ASSET PURCHASE AGREEMENT
EXHIBIT 10
THIS ASSET PURCHASE AGREEMENT
(this “Agreement”)
is made and entered into this ___ day of August, 2008, by and among Avitar Inc.,
Avitar Technologies, Inc., Avitar Industries, Inc., and Avitar Diagnostics,
Inc., Delaware corporations (collectively, the “Seller”), and Carwild
Corporation (the “Buyer"), a Delaware corporation.
RECITALS
A. Seller
is engaged in, among other things, the manufacture and sale of hydrophilic
medical grade foam (the “Business”).
B. Buyer
desires to acquire the assets and related intellectual property associated with
the Business from Seller and Seller desires to sell such assets and related
intellectual property to Buyer under the terms specified in this
Agreement.
ACCORDINGLY, the parties agree
as follows:
ARTICLE
I
ASSETS
TO BE CONTRIBUTED BY SELLER
1.1. Assets Contributed by Seller.
Upon the terms and subject to the conditions set forth in this Agreement,
at Closing (as defined in Article 6 below), Seller shall
sell to Buyer and Buyer shall purchase from Seller, all of Seller’s right, title
and interest in and to all of the Purchased Assets (defined
below). The Purchased Assets shall be sold, conveyed and delivered to
Buyer free and clear of all liens, claims, charges and encumbrances of any kind
(each, an “Encumbrance”
and together, “Encumbrances”). As
used in this Agreement, the term “Purchased
Assets” shall mean and include the assets identified on Exhibit 1.1
attached hereto, and the following (including all goodwill associated
therewith):
A. Assumed
Contracts. All of Seller’s right and interest in, to and under
those contracts, commitments, agreements, purchase orders, understandings and
obligations, whether oral or written, between Seller and its Customers (as
defined in Section
1.1(B) below) (the “Assumed Contracts”).
B. Customer/Supplier
Lists. Any and all lists however kept, of those customers
(each a “Customer”
and together, the “Customers”)
and suppliers (each a “Supplier”
and together, the “Suppliers”)
of Seller that acquired any product or services from, sold any product or
services to, or entered into contracts to acquire any product or services from
or to provide any product or services to, Seller relating to the
Business.
C. Permits. To the
extent legally assignable to Buyer, those permits, authorizations, franchises,
licenses, consents, approvals, exemptions, classifications and certificates of
any regulatory, administrative or other governmental agency or body held by
Seller in connection with the ownership and operation of the Purchased Assets
(the “Permits”),
including without limitation FDA 510k's, XX xxxxx and ISO certification to be
transferred to Buyer.
D. Books and
Records. All papers, records and files in Seller’s care,
custody or control relating exclusively to the Purchased Assets and the license
and/or sale of Proprietary Rights as hereinafter defined, including, without
limitation, all blueprints and specifications, sales records, maintenance and
production records and plans and designs to the extent same exist and in
whatever form stored (including electronic storage and access to such
storage).
E. Proprietary
Rights.
1. All
of Seller’s right, title and interest in and to the following rights relating to
the Business (collectively, the “Proprietary
Rights”):
(a) all know how, inventions (whether
patentable or unpatentable and whether or not reduced to practice), all
improvements thereto, and all patents (including without limitation US Patent #
5,891,074 for Pressure Wound Dressing granted Apr. 6, 1999 (expired)), patent
applications and patent disclosures, together with all reissuances,
continuations, divisions, continuations-in-part, revisions, extensions and
reexaminations thereof;
(b) all trademarks, trade names,
service marks, trade dress, logos, slogans, together with all translations,
adaptations, derivations and combinations thereof (including, without
limitation, the following:
|
Trademark
|
Application or Registration
No.
|
Country
|
Registration or Filing
Date
|
|
HYDRAFOAM
|
1867977
|
Europe
|
|
|
HYDRAFOAM
|
GB2398747
|
UK
|
|
|
HYDRASORB
|
1,714,942
|
X.X.
|
0000-00-00
|
(c) all
copyrightable works, all copyrights including all applications, registrations
and renewals in connection therewith;
(d) all
mask works and all applications, registrations and renewals in connection
therewith;
(e) all
trade secrets and confidential business information, including ideas, research
and development, know-how, formulas, composition, manufacturing and production
processes and techniques, technical data, drawings, specifications, pricing and
cost information and business and marketing plans and proposals;
(f) all
advertising and promotional materials;
(g) any
and all computer software, computer programs, computer servers, databases and
other intellectual property of any kind, including without limitation the
website under the domain name
of xxxx://xxxxxxxxxxxxxxxxxxxxxxx.xxx/_xxxxxxx/xxxx_00000.xxxx;
(h) all
other proprietary rights including, without limitation, moral rights and waivers
of such rights by others; and
(i) any
and all goodwill associated with the foregoing.
2. Notwithstanding
anything to the contrary contained in this Agreement, upon consummation of the
transactions contemplated hereunder, Buyer shall have the right to xxx for any
past infringements (including, without limitation, the right to xxx and recover
damages, attorney’s fees and costs) of any and all of the Proprietary Rights
assigned hereunder as if standing in the stead and place of Seller.
1.2 Excluded
Assets. Notwithstanding anything to the contrary contained in
this Agreement, with the exception of the Purchased Assets, Seller shall retain
and Buyer shall not acquire any other assets owned or used by Seller in the
conduct of the Business or otherwise, including without limitation accounts
receivable of Seller relating to the Business or otherwise (the “Excluded
Assets”).
ARTICLE
2
PURCHASE
PRICE FOR PURCHASED ASSETS
2.1 Purchase
Price. In accordance with the provisions of the
Asset Purchase Escrow Agreement dated July 24, 2008 (the Escrow Agreement”), by
and among the Buyer, Seller and Xxxxx X. Esher of Xxxxxx Xxxxx Esher KLLP
(“Escrow Agent”), the Buyer has deposited the purchase price for the Purchased
Assets (the “Purchase
Price”) in the amount of One Hundred and Seventy-Five Thousand U. S.
Dollars ($175,000.00) with the Escrow Agent (the “Deposit”). At the
Closing, the Deposit shall be released from escrow and distributed as instructed
by the Seller.
2.2 Allocation of Purchase
Price. Buyer and Seller have agreed that after examining all
relevant factors, a proper allocation of the purchase price shall be as set
forth on Exhibit 2.2.
ARTICLE
3
EXCLUDED
LIABILITIES
3.1 Excluded
Liabilities. Buyer shall not assume, discharge or become
liable for any of the liabilities, obligations, debts, contracts or other
commitments of Seller of any kind or nature whatsoever, known or unknown, fixed,
accrued, contingent or otherwise, existing on, before or after the Closing Date
or arising out of any transaction entered into, or any state of facts existing,
on, before or after the Closing Date, which liabilities and obligations if ever
in existence shall continue to be the liabilities and obligations of Seller
(the “Excluded Liabilities”). Seller
shall hold Buyer harmless and indemnify Buyer from the Excluded Liabilities any
and all claims, including without limitation rejected and returned goods,
arising from the sales of goods by Seller on or before the date of the
Closing.
ARTICLE
4
REPRESENTATIONS
AND WARRANTIES OF SELLER
Seller
hereby represents and warrants to Buyer as follows:
4.1 Organization, Standing and
Power. Seller is duly organized, validly existing and in good
standing under the laws of the State of Delaware and has all necessary power and
authority to own its properties and to carry on its business as now owned and
operated by it.
4.2 Authority. Seller
has all requisite power and authority to execute and deliver this Agreement and
all other agreements and documents to be executed and delivered by such person
in connection with the consummation of the transactions contemplated by this
Agreement (collectively, the “Seller
Agreements”), and to perform the transactions contemplated hereby and
thereby. The execution, delivery and performance of the Seller
Agreements and the consummation of the transactions contemplated hereby and
thereby, have been duly and validly authorized by all necessary action on the
part of the Seller. The Seller Agreements have been or will be on or
prior to the Closing Date duly executed and delivered by the Seller, and each
constitutes the valid and binding obligation of such person, enforceable against
such person in accordance with the terms of such Seller Agreements.
4.3 No Conflict or
Breach. The execution, delivery and performance of the Seller
Agreements and the consummation of the transactions contemplated hereby and
thereby do not and will not: (A) conflict with or constitute a violation of the
Articles of Incorporation or Bylaws of Seller; (B) conflict with or violate any
law, statute, judgment, order, decree or regulation of any legislative body,
court or administrative agency, governmental authority or arbitrator applicable
to or relating to the Seller or the Purchased Assets; (C) conflict with or
constitute a breach or default under any agreement or contract by which Seller
is bound and/or by which the Purchased Assets may be affected; (D) require
notice to or the consent approval or order of any federal, state, local or
foreign governmental authority and/or other third party (including without
limitation, the written consent of all third parties whose agreements are
material to the ongoing operation of the Business) (each a “Consent”)
under any contract, agreement, commitment, mortgage, note, license or other
instrument or obligation to which the Seller is a party or by which Seller is
bound and/or by which the Purchased Assets may be affected; or (E) create an
Encumbrance on any of the Purchased Assets.
4.4 Brokers’
Fees. Seller has no liability or obligation to pay any fees or
commissions to any broker, finder or agent with respect to the transactions
contemplated by this Agreement for which Buyer could become liable or
obligated.
4.5 Title/Condition of Purchased
Assets. Seller has (or immediately prior to Closing shall
have) and shall convey to Buyer at Closing good and marketable title to the
Purchased Assets free and clear of all Encumbrances. The Purchased
Assets are in existence and are suitable for the purposes for which they are
presently used.
4.6 Proprietary
Rights.
A. Seller
has delivered to Buyer or made available for review by Buyer correct and
complete copies of all material documentation or instruments embodying any
Proprietary Rights (to the extent the same are in written format).
1. All
of the Proprietary Rights are valid and in full force and effect, except to the
extent that any patents included in such Rights are noted as
expired.
2. Seller
is the sole owner of the Proprietary Rights, and to Seller’s knowledge, each
such Proprietary Right is free and clear of all Encumbrances. Seller
owns or has the right to use all Proprietary Rights, and all such Proprietary
Rights are transferable to Buyer. All Proprietary Rights will be
owned or available for use by Buyer from and after the Closing on identical
terms and conditions as used by Seller prior the Closing.
3. To
Seller’s knowledge, no Proprietary Right violates or infringes on any rights
owned or held by any other person or entity, enforceable in the United States or
elsewhere in the Territory, and Seller has no knowledge of any claim for any of
the foregoing. There is no pending or threatened claim or litigation
against Seller or any other person or entity contesting the right of Seller to
use, license or sell any of the Proprietary Rights, including, without
limitation, claims of patent or trademark infringement, dilutions of famous
marks, palming off, or unjust enrichment.
4. To
Seller’s knowledge, no patent, trademark, trade name, service xxxx, copyright,
license, trade secret, invention, intellectual property right, know-how or other
right presently being licensed, sold or employed by any person or entity
violates or infringes on, or may violate or infringe on, any Proprietary
Right.
4.8 Product
Liability. Seller has no knowledge of any liability (and there
is no basis for any present or future action, suit, proceeding, hearing,
investigation, charge, complaint, claim, or demand against Seller giving rise to
any liability) arising out of any injury to individuals or property as a result
of the ownership, possession, or use of any product or software manufactured or
created by, or sold or delivered by Seller.
4.9 Accuracy and Completeness of
Representations and Warranties. Except as qualified herein, no
representation or warranty made by Seller in this Agreement and no statement
contained in any document or instrument delivered or to be delivered to Buyer
pursuant hereto or in connection with the transactions contemplated hereby
contains or will contain any untrue statement of a fact, or omits or will omit
to state any fact necessary to make the statements contained herein or therein
not misleading.
ARTICLE
5
REPRESENTATIONS
AND WARRANTIES OF BUYER
Buyer
hereby represents and warrants to Seller as follows:
5.1 Organization. Buyer
is duly organized, validly existing and in good standing under the laws of
Delaware and has all necessary power and authority to own its properties and to
carry on its business as now owned and operated by it.
5.2 Authority. Buyer has all
requisite power and authority to execute and deliver this Agreement and all
other agreements and documents to be executed and delivered by Buyer in
connection with the consummation of the transactions contemplated by this
Agreement (collectively, the “Buyer
Agreements”), and to perform the transactions contemplated hereby and
thereby. The execution, delivery and performance of the Buyer
Agreements and the consummation of the transactions contemplated hereby and
thereby, have been duly and validly authorized by all necessary corporate action
on the part of Buyer. The Buyer Agreements have been or will be on or
prior to the Closing Date duly executed and delivered by Buyer, and each
constitutes the valid and binding obligation of Buyer, enforceable against Buyer
in accordance with the terms of such Buyer Agreements.
5.3 No Conflict or
Breach. The execution, delivery and performance of the Buyer
Agreements; the consummation of the transactions contemplated hereby and thereby
and the ownership or use of Buyer’s properties and the conduct of its business
do not and will not: (A) conflict with or constitute a violation of the Articles
of Incorporation or Bylaws of Buyer; (B) conflict with or violate any law,
statute, judgment, order, decree or regulation of any legislative body, court or
administrative agency, governmental authority or arbitrator applicable to or
relating to Buyer; or (C) conflict with or constitute a breach or default under
any agreement or contract by which Buyer is bound.
ARTICLE
6
THE
CLOSING
Time and Place. The
closing of the transactions contemplated by this Agreement (the “Closing”)
shall take place on August 12, 2008, or such other date and at such place and at
such time as agreed upon by the parties (the “Closing
Date”). On the Closing Date, each of the parties shall execute
and deliver all instruments necessary to consummate this Agreement, including
without limitation a Xxxx of Sale substantially in the form of Exhibit 6.1
hereto, and the Buyer shall take possession of the Purchased
Assets.
ARTICLE
7
MISCELLANEOUS
PROVISIONS
7.1 Survival of Representations and
Warranties. All of the representations, warranties, covenants
and agreements of the parties contained in this Agreement shall survive the
Closing hereunder for a period of time equal to the applicable statutes of
limitations.
7.2 Expenses. Each
party hereto shall, individually, pay all costs and expenses incurred or to be
incurred by any of them in negotiating and preparing this Agreement and in
closing and carrying out the transactions contemplated hereby.
7.3 Effect of
Headings. The subject headings of the Articles and Sections of
this Agreement are included for purposes of convenience only, and shall not
affect the construction or interpretation of any of the provisions
hereof.
7.4 Entire Agreement;
Modification. This Agreement, together with all of the
schedules and recitals furnished hereunder (which are hereby incorporated into
and made part of this Agreement), constitute the sole and entire agreement among
the parties pertaining to the subject matter contained herein, and supersedes
all prior and contemporaneous agreements, representations and understandings of
the parties. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by all the
parties.
7.5 Waiver. Any party
hereto may waive, in writing, compliance by the other party of any of the
covenants or conditions contained in this Agreement, except those conditions
imposed by law. No act, failure to act, practice or custom shall
constitute an implied waiver of full compliance with any of the provisions
hereof. The granting of a written waiver pursuant to this Section
shall apply, unless expressly set forth therein to the contrary, only to the
specific incident of noncompliance with the specific provisions of this
Agreement set forth therein.
7.6 Counterparts. This Agreement
may be executed simultaneously in one or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument. A party may execute this Agreement and transmit its
signature by facsimile, which shall be fully binding, and the party taking such
actions shall deliver a manually signed original as soon as is
practicable.
7.7 Parties in
Interest. Nothing in this Agreement, whether express or
implied, is intended to confer any rights or remedies under or by reason of this
Agreement on any persons other than the parties to this Agreement and their
respective successors and assigns, or is intended to relieve or discharge the
obligation or liability of any third persons to any party to this
Agreement.
7.8 Binding
Effect. This Agreement shall be binding on, and shall inure to
the benefit of, the parties hereto and their respective successors and permitted
assigns.
7.9 Successors and
Assigns. Seller may not assign its rights or obligations under
this Agreement. Any assignment in violation of the foregoing shall be
null and void.
7.10 Notices.
A. Any
notice, offer, demand, consent or other communication required or permitted to
be given under any provision of this Agreement (a “Notice”)
shall be deemed to have been sufficiently given for all purposes if it is in
writing and it is (1) delivered personally to the party to whom such Notice is
directed; (2) sent by first class mail, postage and charges prepaid; (3) sent by
facsimile transmission; or (4) sent by email transmission as
follow:
i. If
to Seller
to: Avitar
Inc.
00 Xxx Xxxx
Xxxxxx,
XX 00000
Attention:
Xxxxxxx X. Xxxxx, President & COO
Facsimile:
000-000-0000
With a
copy
to:
Xxxxx X. Esher, Esq.
Xxxxxx Xxxxx Esher LLP
000
Xxxxxxxx Xxxxxx
Xxxxxx,
XX 00000
Facsimile: (000)
000-0000
Email:
xxxxx@xxx-xxx.xxx
ii. If
to Buyer
to: Carwild
Corporation
0 Xxxxx
Xxxx Xxxx
Xxx Xxxxxx, XX 00000
Attention:
Xxxx Xxxxxxxxx, President
Facsimile:
000 000 0000
With a
copy
to: Xxxxxxx
X. Xxxx, Esq.
00 Xxxxxx Xxxxxx
Xxxxxx,
Xxxxxxxxxxx 00000
Facsimile:
000 000 0000
B. Except
as otherwise expressly provided in this Agreement, any such Notice (1) delivered
personally, shall be deemed given and received on the date so delivered; (2)
sent by mail, shall be deemed given and received on the second (2nd)
business day after the date on which the same was deposited in a regularly
maintained receptacle for the deposit of the United States’ mail, addressed as
provided above; (3) sent by facsimile transmission as provided above, shall be
deemed given and received on the date sent by facsimile if sent during normal
business hours, or on the next business day if sent after normal business hours,
each as confirmed on the sender’s machine generated fax receipt; and (4) sent by
email transmission as provided above, shall be deemed given and received on the
date sent by email if sent during recipient’s normal business hours, or on the
next business day if sent after normal business hours, each as confirmed on the
sender’s computer generated email receipt.
C. Any
party to this Agreement may change its address, facsimile number or email
address for purposes of this Agreement by giving the other party Notice of such
change in the manner provided in this Section 7.10 for the giving of
Notices.
7.11 Definitions. All
terms defined in this Agreement shall have such defined meanings when used in
any schedule or any certificate or other document made or delivered pursuant
thereto or thereto, unless otherwise defined therein.
7.12 Choice of Law and
Forum. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts, without giving
effect to any choice of law or conflict of laws provision or rule.
7.13 Arbitration. In the event of
any dispute with respect to the subject matter hereof, either the Buyer or the
Seller may submit any such dispute to arbitration by notifying the other party
hereto, in writing, of such dispute. Within ten (10) days after receipt of such
notice, the Buyer and Seller shall designate in writing a sole arbitrator to
resolve the dispute; provided that if the parties can not agree on an arbitrator
within such ten (10) day period, the arbitrator shall be selected by the Boston,
MA office of JAMS. The arbitrator so designated shall not be an associate,
employee, consultant, officer, director or stockholder of any party hereto or
any affiliate of any party to this Agreement. The arbitration shall be governed
by the rules of JAMS; provided, that the Arbitrator shall have sole discretion
with regard to the admissibility of evidence. The determination of the
arbitrator as to the resolution of any dispute shall be binding and conclusive
upon all parties hereto. All rulings of the arbitrator shall be in writing and
shall be delivered to the parties hereto. Any arbitration award may be entered
in and enforced by any Court having jurisdiction thereover and the parties
hereto consent and commit themselves to the jurisdiction of the Courts of the
Commonwealth of Massachusetts for the purposes of enforcement of any arbitration
award.
7.14 Termination.
A. This
Agreement and the transactions contemplated herein may be terminated at or prior
to the Closing as follows:
(1) By
written consent of all parties.
(2) By
any party, upon the entry of a final non-appealable and permanent court order
prohibiting the consummation of the transaction contemplated
hereby.
B. Upon
a termination of this Agreement, each party will return to the other all
documents and material obtained from the other in connection with the
transaction contemplated by this Agreement. Subject to Paragraph C
below, termination of this Agreement under this Section 7.14 shall terminate
all obligations of the parties hereunder
C. Termination
by
Breach. If
this Agreement shall terminate by reason of Buyer's breach of this Agreement,
then Seller shall retain the Deposit as liquidated damages, which shall be
Seller’s sole recourse for such breach, either at law or in
equity. If this Agreement shall terminate by reason of Seller's
breach of this Agreement, then Buyer shall have the option of (i) seeking
specific performance of this Agreement or (ii) receiving a refund of the Buyer's
Deposit, in which case this Agreement shall be null and void and of no further
force and effect.
(Signatures
Appear on Following Pages)
IN WITNESS WHEREOF, each of
the parties hereto has signed this Agreement or has caused the same to be signed
by its duly authorized officer as of the date first above written.
SELLER
Avitar
Inc.
By:
Title:
Avitar
Technologies, Inc
By:
Title:
Avitar
Industries, Inc.
By:
Title:
Avitar
Diagnostics, Inc.
By:
Title:
BUYER
Carwild
Corp.
By:
Xxxx
Xxxxxxxxx, President
EXHBIT
1.1
SCHEDULE
OF ASSETS
EXHIBIT
2.2
ALLOCATION
OF PURCHASE PRICE
Equipment
and other assets Listed on Exhibit 1.1: $170,000.00_
All
other assets: $5,000.00
EXHIB
IT 6.1
XXXX
OF SALE
XXXX
OF SALE
In
consideration of the sum of ONE HUNDERED AND SEVENTY-FIVE THOUSAND and 00/100
($175,000.00) DOLLARS, the receipt and sufficiency of which is hereby
acknowledged, Avitar Inc., Avitar Technologies, Inc., Avitar Industries, Inc.,
and Avitar Diagnostics, Inc. collectively, the “Seller”), hereby sells, assigns
and transfers to Carwild Corporation (the “Buyer"), the assets identified on
Exhibit 1.1 attached hereto, and the following (including all goodwill
associated therewith) (the "Property"):
A. Assumed
Contracts. All of Seller’s right and interest in, to and under
those contracts, commitments, agreements, purchase orders, understandings and
obligations, whether oral or written, between Seller and its Customers (as
defined in Section
1.1(B) below) (the “Assumed Contracts”).
B. Customer/Supplier
Lists. Any and all lists however kept, of those customers
(each a “Customer”
and together, the “Customers”)
and suppliers (each a “Supplier”
and together, the “Suppliers”)
of Seller that acquired any product or services from, sold any product or
services to, or entered into contracts to acquire any product or services from
or to provide any product or services to, Seller relating to the
Business.
C. Permits. To the
extent legally assignable to Buyer, those permits, authorizations, franchises,
licenses, consents, approvals, exemptions, classifications and certificates of
any regulatory, administrative or other governmental agency or body held by
Seller in connection with the ownership and operation of the Purchased Assets
(the “Permits”),
including without limitation FDA 510k's, XX xxxxx and ISO certification to be
transferred to Buyer.
D. Books and
Records. All papers, records and files in Seller’s care,
custody or control relating exclusively to the Purchased Assets and the license
and/or sale of Proprietary Rights as hereinafter defined, including, without
limitation, all blueprints and specifications, sales records, maintenance and
production records and plans and designs to the extent same exist and in
whatever form stored (including electronic storage and access to such
storage).
E. Proprietary
Rights.
1. All
of Seller’s right, title and interest in and to the following rights relating to
the Business (collectively, the “Proprietary
Rights”):
(a) all know how, inventions (whether
patentable or unpatentable and whether or not reduced to practice), all
improvements thereto, and all patents (including without limitation US Patent #
5,891,074 for Pressure Wound Dressing granted Apr. 6, 1999 (expired)), patent
applications and patent disclosures, together with all reissuances,
continuations, divisions, continuations-in-part, revisions, extensions and
reexaminations thereof;
(b) all trademarks, trade names,
service marks, trade dress, logos, slogans, together with all translations,
adaptations, derivations and combinations thereof (including, without
limitation, the following:
|
Trademark
|
Application or Registration
No.
|
Country
|
Registration or Filing
Date
|
|
HYDRAFOAM
|
1867977
|
Europe
|
|
|
HYDRAFOAM
|
GB2398747
|
UK
|
|
|
HYDRASORB
|
1,714,942
|
X.X.
|
0000-00-00
|
(c) all
copyrightable works, all copyrights including all applications, registrations
and renewals in connection therewith;
(d) all
mask works and all applications, registrations and renewals in connection
therewith;
(e) all
trade secrets and confidential business information, including ideas, research
and development, know-how, formulas, composition, manufacturing and production
processes and techniques, technical data, drawings, specifications, pricing and
cost information and business and marketing plans and proposals;
(f) all
advertising and promotional materials;
(g) any
and all computer software, computer programs, computer servers, databases and
other intellectual property of any kind, including without limitation the
website under the domain name of
xxxx://xxxxxxxxxxxxxxxxxxxxxxx.xxx/_xxxxxxx/xxxx_00000.xxxx;
(h) all
other proprietary rights including, without limitation, moral rights and waivers
of such rights by others; and
(i) any
and all goodwill associated with the foregoing.
Seller warrants and represents that it
holds legal title to the Property, and that the undersigned has due authority to
convey same. Seller further warrants and represents that there are no
liens, encumbrances, licenses, contracts, covenants or other restrictions of any
kind (collectively, “Claims”) affecting the Buyer’s intended use of the
Property, and Seller shall hold Buyer harmless from and indemnify Buyer against
any such Claims. Buyer represents and acknowledges that it has it has
conducted its own examination and that Buyer has had sufficient opportunity to
fully inspect the Property prior to closing and to review all records it
believes pertinent to the operation of Seller. Buyer has not relied
on any representations made by Seller other than those specified
herein. Buyer has not relied on any representations by Seller with
respect to revenue projections, profitability, investment return or any written
or verbal statements of value and Buyer recognizes its obligation to make an
independent judgment regarding future profitability. Buyer further
acknowledges that Seller has made no agreement or promise to repair or improve
any of the equipment or Property, and that Buyer takes all such Property in the
condition existing on the date of this Agreement, except as otherwise provided
herein.
(Signatures
Appear on Following Pages)
|
|
SELLER
|
By:_________________________________
Authorized
Officer on behalf of Avitar Inc., Avitar Technologies, Inc., Avitar
Industries, Inc., and Avitar Diagnostics, Inc.
|
|
Date:
|
|
|
BUYER
|
By:_________________________________
Authorized
Officer on behalf of Carwild Corporation
|
|
Date:
|
