EXHIBIT 10.5
ASSET PURCHASE AGREEMENT (ZOVAL ENTERPRISES)
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT ("Agreement") is made and entered into
as of November 5th__, 2002, by Xxxxx Xxxxx, Ph.D. on behalf of Zoval
Enterprises a limited liability Corporation , with a business
address at 00000 Xxxxxxxx, Xxxx Xxxxxx, Xxxxxxxxxx 00000 (the
"Seller") and CalbaTech, Inc., a Nevada corporation with a business
address at 00000 Xxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000
("Buyer").
RECITALS
A. Seller desires to sell to Buyer an invention known as "Smart
Membranes". This is an apparatus and methods for the extraction,
isolation, and manipulation of biological molecules employing novel
use of compressible materials such as polymer membranes within small
scale laboratory accessory devices (the "Invention") and for which
Seller has drafted a patent application (the "Patent Application").
B. Buyer desires to purchase from Seller the Invention and all
documentation related to the property, including, but not limited to,
the Patent Application, lab notebooks, designs, specifications,
drawings, photographs, and notes (the "Asset").
C. Subject to the terms and conditions contained in this Agreement,
Seller desires to sell to Buyer, and Buyer agrees to purchase from
Seller, the Asset and all related documentation.
NOW, THEREFORE, in consideration of the mutual covenants,
representations, and warranties set forth in this Agreement, the
parties agree as follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS
1.1. Purchase and Sale of Assets. Seller agrees to sell to Buyer, and
Buyer agrees to purchase from Seller, upon mutual execution of this
Agreement (the "Closing Date"), all of Seller's right, title, and
interest in and to, without limitation, the following:
(a) The Asset and all documentation related to the property,
including, but not limited to, the Patent Application, lab notebooks,
designs, specifications, drawings, photographs, and notes.
(b) All contracts, agreements, warranties, and other rights or
agreements, whether written or oral, related to the Asset (the
"Contracts");
(c) All of Seller's right, title, and interest in and to the trade
names, logos, copyrights, service marks, trademarks, patents, Patent
Applications, licenses, and goodwill associated with the Asset (the
"Intangible Property").
1.2. Liens. Seller shall convey title to the Asset to Buyer free and
clear of all liens, security interests, equity interests, loans,
easements, and encumbrances of any kind or nature (the "Liens").
ARTICLE 2
LIABILITIES
2.1. Liabilities. Except as expressly provided in this Agreement,
Buyer shall not assume or become liable for any obligations,
commitments, or liabilities of Seller, whether known or unknown,
absolute, contingent, or otherwise, and whether or not related to the
Asset.
ARTICLE 3
PURCHASE PRICE
3.1. Payment of Purchase Price. Buyer shall pay the Purchase Price to
Seller in as follows:
(a) Within thirty (30) days following January 1, 2003 Buyer shall
deliver to Seller an option to purchase Fifty Thousand (50,000)
shares of the Buyer's Common Stock (the "Option"). The exercise
price of the Option shall be $0.001 per share. The period of
exercise shall be ten (10) years from the date of issuance of the
Option..
ARTICLE 4
INSPECTION OF ASSETS
4.1. Inspection Period. Subject to the provisions of this Agreement,
Buyer shall have a period of fourteen (14) days from the Closing Date
(the "Inspection Period") to conduct an inspection of the Asset, the
Patent Application and any related documents or other items relating
to the Asset to determine the suitability of the Asset for Buyer's
intended purposes. At any time during the Inspection Period, and for
any reason whatsoever, Buyer may terminate this Agreement. If Buyer
does not terminate this Agreement prior to the expiration of the
Inspection Period, it shall proceed with the issuance of the Option.
4.2. Access to the Asset. During the Inspection Period, Buyer and its
agents, employees, and contractors shall, at Buyer's sole cost and
expense, be afforded reasonable access to the Asset, including the
Patent Application and all related documents.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF SELLER
5.1. Seller's Representations and Warranties. Seller makes the
following representations and warranties to Buyer, each of which is
true and correct as of the date of this Agreement, and shall be true
and correct as of the Closing Date:
(a) Seller (Zoval Enterprises) is a Limited Liability Corporation,
duly organized, validly existing, and in good standing under the
laws of the state of its organization, and is qualified to
transact business in the State of California.
(b) Seller has full legal power and authority to enter into and
perform this Agreement, and this Agreement constitutes the valid
and binding obligation of Seller, enforceable in accordance with
its terms.
(c) The execution and delivery of this Agreement does not conflict
with, violate, or constitute a default under the terms, conditions,
or provisions of any agreement or instrument to which Seller is a
party, or any law, judgment, or order of which Seller is aware, and
will not result in the creation of any lien, security interest, or
encumbrance on the Asset.
(d) There are no actions, suits, proceedings, or claims now pending
or, to the best of Seller's knowledge, threatened against Seller or
the Asset that would affect Seller's ability to fulfill its
obligations under this Agreement or that would impair the value of
the Asset.
(e) Seller represents that he believes that he is the sole inventor
and owner of the Asset and is under no contractual obligation to past
or present employers for the Asset whatsoever. Seller also
represents that he did not work on, present, or discuss the Invention
whilst previously employed and further that he knows of nobody at
past or present employers, or elsewhere, who worked on, presented, or
discussed the Invention.
(f) Seller has provided Buyer with true and correct copies of all
Contracts. To Seller's knowledge, all of the Contracts are in full
force and effect, have been duly executed by the parties, and neither
Seller nor any other party is in default under any Contract.
(g) Seller has provided Buyer with true and correct copies of all
documents evidencing Seller's rights in the Intangible Property. To
Seller's knowledge, each agreement, instrument, or license with
respect to the Intangible Property is in full force and effect, and
neither Seller nor any other party is in default under any such
agreements.
5.2. Correctness of Representations. No representation or warranty of
Seller in this Agreement or any other information furnished by Seller
pursuant to this Agreement contains any untrue statement of material
fact or fails to state any fact necessary in order to make the
statements not misleading in any material respect. All statements,
representations, and other information provided by Seller to Buyer
shall be true and correct on and as of the Closing Date as though
made on that date.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF BUYER
6.1. Buyer's Representations and Warranties. Buyer makes the
following representations and warranties to Seller, each of which is
true and correct as of the Closing Date:
(a) Buyer is corporation, duly organized, validly existing, and in
good standing under the laws of the state of its organization, and is
qualified to transact business in the State of Nevada.
(b) Buyer has full legal power and authority to enter into and
perform this Agreement, and this Agreement constitutes the valid and
binding obligation of Buyer, enforceable in accordance with its terms.
(c) The execution and delivery of this Agreement does not conflict
with, violate, or constitute a default under the terms, conditions,
or provisions of any agreement or instrument to which Buyer is a
party, or any law, judgment, or order of which Buyer is aware.
(d) There is no action, proceeding, or claim pending, or, to Buyer's
knowledge, threatened, against Buyer that would affect Buyer's
ability to consummate the transactions contemplated by this Agreement.
(e) No consent, approval, or authorization of or declaration,
filing, or registration with any governmental or regulatory authority
is required in connection with the execution, delivery, and
performance by Buyer of this Agreement or the consummation of the
transactions contemplated by the Agreement.
6.2. Correctness of Representations. No representation or warranty of
Buyer in this Agreement or any other information furnished by Buyer
pursuant to this Agreement contains any untrue statement of material
fact or fails to state any fact necessary in order to make the
statements not misleading in any material respect. All statements,
representations, exhibits, and other information provided by Buyer to
Seller shall be true and correct on and as of the Closing Date as
though made on that date.
ARTICLE 7
SELLER'S PRE-CLOSING OBLIGATIONS
7.1. Consents. On or before the Closing Date, Seller, at its expense,
shall use its best efforts to obtain all necessary consents required
to assign Seller's interest in the Asset to Buyer as contemplated by
this Agreement. In the event Seller is unable to obtain any such
consent on or before the Closing Date, Buyer may terminate this
Agreement as provided in Article 12.
7.2. Discharge of Liens. All liens, claims, charges, security
interests, pledges, assignments, or encumbrances relating to the
Asset shall be satisfied, terminated, and discharged by Seller on or
prior to the Closing Date, and evidence reasonably satisfactory to
Buyer and its counsel of the satisfaction, termination, and discharge
shall be delivered to Buyer at or prior to the Closing.
ARTICLE 8
MUTUAL COVENANTS
8.1. Further Assurances Prior to Closing. Seller and Buyer shall,
prior to Closing Date, execute any and all documents and perform any
and all acts reasonably necessary, incidental, or appropriate to
effect the transactions contemplated by this Agreement.
8.2. Notification of Changed Circumstances. At any time prior to the
Closing Date, if either party becomes aware of any fact or
circumstance that would materially change a representation or
warranty made under this Agreement, the party with knowledge of those
facts shall notify the other in writing as soon as possible after the
discovery of the changed circumstances.
8.3. Broker's Fees. Each party represents and warrants that no
broker, finder, or any other person or entity has any claim for any
brokerage commissions or fees in connection with any of the
transactions contemplated by this Agreement. Each party shall
indemnify the other against any claim or loss suffered as a result of
any claim for brokerage commissions or fees payable, or claimed to be
payable, on the basis of any actions in connection with this
Agreement.
ARTICLE 9
CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER
9.1. Buyer's Conditions. The obligation of Buyer to consummate the
transactions contemplated by this Agreement shall be subject to the
satisfaction, on or before the Closing Date, of each of the following
conditions:
(a) The representations and warranties of Seller set forth in
Article 5 shall be true and correct as of the Closing Date.
(b) Seller shall have performed and complied with all of the
agreements, covenants, and conditions required of Seller by this
Agreement on or before the Closing Date.
(c) No action, suit, or proceeding before any court or any
governmental body or authority that would in any way affect the Asset
or the ability of the parties to consummate the transactions
contemplated by this Agreement shall have been instituted or
threatened on or before the Closing Date.
(d) Seller shall have obtained all necessary agreements and consents
of any parties required to consummate the transactions contemplated
by this Agreement.
9.2. Failure to Satisfy Buyer's Conditions. Any of Buyer's conditions
precedent may be waived in whole or in part by Buyer in writing at
any time on or before the Closing Date. In the event all Buyer's
conditions precedent have not been waived by Buyer or satisfied in
full on or before the Closing Date, Buyer may elect to terminate this
Agreement and receive a refund of the Deposit.
ARTICLE 10
CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER
10.1. Seller's Conditions. The obligation of Seller to consummate
the transactions contemplated by this Agreement shall be subject to
the satisfaction, on or before the Closing Date, of each of the
following conditions:
(a) The representations and warranties of Buyer set forth in Article
6 shall be true and correct as of the Closing Date.
(c) Buyer shall have performed and complied with all of the
agreements, covenants, and conditions required of Buyer by this
Agreement on or before the Closing Date.
10.2. Failure to Satisfy Seller's Conditions. Any of Seller's
conditions precedent may be waived in whole or in part by Seller in
writing at any time on or before the Closing Date. In the event all
Seller's conditions precedent have not been waived by Seller or
satisfied in full on or before the Closing Date, Seller may elect to
terminate this Agreement as provided in Article 12.
ARTICLE 11
POST-CLOSING OBLIGATIONS
11.1. Additional Assurances. Each party agrees to do all acts and
things and to make, execute, and deliver such written instruments as
shall be reasonably necessary to carry out the terms and provisions
of this Agreement. This covenant of further assurances shall survive
the Closing.
11.2. Covenant Not To Compete. Seller agrees that it shall not
engage, directly or indirectly, in any business that involves
compressible materials, including membranes, for solid phase
extraction, for a period of five (5) years following closing, or
until such time as Buyer ceases to operate a like business, whichever
occurs first.
ARTICLE 12
TERMINATION
12.1. Termination. This Agreement may be terminated as follows:
(a) By the mutual consent of Buyer and Seller at any time prior to
the Closing.
(b) By Buyer at any time prior to the Closing as expressly provided
in this Agreement, or if any condition precedent to Buyer's
obligations set forth in Article 9 has not been satisfied in full or
previously waived by Buyer in writing at or prior to the Closing.
(c) By Seller at any time prior to the Closing as expressly provided
in this Agreement, or if any condition precedent to Seller's
obligations set forth in Article 10 has not been satisfied in full or
previously waived by Buyer in writing at or prior to the Closing.
12.2. Effect of Termination. In the event of the termination of
this Agreement pursuant to the provisions of this Article 12, this
Agreement shall become void and have no effect, without any liability
on the part of any of the parties.
12.3. Remedies Cumulative. The remedies set forth in this
Agreement are cumulative and not exclusive of any other legal or
equitable remedy otherwise available to any party.
ARTICLE 13
INDEMNIFICATION
13.1. Seller's Indemnification. In addition to any other agreement
on the part of Seller to indemnify Buyer set forth in this Agreement,
Seller shall indemnify and hold Buyer harmless from and against any
and all loss, cost, damage, claim, liability, or expense, including
reasonable attorney fees and costs, in any way arising from or
related to (a) Seller's ownership or use of the Asset prior to the
Closing Date, (b) the failure or falsity of any representation or
warranty of Seller contained in this Agreement, or (c) the failure by
Seller to observe or perform any other covenant or agreement to be
observed or performed by Seller under this Agreement.
13.2. Buyer's Indemnification. In addition to any other agreement on
the part of Buyer to indemnify Seller set forth in this Agreement,
Buyer shall indemnify and hold Seller harmless from and against any
and all loss, cost, damage, claim, liability, or expense, including
reasonable attorney fees and costs, in any way arising from or
related to Buyer's ownership or use of the Asset from and after the
Closing Date.
13.3. Survival of Indemnities. The mutual agreements to indemnify
set forth in this Article 13 shall survive the Closing.
ARTICLE 14
GENERAL PROVISIONS
14.1. Assignment. The respective rights and obligations of the
parties to this Agreement may not be assigned by any party without
the prior written consent of the other, which consent may not be
unreasonably withheld or delayed.
14.2. Successors and Assigns. The terms and provisions of this
Agreement shall be binding on and inure to the benefit of the
successors and assigns of the parties.
14.3. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter of
this Agreement and supersedes all prior agreements, oral and written,
between the parties to this Agreement with respect to the subject
matter of this Agreement.
14.4. Modification and Waiver. This Agreement may not be amended,
modified, or supplemented except by written agreement in writing
signed by the party against which the enforcement of the amendment,
modification, or supplement is sought. No waiver of any of the
provisions of this Agreement shall be deemed, or shall constitute, a
waiver of any other provision. No waiver shall be binding unless
executed in writing by the party making the waiver.
14.5. Attorney Fees. If any legal action or other proceeding is
brought to enforce the provisions of this Agreement, the prevailing
party shall be entitled to recover reasonable attorney fees and other
costs incurred in the action or proceeding, in addition to any other
relief to which the prevailing party may be entitled.
14.6. Fees and Expenses. Except as otherwise specifically
provided in this Agreement, Seller and Buyer shall pay their own fees
and expenses in connection with the negotiation and consummation of
the transactions contemplated by this Agreement.
14.7. Notices. All notices, requests, demands, and other
communications required by this Agreement shall be in writing and
shall be (a) delivered in person or by courier, (b) mailed by first
class registered or certified mail, or (c) delivered by facsimile
transmission, as follows, or to such other address as a party may
designate to the other in writing:
(i) If to Seller: 00000 Xxxxxxxx, Xxxx Xxxxxx, XX 00000
(ii) If to Buyer: 00000 Xxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000
If delivered personally or by courier, the date on which the notice,
request, instruction, or document is delivered shall be the date on
which the delivery is made, and if delivered by facsimile
transmission or mail as aforesaid, the date on which the notice,
request, instruction, or document is received shall be the date of
delivery.
14.8. Headings. All section headings contained in this Agreement
are for convenience of reference only, do not form a part of this
Agreement, and shall not affect in any way the meaning or
interpretation of this Agreement.
14.9. Counterparts. This Agreement may be executed in two (2) or
more counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one counterpart has been
signed by each party and delivered to the other party hereto.
14.10. Time of Essence. Time shall be of the essence with respect
to the obligations of the parties to this Agreement.
14.11. Governing Law. This Agreement shall be governed by and
construed under the laws of the State of California.
14.12. Severability. In the event any provision of this Agreement
is deemed to be invalid, illegal, or unenforceable, all other
provisions of the Agreement that are not affected by the invalidity,
illegality, or unenforceability shall remain in full force and
effect.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first set forth above.
SELLER:
By:
Xxxxx Xxxxx, Ph.D. Date
BUYER:
By:
Xxxxx XxXxxxx Date
President
