 08,
2003, regarding all rights, title and interest throughout the world in, to and
under the invention relating to TRANSMUCOSAL DELIVERY SYSTEM.
SIGNED at Montreal Canada,
------------------------------------
City Country
this 8th day of August, 2003.
---- ------
/s/ Xxxxxxx Xxxxx
-----------------------------------------------------
(signature of duly authorised signatory for ASSIGNOR)
Name:
Title:
I, Xxxxxxxx Xxxxxx declare that I was personally present
------------------------------------- and did see
(Name of Notary, Attorney, or Witness)
Xxxxxxx Xxxxx duly sign and execute the above
-------------------------------------- acknowledgement.
(Name of Signing Authority for Assignee)
/s/ Xxxxxxxx Xxxxxx
----------------------------------------------
(Signature of Notary, Attorney, or Witness)
54
Schedule E
ASSIGNMENT OF INVENTION
WHEREAS, Xxxxxxx Xxxxxx an individual, having a principal place of business at
000 Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxx X0X 0X0, Xxxxxx (hereinafter "ASSIGNOR"),
has certain rights, title and interest to the invention relating to:
CHITOSAN-BASED MICROSPHERE DELIVERY SYSTEM as described and claimed in
the United States Provisional Patent Application filed on December 4,
2002 under Application No. 60/430,697;
and WHEREAS, Vitalstate Canada Ltd., having a principal place of business at
0000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxx X0X 0X0, Xxxxxx (hereinafter "ASSIGNEE"),
is desirous of obtaining certain rights, title and interest in, to and under
said invention and application.
NOW, THEREFORE, in consideration of the sum of One Dollar ($1.00) to it
in hand paid, and other good and valuable consideration, the receipt of which is
hereby acknowledged, ASSIGNOR does hereby sell, assign, transfer and set over,
unto the said ASSIGNEE, its successors, legal representatives and assigns, all
of its entire right, title, interest throughout the world in, to and under said
invention; all improvements, modifications and additions to said invention and
to all corresponding rights, title and interest in and to any patent which may
be granted thereon; said application and all divisions, renewals, continuations,
continuation-in-part applications thereto, and all corresponding patents which
may be granted thereon and all reissues and extensions thereof; all
corresponding United States and/or foreign patent applications and patents
relating to said invention and improvements, modifications and additions
thereto, and to any divisions, continuations, continuation-in-part applications,
reissues and renewals of the aforementioned patents; and all applications for
industrial property protection, including, without limitation, all applications
for patents, utility models, and designs which may hereafter be filed for said
invention in any country throughout the world together with the right to file
such applications and the right to claim for the same priority rights derived
from said application under any international agreements, conventions, treaties
and the domestic laws of the country in which any such application is filed, as
may be applicable; and all forms of industrial property protection, including,
without limitation, patents, utility models, inventors' certificates and designs
which may be granted for said invention in any country throughout the world and
all extensions, renewals and reissues thereof; all rights and privileges
pertaining to any patent applications and Letters Patents relating to said
invention and application throughout the world, including, without limitation,
all causes of action, claims, demands and other rights, for or arising from any
past infringement thereof, as well as the fruits of any of the above, including,
without limitation, royalties, damages, punitive damages, loss of profits or the
like;
AND ASSIGNOR HEREBY agrees, without charge (excluding travel,
accommodations and the like), and at the request of the ASSIGNEE, its successors
and assigns, to execute any and all divisional, continuation,
continuation-in-part applications, reissue and substitute applications the
United States of America and in any corresponding foreign jurisdiction for said
invention and improvements, modifications and additions to said invention, and
acknowledge and agree that all rights therein shall vest in the ASSIGNEES, its
successors, and assignees, whereby said United States or foreign Letters Patent
will be held and enjoyed by said ASSIGNEES, its successors and assigns, to the
full extent of the term for which said Letters Patent will be granted, as fully
and entirely as the same would have been held and enjoyed by the undersigned if
the this assignment had not been made;
AND ASSIGNOR HEREBY agrees, without charge (excluding travel,
accommodations and the like), and at the request of the ASSIGNEE, its successors
and assigns, to execute any and all documents required by the ASSIGNOR to fully
and properly vest the aforementioned rights in the ASSIGNEE; to do
55
all things which the ASSIGNEE, its successors and assigns, shall consider
necessary or desirable for securing, maintaining and enforcing the rights and
property specified herein above, including testifying in all legal proceedings;
to communicate all facts known by ASSIGNOR relating to the inventions and the
history thereof;
AND ASSIGNOR HEREBY authorizes and requests the Commissioner of Patents
or the like Official of any country, whose duty it is to issue patents or other
evidence of forms of industrial property protection on applications as
aforesaid, to issue the same in and to the said ASSIGNEE, its successors, legal
representatives and assigns, in accordance with the terms of this instrument;
AND ASSIGNOR HEREBY covenants and agrees that it has full right to
convey all of its interest herein assigned, and that it has not executed, and
will not execute, any agreement in conflict herewith; has not copied or used
information that may be subject to a trade-secret owned or under the control of
a third party; the present assignment is complementary to any previous
assignment, if any, in favour of the ASSIGNEE;
AND in the event of disagreement between the ASSIGNOR and ASSIGNEE
(hereinafter the "Parties"), this Assignment of Invention shall be interpreted
in accordance with the Laws in effect in the Province of Quebec.
Le(s) soussigne(s) desire(nt) que la presente cession soit en anglais. The
undersigned requests) that the present assignment be in English.
SIGNED at Montreal CANADA,
--------------------------------------------
City Country
this 8th day of August, 2003.
----- ------
/s/ Xxxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx
----------------------- --------------------------------
(signature of witness) (signature of duly authorised signatory for ASSIGNOR)
Name: Xxxxxxxx Xxxxxx Name: Xxxxxxx Xxxxxx
Title: Title: Inventor
Where Applicable:
State/Province of Quebec )
------ )
Country of CANADA )
-------------
On this 8th day of August, 2003, before me, a Notary Public in and for the
State/Province aforesaid, personally appeared Xxxxxxx Xxxxxx, to me known and
know to me to be the person of that name, who signed and sealed the foregoing
instrument, and he acknowledged the same to be his free act and deed.
/s/ illegible
-----------------------
Notary Public
56
ACKNOWLEDGMENT OF ASSIGNMENT OF INVENTION
I, XXXXXXX XXXXX, a duly authorised signatory on behalf representative of
Vitalstate Canada Ltd. having a principal place of business at 0000 Xxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxx X0X 0X0, Xxxxxx, acknowledge .the attached Assignment
of Invention from Xxxxxxx Xxxxxx to Vitalstate Canada Ltd. dated Aug 8, 2003,
regarding all rights, title and interest throughout the world in, to and under
the invention relating to CHITOSAN-BASED MICROSPHERE DELIVERY SYSTEM.
SIGNED at Montreal Canada,
------------------------------------
City Country
this 8th day of August, 2003.
---- ------
/s/ Xxxxxxx Xxxxx
-----------------------------------------------------
(signature of duly authorised signatory for ASSIGNOR)
Name:
Title:
I, Xxxxxxxx Xxxxxx declare that I was personally present
------------------------------------- and did see
(Name of Notary, Attorney, or Witness)
Xxxxxxx Xxxxx duly sign and execute the above
-------------------------------------- acknowledgement.
(Name of Signing Authority for Assignee)
/s/ Xxxxxxxx Xxxxxx
----------------------------------------------
(Signature of Notary, Attorney, or Witness)
57
ASSIGNMENT OF INVENTION
WHEREAS, Xxxxxxx Xxxxxx an individual, having a principal place of business at
000 Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxx X0X 0X0, Xxxxxx (hereinafter "ASSIGNOR"),
has certain rights, title and interest to the invention relating to:
EXTRACTION-RESISTANT DELIVERY SYSTEM FOR OPIOIDS as described and
claimed in the United States Provisional Patent Application filed on
December 11, 2002 under Application No. 60/432,239;
and WHEREAS, Vitalstate Canada Ltd., having a principal place of business at
0000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxx X0X 0X0, Xxxxxx (hereinafter "ASSIGNEE"),
is desirous of obtaining certain rights, title and interest in, to and under
said invention and application.
NOW, THEREFORE, in consideration of the sum of One Dollar ($1.00) to it
in hand paid, and other good and valuable consideration, the receipt of which is
hereby acknowledged, ASSIGNOR does hereby sell, assign, transfer and set over,
unto the said ASSIGNEE, its successors, legal representatives and assigns, all
of its entire right, title, interest throughout the world in, to and under said
invention; all improvements, modifications and additions to said invention and
to all corresponding rights, title and interest in and to any patent which may
be granted thereon; said application and all divisions, renewals, continuations,
continuation-in-part applications thereto, and all corresponding patents which
may be granted thereon and all reissues and extensions thereof; all
corresponding United States and/or foreign patent applications and patents
relating to said invention and improvements, modifications and additions
thereto, and to any divisions, continuations, continuation-in-part applications,
reissues and renewals of the aforementioned patents; and all applications for
industrial property protection, including, without limitation, all applications
for patents, utility models, and designs which may hereafter be filed for said
invention in any country throughout the world together with the right to file
such applications and the right to claim for the same priority rights derived
from said application under any international agreements, conventions, treaties
and the domestic laws of the country in which any such application is filed, as
may be applicable; and all forms of industrial property protection, including,
without limitation, patents, utility models, inventors' certificates and designs
which may be granted for said invention in any country throughout the world and
all extensions, renewals and reissues thereof; all rights and privileges
pertaining to any patent applications and Letters Patents relating to said
invention and application throughout the world, including, without limitation,
all causes of action, claims, demands and other rights, for or arising from any
past infringement thereof, as well as the fruits of any of the above, including,
without limitation, royalties, damages, punitive damages, loss of profits or the
like;
AND ASSIGNOR HEREBY agrees, without charge (excluding travel,
accommodations and the like), and at the request of the ASSIGNEE, its successors
and assigns, to execute any and all divisional, continuation,
continuation-in-part applications, reissue and substitute applications the
United States of America and in any corresponding foreign jurisdiction for said
invention and improvements, modifications and additions to said invention, and
acknowledge and agree that all rights therein shall vest in the ASSIGNEES, its
successors, and assignees, whereby said United States or foreign Letters Patent
will be held and enjoyed by said ASSIGNEES, its successors and assigns, to the
full extent of the term for which said Letters Patent will be granted, as fully
and entirely as the same would have been held and enjoyed by the undersigned if
the this assignment had not been made;
AND ASSIGNOR HEREBY agrees, without charge (excluding travel,
accommodations and the like), and at the request of the ASSIGNEE, its successors
and assigns, to execute any and all documents required by the ASSIGNOR to fully
and properly vest the aforementioned rights in the ASSIGNEE; to do
58
all things which the ASSIGNEE, its successors and assigns, shall consider
necessary or desirable for securing, maintaining and enforcing the rights and
property specified herein above, including testifying in all legal proceedings;
to communicate all facts known by ASSIGNOR relating to the inventions and the
history thereof;
AND ASSIGNOR HEREBY authorizes and requests the Commissioner of Patents
or the like Official of any country, whose duty it is to issue patents or other
evidence of forms of industrial property protection on applications as
aforesaid, to issue the same in and to the said ASSIGNEE, its successors, legal
representatives and assigns, in accordance with the terms of this instrument;
AND ASSIGNOR HEREBY covenants and agrees that it has full right to
convey all of its interest herein assigned, and that it has not executed, and
will not execute, any agreement in conflict herewith; has not copied or used
information that may be subject to a trade-secret owned or under the control of
a third party; the present assignment is complementary to any previous
assignment, if any, in favour of the ASSIGNEE;
AND in the event of disagreement between the ASSIGNOR and ASSIGNEE
(hereinafter the "Parties"), this Assignment of Invention shall be interpreted
in accordance with the Laws in effect in the Province of Quebec.
Le(s) soussigne(s) desire(nt) que la presente cession soit en anglais. The
undersigned request(s) that the present assignment be in English.
SIGNED at Montreal CANADA,
--------------------------------------------
City Country
this 8th day of August, 2003.
----- ------
/s/ Xxxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx
----------------------- --------------------------------
(signature of witness) (signature of duly authorised signatory for ASSIGNOR)
Name: Xxxxxxxx Xxxxxx Name: Xxxxxxx Xxxxxx
Title: Title: Inventor
Where Applicable:
State/Province of Quebec )
------ )
Country of CANADA )
-------------
On this 8th day of August, 2003, before me, a Notary Public in and for the
State/Province aforesaid, personally appeared Xxxxxxx Xxxxxx, to me known and
know to me to be the person of that name, who signed and sealed the foregoing
instrument, and he acknowledged the same to be his free act and deed.
/s/ illegible
-----------------------
Notary Public
59
ACKNOWLEDGMENT OF ASSIGNMENT OF INVENTION
I, XXXXXXX XXXXX, a duly authorised signatory on behalf representative of
Vitalstate Canada Ltd. having a principal place of business at 0000 Xxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxx X0X 0X0, Xxxxxx, acknowledge/the attached Assignment of
Invention from Xxxxxxx Xxxxxx to Vitalstate Canada Ltd. dated Aug 08, 2003,
regarding all rights, title and interest throughout the world in, to and under
the invention relating to EXTRACTION-RESISTANT DELIVERY SYSTEM FOR OPIOIDS.
SIGNED at Montreal Canada,
------------------------------------
City Country
this 8th day of August, 2003.
---- ------
/s/ Xxxxxxx Xxxxx
-----------------------------------------------------
(signature of duly authorised signatory for ASSIGNOR)
Name:
Title:
I, Xxxxxxxx Xxxxxx declare that I was personally present
------------------------------------- and did see
(Name of Notary, Attorney, or Witness)
Xxxxxxx Xxxxx duly sign and execute the above
-------------------------------------- acknowledgement.
(Name of Signing Authority for Assignee)
/s/ Xxxxxxxx Xxxxxx
----------------------------------------------
(Signature of Notary, Attorney, or Witness)
60
SCHEDULE F
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
UNDER ANY STATE SECURITIES LAW. IN ADDITION, SUCH SECURITIES MAY NOT BE SOLD,
PLEDGED OR OTHERWISE TRANSFERRED UNLESS (i) THERE IS AN EFFECTIVE REGISTRATION
STATEMENT COVERING THE SECURITIES UNDER THE ACT AND APPLICABLE STATE SECURITIES
LAWS, (ii) THE COMPANY FIRST RECEIVES AN OPINION FROM AN ATTORNEY, REASONABLY
ACCEPTABLE TO THE COMPANY, STATING THAT THE PROPOSED TRANSFER IS EXEMPT FROM
REGISTRATION UNDER THE ACT AND UNDER ALL APPLICABLE STATE SECURITIES LAWS, OR
(iii) THE TRANSFER IS MADE PURSUANT TO RULE 144 PROMULGATED UNDER THE ACT.
300,000 shares of Common Stock
Dated: Xxxxxx 0, 0000
XXXXXXX FOR THE PURCHASE OF
SHARES OF COMMON STOCK
OF
VITALSTATE, INC.
(A New York corporation)
FOR VALUE RECEIVED, Vitalstate, Inc. ("Company"), hereby certifies that
0000-0000 Xxxxxx Inc. or its registered assigns ("Holder"), is entitled, subject
to the terms set forth below, to purchase from the Company, at any time or from
time to time during the five-year period commencing on August 8, 2003 and
expiring on August 7, 2008, three hundred thousand (300,000) shares of Common
Stock, $0.000333 par value, of the Company ("Common Stock"), at a purchase price
of $.50 per share. The number of shares of Common Stock purchasable upon
exercise of this Warrant, and the purchase price per share, each as adjusted
from time to time pursuant to the provisions of this Warrant, are hereinafter
referred to as the "Warrant Shares" and the "Exercise Price," respectively.
1. Exercise
1.1 Procedure for Exercise. This Warrant may be exercised by the Holder, in
whole or in part, by the surrender of this Warrant (with the Notice of Exercise
Form attached hereto duly executed by such Holder) at the principal office of
the Company, or at such other office or agency as the Company may designate,
accompanied by payment in full, in lawful money of the United States, of an
amount equal to the then applicable Exercise Price multiplied by the number of
Warrant Shares then being purchased upon such exercise.
1.2 Date of Exercise. Each exercise of this Warrant shall be deemed to have
been effected immediately prior to the close of business on the day on which
this Warrant shall have been surrendered to the Company. At such time, the
person or persons in whose name or names any certificates for Warrant Shares
shall be issuable upon such exercise shall be deemed to have become the holder
or holders of record of the Warrant Shares represented by such certificates.
1.3 Issuance of Certificate. As soon as practicable after the exercise of the
purchase right represented by this Warrant, the Company at its expense will use
its best efforts to cause to be issued in the name of, and delivered to, the
Holder, or, subject to the terms and conditions hereof, to such other individual
or entity as such Holder (upon payment by such Holder of any applicable transfer
taxes) may direct:
61
(i) a certificate or certificates for the number of full shares of Warrant
Shares to which such Holder shall be entitled upon such exercise (subject to
Section 3 hereof), and
(ii) in case such exercise is in part only, a new warrant or warrants (dated
the date hereof) of like tenor, stating on the face or faces thereof the number
of shares currently stated on the face of this Warrant minus the number of such
shares purchased by the Holder upon such exercise as provided in subsection 1.1
above.
2. Adjustments.
2.1 Split, Subdivision or Combination of Shares. If the outstanding shares of
the Company's Common Stock at any time while this Warrant remains outstanding
and unexpired shall be subdivided or split into a greater number of shares, or a
dividend in Common Stock shall be paid in respect of Common Stock, the Exercise
Price in effect immediately prior to such subdivision or at the record date of
such dividend shall, simultaneously with the effectiveness of such subdivision
or split or immediately after the record date of such dividend (as the case may
be), shall be proportionately decreased. If the outstanding shares of Common
Stock shall be combined or reverse-split into a smaller number of shares, the
Exercise Price in effect immediately prior to such combination or reverse split
shall, simultaneously with the effectiveness of such combination or reverse
split, be proportionately increased. When any adjustment is required to be made
in the Exercise Price, the number of shares of Warrant Shares purchasable upon
the exercise of this Warrant shall be changed to the number determined by
dividing (i) an amount equal to the number of shares issuable upon the exercise
of this Warrant immediately prior to such adjustment, multiplied by the Exercise
Price in effect immediately prior to such adjustment, by (ii) the Exercise Price
in effect immediately after such adjustment.
2.2 Reclassification Reorganization, Consolidation or Merger. In the case of
any reclassification of the Common Stock (other than a change in par value or a
subdivision or combination as provided for in subsection 2.1 above), or any
reorganization, consolidation or merger of the Company with or into another
corporation (other than a merger or reorganization with respect to which the
Company is the continuing corporation and which does not result in any
reclassification of the Common Stock), or a transfer of all or substantially all
of the assets of the Company, or the payment of a liquidating distribution then,
as part of any such reorganization, reclassification, consolidation, merger,
sale or liquidating distribution, lawful provision shall be made so that the
Holder of this Warrant shall have the right thereafter to receive upon the
exercise hereof, the kind and amount of shares of stock or other securities or
property which such Holder would have been entitled to receive if, immediately
prior to any such reorganization, reclassification, consolidation, merger, sale
or liquidating distribution, as the case may be, such Holder had held the number
of shares of Common Stock which were then purchasable upon the exercise of this
Warrant. In any such case, appropriate adjustment (as reasonably determined by
the Board of Directors of the Company) shall be made in the application of the
provisions set forth herein with respect to the rights and interests thereafter
of the Holder of this Warrant such that the provisions set forth in this Section
2 (including provisions with respect to the Exercise Price) shall thereafter be
applicable, as nearly as is reasonably practicable, in relation to any shares of
stock or other securities or property thereafter deliverable upon the exercise
of this Warrant.
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2.3 Price Adjustment. No adjustment in the per share Exercise Price shall be
required unless such adjustment would require an increase or decrease in the
Exercise Price of at least $0.01; provided, however, that any adjustments which
by reason of this paragraph are not required to be made shall be carried forward
and taken into account in any subsequent adjustment. All calculations under this
Section 2 shall be made to the nearest cent or to the nearest 1/100th of a
share, as the case may be.
2.4 No Impairment. The Company will not, by amendment of its Articles of
Incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to be
observed or performed hereunder by the Company but will at all times in good
faith assist in the carrying out of all the provisions of this Section 2 and in
the taking of all such actions as may be necessary or appropriate in order to
protect against impairment of the rights of the Holder of this Warrant to
adjustments in the Exercise Price.
2.5 Notice of Adjustment. Upon any adjustment of the Exercise Price or
extension of the Warrant exercise period, the Company shall forthwith give
written notice thereto to the Holder of this Warrant describing the event
requiring the adjustment, stating the adjusted Exercise Price and the adjusted
number of shares purchasable upon the exercise hereof resulting from such event,
and setting forth in reasonable detail the method of calculation and the facts
upon which such calculation is based.
3. Fractional Shares. The Company shall not be required to issue fractions of
shares of Common Stock upon exercise. If any fractions of a share would, but for
this Section 3, be issuable upon any exercise, in lieu of such fractional share
the Company shall round up or down to the nearest whole number.
4. Limitation on Sales. Each holder of this Warrant acknowledges that this
Warrant and the Warrant Shares, as of the date of original issuance of this
Warrant, have not been registered under the Securities Act of 1933, as amended
("Act"), and agrees not to sell, pledge, distribute, offer for sale, transfer or
otherwise dispose of this Warrant or any Warrant Shares issued upon its exercise
in the absence of (a) an effective registration statement under the Act as to
this Warrant or such Warrant Shares or (b) an opinion of counsel, reasonably
acceptable to the Company, that such registration and qualification are not
required. Absent prior registration, the Warrant Shares issued upon exercise
thereof shall be imprinted with a legend in substantially the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY STATE SECURITIES LAWS, AND MAY
NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED UNLESS (i) THERE IS AN EFFECTIVE
REGISTRATION STATEMENT COVERING THE SHARES UNDER THE ACT AND APPLICABLE STATE
SECURITIES LAWS, (ii) THE COMPANY FIRST RECEIVES AN OPINION FROM AN ATTORNEY,
REASONABLY ACCEPTABLE TO THE COMPANY, STATING THAT THE PROPOSED TRANSFER IS
EXEMPT FROM REGISTRATION UNDER THE ACT AND UNDER ALL APPLICABLE STATE SECURITIES
LAWS, OR (iii) THE TRANSFER IS MADE PURSUANT TO RULE 144 PROMULGATED UNDER THE
ACT.
5. Notices of Record Date. In case: (i) the Company shall take a record of the
holders of its Common Stock (or other stock or securities at the time
deliverable upon the exercise of this Warrant) for the purpose of entitling or
enabling them to receive any dividend or other distribution, or to
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receive any right to subscribe for or purchase any shares of any class or any
other securities, or to receive any other right, or (ii) of any capital
reorganization of the Company, any reclassification of the capital stock of the
Company, any consolidation or merger of the Company with or into another
corporation (other than a consolidation or merger in which the Company is the
surviving entity), or any transfer of all or substantially all of the assets of
the Company, or (iii) of the voluntary or involuntary dissolution, liquidation
or winding-up of the Company, then, and in each such case, the Company will mail
or cause to be mailed to the Holder of this Warrant a notice specifying, as the
case may be, (i) the date on which a record is to be taken for the purpose of
such dividend, distribution or right, and stating the amount and character of
such dividend, distribution or right, or (ii) the effective date on which such
reorganization, reclassification, consolidation, merger, transfer, dissolution,
liquidation or winding-up is to take place, and the time, if any is to be fixed,
as of which the holders of record of Common Stock (or such other stock or
securities at the time deliverable upon the exercise of this Warrant) shall be
entitled to exchange their shares of Common Stock (or such other stock or
securities) for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, transfer, dissolution,
liquidation or winding-up. Such notice shall be mailed at least ten (10) days
prior to the record date or effective date for the event specified in such
notice, provided that the failure to mail such notice shall not affect the
legality or validity of any such action.
6. Reservation of Stock. The Company will at all times reserve and keep
available, solely for issuance and delivery upon the exercise of this Warrant,
such shares of Common Stock and other stock, securities and property, as from
time to time shall be issuable upon the exercise of this Warrant.
7. Replacement of Warrants. Upon receipt of evidence reasonably satisfactory to
the Company of the loss, theft, destruction or mutilation of this Warrant and
(in the case of loss, theft or destruction) upon delivery of an indemnity
agreement (with surety if reasonably required) in an amount reasonably
satisfactory to the Company, or (in the case of mutilation) upon surrender and
cancellation of this Warrant, the Company will issue, in lieu thereof, a new
Warrant of like tenor.
8. Transfers, etc.
8.1 Warrant Register. The Company will maintain a register containing the
names and addresses of the Holders of this Warrant. Any Holder may change its,
his or her address as shown on the warrant register by written notice to the
Company requesting such change.
8.2 Holder. Until any transfer of this Warrant is made in the warrant
register, the Company may treat the Holder of this Warrant as the absolute owner
hereof for all purposes; provided, however, that if and when this Warrant is
properly assigned in blank, the Company may (but shall not be obligated to)
treat the bearer hereof as the absolute owner hereof for all purposes,
notwithstanding any notice to the contrary.
9. No Rights as Stockholder. Until the exercise of this Warrant, the Holder of
this Warrant shall not have or exercise any rights by virtue hereof as a
stockholder of the Company.
10. Successors. The rights and obligations of the parties to this Warrant will
inure to the benefit of and be binding upon the parties hereto and their
respective heirs, successors, assigns, pledgees, transferees and purchasers.
Without limiting the foregoing, the registration rights set forth in this
Warrant shall inure to the benefit of the Holder and all the Holder's
successors, heirs, pledgees, assignees, transferees and purchasers of this
Warrant and the Warrant Shares.
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11. Change or Waiver. Any term of this Warrant may be changed or waived only by
an instrument in writing signed by the party against which enforcement of the
change or waiver is sought.
12. Headings. The headings in this Warrant are for purposes of reference only
and shall not limit or otherwise affect the meaning of any provision of this
Warrant.
13. Governing Law. This Warrant shall be governed by and construed in accordance
with the laws of the State of New York as such laws are applied to contracts
made and to be fully performed entirely within that state between residents of
that state.
14. Jurisdiction and Venue. The Company (i) agrees that any legal suit, action
or proceeding arising out of or relating to this Warrant shall be instituted
exclusively in New York State Supreme Court, County of New York or in the United
States District Court for the Southern District of New York, (ii) waives any
objection to the venue of any such suit, action or proceeding and the right to
assert that such forum is not a convenient forum for such suit, action or
proceeding, and (iii) irrevocably consents to the jurisdiction of the New York
State Supreme Court, County of New York, and the United States District Court
for the Southern District of New York in any such suit, action or proceeding,
and the Company further agrees to accept and acknowledge service or any and all
process which may be served in any such suit, action or proceeding in New York
State Supreme Court, County of New York or in the United States District Court
for the Southern District of New York and agrees that service of process upon it
mailed by certified mail to its address shall be deemed in every respect
effective service of process upon it in any suit, action or proceeding.
15. Mailing of Notices, etc. All notices and other communications under this
Warrant (except payment) shall be in writing and shall be sufficiently given if
sent to the Holder or the Company, as the case may be, by hand delivery, private
overnight courier, with acknowledgment of receipt, or by registered or certified
mail, return receipt requested, as follows:
Holder: To Holder's address on page 1 of this Warrant
Attention: Name of Holder
The Company: To the Company's Principal Executive Offices
Attention: President
or to such other address as any of them, by notice to the others may designate
from time to time. Time shall be counted to, or from, as the case may be, the
delivery in person or by overnight courier or five (5) business days after
mailing.
VITALSTATE, INC.
By: /s/ Xxxxxxx Xxxxx
------------------------------
Name: Xxxxxxx Xxxxx
Title: President
65
NOTICE OF EXERCISE
TO: Vitalstate, Inc.
1. The undersigned hereby elects to purchase ________ shares of the
Vitalstate, Inc., pursuant to terms of the attached Warrant, and tenders
herewith payment of the Exercise Price of such shares in full, together with all
applicable transfer taxes, if any.
2. Please issue a certificate or certificates representing said shares of the
Common Stock in the name of the undersigned or in such other name as is
specified below:
3. The undersigned represents that it will sell the shares of Common Stock
pursuant to an effective Registration Statement under the Securities Act of
1933, as amended, or an exemption from registration thereunder.
---------------------------------------------------------------
(Name)
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(Address)
---------------------------------------------------------------
---------------------------------------------------------------
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(Taxpayer Identification Number)
(Print Name of Holder)
By:
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Title:
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Date:
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