ASSET SALE AGREEMENT
THIS AGREEMENT is dated as of
December 14, 2009 (the “Effective Date”)
BETWEEN:
PACIFIC PHARMA TECHNOLOGIES
INC., a company with an office at Suite 200 – 0000 Xxxx
Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx
Xxxxxxxx X0X 0X0
(the
“Vendor”)
AND:
JTAT CONSULTING INC., a
company with a business office at B5 – 0000 Xxxx 0xx Xxxxxx, Xxxxxxxxx, Xxxxxxx
Xxxxxxxx X0X 0X0
(the
“Purchaser”)
WHEREAS:
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A.
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The
Vendor wishes to sell, transfer and assign the Purchased Assets (as
defined herein) to the Purchaser in consideration for the payment of
$1.00; and
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B.
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The
parties wish to enter into this Agreement to document the definitive terms
and conditions with respect to the sale and purchase of the Purchased
Assets;
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NOW THEREFORE THIS AGREEMENT
WITNESSES that, in consideration of the mutual covenants and agreements
set forth in this Agreement and for other good and valuable consideration (the
receipt and sufficiency of which are hereby acknowledged), the parties hereby
agree as follows:
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1.
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INTERPRETATION
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1.1
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In
this Agreement:
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(a)
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“Closing” means the
completion of the transactions contemplated in this
Agreement;
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(b)
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“Intellectual Property Assets”
means:
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(i)
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the
URL domain name
xxx.xxxxxxxxxxxxxxxxx.xxx;
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(ii)
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the
Vendor’s patents, patent applications, and inventions, methods, processes
and discoveries that may be patentable;
and
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(iii)
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the
Vendor’s know-how, trade secrets, confidential information, technical
information, data, process technology, plans and drawings, owned, used, or
licensed by the Vendor as licensee or
licensor;
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(c)
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“Laws” mean all federal,
provincial, state, municipal or local laws, rules, regulations, statutes,
by-laws, ordinances, policies or orders of any federal, provincial, state,
regional or local government or any subdivision thereof or any arbitrator,
court, administrative or regulatory agency, commission, department, board
or bureau or body or other government or authority or instrumentality or
any entity or Person exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to
government;
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(d)
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“Person” means an
individual, partnership, corporation, association, trust, joint venture,
unincorporated organization and any government, governmental department or
agency or political subdivision thereof;
and
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(e)
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“Purchased Assets” means
all of the assets currently held by the Vendor, including the Intellectual
Property Assets, and the contractual and proprietary rights to all items
listed in Schedule “A” to this
Agreement.
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1.2
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Unless
otherwise indicated, all dollar amounts in this Agreement are expressed in
Canadian dollars.
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1.3
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The
following Schedules are attached to and form part of this
Agreement:
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Schedule
A
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List
of Purchased Assets
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Schedule
B
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Xxxx
of Sale
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All terms
defined in the body of this Agreement will have the same meaning in the
Schedules attached hereto.
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2.
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PURCHASE AND
SALE
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2.1
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Subject
to the terms and conditions of this Agreement, the Vendor agrees to sell,
transfer and assign to the Purchaser and the Purchaser agrees to purchase
from the Vendor, on the Effective Date, all right, title, interest in and
to the Purchased Assets, in consideration of the payment of $1.00 by the
Purchaser to the Vendor.
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2.2
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The
Purchaser acknowledges and agrees that the purchase and sale of the
Purchased Assets is on an “as-is” basis, and the Vendor makes no
representations or warranties with respect to the Purchased
Assets.
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2.3
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The
Purchaser will be responsible for paying any sales, value-added or similar
tax arising directly from this transaction, including G.S.T. pursuant to
the Excise Tax
Act and provincial sales tax, if
required.
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2.4
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The
Vendor and the Purchaser will both sign a joint election under Section 167
of the Excise Tax Act
so that G.S.T. does not apply to the transaction, if
required.
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2.5
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The
Closing will occur at the offices of the Vendor’s solicitors in Vancouver,
British Columbia.
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3.
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REPRESENTATIONS AND
WARRANTIES OF THE VENDOR
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The
Vendor hereby represents and warrants to the Purchaser, with the intent that the
Purchaser will rely thereon in entering into this Agreement and in concluding
the transactions contemplated hereby, as follows:
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3.1
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The
Vendor is a company duly incorporated, validly existing and in good
standing under the Business Corporations Act
(British Columbia) and it is duly qualified to carry on its
business in each jurisdiction where it does
so.
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3.2
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The
Vendor has all necessary power, authority (including all necessary
corporate power and authority) and capacity to execute and deliver this
Agreement and to perform its obligations
hereunder.
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3.3
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The
execution and delivery of this Agreement and the completion of the
transactions contemplated hereby have been duly and validly authorized by
all necessary corporate action on the part of the Vendor, and this
Agreement constitutes a valid and binding obligation of the Vendor
enforceable against the Vendor in accordance with its
terms.
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3.4
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Neither
the execution and delivery of this Agreement nor the performance of the
Vendor’s obligations hereunder will violate, breach or constitute a
default under the constating documents of the Vendor, any agreement or
instrument to which the Vendor is a party, or any order, decree, judgment,
statute, by-law, rule, regulation, or restriction applicable to the
Vendor.
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4.
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REPRESENTATIONS AND
WARRANTIES OF THE PURCHASER
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The
Purchaser hereby represents and warrants to the Vendor, with the intent that the
Vendor will rely thereon in entering into this Agreement and in concluding the
purchase and sale contemplated hereby, as follows:
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4.1
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The
Purchaser is a company duly incorporated, validly existing and in good
standing under the Business Corporations Act
(British Columbia) and it is duly qualified to carry on its
business in each jurisdiction where it does
so.
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4.2
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The
Purchaser has all necessary power, authority (including all necessary
corporate power and authority) and capacity to execute and deliver this
Agreement and to perform its obligations
hereunder.
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4.3
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The
execution and delivery of this Agreement and the completion of the
transactions contemplated hereby have been duly and validly authorized by
all necessary corporate action on the Purchaser, and this Agreement
constitutes a valid and binding obligation of the Purchaser enforceable
against the Purchaser in accordance with its
terms.
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4.4
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Neither
the execution and delivery of this Agreement nor the performance of the
Purchaser’s obligations hereunder will violate, breach or constitute a
default under the constating documents of the Purchaser, any agreement or
instrument to which the Purchaser is a party or any order, decree,
judgment, statute, by-law, rule, regulation, or restriction applicable to
the Purchaser.
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5.
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COVENANT OF THE
VENDOR
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5.1
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At
Closing, the Vendor will have executed the Xxxx of Sale, in the form set
out in Schedule B attached to this
Agreement.
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6.
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TRANSACTIONS AT
CLOSING
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6.1
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At
the Closing, the Vendor will execute and deliver or cause to be executed
and delivered to the Purchaser all transfers, assignments, agreements,
certificates, documents, and instruments as
may
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be
necessary in the opinion of Purchaser, acting reasonably, to effect the purchase
and sale of the Purchased Assets.
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7.
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PROPRIETARY
PROTECTION
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7.1
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Except
as may be required by Law or applicable securities legislation, the Vendor
and the Purchaser will not, at any time before or after the Closing,
disclose, communicate or otherwise make available to any persons or entity
any confidential information and will take all necessary precautions
against unauthorized disclosure of the confidential information.
Notwithstanding the above, the parties acknowledge that the parent company
of the Vendor is required to disclose the terms of this Agreement in a
press release following entry into this Agreement and the Closing
Date.
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8.
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SURVIVAL
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8.1
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The
representations, warranties, covenants and agreements of the parties
contained in this Agreement and those contained in the documents and
instruments delivered pursuant hereto or in connection herewith will
survive the Closing Date for a period of two (2) years after the Closing
Date.
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9.
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ARBITRATION
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9.1
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The
parties shall in good faith and within a reasonable period of time
endeavour to resolve any dispute arising out of this
Agreement. If the parties are unable to resolve the dispute
within 30 days, or such other period agreed to in writing by the parties,
the dispute shall be referred to and finally resolved by arbitration
before a single arbitrator appointed in accordance with the appointment
process administered by the British Columbia International Commercial
Arbitration Centre (“BCICAC”) and conducted
in accordance the BCICAC’s rules. The place of arbitration shall be
Vancouver, British Columbia and the language of arbitration shall be
English. The award of the arbitrator will be final and binding on each
party. Judgment upon the award may be entered in any court of competent
jurisdiction. The dispute resolution procedure set out in this Section
does not preclude recourse to the courts for interim or interlocutory
injunctive or other interim relief.
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10.
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GENERAL
PROVISIONS
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10.1
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Sections and
Headings. The division of this Agreement into Sections
and Subsections and the insertion of headings are for convenience of
reference only and will not affect the interpretation of this
Agreement.
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10.2
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Number, Gender and
Persons. In this Agreement, words importing the singular
number only will include the plural and vice versa, words importing gender
will include all genders and words importing persons will include
individuals, corporations, partnerships, associations, societies, trusts,
unincorporated organizations, governmental bodies and other legal or
business entities of any kind
whatsoever.
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10.3
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Entire
Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof
and supersedes all prior agreements, understandings, negotiations and
discussions, whether written or oral. There are no conditions,
covenants, agreements, representations, warranties or other provisions,
express or implied, collateral, statutory or otherwise, relating to the
subject matter hereof except as provided in this
Agreement.
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10.4
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Time of
Essence. Time is of the essence in this
Agreement.
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10.5
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Applicable
Law. This Agreement and any matters relating thereto
will be governed, construed and interpreted in accordance with the Laws of
the Province of British Columbia, without regard to its conflict of laws
rules.
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10.6
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Amendments and
Waivers. No amendment or waiver of any provision of this
Agreement will be binding on either party unless consented to in writing
by such party. No waiver of any provision of this Agreement
will constitute a waiver of any other provision, nor will any waiver
constitute a continuing waiver unless otherwise
provided.
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10.7
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Severability. If
any term or condition of this Agreement is, to any extent, held to be
invalid or unenforceable, such provision will be severed from this
Agreement, and the remainder of this Agreement will remain in full force
and effect.
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10.8
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Further
Assurances. From time to time subsequent to the Closing
Date, the parties covenant and agree to promptly execute and deliver all
such further documents and instruments and do all such further acts and
things as may be required to carry out the full intent and meaning of this
Agreement and to effect the transactions contemplated
hereby.
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10.9
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Expenses. Each
party shall bear its own expenses of this transaction unless agreed
otherwise in writing.
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10.10
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No
Assignment. This Agreement may not be assigned by any
party hereto without the prior written consent of the other parties
hereto.
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10.11
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Successors and
Assigns. This Agreement will enure to the benefit of and
be binding upon the parties hereto and their respective successors and
permitted assigns.
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10.12
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Notices. Any
notices given hereunder by either party to the other will be in writing
and will be effected either by personal delivery (including by courier) or
by facsimile transmission. Notices will be delivered to the
parties at the following addresses:
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(a)
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If
to the Vendor:
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200 –
0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxxxx Xxxxxxxx X0X 0X0
Attention:
Xxxx Xxxxxxxxx
Facsimile:
(000) 000-0000
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(b)
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If
to the Purchaser:
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B5 – 0000
Xxxx 0xx Xxxxxx
Xxxxxxxxx,
Xxxxxxx Xxxxxxxx
X0X
0X0
Attention:
Xx. Xxxxx Xxxxxxxxx
Facsimile:
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Each
party may change the address set out above by notice to the other in accordance
with this Section. Notices delivered by personal delivery will be
deemed to be received on the date of actual delivery and notices delivered by
facsimile transmission will be deemed to be received on the date of machine
confirmed transmission.
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10.13
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Independent Legal
Advice. Each party herein acknowledges that it has obtained
independent legal advice regarding the execution of this Agreement, or has
been advised of his or its respective right to obtain independent legal
advice, and if he or it has not in fact obtained independent legal advice,
such party acknowledges herewith that he or it understands the contents of
this Agreement and waives the need for independent legal advice, and that
he or it is executing the same voluntarily and without duress or pressure
from the other parties or anyone on their
behalf.
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10.14
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Counterparts. This
Agreement may be executed in counterpart and such counterparts together
will constitute a single instrument. Delivery of an executed
counterpart of this Agreement by electronic means, including by facsimile
transmission or by electronic delivery in portable document format, will
be equally effective as delivery of a manually executed counterpart
hereof. The parties acknowledge and agree that in any legal
proceedings between them respecting or in any way relating to this
Agreement, each waives the right to raise any defence based on the
execution hereof in counterparts or the delivery of such executed
counterparts by electronic means.
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IN WITNESS WHEREOF the parties
have executed and delivered this Agreement as of the Effective
Date.
PACIFIC
PHARMA TECHNOLOGIES INC.
Per: /s/ Xxxx
Xxxxxxxxx
Authorized Signatory
JTAT
CONSULTING INC.
Per: /s/ Art
Cherkasov
Authorized Signatory
SCHEDULE
A
List
of Purchased Assets
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1.
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United
States Provisional Patent Application Serial Number 60/943,587 filed on
June 13, 2007 entitled “ANTI-PARASITIC COMPOUNDS AND METHODS FOR SELECTION
THEREOF” as amended post-Closing to satisfy requirements of UBC
related to QSAR methodology.
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SCHEDULE
B
XXXX
OF SALE
THIS XXXX OF SALE is dated for
reference as of December 14, 2009
BETWEEN:
PACIFIC PHARMA TECHNOLOGIES
INC., a company with an office at Suite 15, Reagent Medical
Building, 0000 Xxxx Xxxxxxxx, Xxxxxxxxx, XX, X0X 0X0
(the
“Vendor”)
AND:
JTAT CONSULTING INC., a
company with a business office at B5 – 0000 Xxxx 0xx Xxxxxx, Xxxxxxxxx, Xxxxxxx
Xxxxxxxx X0X 0X0
(the
“Purchaser”)
In
consideration of the payment of $1.00 from the Purchaser to the Vendor, the
receipt whereof is hereby acknowledged by the Vendor, the Vendor hereby grants,
bargains, sells, assigns, transfers, and sets over unto the Purchaser the
Purchased Assets and all right, title, interest, property, claim, and demand of
the Vendor thereto and therein TO HAVE AND TO HOLD UNTO THE
PURCHASER FOREVER.
This Xxxx
of Sale will be governed by and construed in accordance with the laws of the
Province of British Columbia applicable to contracts made and to be performed
therein.
Delivery
of an executed copy of this Xxxx of Sale by electronic facsimile transmission or
other means of electronic communication capable of producing a printed copy will
be deemed to be execution and delivery of this Xxxx of Sale as of the date set
forth on page one herein.
IN WITNESS WHEREOF the Vendor
has executed this Xxxx of Sale as of the date first written above.
PACIFIC
PHARMA TECHNOLOGIES INC.
Per: /s/ Xxxx
Xxxxxxxxx
Authorized Signatory
