RIGHT OF FIRST REFUSAL AGREEMENT
THIS
RIGHT OF FIRST REFUSAL AGREEMENT (this "Agreement") is made as of December 10,
2008, between Sports Supplement Acquisition Group, Inc., a Delaware corporation
(the "Company"), and Proviant Technologies, Inc., an Illinois corporation
("Proviant").
WHEREAS,
the Company is acquiring concurrently with the execution and delivery of this
Agreement certain assets of Proviant (the “Acquisition”); and
WHEREAS,
as a condition to the Acquisition, Proviant has agreed to provide the rights of
first refusal as provided herein;
NOW,
THEREFORE, the undersigned agree as follows:
1. COMPANY'S
RIGHTS OF FIRST REFUSAL
Before
(i) a sale of a majority of the outstanding shares of Proviant or a sale of
substantially all of the assets of Proviant or (ii) the sale or license of any
new proprietary ingredients for use in the sports supplement market, the Company
or its assignee(s) shall have a right of first refusal to purchase the shares or
assets or license the ingredients (in either case, a “Transaction”) on the terms
and conditions set forth in this Section (the "Right of First
Refusal").
The
rights granted with regard to paragraph 1(i) shall be for a period of four years
from the date hereof. The rights granted with regard to paragraph
1(ii) shall be for a period of seven years from the date hereof.
In
connection with any such sale of shares or assets, Proviant shall be free to
disclose to any potential purchaser the provisions of this Agreement and such
disclosure will not be considered to be a breach of any confidentiality
agreement of the parties.
(a)
Notice of Proposed Transfer. Proviant shall(a) deliver to the Company a written
notice (the "Notice") stating: (i) Proviant’s' bona fide intention to enter into
a Transaction; (ii) the name of each proposed purchaser or licensee ("Proposed
Purchaser"); and (iii) the proposed terms of the Transaction; and (b) offer the
Transaction on the same terms to the Company or its assignee(s).
(b)
Exercise of Right of First Refusal. At any time within 30 days after receipt of
the Notice, the Company and/or its assignee(s) may, by giving written notice to
Proviant, elect to enter into the Transaction.
(c)
Proviant’s Right to Transfer or License. If the Company fails to
accept the Transaction within 30 days of the Notice, then Proviant may enter
into the Transaction with the Proposed Purchaser, provided that such Transaction
is consummated within one hundred twenty (120) days after the date of the
Notice. If the Transaction described in the Notice is not consummated within
such period, a new Notice shall be given to the Company, and the Company and/or
its assignees shall again be offered the Right of First Refusal before any
Transaction may take place.
(d)
Assignment of Right of First Refusal. The Right of First Refusal shall be
assignable by the Company upon Proviant’s consent, which consent shall not be
unreasonably withheld.
(e) With regard to the development of a new sports supplement product as
provided in paragraph ii above, company shall have the right to license the same
exclusively for a period of one year from the date of notice to company from
Proviant that the product has been developed. Such right shall be
dependent upon the parties entering into an agreement as to performance
guarantees, minimum purchases, and costs and shall be valid for a period of one
year. After notification of the development of the product company
will have 30 days to approve and accept the new product and, if accepted, to
provide within 30 days the first purchase order. If company does not
accept the product and provide its first order within said 30 day period,
Proviant is free to sell the product to any entity it chooses.
(f)
This Agreement shall be for a period of four years from the date
hereof. Thereafter this Agreement can be renewed by mutual agreement
of the parties on such terms and for such period as may be agreed in
writing.
2. GENERAL
PROVISIONS
(a)
This Agreement shall be governed by the laws of the State of Illinois as they
apply to contracts entered into and wholly to be performed in such state. This
Agreement represents the entire agreement between the parties with respect to
the Company's Right of First Refusal and may only be modified or amended in
writing signed by both parties.
(b)
Any notice, demand or request required or permitted to be given by either the
Company or Proviant pursuant to the terms of this Agreement shall be in writing
and shall be deemed given (i) when delivered personally, (ii) five days after it
is deposited in the U.S. mail, certified with return receipt requested and with
postage prepaid, or (iii) one day after deposit (prepaid) with a nationally
recognized overnight courier, and addressed to the party being notified at its
address specified on the applicable signature page hereto or such other address
which the addressee may subsequently notify the other party in
writing.
(c)
Either party's failure to enforce any provision or provisions of this Agreement
shall not in any way be construed as a waiver of any such provision or
provisions, nor prevent that party thereafter from enforcing each and every
other provision of this Agreement. The rights granted both parties herein are
cumulative and shall not constitute a waiver of either party’s right to assert
all other legal remedies available to it under the circumstances.
(d)
The parties acknowledge that money damages may not be an adequate remedy for
violations of this Agreement and that any party may, in its sole discretion,
apply to a court of competent jurisdiction for specific performance or
injunctive or such other relief as such court may deem just and proper to
enforce this Agreement or to prevent any violation hereof and, to the extent
permitted by applicable law, each party waives any objection to the imposition
of such relief in appropriate circumstances.
(e)
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
(f)
Each party to this Agreement represents that such party has duly authorized,
executed and delivered this Agreement and that this Agreement
is a valid and binding obligation of such party, enforceable against such party
in accordance with its terms.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the first date
above written.
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Sports
Supplement Acquisition Group, Inc.
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By
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/s/ Xxxxxxxxx Xxxxxxx |
By
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/s/ Xxxxx Xxxxx | |
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Name:
Xxxxxxxxx Xxxxxxx
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Name:
Xxxxx Xxxxx
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Title:
President
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Title:
President
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Address:
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Address:
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0000
Xxxxxxx Xxxx, Xxxxx 000
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Xxxxxxxxx,
Xxxxxxxx 00000
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Xxxxx-Xxxxx,
XX X0X
0X0
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