Exhibit 10.1
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT (the "Agreement") is entered into as of the 15th day
of November, 2004, by and among Vital Health Technologies, Inc. (a.k.a.
Caribbean American Health Resorts, Inc.), a Minnesota corporation (the
"Company"), Aurora Capital Holdings, L.L.C., a Minnesota limited liability
company ("Transferor"), and General Finance and Development, Inc., a Minnesota
corporation ("GFD").
BACKGROUND
WHEREAS, the Company and Caribbean American Health Resorts, Inc., a Nevada
corporation ("CAHR"), entered into an Agreement and Plan of Share Exchange,
dated as of March 10, 2003 (the "Share Exchange Agreement"), whereby the Company
agreed to issue to each CAHR shareholder one share of the Company's common stock
in exchange for each share of CAHR common stock held by such CAHR shareholder;
WHEREAS, as a result of the Share Exchange Agreement, CAHR became a wholly-owned
subsidiary of the Company and the shareholders of CAHR became shareholders of
the Company;
WHEREAS, Section 5(b) of the Share Exchange Agreement provides that as part of
the share exchange transaction, certain existing shareholders of the Company
shall form a separate entity for the sole purpose of purchasing the heart
screening technology of the Company in exchange for returning to the Company
1,850,000 shares of the Company's common stock then held by such shareholders;
WHEREAS, the Transferor owns 1,850,000 shares of the Company's common stock (the
"Shares"), and it was intended that the Transferor would transfer the Shares to
the Company in exchange for a transfer from the Company of certain heart
screening technology and other assets of the Company as set forth on Schedule A
(collectively, the "Assets") to an entity to be formed by the Transferor;
WHEREAS, the Transferor has formed GFD for the purpose of
acquiring the Assets, and has a direct or indirect economic interest in GFD and
the acquisition of the Assets by GFD;
WHEREAS, the Company claims that it has
transferred the Assets to the Transferor and is entitled to receive the Shares,
but the Transferor claims that it has not yet received the Assets and refuses to
transfer the Shares to the Company as contemplated by the Share Exchange
Agreement; and
WHEREAS, the parties agree that in order to settle this
outstanding dispute, the Transferor will transfer 1,700,000 of the Shares (the
"Redemption Shares") to the Company, the Company will transfer all of the Assets
to GFD pursuant to the terms and conditions of this Agreement and GFD will grant
a non-exclusive license to the Company to use the Assets as more specifically
set forth in the License Agreement, attached hereto as Exhibit B.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants, conditions and
agreements herein contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. Redemption. Subject to the terms and conditions herein set forth, in
consideration for the transfer of the Assets by the Company to GFD, the
Transferor hereby agrees to sell, transfer and convey to the Company, and the
Company agrees that it will redeem and purchase from the Transferor, on the
Closing Date (as defined below), the Redemption Shares.
2. Transfer of Assets. Subject to the terms and conditions herein set forth, in
consideration of the transfer of the Redemption Shares by the Transferor to the
Company, the Company agrees that it will transfer the Assets to GFD on the
Closing Date. The Transferor and GFD hereby acknowledge that the Assets are
being transferred at Closing on an "as is" basis and the Company makes no
express or implied representations or warranties about the existence or
condition of the Assets, and explicitly disclaims any implied warranties of
merchantability or fitness for a particular purpose.
3. Place and Date of Closing. The closing of the transactions contemplated by
this Agreement (the "Closing") shall take place at the offices of Robins,
Kaplan, Miller & Ciresi L.L.P. in Minneapolis, Minnesota on November 12, 2004,
or such other time as mutually agreed by the parties (the "Closing Date").
4. Closing Conditions.
4.1 Conditions to Obligations of the Company. The
obligation of the Company to consummate the transactions contemplated by this
Agreement is subject to the fulfillment, prior to or at the Closing, of all of
the following conditions:
(a) Settlement Agreement. The Transferor and GFD shall have executed and
delivered to the Company this Agreement;
(b) Certificates. The Company or the Company's transfer agent shall have
received the stock certificates representing the Redemption Shares, accompanied
by stock powers duly endorsed for transfer to the Company; and
(c) License Agreement. GFD shall have executed and delivered to the Company the
License Agreement in the form attached hereto as Exhibit B.
4.2 Conditions to Obligations of the Transferor and GFD. The obligations of the
Transferor and GFD to consummate the transactions contemplated by this Agreement
are subject to the fulfillment, prior to or at the Closing, of all of the
following conditions:
(a) Settlement Agreement. The Company shall have executed and delivered to the
Transferor and GFD this Agreement; and
(b) Transfer of Assets. The Company shall have executed and delivered to GFD a
Bill of Sale and such other instruments of conveyance, transfer, assignment and
delivery as GFD shall reasonably request.
5. Representations of the Transferor and GFD. The Transferor and GFD jointly and
severally represent and warrant to the Company as follows:
5.1 Ownership. The Shares constitute the only equity interest that the
Transferor holds in the Company. The Transferor has no other equity interest in
the Company or any of its subsidiaries or affiliates. The Transferor is the sole
beneficial owner of the Redemption Shares; has the right to vote the Redemption
Shares and exercise all other rights and powers with respect thereto; and has
good and marketable title thereto free from any liens, encumbrances, security
agreements, or claims of any nature. There is no restriction, subscription,
option, warrant, right, call, contract, voting trust, irrevocable proxy, voting
arrangement, commitment, understanding or agreement relating to the sale, voting
or transfer of any of the Redemption Shares held by the Transferor.
5.2 Authority. The Transferor and GFD have all requisite power and authority to
do and perform all acts and things required to be done by them under this
Agreement. This Agreement and the agreements contemplated hereby have been or
will be duly executed on or before the Closing Date and delivered by the
Transferor and GFD and constitute or will as of the Closing constitute the
legal, valid and binding obligations of the Transferor and GFD enforceable in
accordance with their respective terms.
5.3 Violations. The performance of this Agreement and the consummation of the
transactions contemplated hereby will not result in a breach or violation of any
of the terms or provisions of any other agreement, settlement, judgment or
instrument to which the Transferor or GFD is a party or by which the property of
the Transferor or GFD is bound.
5.4 Access to Information. The Transferor acknowledges that it has had an
opportunity to discuss the Company's business, management and financial affairs
with the Company's management and has had an opportunity to review the Company's
facilities, corporate books and records, financial information and other related
agreements and documents pertaining to the Company and to ask any questions
regarding the business or prospects of the Company. The Transferor has received
all the information it needs to make an informed decision regarding the sale and
transfer of the Redemption Shares to the Company. The Transferor does not
require or desire any additional information or data pertaining to the Company
in connection with the transactions contemplated by this Agreement.
6. Representations of the Company. The Company represents and warrants to the
Transferor and GFD as follows:
6.1 Authority. The Company has all requisite corporate power and authority to do
and perform all acts and things required to be done by it under this Agreement.
This Agreement and the agreements contemplated hereby have been or will be duly
executed on or before the Closing Date and delivered by the Company and
constitute or will as of the Closing constitute the legal, valid and binding
obligations of the Company enforceable in accordance with their respective
terms.
6.2 Violations. The performance of this Agreement and the consummation of the
transactions contemplated hereby will not result in a breach or violation of any
of the terms or provisions of any other agreement, settlement, judgment or
instrument to which the Company is a party or by which the property of the
Company is bound.
7. Indemnification.
7.1 By the Company. The Company agrees to indemnify, defend and hold harmless
the Transferor and GFD from and against any and all losses, damages,
liabilities, obligations, costs or expenses (any one such item being herein
called a "Loss" and all such items being herein collectively called "Losses")
which are caused by or arise out of (i) any breach or default in the performance
by the Company of any covenant or agreement contained in this Agreement, (ii)
any breach of warranty or inaccurate or erroneous representation made by the
Company herein, or (iii) any and all actions, suits, proceedings, claims,
demands, judgments, costs and expenses (including reasonable legal fees) arising
out of the foregoing.
7.2 By the Transferor and GFD. The Transferor and GFD hereby agree to jointly
and severally indemnify, defend and hold harmless the Company, and its
successors and assigns, together with its officers, directors, and shareholders,
from and against any and all Losses which are caused by or arise out of (i) any
breach or default in the performance by the Transferor or GFD of any covenant or
agreement contained in this Agreement, (ii) any breach of warranty or inaccurate
or erroneous representation made by the Transferor or GFD contained herein, or
(iii) any and all actions, suits, proceedings, claims, demands, judgments, costs
and expenses (including reasonable legal fees) arising out of the foregoing.
8. Notices. All notices or other communications to a party required or permitted
hereunder shall be in writing and shall be delivered personally or by facsimile
to such party (or, in the case of an entity, to an executive officer of such
party) or shall be given by a national overnight courier service, addressed as
follows: if to the Company: Caribbean American Health Resorts, Inc. 9454
Wilshire Boulevard, Suite 600 Beverly Hills, California 90212 Attention: Halton
G. Martin Fax: (310) 860-1882
with a copy to: Dennis P. R. Codon, Esq.
Robins, Kaplan, Miller & Ciresi L.L.P.
2049 Century Park East, Suite 3700
Los Angeles, California 90067
Fax: (310) 229-5800
if to the Transferor: Aurora Capital Holdings, L.L.C.
855 Village Center Drive Suite 315
North Oaks, Minnesota 55127
Attention: William Kieger
Fax: (651) 483-0825 (Call first)
if to GFD: General Finance and Development, Inc.
855 Village Center Drive Suite 315
North Oaks, Minnesota 55127
Attention: William Kieger
Fax: (651) 483-0825 (Call first)
Any party may change the above specified recipient and/or mailing address by
notice to all other parties given in the manner herein prescribed. All notices
shall be deemed given on the day when actually delivered as provided above (if
delivered personally or by facsimile) or on the day after deposit with a
national overnight courier service.
9. Miscellaneous.
9.1 Complete Agreement. This Agreement and the Schedule and Exhibit attached
hereto constitute the entire agreement between the parties hereto with respect
to the subject matter hereof and supersede all prior agreements (including the
Stock Exchange Agreement) whether written or oral relating to the subject matter
hereof.
9.2 Amendment. This Agreement may not be amended except by an instrument in
writing signed by each of the parties hereto.
9.3 Waiver, Discharge. The failure of any party hereto to enforce at any time
any of the provisions of this Agreement shall in no way be construed to be a
waiver of any such provision, nor in any way affect the validity of this
Agreement or any part thereof or the right of the party thereafter to enforce
each and every such provision. No waiver of any breach of this Agreement shall
be held to be a waiver of any other or subsequent breach.
9.4 Further Assurances. At such time and from time to time on and after the
Closing Date upon request by any party, the parties will execute, acknowledge
and deliver, or will cause to be done, executed, acknowledged and delivered, all
such further acts, deeds, assignments, transfers, conveyances, powers of
attorney and assurances that may be required or to otherwise carry out the
purposes of this Agreement.
9.5 Survival. The representations and warranties of the parties and the
respective indemnification provisions contained in this Agreement shall survive
the Closing hereunder and continue in full force and effect forever thereafter
(subject to any applicable statutes of limitations).
9.6 Successors and Assigns. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and the successors or assigns of the parties
hereto; provided that no party may assign its rights herein or delegate its
duties hereunder without the prior written consent of the other parties.
9.7 Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Minnesota, including all matters of
construction, validity, performance and enforcement, without giving effect to
principles of conflict of laws of any jurisdiction.
9.8 Counterparts. This Agreement may be executed by facsimile signature and in
any number of counterparts, each of which shall be deemed as original and all of
which together, when delivered, shall constitute one instrument.
IN WITNESS WHEREOF, the Company, the Transferor and GFD have caused
this Agreement to be signed on the date first above written.
THE COMPANY:
Vital Health Technologies, Inc.
By: /s/ Halton G. Martin
Halton G. Martin, Chief Executive Officer
THE TRANSFEROR:
Aurora Capital Holdings, L.L.C.
By:
Name:
Its:
GFD:
General Finance and Development, Inc.
By:
Name:
Its:
[SIGNATURE PAGE TO SETTLEMENT AGREEMENT]
SCHEDULE A
THE ASSETS
All assets associated with the Company's heart screening business activities,
including the files, furniture, artwork and technology located at the North Star
Mini Storage facility in Shoreview, Minnesota and listed under the Company's
name.
EXHIBIT B
LICENSE AGREEMENT