Exhibit 99.1
ASSET PURCHASE AGREEMENT
THIS AGREEMENT is made and entered into this 22nd day of October, 2004,
by and between Mycobis Corporation., a Florida corporation ("MYCOBIS"), as
seller, and MOLIRIS CORP, a Florida corporation ("MOLIRIS"), as purchaser.
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein and subject to the terms and conditions hereof, the parties agree as
follows:
1. Purchase of Assets. Subject to the terms hereof, at the Closing,
defined below, MYCOBIS agrees to and shall sell, transfer and deliver
to MOLIRIS the Staphylococcus aureus bacteriophages (Lytic Product
Candidate Phages, R1, R2 and R3) and all rights thereto owned by
Mycobis and all assets, both tangible and intangible, including but not
limited to all intellectual property related thereto (See Exhibit "A").
The transfer herein is intended by all of the parties to include all
assets and rights related in any way to the bacteriophages described
above (the "Assets"), free and clear of all liens, security interests,
liabilities and encumbrances.
2. Purchase Price. The purchase price for the assets shall be:
(a) Two Million (2,000,000) shares of Moliris Restricted
Common Stock shall be paid to MYCOBIS.
3. Closing.
(a) The Closing of the sale herein contemplated shall be held
at the offices of Moliris Corp., 0000 Xxxxxxxxxxxx Xxxxxx,
Xxxxx 000, Xxxx Xxxxx, Xxxxx 00000 at 10 AM on October 22,
2004 (the "Closing Date") or at such other time or place as
may be mutually agreed, but in no event later than October 25,
2004 (the "Closing").
(b) On or before the Closing, MYCOBIS shall deliver to
MOLIRIS:
(i) Such bills of sale, and instruments of
assignment, transfer and conveyance as will vest in
MYCOBIS the full title in and to all of the Assets
(the "Instruments of Transfer")(Exhibit "B" as
attached hereto).
(ii) Certified copies of the necessary corporate
resolutions of the directors of MYCOBIS authorizing
the execution of this Agreement and the performance
of all its terms, covenants and conditions.
(iii) A current certificate of good standing of
MYCOBIS from the Secretary of State of Florida.
(c) At the Closing, MOLIRIS shall deliver to MYCOBIS:
(i) Share certificates in an aggregate amount equal
to the Purchase Price allocated among and payable to
the order of MYCOBIS.
(ii) A current certificate of good standing of
Moliris from the Secretary of State of Florida.
4. Representations and Warranties by MYCOBIS. MYCOBIS represents and
warrants that the following statements are true and correct on the date
hereof in all material respects, except as set forth in the Schedule of
Exceptions, and will be true and correct on the Closing Date in all
material respects:
(a) MYCOBIS is a corporation duly organized, validly existing
and in good standing under the laws of the State of Florida,
with full corporate power and authority to enter into, and to
consummate the transactions contemplated by, this Agreement.
(b) All corporate actions required of MYCOBIS in connection
with the transaction contemplated hereunder have been taken,
except director approval, which shall be obtained prior to the
Closing. Subject to director approval, MYCOBIS, its officers
and its directors have complete and unrestricted power and
authority to enter into this Agreement and to consummate the
transaction herein contemplated in accordance with its terms.
The execution and performance of this Agreement by MYCOBIS
does not violate any provision of law, the corporate charter
or bylaws of MYCOBIS, or any indenture or agreement to which
MYCOBIS or the Assets is bound. Subject to director approval,
this Agreement, and the various documents transferring title
to the Assets constitute the legal, valid, binding and
enforceable obligation of MYCOBIS, except insofar as
enforceability may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights
generally and equitable principles. MYCOBIS has no actual
knowledge or notice of any violations by it of applicable
state, federal or local laws, ordinances and regulations. The
operation of MYCOBIS' business and the use of the Assets by
MYCOBIS are in substantial compliance with said laws,
ordinances and regulations.
(c) MYCOBIS has good and marketable title to the Assets, free
and clear of all liens and security interests, encumbrances
and rights of others, except with respect to:
(i) Any liens and encumbrances disclosed in the
Schedule of Exceptions.
(ii) Liens for current taxes not yet due and payable.
(iii) Imperfections of title and encumbrances that
are not substantial in character, amount, or extent
that do not materially detract from the value of or
interfere with the present use of the properties
subject thereto or affected thereby or otherwise
materially impair the business operations of MYCOBIS.
The xxxx of sale and other instruments of assignment to be
delivered to MOLIRIS at the Closing will effectively transfer
to MOLIRIS good and marketable title to the Assets, free and
clear of all liens and security interests, encumbrances, and
rights of others, except as provided above.
(d) No legal action has been instituted against MYCOBIS and,
to the best of MYCOBIS' knowledge, no claims have been
asserted or are likely to be asserted against MYCOBIS which
would materially impair the value of the Assets, other than
that set forth in the Schedule of Exceptions.
(e) No representation or warranty by MYCOBIS herein or in any
Exhibit or document delivered hereunder contains or will
contain any knowingly untrue statement of a material fact, or
omits or will omit stating a material fact, necessary to make
the statements or facts contained herein or therein not
misleading in light of the circumstances existing at the time
such representation or warranty is made.
5. Representations and Warranties of MOLIRIS. MOLIRIS hereby represents
and warrants that the following statements are true and correct on the
date hereof in all material respects and will be true and correct on
the Closing Date in all material respects:
(a) MOLIRIS is duly organized, validly existing and in good
standing under the laws of the State of Florida with full
corporate power and authority to enter into and consummate the
transaction contemplated by this Agreement.
(b) All corporate actions required by MOLIRIS in connection
with the transaction contemplated hereunder have been taken,
except director approval, which shall be obtained prior to the
Closing. Subject to director approval, MOLIRIS, its officers
and directors have complete and unrestricted power and
authority to enter into this Agreement and to consummate the
transaction herein contemplated in accordance with its terms.
The execution and performance of this Agreement by MOLIRIS is
not and will not violate any provisions of law, the corporate
charter or bylaws of MOLIRIS, or any indenture or agreement to
which it is bound. Subject to director and shareholder
approval, this Agreement constitutes the legal, valid, binding
and enforceable obligation of MOLIRIS, except insofar as
enforceability may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights
generally and equitable principles. MOLIRIS has no knowledge
or notice of any violations by it of applicable state, federal
or local laws, ordinances and regulations.
6. No Assumption of Liabilities.
(a) It is expressly agreed that MOLIRIS will assume no
liabilities of MYCOBIS of any kind whatsoever, and MOLIRIS
shall not be liable either jointly or severally for any claims
arising out of MYCOBIS' ownership of the Assets or the conduct
of MYCOBIS' business prior to the Closing.
(b) MYCOBIS represents, warrants and agrees that MOLIRIS shall
not be or become liable either jointly or severally for any
claims, demands, liabilities, obligations or expenses not
expressly assumed in this Agreement of any kind whatsoever,
whether fixed or contingent, matured or unmatured, known or
unknown, arising out of or relating to MYCOBIS' ownership of
the Assets or the conduct of MYCOBIS' business prior to the
Closing.
7. No Third Party Beneficiaries. Nothing in this Agreement is intended
to be for the benefit of or to create any enforceable rights in or
obligations to any persons not a party to this Agreement.
8. Indemnity. If this Agreement is consummated, each party hereby
agrees to indemnify, defend and save harmless the other party from and
against any and all loss, cost, expense, damage or liability (including
among other things, court costs and reasonable attorneys' fees)
incurred or suffered by such party by reason of any breach of any
undertaking, representation or warranty or default in the performance
of any undertaking or covenant of such party contained in this
Agreement or arising out of any obligation or liability of such party
which has not been expressly assumed by the other party pursuant to
this Agreement.
9. Notices. All notices necessary or desirable to be given hereunder
shall be in writing and deemed given when delivered in person or upon
mailing if sent by registered or certified mail, return receipt
requested, deposited in the United States mail with postage thereon
fully prepaid or by any courier or delivery service providing a return
receipt signed by the receiving party, addressed to the party as
follows:
If to Mycobis Corporation:
Law Offices of Xxxxxxx XxXxxx, P.A.
000 X.X. 0xx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx XxXxxx, Esq.
If to Moliris Corp.:
0000 Xxxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
10. Severability. If any of the provisions of this Agreement are held
to be void or unenforceable, the parties agree that such determination
shall not result in the nullity or unenforceability of the remaining
portions of this Agreement. The parties further agree to replace such
void or unenforceable provisions of this Agreement with valid and
enforceable provisions which will achieve, to the extent possible, the
economic, business and other purposes of the void or unenforceable
provisions.
11. Entire Agreement. This Agreement is intended by the parties to be
the final expression of their agreement and constitutes and embodies
the entire agreement and understanding between the parties hereto and
constitutes a complete and exclusive statement of the terms and
conditions thereof, and shall supersede any and all prior or
contemporaneous correspondence, conversations, negotiations, agreements
or understandings relating to the same subject matter.
12. Governing Law. This Agreement shall be governed by and interpreted
in accordance with the laws of the State of Florida, without regard to
Florida's or any other jurisdiction's choice of law principles.
13. Counterparts. This Agreement may be executed in separate
counterparts, each of which shall be deemed as an original, and when
executed, separately or together, shall constitute a single original
instrument, effective in the same manner as if the parties had executed
one and the same instrument.
14. Waiver. No waiver of any term, provision or condition of this
Agreement, whether by conduct or otherwise, in any one or more
instances, shall be deemed to be, or be construed as, a further or
continuing waiver of any such term, provision or condition or as a
waiver of any other term, provision or condition of this Agreement.
15. Captions. Captions are provided herein for convenience only and
they form no part of this Agreement and are not to serve as a basis for
interpretation or construction of this Agreement, nor as evidence of
the intention of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the day and year first above written.
MOLIRIS CORP
By: /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx, Chairman and President
Mycobis Corporation
By: /s/ Xxxxxxx Honour
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Xxxxxxx Honour, PhD, as President & CEO
EXHIBIT "A"
MYCOBIS - STAPHYLOCOCCAL AUREUS HOSTS AND PHAGES
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STAPHYLOCOCCUS AUREUS PHAGES
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ID Number Source Date Specificity
---------------------- ----------------------- --------- -----------------------
R1 Enriched Soil 4.04 S. aureus
---------------------- ----------------------- --------- -----------------------
R2 Enriched Soil 4.04 S. aureus
---------------------- ----------------------- --------- -----------------------
R3 Enriched Soil 4.04 S. aureus
---------------------- ----------------------- --------- -----------------------
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STAPHYLOCOCCUS AUREUS HOSTS
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ID Number Source Date Specificity
---------------------- ----------------------- --------- -----------------------
19655 ATCC
---------------------- ----------------------- --------- -----------------------
EXHIBIT "B"
TO
ASSET PURCHASE AGREEMENT
GENERAL CONVEYANCE ASSIGNMENT AND XXXX OF SALE
FOR VALUE RECEIVED, the undersigned MYCOBIS CORPORATION hereby assigns,
conveys, transfers, and delivers to MOLIRIS CORP., a corporation organized under
Florida law, each and all of the "Assets" as such term is defined in the ASSET
PURCHASE AGREEMENT and as listed on Exhibit "A", dated as of October 22, 2004
between the said parties.
This instrument is executed and delivered pursuant to the ASSET
PURCHASE AGREEMENT, and is not intended to, and shall not alter, affect, or
diminish in any manner whatsoever the representations, warranties and covenants
made by the parties in the said Agreement, all of which shall survive the
execution and delivery of this instrument to the extent provided in the said
Agreement.
MYCOBIS CORPORATION binds itself and its successors and assigns to
forever warrant and defend, all and singular, title to the Assets conveyed
hereunder unto MOLIRIS CORP., its successors and assigns, against every person
claiming the same or any part thereof.
MYCOBIS CORPORATION hereby binds itself and its successors and assigns
to deliver such other certificates, assignments, conveyances, assurances,
instruments and documents as MOLIRIS CORP. shall deem necessary to effect the
transactions contemplated hereby and in the ASSET PURCHASE AGREEMENT and to vest
in MOLIRIS CORP. good and market title to the Assets.
IN WITNESS WHEREOF, undersigned has duly executed this instrument on
October 22, 2004.
MYCOBIS CORPORATION
By: /s/ Xxxxxxx Honour
--------------------------------
Xxxxxxx Honour, President
