EXHIBIT 10.4
VITAL PRODUCTS, INC.
TRUST AGREEMENT
On this 27th day of May, 2005 (the "Effective Date"), Vital Products,
Inc. (as Grantor) hereby transfers, conveys and assigns to Xxx Xxxxxxx (as
the "Trustee") the shares of common stock of Vital Products, Inc., to be held
in trust for the Beneficiaries and upon the uses and purposes hereinafter set
forth. The trust shall hereafter be known as THE VITAL PRODUCTS, INC. TRUST.
W I T N E S S E T H:
WHEREAS the Grantor is desirous of creating a trust for the purposes and upon
the terms hereinafter set forth;
WHEREAS the Grantor hereby transfers and delivers unto the Trustee 1,000,000
shares of Vital Products, Inc. common stock; and
WHEREAS the Trustee is willing to serve as trustee and hold and administer
such stock in trust, pursuant to the terms and conditions of this Agreement.
NOW THEREFORE, the parties agree as follows:
ARTICLE 1
INTERPRETATION:
1.1. Definitions. Whenever used in this Agreement, the following terms shall
have the following respective meanings:
(a) "Agreement" means this agreement and all amendments made hereto
and thereto by written agreement between the parties;
(b) "Beneficiaries" means the person or entities to receive the
Distributions set forth in this Agreement;
(c) "Distribution" means the distribution of the Trust Corpus to
the Beneficiaries;
(d) "Shares" shall mean all shares of common stock of Vital
Products, Inc.;
(e) "Stock Certificate" shall refer to the stock certificate
evidencing the existence of the Vital Products, Inc. common stock.
(f) "Trust" shall mean the Vital Products, Inc. Trust;
(g) "Trust Corpus" shall mean the trust property which consists
solely of the Shares to be described to the Beneficiaries under
the terms of this Agreement
1.2. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto pertaining to the Trust and supersedes all
prior agreements, understandings, negotiations and discussions, whether
oral or written, of the parties. There are no warranties,
representations and other agreements made by the parties in connection
with the subject matter hereof except as set forth in this Agreement.
1.3. Headings. The division of this Agreement into articles, sections,
subsections and paragraphs and the insertion of headings are for
convenience of reference only and shall not affect the construction
or interpretation of this Agreement.
1.4. Law Governing this Agreement. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of
Massachusetts without regard to principles of conflicts of laws.
1.5. Arbitration of Disputes. Any controversy, claim or dispute between the
Grantor or Beneficiaries and the Trustee arising out of or related to
this Agreement or the breach hereof, which cannot be resolved by mutual
agreement, shall be submitted for binding arbitration in accordance with
the provisions contained herein and in accordance with the commercial
arbitration rules of the American Arbitration Association ("Rules");
provided, however, that notwithstanding any provisions of such Rules,
the parties shall have the right to take depositions and obtain
discovery in accordance with the Civil Practice Law and Rules of the
State of Massachusetts regarding the subject matter of the arbitration,
and further provided that the arbitration shall not be consummated as
an American Arbitration Association sanctioned arbitration except with
the consent of all parties thereto. Judgment of any arbitration award
may be entered in any court having jurisdiction. The arbitrators shall
determine all questions of fact and law relating to any controversy,
claim or dispute hereunder, including but not limited to whether or
not any such controversy, claim or dispute is subject to the arbitration
provisions contained herein.
1.6. Commencement of Proceeding. Any party desiring arbitration shall serve
on the other party its notice of intent to arbitrate ("notice"). A single
arbitrator shall be selected by the American Arbitration Association.
The arbitration proceedings provided hereunder are hereby declared to be
self-executing, and it shall not be necessary to petition a court to
compel arbitration.
1.7. Cost of Arbitration. If the arbitrators find decisively in favor of
one of the parties, the losing party shall pay the entire cost of the
arbitration, and also shall pay the prevailing party's reasonable
attorneys' fees incurred in connection with the arbitration. If the
arbitrators instead settle the dispute by awarding each party a
material part of what it was seeking, then the costs of arbitration
shall be borne equally and each party shall bear its own attorneys'
fees incurred in connection with the arbitration.
1.8. Location. All arbitration proceedings shall be held in the State
of Massachusetts.
1.9. Filing deadlines. Notice of the demand for arbitration shall be filed
in writing with the other party to this Agreement. The demand for
arbitration shall be made within a reasonable time after the claim,
dispute or other matter in question has arisen, and in no event shall
it be made after the date when institution of legal or equitable
proceedings based on such claim, dispute or other matter in question
would be barred by the applicable statutes of limitations.
ARTICLE 2
DELIVERY OF TRUST CORPUS
AND DISTRIBUTIONS TO BENEFICIARIES
2.1. Delivery of Trust Corpus. On or before the Effective Date of this
Agreement, the Grantor shall deliver the Stock Certificates of the
Shares to the Trustee on or before the Effective Date of this
Agreement.
2.2. Distribution of Trust Corpus to Beneficiaries. Upon Vital Products,
Inc. becoming effective, as designated by the Securities and Exchange
Commission, and its Shares becoming free trading, the Trustee shall
distribute the Shares to the Beneficiaries described in Article 3
below. Grantor is hereby responsible for any and all costs associated
with such Distribution and shall reimburse Trustee for any costs
incurred as related to the Distribution. The trust contemplated by
this Agreement shall cease to exist upon the distribution of Shares
to the Beneficiaries. The Beneficiaries shall receive distributions
consistent with their pro rata ownership of On the Go Healthcare, Inc.
common stock as of the date the shares are traded on the over the
counter bulletin board.
ARTICLE 3
TRUST BENEFICIARIES
The beneficiaries shall be the named shareholders of On the Go Healthcare,
Inc. as of the date the shares are traded on the over the counter bulletin
board
ARTICLE 4
TRUSTEE POWERS
4.1. Powers of the Trustee. The Trustee shall have the following powers and
rights:
* to retain the assets of the trust;
* to distribute assets of the trust as set forth in this Trust
Agreement;
* to deposit stock with any protective or other similar committee;
* to appoint an ancillary trustee or agent to facilitate management
of assets located in another state or foreign country;
* Determine at any time that the corpus of the trust is insufficient
to implement the intent of the trust, and upon this determination
by the Trustee, terminate the trust by distribution of the trust
to the current income beneficiary or beneficiaries of the trust or
their legal representatives; and
* To vote the shares at any annual or special meeting of shareholders.
4.2. Limitations. The powers and duties of the Trustee are subject to the
following terms and conditions:
(a) The Grantor acknowledges and agrees that the Trustee (i) shall be
obligated only for the performance of such duties that are
specifically assumed by the Trustee pursuant to this Agreement;
(ii) may rely on and shall be protected in acting or refraining
from acting upon any written notice, instruction, instrument,
statement, request or document furnished to it hereunder and
believed by the Trustee in good faith to be genuine and to have
been signed or presented by the proper person or party, without
being required to determine the authenticity or correctness of
any fact stated therein or the validity or service thereof;
(iii) may assume that any person believed by the Trustee in
good faith to be authorized to give notice or make any statement
or execute any document in connection with the provisions hereof
is so authorized; (iv) shall not be under any duty to give the
Trust Corpus held by the Trustee any greater degree of care than
the Trustee gives its own similar property; and (v) may consult
counsel satisfactory to the Trustee, the opinion of such counsel
to be full and complete authorization and protection in respect
of any action taken, suffered or omitted by the Trustee hereunder
in good faith and in accordance with the opinion of such counsel.
(b) The Grantor acknowledges that the Trustee is acting solely as
Trustee at their request and that the Trustee shall not be liable
for any action taken by Trustee in good faith and believed by the
Trustee to be authorized or within the rights or powers conferred
upon the Trustee by this Agreement. The Grantor agrees to
indemnify and hold harmless the Trustee and any of the Trustees
partners, employees, agents and representatives for any action
taken or omitted to be taken by the Trustee or any of them
hereunder, including the fees of outside counsel and other costs
and expenses of defending itself against any claim or liability
under this Agreement, except in the case of gross negligence or
willful misconduct on the Trustee's part committed in its capacity
as trustee under this Agreement. The Trustee shall own a duty
only to the Grantor and Beneficiaries under this Agreement and
to no other person.
(c) The Grantor agrees to reimburse the Trustee for outside counsel
fees, to the extent authorized hereunder and incurred in
connection with the performance of its duties and
responsibilities hereunder.
(d) The Trustee may at any time resign as Trustee hereunder by giving
five (5) days prior written notice of resignation to the Grantor.
Prior to the effective date of resignation as specified in such
notice, the Trustee will deliver the Stock Certificates to the
Grantor.
(e) This Agreement sets forth exclusively the duties of the Trustee
with respect to any and all matters pertinent thereto and no
implied duties or obligations shall be read into this
Agreement.
(f) The provisions of this 4.2. shall survive the resignation of
the Trustee or the termination of this Agreement.
ARTICLE 5
GENERAL MATTERS
5.1. Termination. This Agreement shall terminate upon the distribution of
the Trust Corpus to the Beneficiaries or the return of the Trust Corpus
to the Grantor upon the Trustee's resignation or at any other time
upon the agreement in writing of the Grantor and the Trustee.
5.2. Indemnification. The Grantor hereby agrees to indemnify the Trustee
for any claims, including those by third parties, losses, costs, fees,
liabilities or damages incurred by Trustee arising out of Trustees
administration of her duties under this Agreement and/or Grantor's
breach of this Agreement.
5.3. Trustee Fee. In consideration for her services as Trustee as set
forth in this Agreement, Grantor shall pay Trustee a fee of $1,000
upon distribution of the shares.
5.4. Notices. All notices, demands, requests, consents, approvals and other
communications required or permitted hereunder shall be in writing and,
unless otherwise specified herein, shall be (i) personally served,
(ii) deposited in the mail, registered or certified, return receipt
requested, postage prepaid, (iii) delivered by reputable air courier
services with charges prepaid, or (iv) transmitted by hand deliver,
telegram, or facsimile, addressed as set forth below or to such other
address as such party shall have specified most recently by written
notice. Any notice or other communication required or permitted to be
given hereunder shall be deemed effective (a) upon hand delivery or
delivery by facsimile, with accurate confirmation generated by the
transmitting facsimile machine, at the address or number designated
below (if delivered on a business day during normal business hours
where such notice is to be received), or the first business day
following such delivery (if delivered other than on a business day
during normal business hours where such notice is to be received) or
(b) on the second business day following the date of mailing by
express courier service, fully prepaid, addressed to such address,
or upon actual receipt of such mailing, whichever shall first occur.
The addresses for such communications shall be:
(a) If to the Grantor, to:
Vital Products, Inc.
Attention: Xxxxxxx Xxxxxx
00 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
Phone: (000) 000-0000
Fax: (000) 000-0000
(b) If to the Trustee, to:
Xxx Xxxxxxx, Esq.
Xxxxxxx Business Law
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Or to such other address as either party shall give to the other
by notice made pursuant to this section 5.2.
5.5. Assignment; Binding Agreement. Neither this Agreement nor any right
or obligation hereunder shall be assignable by any party without the
prior written consent of the other parties hereto. This Agreement shall
enure to the benefit of and be binding upon the parties hereto and their
respective legal representatives, successors and assigns.
5.6. Invalidity. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is
held invalid, illegal, or unenforceable in any respect for any reason,
the validity, legality and enforceability of any such provision in every
other respect and of the remaining provisions contained herein shall
not be in any way impaired thereby, it being intended that all of the
rights and privileges of the parties hereto shall be enforceable to the
fullest extent permitted by law.
5.7. Counterparts/Execution. This Agreement may be executed in any number
of counterparts and by different signatories hereto on separate
counterparts, each of which, when so executed, shall be deemed an
original, but all such counterparts shall constitute but one and the
same instrument. This Agreement may be executed by facsimile
transmission and delivered by facsimile transmission.
5.8. Agreement. Each of the undersigned states that he or she has read the
foregoing Vital Products, Inc. Trust Agreement and understands and
agrees to it.
"GRANTOR"
Vital Products, Inc.
/s/ Xxxxxxx Xxxxxx
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By: Xxxxxxx Xxxxxx
May 27th, 2005
"TRUSTEE"
/s/ Xxx X. Xxxxxxx
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Xxx X. Xxxxxxx
May 27th, 2005
