Exhibit 10.3
ASSET SALE AGREEMENT
between
On The Go Healthcare, Inc.
and
Vital Products, Inc.
Dated as of July 5, 2005
THIS ASSET SALE AGREEMENT is made as of this 5 day of July, 2005
(the "Effective Date") by and between
(1) On The Go Healthcare, Inc., a corporation organized under the
laws of Delaware, whose registered office is at 00 Xxxxxxxx
Xxxxxx, Xxxx #0, Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0 ("OGHC"),
and
(2) Vital Products, Inc., a corporation organized under the laws
of the state of Delaware with its principal offices at
00 Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxx X0x 0X0 Xxxxxx
("Vital Products").
BACKGROUND
A. WHEREAS, OGHC has rights in certain Intellectual Property,
Equipment and Agreements relating to its Childcare Division
(each as hereinafter defined); and
B. WHEREAS, Vital Products desires to purchase and OGHC desires
to sell to Vital Products all of OGHC's right, title and
interest in certain Intellectual Property, Equipment and
Agreements relating to its Childcare Division, on the terms
and conditions stated in this Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants, agreements and representations herein contained and
intending to be legally bound, OGHC and Vital Products agree as
follows:
SECTION 1
DEFINITIONS AND INTERPRETATION
1.1 Definitions. Where used in this Agreement, in addition to
capitalized terms defined on first use herein, the following
words or phrases shall have the meanings set forth below:
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1.1.1 "Affiliate" in relation to any Person means any Person that
controls, is controlled by or is under common control with
that Person. For the purposes of this definition, the term
"control" means (i) beneficial and/or legal ownership of at
least fifty percent (50%) or more of the outstanding voting
securities of a company or other business organization with
voting securities (or such percentage as required under any
particular jurisdiction to confer controlling powers through
ownership of voting securities broadly equivalent to the
controlling powers attendant on ownership of at least fifty
percent (50%) or more of outstanding voting securities in a
United States corporation), (ii) a fifty percent (50%) or
greater interest in the net assets or profits of a partnership
or other business organization without voting securities,
or (iii) the ability, whether directly or indirectly, to
direct the affairs, management or policies of any such Person.
1.1.2 "Agreement" means this Asset Sale Agreement, together with the
Exhibits attached hereto, each of which is hereby incorporated
by reference herein, and any instrument amending this
Agreement.
1.1.3 "Books and Records" means all material communications between
OGHC or any of its Affiliates and governmental patent offices,
the internal patent file and the invention disclosure
documents of OGHC or any of its Affiliates, as kept by OGHC's
or any such Affiliate's corporate intellectual property
department.
1.1.4 "Childcare Division" means the division of OGHC which
manufactures, markets and distributes Childcare Products.
1.1.5 "Governmental Body" means any: (a) nation, principality,
state, commonwealth, province, territory, county,
municipality, district or other similar jurisdiction;
(b) federal, state, local, municipal, foreign or other
government; (c) governmental authority (including any
governmental division, subdivision, department, agency,
bureau, branch, office, commission, council, board,
instrumentality, officer, official, representative,
organization, unit, body or other entity); (d) multi-national
organization or body established under the auspices of an
internationally recognized organization (such as WIPO, the
WHO, The United Nations etc.); (e) individual, entity or
body or (f) court or tribunal, in each case which has
competent jurisdiction and which is legally entitled to
exercise any executive, legislative, judicial,
administrative, regulatory or taxing authority or power
of any nature.
1.1.6 "Party" or "Parties" means OGHC or Vital Products or, as
the context requires or admits, both OGHC and Vital Products.
1.1.7 "Person" means an individual, a partnership, a joint venture,
a corporation, a trust, an estate, an unincorporated
organization, or any other entity or any department or agency
thereof.
1.1.8 "Third Party(ies)" means any Person other than a Party to this
Agreement or an Affiliate of any Party to this Agreement.
1.2 Interpretation.
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1.2.1 In this Agreement, where the context admits or requires, and
unless otherwise specifically provided herein (a) words
importing the singular number only shall include the plural
and vice versa, (b) words importing a specific gender shall
include the other gender, (c) references to Persons shall
include their heirs, executors, administrators or assigns as
the case may be, (d) references to "including" means
"including but not limited to", and "herein", "hereof", and
"hereunder" refer to this Agreement as a whole, and (e) any
reference to a number of "days" hereunder shall refer to
calendar days.
1.2.2 The division of this Agreement into Sections and the insertion
of headings are for convenience of reference only and shall
not affect the interpretation hereof. References to statutory
provisions shall (unless otherwise expressly provided) be
construed as references to those provisions as in effect as
at the date of this Agreement.
SECTION 2
PURCHASED ASSETS
2.1 Assets to be Sold and Purchased. Subject to all of the terms
and conditions of this Agreement, at the Time of Closing, OGHC
shall sell and assign to Vital Products, and Vital Products
shall purchase from OGHC, all right, title and interest of
OGHC in and to the assets listed below, and which are referred
to hereinafter collectively as the "Purchased Assets":
2.1.1 All of the Equipment used in the Childcare Division included
but not limited to;
- molds and dies related to the Baby Bath
- packaging molds and dies for the padded training seat.
- Mixing tank and 2kw RF welder as well as sealing machine
dies
- Custom equipment to produce the padded training seat and
formulations related to producing materials.
2.1.2 the Intellectual Property used in the Childcare Division;
2.1.3 the Agreements and Orders associated with the Childcare
Division; Listings at all national retailers across Canada
(the "Customer Lists").
2.1.4 the Books and Records; and
2.1.5 all rights and claims or causes of action against Third
Parties relating to any of the assets listed in the foregoing
subsections 2.1.1 through 2.1.4 arising from or based on
events or circumstances occurring or existing or omissions
to act occurring prior to the Time of Closing.
2.2 Assumption of Liabilities.
2.2.1 Vital Products shall be responsible for (and OGHC shall have
no responsibility for) all liabilities after the Time of
Closing or the Time of Delivery, as applicable, related to
the Purchased Assets or the use of the Purchased Assets
(the "Assumed Liabilities") including, without limitation,
any Losses arising from or related to (a) events which
occurred after the Time of Closing or (b) products made or
sold by Vital Products, its Affiliates, sublicensees or
assignees after the Time of Closing.
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2.2.2 Except as expressly set forth in Section 2.2.1, the Assumed
Liabilities shall exclude liabilities directly related to
actions taken or omissions to act by OGHC or its Affiliates
or any of their respective subcontractors whether prior to
or after the Time of Closing or the Time of Delivery, as
applicable, based upon OGHC's or OGHC's Affiliates production
of Childcare Products, unless any such action or omission to
act by OGHC or its Affiliate was requested by Vital Products,
or came about as a result of any breach of this Agreement by
Vital Products or to the extent of Vital Products' or its
Affiliates' negligence or willful misconduct.
SECTION 3
PURCHASE CONSIDERATION
3.1 Purchase Consideration. As the total Purchase Consideration
payable to OGHC hereunder for the Purchased Assets, Vital
Products shall issue to OGHC an amount of shares of Common
Stock having an aggregate Fair Market Value of $250,000 and
OGHC agrees to accept a term note in the amount of $750,000
due to be repaid upon effectiveness of Vital Products
registration statement from available funds.
3.2 Transfer Taxes. Vital Products shall be responsible for and
shall pay all sales taxes, documentary transfer taxes or other
transfer taxes assessed it as purchaser of the Purchased
Assets. OGHC shall be responsible for and shall pay all
sales taxes, documentary transfer taxes or other transfer
taxes assessed it as seller of the Purchased Assets. OGHC
shall also be responsible for and shall pay all federal,
foreign, state or local taxes payable on any income or gain
resulting from the sale of the Purchased Assets to Vital
Products, including any withholding taxes imposed in lieu of
taxes on income or gain. Vital Products and OGHC shall
cooperate, at Vital Products' cost and expense, in the
timely making and filing of all filings, tax returns, reports
and forms as may be required with respect to the sales
taxes, documentary taxes or other transfer taxes assessed to
Vital Products as purchaser of the Purchased Assets. Vital
Products and OGHC shall cooperate, at OGHC's cost and
expense, in the timely making and filing of all filings,
tax returns, reports and forms as may be required with
respect to the sales taxes, documentary transfer taxes or
other transfer taxes assessed OGHC as seller of the Purchased
Assets or assessed OGHC with respect to any federal, foreign,
state or local taxes payable on any income or gain resulting
from the sale of the Purchased Assets to Vital Products,
including any withholding taxes imposed in lieu of taxes on
income or gain.
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3.3 Allocation of Purchase Price. The vendor and purchaser agree
to the following allocation of the purchase price and
stipulate that said purchase price has been determined based
upon the fair market value of the specific assets being
transferred:
(1) Manufacturing Equipment as follows:
A) 100 US Gallon Heated Mixing tank with Custom PLC
Controls and heated dispensing Nozzle
B) A 2Kw RF sealing Machine with custom sealing
dies mounted
C) 4 RF Dies for manufacturing the Plastic Bags
D) A multi stage Progressive Die for Manufacturing the
Clips
E) Cutting Dies for manufacturing the Display
(Base and Upper)
F) Rollers for bag making.
$ 250,000
(2) One custom 25 by 40 vac-former with full servo drive and
transfer unites custom programmed plc and touch screen
2 custom fuzzy logic 8 zone temp controllers
boards $ 150,000
(3) Custom mold and die for potty seat packaging $ 20,000
(4) Custom baby bath mold $ 125,000
(5) Custom baby bath plug mold $ 35,000
(6) Electric pallet truck $ 20,000
(7) Customer/Client Lists $ 400,000
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Total $ 1,000,000
SECTION 4
CLOSING
4.1 Closing Date, Time and Place. The transfer of title to the
Purchased Assets and the closing of the Transactions shall
occur on the Effective Date ("Closing Date") at or before
1 p.m. and shall occur or be deemed to have occurred at the
offices of OGHC located at 00 Xxxxxxxx Xxxxxx, Xxxx #0,
Xxxxxxx, Xxxxxxx, Xxxxxx.
4.2 Closing Arrangements.
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4.2.1 OGHC's Delivery of Closing Documents. At the Closing, OGHC
shall deliver or cause to be delivered to Vital Products four
(4) originals or facsimiles (with originals to follow) of each
of the following, in each case duly executed by OGHC:
(1) this Agreement; and
(2) an Irrevocable Xxxx of Sale substantially in the form of
Exhibit A attached hereto and incorporated herein by
reference.
4.2.2 Vital Products Payment of Purchase Consideration and Delivery
of Closing Documents. At the Closing, Vital Products shall
deliver or cause to be delivered to OGHC:
(1) the Common Stock certificates issued to OGHC evidencing
the Purchase Consideration, which shall contain
appropriate legends relating to transfer restrictions
under applicable securities laws. To the extent this is
not practicable immediately at the Closing, the
requirements for delivery of the Common Stock certificates
shall be fulfilled by Vital Products as soon as reasonably
practicable by Vital Products but in any event no later
than two (2) days after Closing; and
(2) originals or facsimiles (with originals to follow) of this
Agreement duly executed by Vital Products.
4.3 Transfer after Closing Date.
4.3.1 Purchased Assets Physical Transfer. As soon as reasonably
practicable and within ten (10) days after the Closing Date,
OGHC shall deliver to Vital Products certain physical
Inventory, Equipment, and Other Materials described in
Section 2.1, the Books and Records, and binders and files
relating to the Childcare Division that were made available to
Vital Products by OGHC or its Affiliates for review during its
due diligence review prior to the Closing Date (the "Purchased
Assets Physical Transfer"). The Purchased Assets Physical
Transfer shall be effected by OGHC's delivery of the foregoing
Purchased Assets at OGHC's reasonable cost and expense pursuant
to written instructions as to the requested timing and delivery
location (but not as to format) specified by Vital Products to
OGHC and reasonably acceptable to OGHC; provided that such
obligations shall be subject to Vital Products providing
reasonable cooperation to facilitate receipt of such
deliveries. Notwithstanding that title to the Purchased
Assets transfers to Vital Products at the Time of Closing,
risk of loss with respect to the Purchased Assets transfers
to Vital Products only at the time of delivery (the "Time of
Delivery") to Vital Products of the Purchased Assets at the
delivery location specified by Vital Products in its written
instructions to OGHC, and any failure by OGHC to deliver the
Purchased Assets to Vital Products in accordance with such
written instructions, to the extent such failure results in
Losses (as defined in Section 6.1) to Vital Products, shall
be indemnifiable by OGHC to the extent set forth in Section 6.
Export duties and customs clearance with respect to the
transfer of the Purchased Assets shall be the joint
responsibility of OGHC and Vital Products. After the Closing,
Vital Products shall be responsible for all costs related to
the recordation and perfection of the sale and assignment of
the Purchased Assets and Vital Products shall bear all costs
and fees imposed by applicable laws and regulations and
Governmental Bodies related thereto and all postage costs
related thereto.
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SECTION 5
REPRESENTATIONS AND WARRANTIES
5.1 Representations and Warranties of Vital Products. Vital
Products hereby represents and warrants to OGHC at the Time
of Closing, and acknowledges that OGHC is relying on such
representations and warranties in connection with the
Transactions, that:
5.1.1 Incorporation, Organization and Qualification of Vital
Products. Vital Products is a corporation duly incorporated,
validly existing and in good standing under the law of the
jurisdiction of its incorporation, and has the corporate power
to own or lease its property and to carry on its business as
now being conducted by it and to execute, deliver and perform
this Agreement.
5.1.2 Corporate Action. This Agreement, and any other agreements
and instruments executed by Vital Products in connection with
the Transactions are the valid and binding obligations of
Vital Products, enforceable in accordance with their
respective terms, subject to bankruptcy, insolvency or similar
laws of general application affecting the enforcement of
rights of creditors, and subject to equitable principles
limiting rights to specific performance or other equitable
remedies, and subject to the effect of federal and state
securities laws on the enforceability of indemnification
provisions relating to liabilities arising under such laws.
The execution, delivery and performance of this Agreement
and any other agreement and instruments executed by Vital
Products in connection with the Transactions have been duly
authorized by Vital Products by all necessary corporate
action. Vital Products has the full legal right, power and
authority to enter into and perform the Transactions, without
need for Vital Products to obtain any consent, approval,
authorization, license or order of, or give any notice to
or make any filing with, any Governmental Body or other
Person. This Agreement has been duly executed and delivered
by Vital Products and, as of the Closing Date, each of the
other agreements to be entered into in connection herewith
and to which Vital Products is a Party have been duly and
validly executed and delivered by Vital Products.
5.1.3 No Default. The execution, delivery and performance of this
Agreement by Vital Products and the consummation by Vital
Products of the Transactions hereby do not conflict with
any provision of the corporate charter or By-Laws of Vital
Products, and do not contravene, conflict with or result in
a violation of any law, regulation, order, judgment or decree
to which Vital Products or any of its properties is subject.
5.1.4 Due Diligence. Vital Products has utilized its own expertise
to analyze and evaluate the value of the Purchased Assets
based upon the information provided to Vital Products by OGHC
and has solely relied on such analysis and evaluations, along
with the representations and warranties of OGHC, in deciding
to enter into this Agreement.
5.1.5 Litigation Matters. There is no pending proceeding against
Vital Products or any of its Affiliates, and, to Vital
Products' knowledge, no Person has threatened to commence
any proceeding, at law or in equity or by or before any
Governmental Body that challenges, or may have the effect
of preventing, delaying or making illegal or otherwise
interfering with, any of the Transactions.
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5.2 Representations and Warranties of OGHC. OGHC hereby represents
and warrants to Vital Products at the Time of Closing, and
acknowledges that Vital Products is relying on such
representations and warranties in connection with the
Transactions, that:
5.2.1 Incorporation, Organization and Qualification of OGHC.
OGHC is a corporation duly incorporated, validly existing
and in good standing under the laws of Delaware, and has the
corporate power to own or lease its property and to carry on
the business now being conducted by it and to execute, deliver
and perform this Agreement.
5.2.2 Corporate Action. This Agreement, and any other agreements
and instruments executed by OGHC in connection with the
Transactions are the valid and binding obligations of OGHC,
enforceable in accordance with their respective terms, subject
to bankruptcy, insolvency or similar laws of general
application affecting the enforcement of rights of creditors,
and subject to equitable principles limiting rights to
specific performance or other equitable remedies, and subject
to the effect of federal and state securities laws on the
enforceability of indemnification provisions relating to
liabilities arising under such laws. The execution, delivery
and performance of this Agreement and any other agreement and
instruments executed by OGHC in connection with the
Transactions have been duly authorized by OGHC by all
necessary corporate action. OGHC has the full legal right,
power and authority to enter into and perform the
Transactions, without need for OGHC to obtain any consent,
approval, authorization, license or order of, or give any
notice to or make any filing with, any Governmental Body
or other Person. This Agreement has been duly executed and
delivered by OGHC and, as of the Closing Date, each of the
other agreements to be entered into in connection herewith
and to which OGHC is a Party have been duly and validly
executed and delivered by OGHC.
5.2.3 Non-Contravention; Consents. The execution, delivery and
performance of this Agreement by OGHC and the consummation
by OGHC of the Transactions hereby do not (i) conflict with
any provision of the corporate charter or by-laws of OGHC,
(ii) do not contravene, conflict with or result in a violation
of any law, regulation, order, judgment or decree to which
OGHC or any of its properties is subject, (iii) contravene,
conflict with or result in a violation or breach of, or
result in a default under, any provision of any written, oral,
implied or other agreement, contract, understanding or
arrangement to which OGHC or any of the Purchased Assets is
subject, or (iv) result in the imposition or creation of any
encumbrance upon or with respect to any of the Purchased
Assets.
5.2.4 Title to the Purchased Assets.
(1) OGHC is the sole and exclusive owner of, and has the full
right to sell, transfer, and assign all of the Purchased
Assets to Vital Products, and has good and marketable
title thereto and the Purchased Assets are free and clear
of any and all liens, pledges, restrictions or
encumbrances.
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(2) Following the Closing, Vital Products will be the sole and
exclusive owner of, and have good and marketable title
to, the Purchased Assets.
5.2.5 Litigation Matters. There is no pending proceeding against
OGHC or any of its Affiliates, and, no Person has threatened
to commence any proceeding, at law or in equity or by or
before any Governmental Body that (i) relates to any of the
Purchased Assets or (ii) challenges, or may have the effect
of preventing, delaying or making illegal or otherwise
interfering with, any of the Transactions. No event has
occurred, and no claim, dispute or other condition or
circumstance exists, that could reasonably be expected
to give rise to or serve as the basis for the commencement
of any such proceeding.
5.2.6 Intellectual Property. OGHC owns and holds all right, title
and interest in its Intellectual Property and has the
exclusive right to use, sell, license, sublicense, or dispose
of, and has the exclusive right to bring action for
infringement, misappropriation, and other violations.
5.2.7 Certain Claims. During the period preceding the date of this
Agreement, OGHC has not received any notice, demand, claim,
action, suit, hearing, proceeding or notice of violation of
a civil, criminal or administrative nature by or before any
Governmental Body against or involving OGHC or its Affiliates
concerning the Purchased Assets that has been commenced or
threatened (including any investigations or inquiries).
5.2.8 Maintenance Fees. All maintenance and similar fees in respect
of any Purchased Assets that are due and payable immediately
prior to the Time of Closing have been paid in full or steps
have been taken to arrange for such payments to be made on a
timely basis.
SECTION 6
INDEMNIFICATION; HOLD HARMLESS COVENANT AND OTHER POST-CLOSING COVENANTS
6.1 OGHC's Indemnification. OGHC shall indemnify and hold
harmless Vital Products and its Affiliates and each of its or
their directors, officers, employees, advisors, shareholders,
representatives, agents, successors and assigns (collectively,
the "Vital Products Indemnified Parties") from and against any
and all losses, damages, liabilities, judgments, objections,
costs, and expenses, including but not limited to reasonable
attorneys' fees (collectively, "Losses") sustained, suffered,
or incurred by or imposed upon any Vital Products Indemnified
Party as a result of any claim, action, suit or proceeding
(collectively, "Claims") arising out of, based upon or related
to:
6.1.1 liabilities of OGHC or its Affiliates to the extent related to
the Purchased Assets other than the Assumed Liabilities;
6.1.2 any tax liability of OGHC or its Affiliates (other than taxes
for which Vital Products is expressly responsible pursuant to
this Agreement);
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6.1.3 any breach of any representation, warranty, covenant,
agreement or obligation made by OGHC pursuant to this
Agreement, provided that, in each case, OGHC shall not be
obligated to indemnify any Vital Products Indemnified Parties
with respect to, and to the extent of, any Claims or Losses
for which Vital Products is obligated to indemnify OGHC
Indemnified Parties.
6.2 Vital Products' Indemnification. Vital Products shall
indemnify and hold harmless OGHC and its Affiliates and each
of its or their directors, officers, employees, advisors,
shareholders, representatives, agents, successors and
assigns (collectively, the "OGHC Indemnified Parties")
from and against any and all Losses sustained, suffered,
or incurred by or imposed upon any OGHC Indemnified Party
as a result of any Claim arising out of, based upon or related
to:
6.2.1 any of the Assumed Liabilities;
6.2.2 any breach of any representation, warranty, covenant,
agreement or obligation made by Vital Products pursuant to
this Agreement, and
6.2.3 any tax liability of Vital Products or its Affiliates (other
than taxes for which OGHC is expressly responsible pursuant to
this Agreement); provided that, in each case, Vital Products
shall not be obligated to indemnify any OGHC Indemnified
Parties with respect to, and to the extent of, any Claims or
Losses for which OGHC is obligated to indemnify Vital Products
Indemnified Parties pursuant to Section 6.1.
6.3 Procedure. If a claim or demand by a Third Party is made
against an indemnified Party, and if such Party intends to
seek indemnity with respect thereto under this Section, such
indemnified Party shall promptly notify the indemnifying Party
in writing of such claims or demands setting forth such claims
in reasonable detail. The failure of the indemnified Party to
give the indemnifying Party prompt notice as provided herein
shall not relieve the indemnifying Party of any of its
obligations under this Section except to the extent that
the indemnifying Party is materially prejudiced by such
failure (in which case the indemnified Party shall have been
deemed to have forfeited its rights to indemnification
hereunder). The indemnifying Party shall have ten (10) days
after receipt of such notice to undertake, through counsel of
its own choosing and at its own expense, the defense
(or settlement) thereof, and the indemnified Party shall
cooperate with it in connection therewith; provided, that
the indemnified Party may contribute to the strategy and
content in such defense (or settlement) through counsel
chosen by such indemnified Party and the fees and expenses of
such counsel shall be borne by such indemnified Party unless
(i) the employment thereof has been specifically authorized
by the indemnifying Party in writing, (ii) there exists a
conflict of interest between the interests of the indemnified
Party and the indemnifying Party, or (iii) the indemnifying
Party has after ten (10) days of receipt of the applicable
notice failed to assume such defense and employ counsel, in
each of which events the indemnified Party may retain
counsel, and the indemnifying Party shall pay the reasonable
fees and expenses of such counsel for the indemnified Party
(but in no event shall the indemnifying Party be obligated
to pay reasonable fees and expenses of more than one firm
(in addition to local counsel), which firm shall serve as
counsel for all indemnified Parties). So long as the
indemnifying Party is reasonably contesting any such claim
in good faith, the indemnified Party shall not pay or settle
any such claim. If the indemnifying Party does not notify the
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indemnified Party within ten (10) days after the receipt of
the indemnified Party's notice of a claim of indemnity
hereunder that it elects to undertake the defense
(or settlement) thereof, the indemnified Party shall have
the right to contest, settle or compromise the claim but
shall not thereby waive any right to indemnity therefor
pursuant to this Agreement. The indemnifying Party shall
not, except with the consent of the indemnified Party, enter
into any settlement that does not include as an unconditional
term thereof the giving by the Person or Persons asserting
such claim to all indemnified Parties (i.e. OGHC Indemnified
Parties or Vital Products Indemnified Parties, as the case
may be) an unconditional release from all liability with
respect to such claim.
SECTION 7
MISCELLANEOUS
7.1 Further Assurances and Actions.
7.1.1 In addition to any other obligations hereunder, each of the
Parties hereto upon the request of the other Party hereto,
whether before or after the Time of Closing and without
further consideration, shall do, execute, acknowledge and
deliver or cause to be done, executed, acknowledged or
delivered all such further acts, deeds, documents,
assignments, transfers, instruments, amendments,
conveyances, powers of attorney and assurances as may
be reasonably necessary or desirable to effect complete
consummation of the Transactions contemplated by this
Agreement and to give full and binding effect to the rights
expressly granted herein. OGHC and Vital Products each agree
to execute and deliver such other documents, certificates,
agreements, amendments, instruments and other writings and
to take such other actions as may be reasonably necessary
in order to consummate or implement expeditiously the
Transactions contemplated by this Agreement.
7.2 Notices. Any notice, direction or other instrument required
or permitted to be given to OGHC hereunder shall be in writing
and sent via certified or registered mail, return receipt
requested, overnight courier, or by delivering the same by
telecommunication, with the original sent by one of the
foregoing manners, addressed to OGHC as follows:
To: On The Go Healthcare, Inc.
00 Xxxxxxxx Xxxxxx, Xxxx #0
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
Attn: Xxxxxx Xxxx, President and CEO
Fax: (905) 660 - 5738
Copy to: Xxxxxxx Business Law
0000 Xxxxxx Xx., Xxx. 0
Xxxxxx, XX 00000
Attn: Xxx X. Xxxxxxx, Esq.
Fax: (617) 243 - 0066
Efax: (309) 406 - 1426
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Any notice, direction or other instrument required or
permitted to be given to Vital Products hereunder shall
be in writing and sent via registered or certified mail,
return receipt requested, or overnight courier, or by
delivering the same by fax with the original sent by one
of the foregoing manners, addressed as follows:
To: Vital Products, Inc.
00 Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
Attn: Xxxxxxx Xxxxxx, CEO
Fax: (416) 650 - 1255
Any such notice, direction or other instrument, if delivered,
shall be deemed to have been given on the date on which it was
delivered and if transmitted by fax shall be deemed to have
been given at the opening of business in the office of the
addressee on the business day next following the transmission
thereof, provided that proof of successful transmission is
provided to the intended recipient on request by the intended
recipient. Any Party hereto may change its address for service
from time to time by notice given to the other Parties hereto
in accordance with the foregoing.
7.3 Relationship of the Parties. Nothing contained in this
Agreement shall be deemed or construed as creating a joint
venture, partnership, agency, employment or fiduciary
relationship between the Parties. No Party to this Agreement
nor its agents have any authority of any kind to bind the
other Party in any respect whatsoever.
7.4 Applicable Law. This Agreement shall be construed and enforced
in accordance with, and the rights of the Parties hereto shall
be governed by, the laws of the State of Delaware, without
reference to conflicts of law principles.
7.5 Entire Agreement. This Agreement, including the Exhibits
hereto, constitute the entire agreement between the Parties
hereto with respect to the Transactions and, except as stated
herein and in the instruments and documents to be executed
and delivered pursuant hereto, contain all of the agreements
between the Parties hereto, and there are no verbal or written
agreements or understandings between the Parties hereto and
relating the subject matter hereof not reflected in this
Agreement, all of which agreement or understandings are
hereby superseded. This Agreement may not be amended or
modified in any respect except by written instrument executed
by each of the Parties hereto.
7.6 Counterparts. This Agreement may be executed in two or more
counterparts, which may be executed via facsimile, each of
which shall be deemed to be an original, and all of which
together shall constitute one and the same Agreement.
7.7 Binding Agreement; Parties in Interest. This Agreement and
the rights and obligations of the Parties hereunder shall
inure to the benefit of and shall be binding upon the Parties
hereto and their respective heirs, executors, successors,
administrators, and permitted assigns.
12
7.8 Waiver; Remedies Cumulative. No failure or delay on the part
of a Party hereto to exercise any right, power, or privilege
hereunder or under any instrument executed pursuant hereto on
any one occasion shall operate as a waiver of such right,
power or privilege in the future; nor shall any single or
partial exercise of any right, power, or privilege preclude
any other or further exercise thereof or the exercise of any
other right, power, or privilege. All rights and remedies
granted herein shall be cumulative and in addition to other
rights and remedies to which the Parties may be entitled at
law or in equity.
7.9 Severability.
7.9.1 In the event any portion of this Agreement is or is held by
any court or tribunal of competent jurisdiction to be illegal,
void or ineffective, the remaining provisions hereof shall
remain in full force and effect.
7.9.2 If any of the terms or provisions of this Agreement are in
conflict with any applicable statute or rule of law, then such
terms or provisions shall be deemed inoperative to the extent
that they may conflict therewith and shall be deemed to be
modified to the minimum extent necessary to procure conformity
with such statute or rule of law.
IN WITNESS WHEREOF, and intending to be legally bound hereby, this Asset
Sale Agreement has been duly executed by the authorized representatives of the
Parties hereto as of the date first above written.
ON THE GO HEALTHCARE, INC.
By: /s/ Xxxxxx Xxxx
----------------------------
Xxxxxx Xxxx, President, CEO
Chairman and Director
VITAL PRODUCTS, INC.
By: /s/ Xxxxxxx Xxxxxx
----------------------------
Xxxxxxx Xxxxxx, CEO
Exhibit A
IRREVOCABLE XXXX OF SALE
This is an Irrevocable Xxxx of Sale from On The Go Healthcare, Inc., a
corporation organized under the laws of Delaware, whose registered office is at
00 Xxxxxxxx Xxxxxx, Xxxx #0, Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0 ("OGHC"), to Vital
Products, Inc., a corporation organized under the laws of the state of Delaware
with its principal offices at 00 Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxx X0x 0X0 Xxxxxx
("Vital Products") pursuant to a certain Asset Sale Agreement dated as of
July 5, 2005 by and among OGHC and Vital Products (the "Agreement").
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, OGHC hereby sells, assigns, transfers, conveys,
delivers and contributes to Vital Products, its successors and assigns, to
have and to hold forever, all of its right, title and interest in and to the
Purchased Assets (as defined in the Agreement), subject to the applicable
provisions of the Agreement.
From and after the Closing Date (as defined in the Agreement) upon request
of Vital Products, OGHC shall, at Vital Products' expense, duly execute,
acknowledge and deliver all such further acts, deeds, assignments, transfers,
conveyances, powers of attorney and assurances as may be required to convey to
and vest the Purchased Assets in Vital Products or its permitted assignees and
as may be appropriate to protect Vital Products' rights, title and interest in
and enjoyment of all the Purchased Assets and as may be appropriate otherwise
to carry out the transactions contemplated by the Agreement and this
Irrevocable Xxxx of Sale.
IN WITNESS WHEREOF, and intending to be legally bound, the undersigned has
duly executed and delivered this Irrevocable Xxxx of Sale as of this
July 5, 2005.
ON THE GO HEALTHCARE, INC.
/s/ Xxxxxx Xxxx
---------------------------------
Xxxxxx Xxxx, President, CEO
Chairman and Director
VITAL PRODUCTS, INC.
/s/ Xxxxxxx Xxxxxx
----------------------------
Xxxxxxx Xxxxxx, CEO
