Exhibit 4.5
[ + ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
ASSET PURCHASE AGREEMENT
THIS AGREEMENT effective as of the 31 day of May, 2006, by and between HARD
TO TREAT DISEASES INC., ("HTTD") a Florida corporation (the "Seller") and CAVIT
SCIENCES, INC., a Florida corporation ("CVIT").
W I T N E S S E T H:
WHEREAS, Seller desires to sell and CVIT desires to purchase certain assets
of the Seller comprising Seller's proprietary technology regarding methods for
treating viral infections and cancer (the "Proprietary Technology").
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained in this Agreement, the parties hereunto
agree as follows:
SECTION 1. SALE AND PURCHASE OF ASSETS.
1.1 TRANSFER OF ASSETS. Upon the terms and subject to the conditions of
this Agreement, CVIT, will at the Closing (as hereinafter defined), acquire from
Seller the following assets (collectively, the "Assets") comprising the
Proprietary Technology:
(a) U.S. Provisional Patent Application No. [++++++++++], U.S. Application
No. [++++++++++] and PCT Application No. PCT/US[++++++++] for "Methods
And Compositions For Treatment Of Viral Infections" and proprietary
rights related thereto;
(b) U.S. Provisional Patent Application No. [+++++++++] for "Methods And
Compositions For Treatment Of Cancer" and proprietary rights related
thereto;
(c) all testing results and protocols, in the possession of HTTD, relating
to (a) and (b) above;
(d) all research and valuation documentation regarding comparable
proprietary technology acquired by drug companies, in the possession
of HTTD, relating to (a) and (b) above;
(e) all substances in the possession of HTTD relating to the testing
performed on behalf of HTTD relating to (a) and (b) above;
(f) all testing results, protocols and documentation relating to the
substances, described in (e) above, in the possession of HTTD;
(g) all records, correspondence and all other documents, records and
files, regardless of the form or medium in which maintained, in the
possession of HTTD, which pertain to the Assets.
1.2 EXCLUDED ASSETS. No assets will be transferred to CVIT except as
provided in Section 1.1 above.
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SECTION 2. NO ASSUMPTION OF LIABILITIES. From and after the Closing, CVIT
shall not assume nor be liable for any liabilities of Seller, whether contingent
or otherwise, and whether or not such liabilities are reflected on the books or
records of Seller on the date hereof or on the Closing Date.
SECTION 3. PURCHASE PRICE.
3.1 THE PURCHASE PRICE. The purchase price to be paid by CVIT for all of
the Assets (the "Purchase Price") will be eight million four hundred seventy
five thousand (8,475,000) restricted shares of CVIT common stock, in the form of
a stock certificate to be transferred at Closing.
3.2 ALLOCATION OF PURCHASE PRICE.. The parties have agreed to allocate the
total Purchase Price of $145,459 as the value of Proprietary Technology. The
parties agree that any tax returns or other tax information that may be filed in
the government agency shall be prepared and filed consistent with such
allocation. CVIT and Seller will upon written request to the other, provide the
requesting party with those portions of the appropriate internal revenue service
forms which may be required by the requesting party in connection with an
examination of the requesting party's tax returns.
3.3 PRORATIONS. Within thirty (30) days after the Closing, the CVIT and
Seller shall determine any final Closing prorations and any other settlements
necessary to properly compensate each party for payments made on each other's
behalf.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller makes the
representations and warranties to CVIT set forth below.
4.1 DUE INCORPORATION. Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida.
4.2 CORPORATE POWER OF SELLER. Seller has the full legal right and power
and all authority and approval required to enter into, execute and deliver this
Agreement and to perform fully its obligations hereunder.
4.3 DUE AUTHORITY. Seller has all power and authority necessary to enable
it to carry out the transactions contemplated by this Agreement. The execution
and delivery of this Agreement and the consummation of the transactions
contemplated by it have been authorized by all necessary corporate action on the
part of Seller. This Agreement is a valid and binding agreement of Seller,
enforceable against Seller in accordance with its terms. Neither the execution
and delivery of this Agreement by Seller nor the consummation of the
transactions contemplated by this Agreement will violate, result in a breach of,
or constitute a default under, any agreement or instrument to which Seller is a
party or by which Seller is bound, or any order, rule or regulation of any court
or governmental agency having jurisdiction over Seller.
4.4 NO CONSENTS. No governmental filings, authorizations, approvals or
consents are required to permit Seller to fulfill all of its obligations under
this Agreement.
4.5 NO BREACH. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby will not (i)
violate any provision of the Articles of Incorporation or By-Laws of Seller;
(ii) violate, conflict with or result in the breach of any of the terms of,
result in a material modification of, otherwise give any other contracting party
the right to terminate, or constitute (or with notice or lapse of time or both)
a default under any contract or other agreement to which Seller is a party;
(iii) violate any order, judgment, injunction, award or decree of any court,
arbitrator or governmental or regulatory body against, or binding upon Seller,
or upon the properties or business of Seller; or (iv) violate any statute, law
or regulation of any jurisdiction applicable to Seller.
4.6 COMPLIANCE WITH LAWS. Seller has complied in all material aspects with
all federal, state, county and local laws, ordinances, regulations, inspections,
orders, judgments, injunctions, awards or decrees applicable to Seller's
business.
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ACTIONS AND PROCEEDINGS. There is no outstanding order, judgment,
injunction, award or decree of any court, governmental or regulatory body or
arbitration tribunal against or involving the Seller in respect of, or in
connection with, this transaction; (ii) there is no action, suit, claim or
legal, administrative or arbitration proceeding or, to the best knowledge of
Seller after due inquiry, any investigation (whether or not the defense thereof
or liabilities in respect thereof are covered by insurance) pending or, to the
best knowledge of Seller, in respect of or in connection with this transaction.
4.7 BROKERS' FEES. Neither seller nor its affiliates have any liability or
obligation to pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement for which CVIT could
become liable or obligated.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF CVIT. CVIT represents and
warrants to Seller as follows:
5.1 DUE INCORPORATION. CVIT is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida.
5.2 CORPORATE POWER OF CVIT. CVIT has the full legal right and power and
all authority and approval required to enter into, execute and deliver this
Agreement and to perform fully its obligations hereunder.
5.3 DUE AUTHORITY. CVIT has all power and authority necessary to enable it
to carry out the transactions contemplated by this Agreement. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
by it have been authorized by all necessary corporate action on the part of
CVIT, including shareholder approval, if required. This Agreement is a valid and
binding agreement of CVIT, enforceable against CVIT in accordance with its
terms. Neither the execution and delivery of this Agreement by CVIT nor the
consummation of the transactions contemplated by this Agreement will violate,
result in a breach of, or constitute a default under, any agreement or
instrument to which CVIT is a party or by which CVIT is bound, or any order,
rule or regulation of any court or governmental agency having jurisdiction over
CVIT.
5.4 NO BREACH. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby will not (i)
violate any provision of the Articles of Incorporation or By-Laws of CVIT; (ii)
violate, conflict with or result in the breach of any of the terms of, result in
a material modification of, otherwise give any other contracting party the right
to terminate, or constitute (or with notice or lapse of time or both) a default
under any contract or other agreement to which CVIT is a party; (iii) violate
any order, judgment, injunction, award or decree of any court, arbitrator or
governmental or regulatory body against, or binding upon CVIT, or upon the
properties or business of CVIT; or (iv) violate any statute, law or regulation
of any jurisdiction applicable to CVIT.
5.5 BROKERS' FEES. Neither CVIT nor its affiliates have any liability or
obligation to pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement for which the Seller
could become liable or obligated.
SECTION 6. CLOSING ITEMS.
6.1 CVIT Deliveries. At Closing, CVIT shall deliver to Seller the following
documents:
(a) a stock certificate for eight million four hundred seventy five
thousand (8,475,000) shares of CVIT restricted common stock in the
name of HTTD.
(b) a "certified copy of a resolution of CVIT' Board of Directors
authorizing the execution and delivery of this Agreement and the
purchase of the assets; and
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(c) other purchase documents: all such documents and instruments as Seller
may reasonably request in connection with the consummation of the
transaction contemplated by this Agreement, including an Assignment
and Assumption Agreement (exhibit E) executed by both Seller and CVIT.
6.2 SELLER'S DELIVERIES. At Closing, Seller shall deliver to CVIT the
following documents:
(a) a Bill of Sale for the Assets (Exhibit A);
(b) a certified copy of a resolution of Seller's Board of Directors
authorizing the execution and delivery of this Agreement and the
purchase of the Assets; and
(c) other purchase documents: all such documents and instruments as CVIT
may reasonably request in connection with the consummation of the
transaction contemplated by this Agreement, including an Assignment
and Assumption Agreement (exhibit E) executed by both Seller and CVIT.
SECTION 7. INDEMNIFICATION.
7.1 INDEMNIFICATION BY SELLER. Seller shall indemnify, defend, and hold
CVIT and its representatives, successors, and assigns, harmless from and against
any and all damage, loss, judgments, or liability and all expenses (including
reasonable attorneys' fees) incurred by any of the above-named persons,
resulting from or in connection with:
(a) the Assets prior to the Closing Date, or
(b) any material breach by Seller or any representation or covenant made by
Seller in, or any obligation of Seller under this Agreement.
7.2 INDEMNIFICATION BY CVIT. CVIT shall indemnify, defend, and hold Seller
and its representatives, successors, and assigns, harmless from and against any
and all damage, loss, judgments, or liability and all expenses (including
reasonable attorneys' fees) incurred by any of the above-named persons,
resulting from or in connection with:
(a) any material breach by CVIT or any representation or covenant made by
CVIT in, or any obligation of CVIT under this Agreement.
SECTION 8. FURTHER ASSURANCES. The parties shall execute such documents and
other papers and take such further actions as may be reasonably required or
desirable to carry out the provisions hereof and the transactions contemplated
hereby. In addition and following the Closing, CVIT and Seller shall grant to
the other reasonable access to the books and records of the Business so as to
permit, if necessary, the filing of tax returns, audits of tax returns or other
bona fide purposes.
SECTION 9. MISCELLANEOUS.
9.1 NOTICES.Any notice of other communication required or which may be
given hereunder shall be in writing and shall be delivered personally,
telegraphed, telexed, sent by facsimile transmission or sent by certified,
registered, or express mail, postage prepaid and shall be deemed given when so
delivered personally, telegraphed, telexed or sent by facsimile transmission or
if mailed, four (4) days after the date of mailing, as follows:
If to Seller: Hard To Treat Diseases Incorporated
100 East Linton Blvd., Suite 106 B
Delray Beach, Florida 33483
Attention: Colm J. King, CEO
(561) 276-2023 FAX
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If to CVIT: Cavit Sciences, Inc.
100 East Linton Blvd., Suite 106 B
Delray Beach, Florida 33483
Attention: Colm J. King, CEO
(561) 276-2023 FAX
Any party may by notice given in accordance with this Section to the other
parties designate another address or person for receipt of notice hereunder.
9.2 ENTIRE AGREEMENT. This Agreement (including the Exhibits hereto) and
any collateral agreements executed in connection with the consummation of the
transactions contemplated herein contain the entire agreement among the parties
with respect to the subject matter hereof and related transactions, and
supersede all prior agreements, written or oral, with respect thereto.
9.3 WAIVERS AND AMENDMENTS. This Agreement may be amended, modified,
superseded, cancelled, renewed or extended, and the terms and conditions hereof
may be waived, only by a written instrument signed by the parties or, in the
case of a waiver, by the party waiving compliance.
9.4 REMEDIES NOT EXCLUSIVE. The rights and remedies herein provided are
cumulative and are not exclusive of any rights or remedies which any party may
otherwise have at law or in equity. The rights and remedies of any party based
upon, arising out of or otherwise in respect of any inaccuracy in or breach of
any representation, warranty, covenant or agreement contained in this Agreement
shall in no way be limited by the fact that the act, omission, occurrence or
other state of facts upon which the claim of any inaccuracy or breach is based
may also be the subject matter of any other representation, warranty, covenant
or agreement contained in this Agreement (or in any other agreement between the
parties) as to which there is no inaccuracy or breach.
9.5 GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of Florida applicable to agreements made
and to be performed entirely within such state and jurisdiction shall be in Palm
Beach County, Florida.
9.6 EXHIBITS: The exhibits to this Agreement are a part of this Agreement
as if set forth in full herein.
9.7 HEADINGS. The headings in this Agreement are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Agreement.
9.8 SEVERABILITY. If any term or provision of this Agreement, or the
application thereof to any person or circumstance shall, to any extent, be
determined by a court of competent jurisdiction to be invalid or unenforceable,
the remainder of this Agreement or the application of such term or provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this Agreement shall be valid and enforced to the fullest extend permitted by
law.
9.9 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed, shall constitute an original copy
hereof, but all of which together shall constitute but one and the same
document.
9.10 NO ASSIGNMENT. Other than such permitted assignment, this Agreement is
not assignable except by operation of law, without the written consent of the
non-assigning parties which consent shall not be unreasonably withheld.
9.11 FURTHER ASSURANCES. The parties shall execute such documents and other
papers and take such further actions as may be reasonably required or desirable
to carry out the provisions hereof and the transactions contemplated hereby. In
addition, and following the Closing, CVIT and Seller shall grant to the other
reasonable access to the books and records of the Business so as to permit, if
necessary, the filing of tax returns, audits of tax returns or other bona fide
purposes.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
ON BEHALF OF:
CAVIT SCIENCES, INC
By: /s/ Colm J. King By: /s/ Julio De Leon
---------------------------------- --------------------------------
Name: Colm J. King Name: Julio De Leon
Title: President and CEO Title: Director
Date: May 31, 2006 Date: May 31, 2006
By: /s/ Harvey Judkowitz
----------------------------------
Name: Harvey Judkowitz
Title: Director
Date: May 31, 2006
ON BEHALF OF:
HARD TO TREAT DISEASES, INC.
By: /s/ Colm J. King By: /s/ Harvey Judkowitz
---------------------------------- --------------------------------
Name: Colm J. King Name: Harvey Judkowitz
Title: President and CEO Title: Director
Date: May 31, 2006 Date: May 31, 2006
Cc: David E. Wise
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EXHIBIT A
BILL OF SALE
KNOW ALL MEN BY THESE PRESENTS that HARD TO TREAT DISEASES INC., a Florida
corporation ("Seller"), in consideration of that certain Asset Purchase
Agreement dated as of May 31, 2006 between CAVIT SCIENCES, INC., a Florida
corporation ("Purchaser"), and Seller (the "Purchase Agreement"), and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, has granted, conveyed, assigned, transferred and delivered to
Purchaser and by these presents does grant, convey, assign, transfer and deliver
to Purchaser, all of Seller's right, title, interest and benefit in and to the
Assets (as defined in the Purchase Agreement) free and clear of any and all
liabilities, liens, encumbrances, mortgages, security interests, pledges,
restrictions and claims of any kind or nature, contingent or otherwise, except
as expressly provided in the Purchase Agreement.
TO AND TO HOLD the same unto Purchaser, its successor and assigns forever.
AND Seller does, for itself and its successors and assigns, hereby
represents, warrants, covenants and agrees to and with Purchaser, its successors
and assigns, that it is the lawful owner of the Assets; that they are free from
any and all encumbrances, except as expressly provided in the Purchase
Agreement; that it has good and valid right to bargain, grant, transfer, convey
and deliver the same to Purchaser; and that it will warrant and defend title to
the Assets, unto Purchaser, its successors and assigns, against the lawful
claims and demands of all persons whomsoever.
Seller hereby constitutes and appoints Purchaser, its successors and
assigns, the true and lawful attorney or attorneys of Seller, with full power of
substitution, in the name of Purchaser or in the name of Seller, but by and on
behalf of and for the sole benefit of Purchaser, its successors and assigns, to
demand and receive from time to time any and all of the Assets, and from time to
time to institute and prosecute, in the name of Seller or otherwise, any and all
proceedings at law, in equity or otherwise which Purchaser or its successors
assigns may deem necessary or desirable in order to receive, collect, assert or
enforce any claim, right or title of any kind in or to the Assets hereby
transferred, assigned and conveyed to Purchaser and to defend and compromise any
and all actions, suits or proceedings in respect thereof and to do all such acts
and things and execute any instruments in relation thereto as Purchaser or its
successors or assigns shall deem advisable. Seller agrees that the foregoing
appointment made and the powers hereby granted are coupled with an interest and
shall be irrevocable by Seller or by its dissolution or in any manner or for any
reason.
Seller covenants and agrees that in the event that either (i) any of the
Assets covered in this Bill of Sale cannot be transferred or assigned by it
without the consent of or notice to a third party and in respect of which any
necessary consent or notice has not as of the date of delivery of this Bill of
Sale been given or obtained, or (ii) any such Assets are nonassignable in their
nature and will not pass by this Bill of Sale, the beneficial interest in and to
the same will in any event pass to Purchaser; and Seller covenants and agrees
(a) to hold, and hereby declare that it holds, such Assets in trust for, and for
the benefit of, Purchaser, (b) to use all reasonable means to obtain and to
secure such consent and give such notice as may be required to effect a valid
transfer or transfers of such Assets, and (c) to make or complete such transfer
or transfers as soon as reasonably possible.
Seller, for itself and its successors and assigns, further covenants and
agrees that it will at any time and from time to time, at the request of
Purchaser, its successors or assigns, do, execute and deliver, or cause to be
done, executed or delivered, all such further acts, transfers, assignments and
conveyances, for the better assuring, conveying and confirming unto Purchaser,
its successors or assigns, full right, title, interest and benefit in or to the
Assets as Purchaser, its successors or assigns shall reasonably require.
All of the terms and provisions of this Bill of Sale shall be binding upon
Seller and its successors and assigns and shall inure to the benefit of
Purchaser and its successors and assigns.
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IN WITNESS WHEREOF, Seller has caused this Bill of Sale to be signed in its
name by its officer thereunto duly authorized and its corporate seal to be
hereunto affixed as of the 31st day of May 2006.
HARD TO TREAT DISEASES INC.
By: /s/ Colm J. King
---------------------------------------
Colm J. King, CEO
By: /s/ Harvey Judkowitz
---------------------------------------
Harvey Judkowitz, Director
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EXHIBIT B
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT dated May 31, 2006 (the
"Agreement") by and between HARD TO TREAT DISEASES INC., a Florida Corporation
("Seller"), and CAVIT SCIENCES, INC., a Florida corporation ("Purchaser").
W I T N E S S E T H:
WHEREAS, pursuant to the terms of that certain Asset Purchase Agreement
dated as of May 31, 2006 by and between Purchaser and Seller (the "Purchase
Agreement"), Seller as agreed to assign to Purchaser, and Purchaser has agreed
to assume from Seller, the Assured Obligations (as defined in the Purchase
Agreement);
NOW, THEREFORE, for good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, each of Seller and Purchaser
hereby agree as follows:
1. Assignment and Assumption. Seller hereby assigns to Purchaser, and Purchaser
hereby assumes and agrees to perform and discharge when due, all of the Assumed
Obligations.
2. Governing Law. This Agreement shall be governed by, and shall be construed
and interpreted in accordance with, the laws of the State of Florida.
3. Benefits; Binding Effect. This Agreement shall inure to the benefit of, and
shall be binding upon, the parties hereto and their respective successors and
assigns.
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered this
Agreement on the date first above written.
See attached signature page:
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ON BEHALF OF:
CAVIT SCIENCES, INC
By: /s/ Colm J. King By: /s/ Julio De Leon
---------------------------------- --------------------------------
Name: Colm J. King Name: Julio De Leon
Title: President and CEO Title: Director
Date: May 31, 2006 Date: May 31, 2006
By: /s/ Harvey Judkowitz
----------------------------------
Name: Harvey Judkowitz
Title: Director
Date: May 31, 2006
ON BEHALF OF:
HARD TO TREAT DISEASES, INC.
By: /s/ Colm J. King By: /s/ Harvey Judkowitz
---------------------------------- --------------------------------
Name: Colm J. King Name: Harvey Judkowitz
Title: President and CEO Title: Director
Date: May 31, 2006 Date: May 31, 2006
Cc: David E. Wise
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