EXHIBIT 10.1
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AGREEMENT OF PURCHASE AND SALE
AMONG
GLOBAL PATH INCORPORATED
SWISS MEDICA, INC.
PURCHASER
GENERAL COSMETICS CORPORATION
SELLING CORPORATION
AND
THE FOUNDING SHAREHOLDER OF SELLING CORPORATION
MARCH 31, 2003
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TABLE OF CONTENTS
I. Representations and Warranties of Selling Corporation and Founding Shareholder, Xxxxxx X. Xxxxxxxx..........1
1.01 Organization and Qualification........................................................................1
1.02 Capitalization........................................................................................1
1.05 Litigation and Claims.................................................................................1
1.06 Properties............................................................................................1
1.07 Contracts and Other Instruments.......................................................................2
1.09 Patents and Trademarks................................................................................2
1.10 Questionable Payments.................................................................................3
1.11 Authority to Sell.....................................................................................3
1.12 Unregistered Securities...............................................................................3
1.13 Completeness of Disclosure............................................................................4
II. Representations and Warranties of Global Path and Purchaser.................................................5
2.01 Organization..........................................................................................5
2.02 Validity of Shares....................................................................................5
2.03 Authority to Buy......................................................................................5
III. Exchange.................................................................................................5
3.01 Terms of Exchange.....................................................................................5
3.02 Closing...............................................................................................6
3.03 Transactions at Closing...............................................................................7
3.04 Reserved..............................................................................................7
3.05 Indemnity Against Liabilities.........................................................................7
3.06 Right to Purchaser to Withhold Future Payments........................................................7
IV. Conditions to Obligations of Purchaser...................................................................8
4.01 Accuracy of Representations and Compliance with Conditions............................................8
4.02 Officers' Certificate Concerning Authority............................................................8
4.04 Other Closing Documents...............................................................................9
4.05 Review of Proceedings.................................................................................9
4.06 Legal Action..........................................................................................9
4.07 No Governmental Action...............................................................................10
4.08 Approval of Selling Corporation's Shareholders.......................................................10
4.09 [RESERVED]...........................................................................................10
4.10 Listing..............................................................................................10
4.11 [RESERVED]...........................................................................................10
4.12 Xxxx-Xxxxx Xxxxxx Waiting Period.....................................................................10
4.13 [RESERVED]...........................................................................................10
4.14 Contractual Consents Needed..........................................................................10
4.15 Other Agreements.....................................................................................10
4.17 [RESERVED]...........................................................................................11
4.18 [RESERVED]...........................................................................................11
4.20 [RESERVED]...........................................................................................11
4.21 Investment by Others.................................................................................11
4.22 [RESERVED]...........................................................................................11
4.23 [RESERVED]...........................................................................................11
4.25 RESERVED.............................................................................................11
4.26 Releases.............................................................................................11
4.27 Non-competition Agreement............................................................................11
4.28 Confidentiality Agreement............................................................................11
V. Conditions to Obligations of Selling Corporation and Founding Shareholder..................................11
5.01 Accuracy of Representations and Compliance with Conditions...........................................11
5.02 Opinion of Counsel...................................................................................12
5.03 Other Closing Documents..............................................................................12
5.04 Review of Proceedings................................................................................12
5.05 Legal Action.........................................................................................13
5.06 Xxxx-Xxxxx-Xxxxxx Waiting Period.....................................................................13
5.07 Other Agreements.....................................................................................13
VI. Covenants and Agreements of Selling Corporation and Founding Shareholder................................13
6.01 Access...............................................................................................14
6.02 Conduct of Business..................................................................................14
6.03 Advice of Changes....................................................................................14
6.04 RESERVED.............................................................................................14
6.05 Public Statements....................................................................................14
6.06 Other Proposals......................................................................................14
6.07 Bulk Sales...........................................................................................15
6.08 Consents Without Any Condition.......................................................................15
6.09 Release by Shareholder...............................................................................15
6.10 Non-competition......................................................................................16
6.12 File Tax Return......................................................................................16
6.13 Voting by Founding Shareholder.......................................................................16
VII. Covenants and Agreements of Purchaser...................................................................17
7.01 Confidentiality......................................................................................17
7.02 Bulk Sales...........................................................................................17
7.03 RESERVED.............................................................................................18
VIII. Miscellaneous...........................................................................................18
8.01 Brokerage Fees.......................................................................................18
8.02 Further Actions......................................................................................18
8.03 Availability of Equitable Remedies...................................................................18
8.04 Survival.............................................................................................18
8.05 Appointment of Agent.................................................................................19
8.06 Modification.........................................................................................19
8.07 Notices..............................................................................................19
8.08 Waiver...............................................................................................20
8.09 Joint and Several Obligations........................................................................20
8.10 Binding Effect.......................................................................................20
8.11 No Third-Party Beneficiaries.........................................................................20
8.12 Separability.........................................................................................20
8.13 Headings.............................................................................................20
8.14 Counterparts; Governing Law..........................................................................20
LIST OF EXHIBITS
A Information about Selling Corporation
B Assets to be purchased
C List of Intangibles owned and licensed
D List of contracts and other instruments
E Form of Officer's certificate of General Cosmetics concerning accuracy
F Form of Founding Shareholder' certificate concerning accuracy
G Release
H Form of Agreement Not To Compete
I Form of Confidentiality Agreement
J Prospective claims possibly affecting the Purchased Assets
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT ("Agreement") dated as of March 31, 2003,
among Global Path Incorporated, a corporation organized under the laws of
Delaware with offices in Xxxxxxx, Xxxxxxx, Xxxxxx ("Global Path"), Swiss Medica,
Inc, a Delaware corporation (the "Purchaser"); General Cosmetics Corporation, a
Delaware corporation with offices at 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000 (the
"Selling Corporation"); and the Selling Corporation's Founding Shareholder named
in section 1 herein.
The Purchaser desires to purchase certain specific assets of the
Selling Corporation (the "Purchased Assets"), which assets are more particularly
described in the attached Exhibit B, in exchange for shares of a class of Global
Path common stock, and Selling Corporation desires to effect such exchange.
I. REPRESENTATIONS AND WARRANTIES OF SELLING CORPORATION AND FOUNDING
SHAREHOLDER, XXXXXX X. XXXXXXXX
Selling Corporation, Xxxxxx X. Xxxxxxxx ("Founding Shareholder") represent
and warrant to Global Path and Purchaser as follows:
1.01 ORGANIZATION AND QUALIFICATION
Selling Corporation has no subsidiary or affiliate corporation or owns
any interest in any other enterprise (whether or not such enterprise is a
corporation). Exhibit A correctly sets forth as to Selling Corporation its place
of organization, principal place of business, jurisdictions in which it is
qualified to do business, the business which it presently conducts and which it
contemplates conducting, and the. Selling Corporation is duly organized, validly
existing, and in good standing under the laws of its jurisdiction of
organization, with all requisite power and authority, and all necessary
consents, authorizations, approvals, orders, licenses, certificates, and permits
of and from, and declarations and filings with, all federal, state, local, and
other governmental authorities and all courts and other tribunals, to own,
lease, license, and use its properties and assets and to carry on the business
in which it is now engaged and the business in which it contemplates engaging.
Selling Corporation is duly qualified to transact the business in which it is
engaged and is in good standing as a foreign organization in every jurisdiction
in which its ownership, leasing, licensing, or use of property or assets or the
conduct of the business makes such qualification necessary.
1.02 CAPITALIZATION
The authorized Common Stock of Selling Corporation ("Selling
Corporation Common Stock"), which is outstanding is validly authorized, validly
issued, fully paid, and non-assessable, has not been issued and is not owned or
held in violation of any preemptive right of any Shareholder, and is owned of
record and beneficially by the Founding Shareholder in the amounts and
percentages set out in Exhibit A hereto.
1.03 [Reserved]
1.04 [Reserved]
1.05 LITIGATION AND CLAIMS
There is no litigation, arbitration, claim, governmental or other
proceeding (formal or informal), or investigation pending, threatened, or in
prospect (or any basis therefor known to Selling Corporation, or Founding
Shareholder) with respect to the Purchased Assets, except as outlined in the
attached Exhibit K.. Any other litigation, arbitration, claim, governmental or
other proceeding (formal or informal), or investigation pending, threatened, or
in prospect (or any basis therefor known to Selling Corporation or the Founding
Shareholder), is outlined in the attached Exhibit J, none of which are related
to the Purchased Assets. Selling Corporation is not in violation of, or in
default with respect to, any law, rule, regulation, order, judgment, or decree;
nor is Selling Corporation, or Founding Shareholder required to take any action
in order to avoid such violation or default.
1.06 TITLE AND CONDITION OF ASSETS
Selling Corporation has good and marketable title to the Purchased
Assets free and clear of all liens, mortgages, security interests, pledges,
charges, and encumbrances, except such as are listed in Exhibit D. The Purchased
Assets, including without limitation the product units and samples outlined in
Exhibit B, are in new and usable condition, and are in all ways ready to be
marketed and sold direct to the consumer, including without limitation all
approvals, government and otherwise, necessary to such marketing and sale.
1.07 CONTRACTS AND OTHER INSTRUMENTS
Exhibit D accurately and completely sets forth the information required
to be contained therein with respect to Selling Corporation, and Founding
Shareholder, identifying whether the matter disclosed therein relates to Selling
Corporation, or to Founding Shareholder named therein. Selling Corporation has
furnished to the Purchaser (a) the certificate of incorporation (or other
charter document) and by-laws of Selling Corporation and all amendments thereto,
as presently in effect, certified by the Secretary of the corporation and (b)
the following, initialed by the chief executive officer of Selling Corporation:
(i) true and correct copies of all contracts, agreements, and instruments
referred to in Exhibit D; (ii) true and correct copies of all leases and
licenses referred to in Exhibit C; and (iii) true and correct written
descriptions of all supply, distribution, agency, financing, or other
arrangements or understandings referred to in Exhibit D. Neither Selling
Corporation, Founding Shareholder, nor (to the knowledge of Selling Corporation,
or Founding Shareholder) any other party to any such contract, agreement,
instrument, lease, or license is now or expects in the future to be in violation
or breach of, or in default with respect to complying with, any material
provision thereof, and each such contract, agreement, instrument, lease, or
license is in full force and is the legal, valid, and binding obligation of the
parties thereto and is enforceable as to them in accordance with its terms. Each
such supply, distribution, agency, financing, or other arrangement or
understanding is a valid and continuing arrangement or understanding; neither
Selling Corporation, nor any other party to any such arrangement or
understanding has given notice of termination or taken any action inconsistent
with the continuance of such arrangement or understanding; and the execution,
delivery, and performance of this Agreement will not prejudice any such
arrangement or understanding in any way. Selling Corporation enjoys peaceful and
undisturbed possession under all leases and licenses under which it is
operating. Selling Corporation is not party to or bound by any contract,
agreement, instrument, lease, license, arrangement, or understanding, or subject
to any charter or other restriction, which has had or may in the future have a
material adverse effect on the financial condition, results of operations,
business, properties, assets, liabilities, or future prospects of Selling
Corporation. Selling Corporation has not engaged within the last five years in,
is engaging in, or intends to engage in any transaction with, or has had within
the last five years, now has, or intends to have any contract, agreement, lease,
license, arrangement, or understanding with, Founding Shareholder, any employee
of Selling Corporation or any director, officer or employee, any relative or
affiliate of Founding Shareholder or of any such director, officer, or employee,
or any other corporation or enterprise in which Founding Shareholder, any such
director, officer, or employee, or any such relative or affiliate then had or
now has a 5 percent or greater equity or voting or other substantial interest,
other than contracts and agreements listed and so specified in Exhibit D.
Selling Corporation is not in violation or breach of, or in default with respect
to, any term of its certificate of incorporation (or other charter document) or
bylaws.
1.08 [Reserved]
1.09 PATENTS AND TRADEMARKS
Sellers own all right, title and interest in and to each item of
intellectual property among the Purchased Assets, free and clear of any liens,
licences or other encumbrances. Sellers have not licensed any of Purchased
Assets to any third party, and no third party otherwise has any right to use any
of the Purchased Assets. Selling Corporation has listed all patent, patent
application, trademark, trademark application, trade name, service xxxx,
copyright, franchise, or other intangible property or asset (all of the
foregoing herein called "Intangibles") among the Purchased Assets in Exhibit B
and Exhibit C, all of which are in good standing and uncontested. Exhibit C
accurately sets forth with respect to Intangibles owned by Selling Corporation
or by, where appropriate, a statement of cost, book value, and reserve for
depreciation of each item for tax purposes, and net book value of each item for
financial reporting purposes, and with respect to Intangibles licensed by
Selling Corporation from or to a third party, a description of such license.
There is no infringement by others of Intangibles of Selling Corporation. There
is no Intangible of others which may materially adversely affect the Purchased
Assets.
1.10 QUESTIONABLE PAYMENTS
Neither Selling Corporation, any director, officer, agent, employee, or
other person associated with or acting on behalf of Selling Corporation, nor
Founding Shareholder has, directly or indirectly: (a) used any corporation funds
for unlawful contributions, gifts, entertainment, or other unlawful expenses
relating to political activity; (b) made any unlawful payment to foreign or
domestic government officials or employees or to foreign or domestic political
parties or campaigns from corporation funds; (c) violated any provision of the
Foreign Corrupt Practices Act of 1977; (d) established or maintained any
unlawful or unrecorded fund of corporation monies or other assets; (e) made any
false or fictitious entry on the books or records of Selling Corporation; (f)
made any bribe, rebate, payoff, influence payment, kickback, or other unlawful
payment; (g) given any favor or gift which is not deductible for federal income
tax purposes; or (h) made any bribe, kickback, or other payment of a similar or
comparable nature, whether lawful or not, to any person or entity, private or
public, regardless of form, whether in money, property, or services, to obtain
favorable treatment in securing business or to obtain special concessions, or to
pay for favorable treatment for business secured or for special concessions
already obtained.
1.11 AUTHORITY TO SELL
Selling Corporation, and Founding Shareholder have all requisite power
and authority to execute, deliver, and perform this Agreement. All necessary
corporation proceedings of Selling Corporation have been duly taken to authorize
the execution, delivery, and performance of this Agreement by Selling
Corporation and (including, without limitation, actions by Founding
Shareholder). This Agreement has been duly authorized, executed, and delivered
by Selling Corporation, has been duly executed and delivered by Founding
Shareholder, constitutes a legal, valid, and binding obligation of Selling
Corporation, and Founding Shareholder, and is enforceable as to them in
accordance with its terms. No consent, authorization, approval, order, license,
certificate, or permit of or from, or declaration or filing with, any federal,
state, local, or other governmental authority or any court or other tribunal is
required by Selling Corporation, or Founding Shareholder for the execution,
delivery, or performance of this Agreement by Selling Corporation, or Founding
Shareholder. No consent of any party to any contract, agreement, instrument,
lease, license, arrangement, or understanding to which Selling Corporation, or
Founding Shareholder is a party, or to which it or he or any of its or his
properties or assets are subject, is required for the execution, delivery, or
performance of this Agreement (except such consents referred to in Exhibit D as
having been obtained at or prior to the date of this Agreement, true and correct
copies of which, initialed by the chief executive officer of Selling
Corporation, have been delivered to Global Path or the Purchaser); and the
execution, delivery, and performance of this Agreement will not violate, result
in a breach of, conflict with, or (with or without the giving of notice or the
passage of time or both) entitle any party to terminate or call a default under
any term of any such contract, agreement, instrument, lease, license,
arrangement, or understanding, or violate or result in a breach of any term of
the certificate of incorporation (or other charter document) or by-laws of
Selling Corporation, or violate, result in a breach of, or conflict with any
law, rule, regulation, order, judgment, or decree binding on Selling
Corporation, or Founding Shareholder or to which any of their or his operations,
business, properties, or assets are subject. Upon the Closing, Purchaser will
have good and marketable title to the Purchased Assets described in Exhibit B
free and clear of all liens, mortgages, security interests, pledges, charges,
and encumbrances.
The references in this Section 1.11 to this Agreement include any other
document executed by Selling Corporation, or Founding Shareholder relating
hereto or delivered to Global Path or the Purchaser in connection with the
transactions contemplated hereby.
1.12 UNREGISTERED SECURITIES
(a) INFORMATION ON COMPANY. The Selling Corporation and the
Founding Shareholder has been furnished with and has read Global Path's
Form 10-KSB, filed on September 28, 2001 and Global Path's Form 10-QSB
filed on February 14, 2002 with the U.S. Securities and Exchange
Commission (the "Commission") (collectively, with exhibits thereto,
hereinafter referred to as the "Reports"). In addition, the Founding
Shareholder has received from Global Path such other information
concerning its operations, financial condition and other matters as
Each Founding Shareholder has requested, and considered all factors
each Founding Shareholder deems material in deciding on the
advisability of investing in the Securities (such information in
writing is collectively, the "Other Written Information").
(b) INFORMATION ABOUT SUBSCRIBER. Each of the Selling
Corporation and Founding Shareholder is an "accredited investor", as
such term is defined in Regulation D promulgated by the Commission
under the Securities Act of 1933, as amended, is experienced in
investments and business matters, has made investments of a speculative
nature and has purchased securities of United States publicly-owned
companies in private placements in the past and, with its
representatives, has such knowledge and experience in financial, tax
and other business matters as to enable the Selling Corporation and
each Founding Shareholder to utilize the information made available by
Global Path to evaluate the merits and risks of and to make an informed
investment decision with respect to the proposed purchase, which
represents a speculative investment. The Selling Corporation has the
authority and is duly and legally qualified to purchase and own the
Securities. The Selling Corporation and each Founding Shareholder is
able to bear the risk of such investment for an indefinite period and
to afford a complete loss thereof.
(c) EXCHANGE OF GLOBAL PATH COMMON STOCK. On the Closing Date,
the Selling Corporation will exchange the Purchased Assets for Global
Path Common Stock.
(d) COMPLIANCE WITH SECURITIES ACT AND 24 MONTH HOLD. The
Selling Corporation and each Founding Shareholder understands and
agrees that the Securities have not been registered under the
Securities Act of 1933, as amended (the "1933 Act") by reason of their
issuance in a transaction that does not require registration under the
1933 Act, and that such Securities must be held unless a subsequent
disposition is registered under the 1933 Act or is exempt from such
registration, and that in any event the Securities will be subject to a
hold period of not less than twenty-four months following the Closing
Date, during which period no disposition will be permitted.
(e) COMMON STOCK LEGEND. The Common Stock shall bear the
following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE AND THE COMMON
SHARES ISSUABLE UPON CONVERSION OF THE SHARES HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS. THESE SHARES AND THE COMMON
SHARES ISSUABLE UPON CONVERSION OF THE SHARES MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT AS TO THIS WARRANT UNDER SAID
ACT AND APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO GLOBAL PATH, INC. THAT SUCH
REGISTRATION IS NOT REQUIRED."
(f) COMMUNICATION OF OFFER. The offer to exchange the Common
Stock was directly communicated to the Selling Corporation. At no time
was the Selling Corporation or any Founding Shareholder presented with
or solicited by any leaflet, newspaper or magazine article, radio or
television advertisement, or any other form of general advertising or
solicited or invited to attend a promotional meeting otherwise than in
connection and concurrently with such communicated offer.
(g) CORRECTNESS OF REPRESENTATIONS. The Selling Corporation
and each Founding Shareholder represents that the foregoing
representations and warranties are true and correct as of the date
hereof, must be true as of the date of Closing, and unless the Selling
Corporation and each Founding Shareholder otherwise notifies Global
Path prior to the Closing, shall be true and correct as of the date of
Closing. The foregoing representations and warranties shall survive the
Closing for a period of one year after the Closing but no further.
1.13 COMPLETENESS OF DISCLOSURE
No representation or warranty by Selling Corporation or the Founding
Shareholder in this Agreement contains or on the date of the Closing will
contain any untrue statement of material fact or omits or on the date of the
Closing will omit to state a material fact necessary to make the statements made
not misleading,
II REPRESENTATIONS AND WARRANTIES OF GLOBAL PATH AND PURCHASER
The Purchaser and Global Path represent and warrant to Selling
Corporation and the Founding Shareholder as follows:
2.01 ORGANIZATION
The Purchaser is a corporation duly organized, validly existing, and in
good standing under the laws of its jurisdiction of incorporation, with all
requisite power and authority to own, lease, license, and use its properties and
assets and to carry on the business in which it is now engaged and the business
in which it contemplates engaging. At, or immediately after the Closing,
Purchaser will be wholly owned by Global Path.
2.02 VALIDITY OF SHARES
The shares of Global Path Common Stock to be delivered to Selling
Corporation pursuant to this Agreement, when issued in accordance with the terms
and provisions of this Agreement, will be validly authorized, validly issued,
fully paid and non-assessable.
2.03 AUTHORITY TO BUY
Global Path has all requisite power and authority to execute, deliver,
and perform this Agreement. All necessary corporate proceedings of the Purchaser
have been duly taken to authorize the execution, delivery, and performance of
this Agreement by the Purchaser. This Agreement has been duly authorized,
executed, and delivered by Global Path for itself and on behalf of the
Purchaser, is the legal, valid, and binding obligation of Global Path and the
Purchaser, and is enforceable as to each in accordance with its terms.
2.04 GLOBAL PATH SEC FILINGS. The Global Path SEC Filings, copies of
which have been furnished to the Selling Corporation and each of the Founding
Shareholder, have been duly filed, were in substantial compliance with the
requirements of their respective report forms, were complete and correct in all
material respects as of the dates at which the information therein was
furnished, as of such date, contained no untrue statement of a material fact nor
omitted to state a material fact necessary in order to make the statements made
therein, in light of the circumstances under which they were made, not
misleading. The consolidated financial statements of Global Path and the related
notes and schedules included in the Global Path SEC Filings comply in all
material respects with the requirements of the Exchange Act and present fairly
the consolidated financial position in accordance with generally accepted
accounting principles of Global Path, as of the dates indicated, and the results
of its operations and changes in financial position for the periods therein
specified (subject, in the case of unaudited interim financial statements, to
normal year-end adjustments).
2.05 SUBSEQUENT SALE OR TRANSFER OF PURCHASED ASSETS. Purchaser and
Global Path will not sell or otherwise transfer ownership of the Purchased
Assets for a period of at least one year from the Closing Date, and any sale or
transfer after such time would only take place at full fair market value.
2.06 CORRECTNESS OF REPRESENTATIONS. The Purchaser and Global Path
represent that the foregoing representations and warranties are true and correct
as of the date hereof, must be true as of the date of Closing, and unless each
party otherwise notifies the Selling Corporation prior to the Closing, shall be
true and correct as of the date of Closing. The foregoing representations and
warranties shall survive the Closing for a period of one year after the Closing
but no further.
III. EXCHANGE
3.01 TERMS OF EXCHANGE
On the basis of the representations, warranties, covenants, and
agreements contained in this Agreement and subject to the terms and conditions
of this Agreement:
(a) Selling Corporation shall sell, assign, transfer, and convey
to Purchaser at the Closing all the Purchased Assets described in
Exhibit B. In consideration therefore, Purchaser shall deliver at the
Closing to Selling Corporation a certificate in the name of the
Selling Corporation representing 6,750,000 shares of a class of Global
Path common stock (the "Purchase Price"), subject to any Purchase
Price adjustment, as contemplated in Section 3.01(b) below, and
subject to the hold period outlined in Section 1.12(d).
(b) To the extent that Selling Corporation is unable to convey
good title, free of liens and encumbrances, to any one or more of the
Purchased Assets, or to the extent Purchaser is dissatisfied, in its
sole discretion, with the quality or nature of any of the Purchased
Assets, including without limitation the quality of the testimonials
referred to in Exhibit B (all such non-transferable or unsatisfactory
assets to be collectively referred to as the "Non-transferred
Assets"), Purchaser may, in its sole discretion, nevertheless elect to
consummate the other transactions contemplated by this Agreement,
except that the Purchase Price shall be reduced by that number of
shares that would otherwise have been transferred in exchange for the
Non-transferred Assets, all such Purchase Price adjustments, if any,
to be determined no later than the Closing Date. Nothing in this
Section 3.01(b) regarding such non-assignment or such election shall
limit any rights the Purchaser may have against Selling Corporation or
Founding Shareholder as a result of the failure to convey the
Non-transferred Assets.
(c) The Purchaser shall not assume or be responsible for any
obligation or liability of Selling Corporation of any nature, accrued
or contingent.
(d) The consideration paid by Purchaser shall be allocated
among Selling Corporation's assets as set forth in Exhibit B.
(e) With respect to the Purchased Assets sold hereunder that
cannot be physically delivered to Purchaser because they are in the
possession of third parties, or otherwise, Selling Corporation and
Founding Shareholder shall give irrevocable instructions to the party
in possession thereof, if such be the case, with copies to the
Purchaser, that all right, title, and interest therein have been vested
in Purchaser and that the same are to be held for Purchaser's exclusive
use and benefit.
(f) To the extent that the assignment by Selling Corporation
to Purchaser of any contract, agreement, lease, license, instrument,
understanding, or arrangement to be assigned to Purchaser hereunder
shall require the consent of a party other than Selling Corporation or
Founding Shareholder which has not been obtained by the Closing and if
the Purchaser shall nevertheless elect to consummate the transactions
contemplated by this Agreement, this Agreement shall not constitute an
agreement to assign the same if an attempted assignment without such
consent would constitute a breach thereof unless the Purchaser before,
at, or after the Closing elects in writing delivered to the Selling
Corporation, specifically identifying such absent consent, to waive
such consent. Nothing in this Section 3.01(e) regarding such
non-assignment or such election shall limit any rights the Purchaser
may have against Selling Corporation or Founding Shareholder as a
result of the failure to obtain such consent.
3.02 CLOSING
The Closing of the transactions contemplated by Section 3.01shall take
place at the offices of Global Path, at 10:00 A.M., local time on April 16,
2003. The Closing may occur at such different place, such different time, or
such different date or a combination thereof as Global Path and Selling
Corporation agree in writing. The Closing of the transactions contemplated by
Section 3.01is herein called the "Closing." If the Closing shall not take place
by April 16, 2003, then the parties not at fault shall, in addition to all other
rights and remedies available at law or in equity against the defaulting
parties, have the right to cancel and terminate this Agreement.
3.03 TRANSACTIONS AT CLOSING
The following transactions shall take place at the Closing:
(a) Selling Corporation and Founding Shareholder shall deliver
to Purchaser all such warranty deeds in form for recording, bills of
sale, assignments, evidence of consent, and other instruments or
documents as in the opinion of counsel to the Purchaser may be
necessary or desirable to evidence or perfect the sale, assignment,
transfer, and conveyance of good and marketable title of all the
Purchased Assets by Selling Corporation hereunder, in each case free
and clear of all liens, mortgages, security interests, pledges,
charges, and encumbrances.
(b) Purchaser shall deliver to Selling Corporation one or more
certificates representing the shares of Global Path Common Stock which
Purchaser has agreed to deliver pursuant to Section 3.01(a).
3.04 [Reserved]
3.05 INDEMNITY AGAINST LIABILITIES
(a) Selling Corporation and Founding Shareholder agree to
indemnify and hold harmless Global Path and the Purchaser, their
respective officers, directors, employees and Founding Shareholder
("Indemnities") against and in respect of any and all
(i) Claims, suits, actions, proceedings (formal or
informal), investigations, judgments, deficiencies, damages,
settlements, liabilities, and legal and other expenses
(including legal fees and expenses of counsel chosen by any
Indemnitee) as and when incurred arising out of or based upon
(A) any breach of any representation, warranty, covenant, or
agreement of Selling Corporation or Founding Shareholder
contained in this Agreement, (B) any obligation or liability
of any nature, accrued or contingent, associated with the
Purchased Assets.
(ii) Claims suits, actions, and proceedings (formal
or informal) of persons or entities other than the Purchaser
and related judgments, deficiencies, damages, settlements,
liabilities, and legal and other expenses (including legal
fees and expenses of counsel chosen by any Indemnitee) as and
when incurred arising out of or based upon the conduct of the
business of Selling Corporation prior to the Closing.
(b) The Purchaser or another Indemnitee shall give Founding
Shareholder prompt notice of any claim asserted or threatened against
any Indemnitee on the basis of which such Indemnitee intends to seek
indemnification from Selling Corporation or Founding Shareholder as
herein provided (but the obligations of Selling Corporation and
Founding Shareholder under this Section 3.05 shall not be conditioned
upon receipt of such notice).
3.06 RIGHT OF PURCHASER AND GLOBAL PATH TO WITHHOLD FUTURE PAYMENTS
AND TO CANCEL SHARE CERTIFICATE
(a) Without limiting such other rights as the Indemnitees may have, if
the Purchaser has learned of a breach of any representation, warranty, covenant,
or agreement of Selling Corporation or Founding Shareholder contained in this
Agreement, the Purchaser or Global Path may in their discretion by written
notice to the appropriate party deduct from the amount of the cash or checks
otherwise deliverable by Purchaser at such time, or cancel such portion of the
Global Path common shares delivered as the Purchase Price under this Agreement,
including if necessary all Global Path common shares delivered as the Purchase
Price under this Agreement, in an amount the value of which is equal to the
aggregate of (a) the amount necessary to cure or make whole such breach and (b)
the amount of losses, deficiencies, damages, and legal and other expenses
(including legal fees and expenses of counsel chosen by any Indemnitee) incurred
or demonstrably in prospect of being incurred by any Indemnitee in connection
with claims, suits, actions, proceedings (formal or informal), investigations,
judgments, or settlements as a result of, or to remedy a situation or
circumstance caused by, such breach.
(b) If pursuant to the above paragraph 3.06(a) Purchaser or Global Path
elect to cancel any common shares delivered as part of the Purchase Price under
this Agreement, notice shall be given to Selling Corporation in accordance with
the notice provisions of this Agreement, after which Selling Corporation shall
have 10 days to indicate whether it intends to dispute such cancellation. If no
notice of an intention to dispute is delivered to Global Path in accordance with
the notice provisions of this Agreement within such 10 day period, Selling
Corporation will be deemed to have consented to the cancellation. Any dispute
arising out of or relating to such cancellation shall be referred to and finally
determined by arbitration in accordance with the WIPO Expedited Arbitration
Rules. The place of arbitration shall be Xxxxxxx, Xxxxxxx, Xxxxxx. The language
to be used in the arbitral proceedings shall be English. The dispute,
controversy or claim shall be decided in accordance with the law of the Province
of Ontario. All costs related to the dispute shall be paid in full by the losing
party.
IV. CONDITIONS TO OBLIGATIONS OF PURCHASER
The obligations of the Purchaser under this Agreement are subject, at
the option of the Purchaser, to the following conditions:
4.01 ACCURACY OF REPRESENTATIONS AND COMPLIANCE WITH CONDITIONS
All representations and warranties of Selling Corporation and the
Founding Shareholder contained in this Agreement shall be accurate when made
and, in addition, shall be accurate as of the Closing as though such
representations and warranties were then made in exactly the same language by
Selling Corporation, or Founding Shareholder and regardless of knowledge or lack
thereof on the part of Selling Corporation, or Founding Shareholder or changes
beyond their or his control, as of the Closing, Selling Corporation and Founding
Shareholder shall have performed and complied with all covenants and agreements
and satisfied all conditions required to be performed and complied with by any
of them at or before such time by this Agreement; and the Purchaser shall have
received certificates signed by the chief executive officer of Selling
Corporation and by the Founding Shareholder dated the date of the Closing to
that effect, substantially in the form of Exhibits E and F, respectively.
4.02 OFFICERS' CERTIFICATE CONCERNING AUTHORITY
Selling Corporation and Founding Shareholder shall have delivered to
Global Path or the Purchaser on the date of the Closing a certificate signed by
the Chief Executive Officer of Selling Corporation, dated as of the Closing
date, in form and substance satisfactory to counsel for the Purchaser, that:
(a) Selling Corporation, is validly existing and in good
standing under the laws of its state of incorporation with all
requisite power and authority to own, lease, license, and use its
properties and assets and to carry on the business in which it is now
engaged.
(b) The ownership of Selling Corporation by the Founding
Shareholder is as set forth in Exhibit A to this Agreement, including
amounts and percentages pursuant to Section 1.01(b).
(c) All necessary corporation proceedings of Selling
Corporation have been duly taken to authorize the execution, delivery,
and performance of this Agreement by Selling Corporation.
(d) Selling Corporation has all requisite power and authority
to execute, deliver, and perform this Agreement, Founding Shareholder
have all requisite power and authority to execute, deliver, and perform
this Agreement, and this Agreement has been duly authorized, executed,
and delivered by Selling Corporation, has been duly executed and
delivered by the Founding Shareholder, constitutes the legal, valid,
and binding obligation of Selling Corporation and Founding Shareholder,
and (subject to applicable bankruptcy, insolvency, and other laws
affecting the enforceability of creditors' rights generally) is
enforceable as to Selling Corporation and Founding Shareholder in
accordance with its terms.
The references in this Section 4.02(d) to this Agreement
include any other document executed by Selling Corporation, or Founding
Shareholder relating hereto or delivered to Global Path or the
Purchaser in connection with the transactions contemplated hereby.
(e) The execution, delivery, and performance of this Agreement
by Selling Corporation will not violate or result in a breach of any
term of Selling Corporation's certificate of incorporation or of its
by-laws; and the execution, delivery, and performance of this Agreement
by Selling Corporation and Founding Shareholder will not violate,
result in a breach of, conflict with, or (with or without the giving of
notice or the passage of time or both) entitle any party to terminate
or call a default under any terms of any agreement to which either the
Selling Corporation, or Founding Shareholder are a party.
The references in this Section 4.02(e) to this Agreement
include any other document executed by Selling Corporation, or Founding
Shareholder relating hereto or delivered to Global Path or the
Purchaser in connection with the transactions contemplated hereby.
(f) After reasonable investigation, the Chief Executive
Officer of the Selling Corporation has no actual knowledge of any
consent, authorization, approval, order, license, certificate, or
permit of or from, or declaration or filing with, any federal, state,
local, or other governmental authority or any court or other tribunal
which is required of Selling Corporation, or Founding Shareholder for
the execution, delivery, or performance of this Agreement by Selling
Corporation or Founding Shareholder.
The references in this Section 4.02(f) to this Agreement
include any other document executed by Selling Corporation, or Founding
Shareholder relating hereto or delivered to Global Path or the
Purchaser in connection with the transactions contemplated hereby.
(g) After reasonable investigation, the Chief Executive
Officer of the Selling Corporation has no actual knowledge of any
litigation, arbitration, governmental or other proceeding (formal or
informal), or investigation pending or threatened with respect to
Selling Corporation, or Founding Shareholder, or any of its or his
respective business, properties, or assets, except as outlined in
Exhibits J and K.
4.03 [Reserved]
4.04 OTHER CLOSING DOCUMENTS
Selling Corporation shall have delivered to Global Path or the
Purchaser at or prior to the Closing such other documents (including
certificates of officers of Selling Corporation) as Global Path or the Purchaser
may reasonably request in order to enable Global Path or the Purchaser to
determine whether the conditions to their obligations under this Agreement have
been met and otherwise to carry out the provisions of this Agreement.
4.05 REVIEW OF PROCEEDINGS
All actions, proceedings, instruments, and documents required to carry
out this Agreement or incidental thereto and all other related legal matters
shall be subject to the reasonable approval of counsel to the Purchaser, and
Selling Corporation and Founding Shareholder shall have furnished such counsel
such documents as such counsel may have reasonably requested for the purpose of
enabling them to pass upon such matters.
The references in this Section 4.05 to this Agreement include any other
document executed by Selling Corporation, or Founding Shareholder relating
hereto or delivered to Global Path or the Purchaser in connection with the
transactions contemplated hereby.
4.06 LEGAL ACTION
There shall not have been instituted or threatened any legal proceeding
relating to, or seeking to prohibit or otherwise challenge the consummation of,
the transactions contemplated by this Agreement, or to obtain substantial
damages with respect thereto.
The references in this Section 4.06 to this Agreement include any other
document executed by Selling Corporation, or Founding Shareholder relating
hereto or delivered to Global Path or the Purchaser in connection with the
transactions contemplated hereby.
4.07 NO GOVERNMENTAL ACTION
There shall not have been any action taken, or any law, rule,
regulation, order, or decree proposed, promulgated, enacted, entered, enforced,
or deemed applicable to the transactions contemplated by this Agreement by any
federal, state, local, or other governmental authority or any court or other
tribunal, including the entry of a preliminary or permanent injunction, which,
in the sole judgment of the Global Path, (a) makes any of the transactions
contemplated by this Agreement illegal, (b) results in a delay in the ability of
the Global Path to consummate any of the transactions contemplated by this
Agreement, (c) requires the divestiture by the Global Path of a material portion
of the business of either the Global Path and its subsidiaries taken as a whole,
or of Selling Corporation taken as a whole, (d) imposes material limitations on
the ability of the Purchaser effectively to exercise full rights of ownership
with respect to the properties and assets purported to be sold pursuant to this
Agreement, or (e) otherwise prohibits, restricts, or delays consummation of any
of the transactions contemplated by this Agreement or impairs the contemplated
benefits to the Global Path of the transactions contemplated by this Agreement.
The references in this Section 4.07 to this Agreement include any other
document executed by Selling Corporation, or Founding Shareholder relating
hereto or delivered to Global Path or the Purchaser in connection with the
transactions contemplated hereby.
4.08 APPROVAL OF SELLING CORPORATION'S SHAREHOLDERS
The consummation of the transactions contemplated by this Agreement
shall have been approved at or before the Closing by the affirmative vote of the
holders of not less than a majority of Selling Corporation common stock, and
shall have received any other shareholder approval necessary to the consummation
of the transactions contemplated by this Agreement.
4.09 [RESERVED]
4.10 LISTING
At the time of Closing, the National Association of Securities Dealers,
Inc. shall have authorized quotation of Global Path Common Stock on the
Electronic Bulletin Board.
4.11 [RESERVED]
4.12 XXXX-XXXXX-XXXXXX WAITING PERIOD
All applicable waiting periods in respect of the transactions
contemplated by this Agreement under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976 shall have expired at or prior to the Closing.
4.13 [RESERVED]
4.14 CONTRACTUAL CONSENTS NEEDED
The parties to this Agreement shall have obtained at or prior to the
Closing all consents required for the consummation of the transactions
contemplated by this Agreement from any party to any contract, agreement,
instrument, lease, license, arrangement, or understanding to which any of them
is a party, or to which any of their respective businesses, properties, or
assets are subject.
4.15 OTHER AGREEMENTS
Any and all agreements to be signed after this Agreement is executed
but before the Closing shall have been duly authorized, executed, and delivered
by the parties thereto at or prior to the Closing, shall be in full force, valid
and binding upon the parties thereto, and enforceable by them in accordance with
their terms at the Closing, and no party thereto at any time from the execution
thereof until immediately after the Closing shall have been in violation of or
in default in complying with any material provision thereof.
4.16 [RESERVED]
4.17 [RESERVED]
4.18 [RESERVED]
4.19 [RESERVED]
4.20 [RESERVED]
4.21 INVESTMENT BY OTHERS
No offer shall have been publicly proposed or made by any other party
to purchase the Common Stock of Selling Corporation or otherwise to acquire the
assets of Selling Corporation.
4.22 [RESERVED]
4.23 [RESERVED]
4.24 [RESERVED]
4.25 [RESERVED]
4.26 RELEASES
The Purchaser shall have received at or prior to the Closing from each
Founding Shareholder, as well as each person who is, who before the Closing
becomes, or who at any time between that date which is one year prior to the
date this Agreement is executed and the date this Agreement is executed was, a
officer or director of Selling Corporation a release, dated the date of the
Closing, substantially in the form of Exhibit G.
4.27 FOUNDING SHAREHOLDER'S NON-COMPETITION AGREEMENT
The Purchaser shall have received at or prior to the Closing from the
Founding Shareholder, as well as Xxxxxxx Xxxxx, Xxxxxx Xxxxxx, Xxx Xxxxxx, and
Xxxx Xxxxx, an agreement not to compete, approximately in the form of Exhibit H,
except that Purchaser and Xxxxxx Xxxxxx, through General Cosmetics (Germany)
GmbH ("GC Germany"), shall exercise their best efforts to negotiate and execute
as soon as practicable a distributor agreement under which GC Germany shall
continue as the German distributor of products based on the Purchased Assets,
and if such distributor agreement is not executed by the Closing Date Xxxxxx
Xxxxxx and GC Germany shall be granted certain exemptions with respect to
existing inventory of products based on the Purchased Assets, subject to the
execution of a distributor agreement between Purchaser and GC Germany after the
Closing Date.
4.28 FOUNDING SHAREHOLDER'S CONFIDENTIALITY AGREEMENT
The Purchaser shall have received at or prior to the Closing from each
Founding Shareholder, as well as each person who is, who before the Closing
becomes, or who at any time between that date which is one year prior to the
date this Agreement is executed and the date this Agreement is executed was, an
officer or director of Selling Corporation an agreement to keep confidential
certain data, substantially in the form of Exhibit I.
V. CONDITIONS TO OBLIGATIONS OF SELLING CORPORATION AND FOUNDING SHAREHOLDER
The obligations of Selling Corporation and Founding
Shareholder under this Agreement are subject, at the option of Selling
Corporation and Founding Shareholder, to the following conditions:
5.01 ACCURACY OF REPRESENTATIONS AND COMPLIANCE WITH CONDITIONS
All representations and warranties of Purchaser contained in this
Agreement shall be accurate when made and, in addition, shall be accurate as of
the Closing as though such representations and warranties were then made in
exactly the same language by Purchaser and regardless of knowledge or lack
thereof on the part of Purchaser or changes beyond its control; as of the
Closing Purchaser shall have performed and complied with all covenants and
agreements and satisfied all conditions required to be performed and complied
with by it at or before such time by this Agreement.
5.02 OPINION OF COUNSEL
Purchaser shall have delivered to the Selling Corporation and Founding
Shareholder on the date of the Closing the opinion of counsel to Purchaser,
dated as of the Closing date, in form and substance satisfactory to counsel for
the Selling Corporation and Founding Shareholder, to the effect that:
(a) Purchaser is a corporation validly existing and in good
standing under the laws of the State of Delaware with all requisite
power and authority to own, lease, license, and use its properties and
assets and to carry on the business in which it is now engaged.
(b) All necessary proceedings of Purchaser have been duly
taken to authorize the execution, delivery, and performance of this
Agreement by Purchaser.
(c) Purchaser has all requisite corporate power and authority
to execute, deliver, and perform this Agreement, and this Agreement has
been duly authorized, executed, and delivered by Purchaser, constitutes
the legal, valid, and binding obligation of Purchaser, and (subject to
applicable bankruptcy, insolvency, and other laws affecting the
enforceability of creditors' rights generally) is enforceable as to
Purchaser in accordance with its terms.
(d) The execution, delivery, and performance of this Agreement
by Purchaser will not violate or result in a breach of any term of
Purchaser's certificate of incorporation or by-laws; and the execution,
delivery, and performance of this Agreement by Purchaser will not
violate, result in a breach of, conflict with, or (with or without the
giving of notice or the passage of time or both) entitle any party to
terminate or call a default under any terms of any agreement to which
the Purchaser is a party.
(e) After reasonable investigation, such counsel has no actual
knowledge of any consent, authorization, approval, order, license,
certificate, or permit of or from, or declaration or filing with, any
federal, state, local, or other governmental authority or any court or
other tribunal which is required of Purchaser for the execution,
delivery, or performance of this Agreement by Purchaser.
(f) After reasonable investigation, such counsel has no actual
knowledge of any litigation, arbitration, governmental or other
proceeding (formal or informal), or investigation pending or threatened
with respect to Purchaser, or any of its or his business, properties,
or assets that (i) can reasonably be expected to result in any
materially adverse change in the financial condition, results of
operations, business, properties, liabilities, or future prospects of
Purchaser taken as a whole or (ii) seeks to prohibit or otherwise
challenge the consummation of the transactions contemplated by this
Agreement, or to obtain substantial damages with respect thereto,
except as disclosed in this Agreement.
5.03 OTHER CLOSING DOCUMENTS
Purchaser shall have delivered to the Selling Corporation at or prior
to the Closing such other documents (including certificates of the chief
executive officer of Purchaser) as the Selling Corporation or Founding
Shareholder may reasonably request in order to enable the Selling Corporation or
Founding Shareholder to determine whether the conditions to their obligations
under this Agreement have been met and otherwise to carry out the provisions of
this Agreement.
5.04 REVIEW OF PROCEEDINGS
All actions, proceedings, instruments, and documents required to carry
out this Agreement or incidental thereto and all other related legal matters
shall be subject to the reasonable approval of counsel to the Selling
Corporation and Founding Shareholder, and Purchaser shall have furnished such
counsel such documents as such counsel may have reasonably requested for the
purpose of enabling them to pass upon such matters.
The references in this Section 5.04 to this Agreement include any other
document executed by Selling Corporation, or Founding Shareholder relating
hereto or delivered to Global Path or the Purchaser in connection with the
transactions contemplated hereby.
5.05 LEGAL ACTION
There shall not have been instituted or threatened any legal proceeding
relating to, or seeking to prohibit or otherwise challenge the consummation of,
the transactions contemplated by this Agreement, or to obtain substantial
damages with respect thereto.
The references in this Section 5.05 to this Agreement include any other
document executed by Selling Corporation, or Founding Shareholder relating
hereto or delivered to Global Path or the Purchaser in connection with the
transactions contemplated hereby.
5.06 XXXX-XXXXX-XXXXXX WAITING PERIOD
All applicable waiting periods in respect of the transactions
contemplated by this Agreement under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976 shall have expired at or prior to the Closing.
5.07 OTHER AGREEMENTS
Any and all agreements to be signed after this Agreement is executed
but before the Closing shall have been duly authorized, executed, and delivered
by the parties thereto at or prior to the Closing, shall be in full force, valid
and binding upon the parties thereto, and enforceable by them in accordance with
their terms at the Closing, and no party thereto at any time from the execution
thereof until immediately after the Closing shall have been in violation of or
in default in complying with any material provision thereof.
5.08 INITIAL FUNDING OF SWISS MEDICA
By the Closing Date, Global Path shall have raised new financing of at
least two hundred and fifty thousand United States dollars ($250,000.00), the
proceeds of which shall be used to fund initial operations with respect to the
Purchased Assets.
5.09 COMPOSITION AND COMPENSATION OF BOARD OF DIRECTORS
On the Closing Date the Founding Shareholder shall be appointed to the
Board of Directors of Global Path and, no later than such date, compensation for
the Board members, including the Founding Shareholder, shall have been
determined.
5.10 NON-COMPETITION AGREEMENTS
Selling Corporation and certain individuals itemized in Section 4.27 of
this Agreement shall have executed the non-competition agreements referred to in
that Section, except that the execution of such non-competition agreements shall
not be a condition to the obligations of Selling Corporation and Founding
Shareholder under this Agreement if Purchaser, in its sole discretion, elects to
waive the execution of such non-competition agreements.
VI. COVENANTS AND AGREEMENTS OF SELLING CORPORATION AND FOUNDING SHAREHOLDER
Selling Corporation and Founding Shareholder covenant and agree as
follows:
6.01 ACCESS
Selling Corporation will afford, and Founding Shareholder will cause
Selling Corporation to afford, the officers, employees, counsel, agents,
accountants, and other representatives of the Purchaser and its lenders,
investors, and prospective lenders and investors free and full access to the
plants, properties, books, and records of Selling Corporation, will permit them
to make extracts from and copies of such books and records, and will from time
to time furnish the Purchaser with such additional financial and operating data
and other information as to the financial condition, results of operations,
business, properties, assets, liabilities, or future prospects of Selling
Corporation as the Purchaser from time to time may request.
6.02 CONDUCT OF BUSINESS
Selling Corporation will, and Founding Shareholder will cause Selling
Corporation, to conduct their affairs so that at the Closing no representation
or warranty of Selling Corporation or Founding Shareholder will be inaccurate,
no covenant or agreement of Selling Corporation or Founding Shareholder will be
breached, and no condition in this Agreement will remain unfulfilled by reason
of the actions or omissions of Selling Corporation or Founding Shareholder.
Except as otherwise requested by the Purchaser in writing, until the Closing or
the earlier rightful termination of this Agreement, Selling Corporation will,
and Founding Shareholder will cause Selling Corporation, to use their best
efforts to preserve the business operations of Selling Corporation to keep
available the services of their present personnel, to preserve in full force and
effect the contracts, agreements, instruments, leases, licenses, arrangements,
and understandings of Selling Corporation, and to preserve the goodwill of their
suppliers, customers, and others having business relations with any of them.
Until the Closing or earlier rightful termination of this Agreement, Selling
Corporation will, and Founding Shareholder will cause Selling Corporation, to
conduct their business and operations in all respects only in the ordinary
course.
6.03 ADVICE OF CHANGES
Until the Closing or the earlier rightful termination of this
Agreement, Selling Corporation and Founding Shareholder will immediately advise
the Purchaser in a detailed written notice of any fact or occurrence or any
pending or threatened occurrence of which any of them obtains knowledge and
which (if existing and known at the date of the execution of this Agreement)
would have been required to be set forth or disclosed in or pursuant to this
Agreement or an Exhibit hereto, which (if existing and known at any time prior
to or at the Closing) would make the performance by any party of a covenant
contained in this Agreement impossible or make such performance materially more
difficult than in the absence of such fact or occurrence, or which (if existing
and known at the time of the Closing) would cause a condition to any party's
obligations under this Agreement not to be fully satisfied.
The references in this Section 6.03 to this Agreement include any other
document executed by Selling Corporation, or Founding Shareholder relating
hereto or delivered to Global Path or the Purchaser in connection with the
transactions contemplated hereby.
6.04 [RESERVED]
6.05 PUBLIC STATEMENTS
Before Selling Corporation or Founding Shareholder shall release any
information concerning this Agreement or the transactions contemplated by this
Agreement which is intended for or may result in public dissemination thereof,
they shall cooperate with the Purchaser, shall furnish drafts of all documents
or proposed oral statements to the Purchaser for comments, and shall not release
any such information without the written consent of the Purchaser. Nothing
contained herein shall prevent Selling Corporation or Founding Shareholder from
furnishing any information to any governmental authority if required to do so by
law.
The references in this Section 6.05 to this Agreement include any other
document executed by Selling Corporation, or Founding Shareholder relating
hereto or delivered to Global Path or the Purchaser in connection with the
transactions contemplated hereby.
6.06 OTHER PROPOSALS
Until the Closing or earlier rightful termination of this Agreement,
Selling Corporation and Founding Shareholder shall not, and shall neither
authorize nor permit any employee, counsel, agent, investment banker,
accountant, or other representative of any of them, directly or indirectly, to:
(a) initiate contact with any person or entity in an effort to solicit any
Purchase Proposal (as such term is defined in this Section 6.06); (b) cooperate
with, or furnish or cause to be furnished any non-public information concerning
the business, properties, or assets of Selling Corporation to, any person or
entity in connection with any Purchase Proposal; (c) negotiate with any person
or entity with respect to any Purchase Proposal; or (d) enter into any agreement
or understanding with the intent to effect a Purchase Proposal. Selling
Corporation and Founding Shareholder will immediately give written notice to the
Purchaser of the details of any Purchase Proposal of which any of them becomes
aware, As used in this Section 6.06, "Purchase Proposal" shall mean any
proposal, other than as contemplated by this Agreement, (e) for a merger,
consolidation, reorganization, or other business combination involving Selling
Corporation, for the acquisition of any interest in the equity of Selling
Corporation, for the acquisition of the right to cast any votes on any matter
with respect to Selling Corporation, or for the acquisition of a substantial
portion of any of their respective assets other than in the ordinary course of
their respective businesses or (f) the effect of which may be to prohibit,
restrict, or delay the consummation of any of the transactions contemplated by
this Agreement or impair the contemplated benefits to the Purchaser of the
transactions contemplated by this Agreement.
The references in this Section 6.06 to this Agreement include any other
document executed by Selling Corporation, or Founding Shareholder relating
hereto or delivered to Global Path or the Purchaser in connection with the
transactions contemplated hereby.
6.07 BULK SALES
If any person shall assert a claim arising out of the waiver by
Purchaser of any applicable bulk sales law, Selling Corporation, and Founding
Shareholder will indemnify and hold harmless Purchaser, the officers, directors
and stockholders of Purchaser, and their respective, affiliates, directors,
officers, agents, employees and controlling persons (within the meaning of
Section 15 of the Securities Act of 1933 or Section 20(1) of the Securities
Exchange Act of 1934 (collectively, "Indemnitees" and individually "Indemnitee")
against and in respect of any and all claims, suits, actions, proceedings
(formal or informal), investigations, judgments, deficiencies, damages,
settlements, liabilities, and legal and other expenses (including legal fees and
expenses of attorneys chosen by any Indemnitee) as and when incurred arising out
of or based upon such claim by such person, and Selling Corporation, and
Founding Shareholder shall at their sole expense defend any and all suits,
actions, proceedings (formal or informal), or investigations involving such
claim that may at any time be brought against any Indemnitee and satisfy
promptly any settlement or judgment arising therefrom; but if Selling
Corporation, and Founding Shareholder fail to defend such suit, action,
proceeding, or investigation in a timely manner, the Purchaser or any Indemnitee
made a defendant therein or a party thereto shall have the right to defend and
settle the same and pay any judgment or settlement pertaining thereto as it or
he may reasonably deem appropriate at the cost and expense of Selling
Corporation, and Founding Shareholder.
6.08 CONSENTS WITHOUT ANY CONDITION
Selling Corporation and Founding Shareholder shall not make any
agreement or understanding not approved in writing by the Purchaser as a
condition for obtaining any consent, authorization, approval, order, license,
certificate, or permit required for the consummation of the transactions
contemplated by this Agreement, whether pursuant to Section 4.08, 4.09, 4.10,
4.11, or 4.14, or otherwise.
The references in this Section 6.08 to this Agreement include any other
document executed by Selling Corporation, or Founding Shareholder relating
hereto or delivered to Global Path or the Purchaser in connection with the
transactions contemplated hereby.
6.09 RELEASE BY FOUNDING SHAREHOLDER
If the Closing takes place, effective immediately after the Closing,
Founding Shareholder fully and unconditionally release and discharge all claims
and causes of action which they or their respective heirs, personal
representatives, in the case of Founding Shareholder, or successors or assigns,
in the case of ever had, now have, or hereafter may have against the properties
and assets acquired by Purchaser from Selling Corporation.
6.10 NON-COMPETITION
If the Closing takes place, Selling Corporation, and the Founding
Shareholder agree, in consideration of the obligations of the Purchaser
hereunder:
(a) For a period of three (3) years after the date of the
Closing, they will not compete with or be engaged in the same business
as, or Participate In (as hereinafter defined in this Section 6.10) any
other business or organization which at any time during the three-year
period after the date of the Closing competes with or is engaged in a
business involving products similar to, or serving a similar function
as, the assets acquired under this Agreement;
(b) They will not directly or indirectly reveal the name of,
solicit or interfere with, or endeavor to entice away from that entity
which operates the assets acquired under this Agreement, any of its
suppliers, customers, or employees; and
(c) They will not directly or indirectly employ in North
America, any person who, at any time up to the date of the Closing, was
an employee of Selling Corporation, or the Purchaser within a period of
three years after such person leaves the employ of such corporation.
As used in this Section 6.10, "Participate In" shall mean "directly or
indirectly, for its or his own benefit or for, with, or through any other person
or entity, own, manage, operate, control, loan money to, or participate in the
ownership, management, operation, or control of, or be connected as a director,
officer, employee, partner, consultant, agent, independent contractor, or
otherwise with, or acquiesce in the use of its or his name in."
Selling Corporation and Founding Shareholder agree that the provisions
of this Section 6.10 are necessary and reasonable to protect that entity which
operates the business acquired under this Agreement and the Purchaser in the
conduct of their businesses. If any restriction contained in this Section 6.10
shall be deemed to be invalid, illegal, or unenforceable by reason of the
extent, duration, or geographical scope thereof, or otherwise, then the court
making such determination shall have the right to reduce such extent, duration,
geographical scope, or other provisions hereof, and in its reduced form such
restriction shall then be enforceable in the manner contemplated hereby.
6.11 [Reserved]
6.12 FILE TAX RETURN
If the Closing takes place, Selling Corporation agrees to file, within
the time allowed by law, all federal, state, local, and foreign tax returns with
the appropriate jurisdictions, for the period August 1, 2002 through the date of
the Closing, to include therein all information required to be contained therein
relating to Selling Corporation for such period, and to pay all taxes, interest,
and penalties with respect to Selling Corporation for such period in a manner
consistent with the allocation of the consideration paid by Purchaser made
pursuant to Section 3.01(c).
6.13 VOTING BY FOUNDING SHAREHOLDER
The Founding Shareholder agrees that until the Closing or earlier
rightful termination of this Agreement, he will vote all his respective
interests in Selling Corporation which he is entitled to vote (whether on his
own behalf or on behalf of any other shareholders who have authorized him to
vote on their behalf) against:
(a) Any merger, consolidation, reorganization, or other
business combination involving Selling Corporation;
(b) Any sale of assets of Selling Corporation, except as
contemplated by this Agreement or in the ordinary course of business;
(c) Any issuance of any Common Stock of Selling Corporation,
any option, warrant, or other right calling for the issuance of any
such interest, or any security convertible into or exchangeable for any
such interest;
(d) Any authorization of any other class of Common Stock of
Selling Corporation;
(e) The amendment of the certificate of incorporation (or
other organizational document) of Selling Corporation; or
(f) Any proposition the effect of which may be to inhibit,
restrict, or delay the consummation of any of the transactions
contemplated by this Agreement or impair the contemplated benefits to
the Purchaser of the transactions contemplated by this Agreement.
The references in this Section 6.13 to this Agreement include any other
document executed by Selling Corporation, or relating hereto or delivered to
Global Path or the Purchaser in connection with the transactions contemplated
hereby.
VII. COVENANTS AND AGREEMENTS OF PURCHASER
The Purchaser covenants and agrees as follows:
7.01 CONFIDENTIALITY
Purchaser shall insure that all confidential information which
Purchaser, any of its respective officers, directors, employees, counsel,
agents, investment bankers, or accountants may now possess or may hereafter
create or obtain relating to the financial condition, results of operations,
business, properties, assets, liabilities, or future prospects of Selling
Corporation, any affiliate of any of them, or any customer or supplier of any of
them or any such affiliate shall not be published, disclosed, or made accessible
by any of them to any other person or entity at any time or used by any of them
except pending the Closing in the business and for the benefit of Selling
Corporation, in each case without the prior written consent of the Selling
Corporation and Founding Shareholder; provided, however, that the restrictions
of this sentence shall not apply (a) after this Agreement is rightfully
terminated, but only to the extent such confidential information relates to the
financial condition, results of operations, business, properties, assets,
liabilities, or future prospects of Selling Corporation, of any affiliate of any
of them, or (insofar as such confidential information was obtained directly by
Selling Corporation, or any such affiliate from any customer or supplier of any
of them) of any such customer or supplier, (b) as may otherwise be required by
law, (c) as may be necessary or appropriate in connection with the enforcement
of this Agreement, (d) to disclosure by or on behalf of the Purchaser to
existing lenders or to others whose consent may be required or desirable in
connection with obtaining the financing or consents which are required or
desirable to consummate the transactions contemplated by this Agreement, or (e)
to the extent such information shall have otherwise become publicly available.
Selling Corporation and Founding Shareholder shall, and shall cause all other
such persons and entities to, deliver to the Purchaser all tangible evidence of
such confidential information to which the restrictions of the foregoing
sentence apply at the Closing or the earlier rightful termination of this
Agreement.
7.02 BULK SALES
The Purchaser hereby waives compliance by Selling Corporation with the
provisions of any applicable bulk sales laws.
7.03 RIGHT OF FIRST REFUSAL
The Purchaser and Global Path hereby agree that, in the event Purchaser
sells all its title and interest in any or all of the Purchased Assets any time
within the next three years, Selling Corporation shall have a right of first
refusal with respect to such sale, such right to be exercised as follows.
Purchaser shall give notice to Selling Corporation of the proposed sale and its
terms, after receipt of which Selling Corporation shall have ten days to
exercise its right of first refusal by entering into, and submitting payment
with respect to, an agreement no less favourable to Purchaser than that of the
proposed sale. If Selling Corporation does not respond within ten days, or is
unable to complete the transaction within such time frame, it shall be deemed to
have refused to purchase the asset or assets, and the proposed sale may proceed.
VIII. MISCELLANEOUS
8.01 BROKERAGE FEES
If any person shall assert a claim to a fee, commission, or other
compensation or account of alleged employment as a broker or finder, or alleged
performance of services as a broker or finder, in connection with or as a result
of any of the transactions contemplated by this Agreement, Selling Corporation
and Founding Shareholder shall (subject to the next sentence) indemnify and hold
harmless the Indemnitees against and in respect of any and all claims, suits,
actions, proceedings (formal or informal), investigations, judgments,
deficiencies, damages, settlements, liabilities, and legal and other expenses
(including legal fees and expenses of attorneys chosen by any Indemnitee) as and
when incurred arising out of or based upon such claim by such person, and
Selling Corporation and Founding Shareholder shall at their sole expense defend
any and all suits, actions, proceedings (formal or informal), or investigations
involving such claim that may at any time be brought against any Indemnitee and
satisfy promptly any settlement or judgment arising therefrom; but if Selling
Corporation and Founding Shareholder fail to defend such suit, action,
proceeding, or investigation in a timely manner, the Purchaser or any Indemnitee
made a defendant therein or a party thereto shall have the right to defend and
settle the same and pay any judgment or settlement pertaining thereto as it or
he may reasonably deem appropriate at the cost and expense of Selling
Corporation and Founding Shareholder. If, however, it is ultimately determined
in any such suit, action, or proceeding (in which the Purchaser and all
Indemnitees made a defendant therein or a party thereto were afforded the
opportunity to have their counsel participate in the defense) that the Purchaser
or any Indemnitee made a defendant therein or a party thereto was the sole
employer of such broker or finder or services were performed solely for the
Purchaser or any Indemnitee made a defendant therein or a party thereto, then
Selling Corporation and Founding Shareholder shall not be responsible under this
Section 8.01 and amounts theretofore paid by them by reason of this Section 8.01
shall be reimbursed by the Purchaser or the Indemnitee, as the case may be, who
was the sole employer.
The references in this Section 8.01 to this Agreement include any other
document executed by Selling Corporation, or Founding Shareholder relating
hereto or delivered to Global Path or the Purchaser in connection with the
transactions contemplated hereby.
8.02 FURTHER ACTIONS
At any time and from time to time, each party agrees, at its or his
expense, to take such actions and to execute and deliver such documents as may
be reasonably necessary to effectuate the purposes of this Agreement.
8.03 AVAILABILITY OF EQUITABLE REMEDIES
Since a breach of the provisions of this Agreement could not adequately
be compensated by money damages, any party shall be entitled, either before or
after the Closing, in addition to any other right or remedy available to it, to
an injunction restraining such breach or a threatened breach and to specific
performance of any such provision of this Agreement, and in either case no bond
or other security shall be required in connection therewith, and the parties
hereby consent to the issuance of such an injunction and to the ordering of
specific performance.
8.04 SURVIVAL
The covenants, agreements, representations, and warranties contained in
or made pursuant to this Agreement shall survive the Closing and any delivery of
the purchase price by the Purchaser, irrespective of any investigation made by
or on behalf of any party. The statements contained in any other document
executed by Selling Corporation, or Founding Shareholder relating hereto or
thereto or delivered to Global Path or the Purchaser in connection with the
transactions contemplated hereby or thereby, or in any statement, certificate,
or other instrument delivered by or on behalf of Selling Corporation, or
Founding Shareholder pursuant hereto or thereto or delivered to Global Path or
the Purchaser in connection with the transactions contemplated hereby or thereby
shall be deemed representations and warranties, covenants and agreements, or
conditions, as the case may be, of Selling Corporation and Founding Shareholder
hereunder for all purposes of this Agreement (including all statements,
certificates, or other instruments delivered pursuant hereto or thereto or
delivered in connection with the transactions contemplated hereby or thereby).
8.05 APPOINTMENT OF AGENT
Xxxxxx X. Xxxxxxxx will be the representative (the "Representative") of
the interests of the Founding Shareholder for all purposes of this Agreement.
Without giving notice to other Founding Shareholder, the Representative shall
have full and irrevocable authority on behalf of Founding Shareholder (a) to
deal with the other parties to this Agreement, (b) to accept and give notices
and other communications relating to this Agreement, (c) to settle any dispute
relating to the terms of this Agreement, (d) to waive any condition to the
obligations of all Founding Shareholder found in this Agreement, (e) to modify
or amend this Agreement except with respect to the purchase price to be received
by a Founding Shareholder, (f) to execute any instrument or document that the
Representative may determine is necessary or desirable in the exercise of his
authority under this Section 8.05, and (g) to act in connection with all matters
relating to this Agreement and the transactions contemplated hereby. In the
event of the refusal or inability to serve, death, incapacity, or resignation
for any reason of the Representative, Selling Corporation will select another
person to become his successor, with all the powers and irrevocable authority of
the Representative, and with full power of substitution.
8.06 MODIFICATION
This Agreement and the Exhibits hereto set forth the entire
understanding of the parties with respect to the subject matter hereof (except
as provided in Section 8.04), supersede all existing agreements among them
concerning such subject matter, and may be modified only by a written instrument
duly executed by each party (except as provided in Section 8.05).
8.07 NOTICES
Subject to Section 8.05, any notice or other communication required or
permitted to be given thereunder shall be in writing and shall be mailed by
certified mail, return receipt requested or delivered against receipt to the
party to whom it is to be given at the address of such party set forth below (or
to such other address as the party shall have furnished in writing in accordance
with the provisions of this Section 8.07) with a copy to each of the other
parties hereto. Any notice or other communication given by certified mail shall
be deemed given at the time of certification thereof, except for a notice
changing a party's address which will be deemed given at the time of receipt
thereof.
If to Purchaser or: Global Path Incorporated
Global Path 55 Bloor Street West XX Xxx 00000
Xxxxxxx, Xxxxxxx, Xxxxxx
X0X 0X0
Attn: Xxxxxx X. Xxxxxxxxx, President
If to Selling Corporation, or Founding Shareholder: General Cosmetics Corporation
Xxxxxxx, 0
00000
Xxxxxxxxx
Xxxxxxx
Attn: Xx. Xxxxxx X. Xxxxxxxx, CEO
8.08 WAIVER
Any waiver by any party of a breach of any provision of this Agreement
shall not operate as or be construed to be a waiver of any other breach of that
provision or of any breach of any other provision of this Agreement. The failure
of a party to insist upon strict adherence to any term of this Agreement on one
or more occasions will not be considered a waiver or deprive that party of the
right thereafter to insist upon strict adherence to that term or any other term
of this Agreement. Any waiver must be in writing and signed by or on behalf of
the waiving party.
8.09 JOINT AND SEVERAL OBLIGATIONS
The representations, warranties, covenants, and agreements of Selling
Corporation, and Founding Shareholder in this Agreement are joint and several.
8.10 BINDING EFFECT
The provisions of this Agreement shall be binding upon and inure to the
benefit of Selling Corporation and the Purchaser and their respective successors
and assigns and Founding Shareholder and his assigns, heirs, and personal
representatives, and shall inure to the benefit of the Indemnitees and their
respective successors, assigns, heirs, and personal representatives.
8.11 NO THIRD-PARTY BENEFICIARIES
This Agreement does not create, and shall not be construed as creating,
any rights enforceable by any person not a party to this Agreement (except as
provided in Section 8.10).
8.12 SEPARABILITY
If any provision of this Agreement is invalid, illegal, or
unenforceable, the balance of this Agreement shall remain in effect, and if any
provision is inapplicable to any person or circumstance, it shall nevertheless
remain applicable to all other persons and circumstances.
8.13 HEADINGS
The headings in this Agreement are solely for convenience of reference
and shall be given no effect in the construction or interpretation of this
Agreement.
8.14 COUNTERPARTS; GOVERNING LAW
This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. A facsimile signature by
any party on a counterpart of this Agreement shall be binding and effective for
all purposes. Such party shall, however, subsequently deliver to the other party
an original executed copy of this Power of Agreement may be executed by
facsimile transmission, and in counterparts, each of which will be deemed an
original. It shall be governed by and construed in accordance with the laws of
New York, without giving effect to conflict of laws.
IN WITNESS WHEREOF, the parties have duly executed this Agreement
(version 8, last modified at approximately 2.00PM EST, March 31, 2003) as of the
date first written above.
GLOBAL PATH INCORPORATED
By:
--------------------------------
Xxxxxx X. Xxxxxxxxx, President & CEO
SWISS MEDICA, INC.
By: __________________________________
Xxxxx Xxxxxxx, CEO
GENERAL COSMETICS CORPORATION
By: ___________________________________
Xxxxxx X. Xxxxxxxx, Chief Executive Officer
By: ___________________________________
X. Xxxxxx, Director
By: ___________________________________
X. Xxxxxx, Director
FOUNDING SHAREHOLDER
------------------------------------
Xxxxxx X. Xxxxxxxx
LIST OF EXHIBITS
EXHIBIT EXHIBIT DESCRIPTION PURSUANT
DESIGNATION TO SECTION
A Information about Selling Corporation 1.01
B Assets to be purchased Preamble
C List of Intangibles owned and licensed 1.09
D List of contracts and other instruments 1.07
E Form of Officer's certificate of General
Cosmetics concerning accuracy 4.01
F Form of Founding Shareholder' certificate concerning accuracy 4.01
G Form of Release 4.26
H Form of Agreement Not To Compete 4.27
I Form of Confidentiality Agreement 4.28
J Litigation and other claims not affecting the Purchased Assets 1.05
K Prospective claims possibly affecting the Purchased Assets 1.05
Exhibit A - Page 1
EXHIBIT A
INFORMATION
ABOUT SELLING CORPORATION
PURSUANT TO SECTIONS 1.01 AND 1.02
Selling Corporation is organized under the laws of Delaware, is not
qualified to do business in any foreign jurisdiction, its principal business is
the development of nutriceutical and other patented dietary supplements.
Selling Corporation has no subsidiaries, and Founding Shareholder owns
__20___% of all classes of the issued and outstanding capital stock of Selling
Corporation.
Exhibit B - Page 3
EXHIBIT B
------------------------ --------------------------------- ----------------------- --------------------------
DESCRIPTION PATENT INFORMATION ASSIGNED VALUE AND HEADING
PURCHASE PRICE
------------------------ --------------------------------- ----------------------- --------------------------
O24 Sport A pain relief composition and a Patent No: 1,000,000 Shares
method of relieving pain in a 6,444,238 B1 Issued Global Path Common
human body. The method also September 3, 2003
includes topically applying the in United States of
pain relief composition to the America
human body proximate to where a
person is experiencing discomfort
------------------------ --------------------------------- ----------------------- --------------------------
Arthritis Formula A pain relief composition and a Patent No: 6,444,238 700,000 Shares
method of relieving pain in a B1 Issued September 3, Global Path
human body. The method also 2003 in United States Common
includes topically applying the of America
pain relief composition to the
human body proximate to where a
person is experiencing
discomfort. Such formula has
been specifically adjusted for
Arthritic pain relief.
------------------------ --------------------------------- ----------------------- --------------------------
Menstrual Cramp A pain relief composition and a Patent No: 6,444,238 300,000 Shares
method of relieving pain in a B1 Issued September Global Path
human body. The method also 3, 2003 in United Common
includes topically applying the States of America
pain relief composition to the
human body proximate to where a
person is experiencing
discomfort. Such formula has
been specifically adjusted for
menstrual pain relief.
------------------------ --------------------------------- ----------------------- --------------------------
Herpes B A pain relief composition and a Patent No: 6,444,238 300,000 Shares
method of relieving pain in a B1 Issued September 3, Global Path
human body. The method also 2003 in United States Common
includes topically applying the of America
pain relief composition to the
human body proximate to where a
person is experiencing
discomfort. Such formula has
been specifically adjusted for
Herpes pain relief, reduction and
healing.
------------------------ --------------------------------- ----------------------- --------------------------
Urinary Tract Infection A pain relief composition and a Patent No: 6,444,238 300,000 Shares
method of relieving pain in a B1 Issued September 3, Global Path
human body. The method also 2003 in United States Common
includes topically applying the of America
pain relief composition to the
human body proximate to where a
person is experiencing
discomfort. Such formula has
been specifically adjusted for
Urinary Tract pain relief,
reduction in infection and
healing.
------------------------ --------------------------------- ----------------------- --------------------------
Throat & Mouth A pain relief composition and a Patent No: 6,444,238 300,000 Shares
Treatment method of relieving pain in a B1 Issued September 3, Global Path
human body. The method also 2003 in United States Common
includes topically applying the of America
pain relief composition to the
human body proximate to where a
person is experiencing
discomfort. Such formula has
been specifically adjusted for
Throat and Mouth pain relief,
reduction and healing.
------------------------ --------------------------------- ----------------------- --------------------------
Nasal & Sinus A pain relief composition and a Patent No: 6,444,238 300,000 Shares
Congestion method of relieving pain in a B1 Issued September 3, Global Path
human body. The method also 2003 in United States Common
includes topically applying the of America
pain relief composition to the
human body proximate to where a
person is experiencing
discomfort. Such formula has
been specifically adjusted for
Nasal and Sinus pain relief,
reduction and healing.
------------------------ --------------------------------- ----------------------- --------------------------
Hemorrhoid Relief A pain relief composition and a Patent No: 6,444,238 200,000 Shares
method of relieving pain in a B1 Issued September 3, Global Path
human body. The method also 2003 in United States Common
includes topically applying the of America
pain relief composition to the
human body proximate to where a
person is experiencing
discomfort. Such formula has
been specifically adjusted for
Hemorrhoid pain relief, reduction
and healing.
------------------------ --------------------------------- ----------------------- --------------------------
General Pain Relief A pain relief composition and a Patent No: 6,444,238 355,000 Shares
method of relieving pain in a B1 Issued September 3, Global Path
human body. The method also 2003 in United States Common
includes topically applying the of America
pain relief composition to the
human body proximate to where a
person is experiencing
discomfort. Such formula has
been specifically adjusted for
general pain relief, reduction
and healing.
------------------------ --------------------------------- ----------------------- --------------------------
10,000 product units Consisting of an equal portion 200,000 Shares
and samples of Acute Zone, Extended Zone Global Path
and Total Body. Fully Common
packaged, labeled and ready for
delivery to customers. Product
must be FOB Toronto. Prior to
payment.
------------------------ --------------------------------- ----------------------- --------------------------
Product Brochures Any and all product collateral, 100,000
Shares brochures, sales tools and Global Path marketing
tools in electronic Common form and printed stock.
------------------------ --------------------------------- ----------------------- --------------------------
All Royalty and All Royalty agreements must be 50,000 Shares
licensing agreements. extinguished to Global Path Global Path
Satisfaction and no product Common
obligations will survive.
------------------------ --------------------------------- ----------------------- --------------------------
Prior Art All principals such as Ben 10,000 Shares
Koykuk and Xxxxxxx Xxxxx must Global Path
assign all product prior art Common
rights to Global Path. GCC
must provide total
indemnification from any former
employee, consultant or
principal from the use of any
prior art.
------------------------ --------------------------------- ----------------------- --------------------------
Copy rights All principals such as Ben 10,000 Shares
Koykuk and Xxxxxxx Xxxxx must Global Path
assign all product prior art Common
rights to Global Path. GCC
must provide total
indemnification.
------------------------ --------------------------------- ----------------------- --------------------------
Case Studies At least Two Significant Case 200,000 Shares
Studies of institutional use Global Path
must be documented and supplied Common
in the local language plus
English to the satisfaction of
Global Path, including the
testimonial of a major hospital
and an arthritis society.
------------------------ --------------------------------- ----------------------- --------------------------
Testimonials At least ten bonafide, credible 500,000 Shares
and authenticated testimonials Global Path
must be fully documented, signed Common
off, delivered in the local
language plus English and
approved by Global Path.
------------------------ --------------------------------- ----------------------- --------------------------
Detailed Individual Total customer listing must 200,000 Shares
and retail, wholesale include, name, address, phone Global Path
customer Data Base numbers, fax numbers, email and Common
product ordered to the
satisfaction of Global Path.
------------------------ --------------------------------- ----------------------- --------------------------
Trade Marks All Trade Marks must be 300,000 Shares
assigned to Global Path to the Global Path
satisfaction of Global Path. Common
------------------------ --------------------------------- ----------------------- --------------------------
Digital Collateral & All electronic materials 200,000 Shares
Web presence including web site, URL's and Global Path
all associated links relating Common
to each product must be
assigned and delivered to
Global Path.
------------------------ --------------------------------- ----------------------- --------------------------
Packaging, mixing and All plant and operations in Texas 300,000 Shares
bottling equipment. USA Global Path
Common
------------------------ --------------------------------- ----------------------- --------------------------
Non Compete agreements GCC, its subsidiaries and 750,000 Shares
with General Cosmetics principal management must agree Global Path
Inc. to a 3 year non-compete with Common
any of the product categories
stipulated.
------------------------ --------------------------------- ----------------------- --------------------------
Computer software 25,000 Shares
related to the Global Path
fulfillment of product Common
sales
------------------------ --------------------------------- ----------------------- --------------------------
All approvals, letters, 125,000 Shares
licenses, contracts or Global Path
other items in any way Common
related to the
successful marketing and
sale of products based
on the above assets.
------------------------ --------------------------------- ----------------------- --------------------------
Office equipment, 25,000 Shares
including filing Global Path
cabinets Common
------------------------ --------------------------------- ----------------------- --------------------------
Exhibit C - Page 1
EXHIBIT C
LIST OF INTANGIBLES OWNED AND LICENSED
PURSUANT TO SECTION 1.09
Exhibit D - Page 2
EXHIBIT D
LIST OF CONTRACTS, AGREEMENTS,
AND INSTRUMENTS AND
ARRANGEMENTS
PURSUANT TO SECTION 1.07
Where no such instrument exists, Selling Corporation and Founding
Shareholder have inserted the word "none."
(a) Specimen copies of price lists, standard terms of sale,
forms on which quotations for products or services are made, and
product or service warranties. Attached.
(b) Franchise agreements. None.
(c) Sale or purchase agreements for a term in excess of one
year which have an aggregate sale or purchase price in excess of
$10,000. None.
(d) Agreements for the acquisition of businesses and joint
venture agreements. None.
(e) Dealership agreements, distributorship agreements,
fiduciary agreements, sales agency agreements, agreements with finders
and brokers, and other agency agreements. Attached (including without
limitation current distributorship agreement for Brazil, expired
distributorship agreement for Germany, and draft (but unsigned)
distributorship agreement for Scandanavia) .
(f) Any agreement for the processing or finishing of goods.
Attached.
(h) Bank credit, factoring, and loan agreements, indentures,
promissory notes, and other evidences of indebtedness (excluding
invoices and like evidences of regular trade indebtedness), and letters
of credit; and all consents or waivers relating to any of the
foregoing. Attached are the loan agreements referenced in Exhibits J
and K.
(i) Liens, mortgages, security interests, pledges, charges,
and other encumbrances; and all documents purporting to create any of
the foregoing. Attached are all documents relating to the Fleet Bank
security interest referenced in Exhibit K.
(j) Insurance policies (including all under which Selling
Corporation, or corporation is a beneficiary). None.
(k) Consent decrees, judgments, orders, settlement agreements,
or agreements relating to competitive activities which require or
prohibit any future action by Selling Corporation, or Founding
Shareholder or to which the business, properties, or assets of Selling
Corporation, or Founding Shareholder are or may be subject. None.
(l) Contracts, agreements, arrangements, or understandings
with Founding Shareholder, any director, officer, or employee of
Selling Corporation (except for employment agreements listed in (d)
above and employment and compensation arrangements referred to in
Exhibit E, in each case where the fact of the directorship,
officership, employment, relation, affiliation, or interest is
described in (d) above or in Exhibit E, as the case may be), any
relative or affiliate of Founding Shareholder or of any such director,
officer, or employee, or any other corporation or enterprise in which
Founding Shareholder, any such director, officer, or employee, or any
such relative or affiliate then had or now has any equity or voting or
other interest, specifying in each case the nature of the directorship,
officership, employment, relation, affiliation, or interest, as the
case may be, of the party to the contract, agreement, arrangement, or
understanding. None.
(m) Rights of way. None.
(n) Government approvals, contracts, permits, restrictions,
letters or franchises relating to the Purchased Assets, including
without limitation any FDA approval. Attached.
(o) Powers of attorney and letters of authorization. None.
(p) Bank accounts, escrows, and safe deposit boxes, and
persons authorized to draw thereon or having access thereto. Attached.
(q) Deeds. None.
(r) Consents necessary for the execution, delivery, or
performance of this Agreement by Selling Corporation, or Founding
Shareholder. Consent of Fleet Bank, pursuant to the loan agreement and
related documents referenced in Exhibit K.
(s) Guarantees or undertakings. None.
(t) Each form of employee invention and patent assignment, and
security agreements with employees or with other companies with respect
to proprietary information. None.
(u) Defense contracts. None.
(v) Any management, advisory, consulting, advertising,
construction, warehousing, engineering, designing, styling, major
utility, or other agreement not listed above or described in Exhibit B,
C, or E which involves the payment of in excess of $5,000 prior to the
date it can be terminated without penalty or premium by Selling
Corporation. None.
(w) Contracts, agreements, and instruments not listed above or
described in Exhibit B, C, or E which are of material importance in the
conduct of the business of Selling Corporation as presently conducted
or as it contemplates conducting. None.
(x) Reports or memoranda relating to broad aspects of the
financial condition, results of operations, business, properties,
assets, liabilities, or future prospects of Selling Corporation made
within the last five years. None.
(y) Reports, opinions, or appraisals of any property or asset
of Selling Corporation made in the last ten years. None.
The following is a list of arrangements and understandings (a) for the
importation or exportation of goods by, or supply of goods to, by, or through
Selling Corporation, for the distribution of goods to, by, or through Selling
Corporation, or for Selling Corporation to act as an agent for another party or
(b) relating to financial matters, regardless in each case of whether or not
such arrangements or understandings are in contractual or written form:
None.
Exhibit E - Page 1
EXHIBIT E
FORM OF OFFICER'S CERTIFICATE OF GENERAL
COSMETICS CORPORATION CONCERNING ACCURACY
PURSUANT TO SECTION 4.01
THE UNDERSIGNED HEREBY CERTIFIES, individually and on behalf of General
Cosmetics Corporation, a Delaware corporation ("Selling Corporation") pursuant
to Section 4.01 of an agreement (the "Agreement"), dated March ____, 2003 among
Global Path Incorporated, a Delaware corporation, Swiss Medica Inc.
("Purchaser"), the Founding Shareholder ("Founding Shareholder") of Selling
Corporation, and Selling Corporation, that I am the duly elected and qualified
president of the Selling Corporation, and that all representations and
warranties of Selling Corporation and or Founding Shareholder contained in the
Agreement were accurate when made and, in addition, are accurate as of the
Closing (as defined in the Agreement) as though such representations and
warranties were made as of the Closing in exactly the same language by Selling
Corporation and or Founding Shareholder and regardless of knowledge or lack
thereof on the part of Selling Corporation and or Founding Shareholder or
changes beyond their or his control, and as of the Closing Selling Corporation,
and Founding Shareholder have performed and complied with all covenants and
agreements and satisfied all conditions required to be performed and complied
with by any of them at or before such time by the Agreement.
IN WITNESS WHEREOF, I have hereunto set my hand, and the seal of
Selling Corporation and this ___ day of April, 2003
-----------------------------------
Exhibit F - Page 1
EXHIBIT F
FORM OF FOUNDING SHAREHOLDER' CERTIFICATE CONCERNING ACCURACY
PURSUANT TO SECTION 4.01
THE UNDERSIGNED HEREBY CERTIFIES, pursuant to Section 4.01 of an
agreement (the "Agreement") dated March _____, 2003 among Global Path
Incorporated, a Delaware corporation, Swiss Medica Inc. ("Purchaser"), a
Delaware corporation, the Founding Shareholder ("Founding Shareholder") of
General Cosmetics Corporation, a Delaware corporation ("Selling Corporation"),
and Selling Corporation, that the undersigned are the owners of ______% of all
classes of the capital stock of the Selling Corporation and that all
representations and warranties of Selling Corporation or Founding Shareholder
contained in the Agreement were accurate when made and, in addition, are
accurate as of the Closing (as defined in the Agreement) as though such
representations and warranties were made as of the Closing in exactly the same
language by Selling Corporation or Founding Shareholder and regardless of
knowledge or lack thereof on the part of Selling Corporation or Founding
Shareholder or changes beyond their control, and as of the Closing Selling
Corporation and Founding Shareholder have performed and complied with all
covenants and agreements and satisfied all conditions required to be performed
and complied with by any of them at or before such time by the Agreement.
IN WITNESS WHEREOF, we have hereunto set our hands this ___ day of
April, 2003.
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EXHIBIT G
FORM OF RELEASE
PURSUANT TO SECTION 4.26
The undersigned fully and unconditionally releases and discharges all
claims and causes of action which he or his heirs, personal representatives or
assigns ever had, now have, or hereafter may have against the properties and
assets acquired by Global Path Incorporated, a Delaware corporation ("Global
Path") and Swiss Medica Inc., a Delaware corporation ("Purchaser"), from General
Cosmetics Corporation, a Delaware corporation ("Selling Corporation") (as
defined in an agreement (the "Agreement"), dated March ______, 2003 among Global
Path, Purchaser, the Founding Shareholder of Selling Corporation ("Founding
Shareholder"), and Selling Corporation, and, when acting as such, their
respective officers, directors, controlling persons (if any), employees,
counsel, agents, and Founding Shareholder, in each case past, present, or as
they may exist at any time after this date, except claims and causes of action
arising out of or relating to the Agreement and the other representations and
warranties of Selling Corporation, or Founding Shareholder (as defined in the
Agreement) and except, as to Selling Corporation, Founding Shareholder shall not
release or discharge any of his rights insofar as such rights derive solely from
being a holder of a Common Stock of Selling Corporation other than the right to
xxx or to share in or benefit from any recovery or other advantage flowing from
any litigation, arbitration, claim, governmental or other proceeding (formal or
informal), or investigation.
Name:
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Title:
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EXHIBIT H
FORM OF AGREEMENT NOT TO COMPETE
PURSUANT TO SECTION 4.27 AND 6.10
To induce Global Path Incorporated, a Delaware corporation ("Global
Path"), and Swiss Medica Inc., a Delaware corporation ("Purchaser"), to
consummate the transactions contemplated by an agreement (the "Agreement") dated
March _____, 2003, among Global Path, Purchaser, General Cosmetics Corporation,
a Delaware corporation ("Selling Corporation"), and the Founding Shareholder of
Selling Corporation, the undersigned agrees:
(a) For a period of three years after the date of the Closing
(as defined in the Agreement), he will not compete with or be engaged
in the same business as, or Participate In (as hereinafter defined) any
other business or organization which at any time during the three-year
period after the date of the Closing competes with or is engaged in a
business competing with the Purchased Assets (as defined in the
Agreement, including such descriptions as appear in connection with all
relevant patents), including without limitation any business involved
in the production or sale of products for human pain relief or
essential oils for humans;
(b) He will not directly or indirectly reveal the name of,
solicit or interfere with, or endeavor to entice away from that entity
which operates the assets acquired under the Agreement, any of its
suppliers, customers, or employees; and
(c) He will not directly or indirectly employ in North
America, any person who, at any time up to the date of the Closing, was
an employee of Selling Corporation, or the Purchaser, within a period
of three years after such person leaves the employ of such corporation.
As used in this Agreement, "Participate In" shall mean "directly or
indirectly, for his own benefit or for, with, or through any other person or
entity, own, manage, operate, control, loan money to, or participate in the
ownership, management, operation, or control of, or be connected as a director,
officer, employee, partner, consultant, agent, independent contractor, or
otherwise with, or acquiesce in the use of his name in." Since a breach of the
provisions of this Agreement could not adequately be compensated by money
damages, the Purchaser shall be entitled, in addition to any other right and
remedy available to it, to an injunction restraining such breach or a threatened
breach, and in either case no bond or other security shall be required in
connection therewith, and the undersigned hereby consents to the issuance of
such injunction. The undersigned agrees that the provisions of this Agreement
are necessary and reasonable to protect that entity which operates the business
acquired under the Agreement and the Purchaser in the conduct of their
businesses. If any restriction contained in this Agreement shall be deemed to be
invalid, illegal, or unenforceable by reason of the extent, duration, or
geographical scope thereof, or otherwise, then the court making such
determination shall have the right to reduce such extent, duration, geographical
scope, or other provisions hereof, and in its reduced form such restriction
shall then be enforceable in the manner contemplated hereby.
This Agreement shall terminate upon Global Path or the Purchaser filing
for bankruptcy or otherwise permanently ceasing to do business.
Dated:
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Signature:
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EXHIBIT I
FORM OF CONFIDENTIALITY AGREEMENT
PURSUANT TO SECTION 4.28
To induce Global Path Incorporated, a Delaware corporation ("Global
Path"), and Swiss Medica Inc., a Delaware corporation ("Purchaser"), to
consummate the transactions contemplated by an agreement (the "Agreement") dated
March ____, 2003, among Global Path, Purchaser, General Cosmetics Corporation, a
Delaware corporation ("Selling Corporation"), and the Founding Shareholder
("Shareholders") of Selling Corporation, the undersigned agrees that all
confidential information which I may now possess or may hereafter create or
obtain relating to the Purchased Assets (as defined in the Agreement), any
customer or supplier of the Purchased Assets, shall not be published, disclosed,
or made accessible by me to any other person or entity at any time or used by
me, in each case without the prior written consent of the Purchaser; provided,
however, that the restrictions of this sentence shall not apply
(a) After the Agreement is rightfully terminated, but only to
the extent such confidential information was obtained directly by me
from Selling Corporation;
(b) As may otherwise be required by law,
(c) As may be necessary or appropriate in connection with the
enforcement of the agreement, or
(d) To the extent such information shall have otherwise become
publicly available.
I shall, and shall cause all other persons and entities who received
confidential information from me to, deliver to the Purchaser all tangible
evidence of such confidential information to which the restrictions of the
foregoing apply at the Closing (as defined in the Agreement) or the earlier
rightful termination of the Agreement.
Dated: April ___, 2003
Name:
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EXHIBIT J
Litigation and other claims not affecting the Purchased Assets, pursuant to
Section 1.05
1. Xxxxxx Xxxx. Selling Corporation owes Xx. Xxxx US$100,000.00, such
debt secured by Selling Corporation's assets related to the Nature's
Fantasy product line. Documents attached in accordance with Exhibit D.
2. Xxxxxxx Xxxxxxx. Former Chief Financial Officer of Selling
Corporation. On February 14, 2003 Xx. Xxxxxxx filed a lawsuit against
the Founding Shareholder and Xxx Xxxxxx, claiming damages suffered in
connection with inducements allegedly offered by these individuals to
continue his employment at Selling Corporation.
3. C-Care. Bottling company and former supplier with respect to Nature's
Fantasy product line. Selling corporation owes C-Care approximately
US$75,000. Documents attached in accordance with Exhibit D.
4. Vegla. Labeling company and former supplier. Selling corporation owes
Vegla approximately US$100,000.00. Documents attached in accordance
with Exhibit D.
5. Xxxxxx Xxxxxx. Selling Corporation owes Xx. Xxxxxx US$30,000.00.
Documents attached in accordance with Exhibit D.
6. Landlord for New York City office of Selling Corporation. Landlord is
owed between US$50,000.00 and US$75,000.00.
EXHIBIT K
Prospective claims possibly affecting the Purchased Assets
1. Fleet Bank. Selling Corporation owes Fleet Bank US$100,000.00. Pursuant
to loan documents connected with such debt (attached to this Agreement in
accordance with Exhibit D), Selling Corporation granted Fleet Bank a
security interest in its assets which likely necessitate obtaining Fleet
Bank's consent to the transactions contemplated in this Agreement.