ASSET PURCHASE AGREEMENT WITH U-SWIRL YOGURT, INC. DATED SEPTEMBER 19, 2008
EXHIBIT 10.14
ASSET PURCHASE AGREEMENT WITH U-SWIRL YOGURT,
INC.
DATED SEPTEMBER 19, 2008
THIS ASSET PURCHASE AGREEMENT
(“Agreement”) is made and entered into as of the 19th day of September, 2008, by
and among U-SWIRL YOGURT,
INC., a Nevada corporation (“Seller”); HEALTHY FAST FOOD, INC., a
Nevada corporation (“HFF”); and U-SWIRL INTERNATIONAL, INC., a
Nevada corporation (“USI”). HFF and USI
may be collectively referred to below as (“Buyer”).
RECITALS
A. Seller
currently operates that certain frozen yogurt business known as U-Swirl Yogurt
(the “Business”), which
business operates a frozen yogurt store located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ (the “Existing
Outlet”).
B. Among
other assets, Seller owns certain intangible assets relating to the Business, as
described below in this Agreement (the “System”).
C. USI
is a newly-formed entity and a wholly owned subsidiary of HFF.
D. Seller
desires to sell the System to Buyer, and Buyer desires to purchase the System,
in accordance with the terms of this Agreement. Seller understands
that Buyer intends that the System will immediately upon Closing (as defined
below) be owned solely by USI.
ARTICLE
1.
AGREEMENT TO
SELL
1.1. Purchased
Assets. Seller agrees to
sell and, at the Closing, will transfer and deliver to USI all of the following
assets owned by Seller and related to the Business (the “Purchased Assets”), which
assets constitute the System; including but not limited
to, the following:
(a) All
names, trade names, trademarks, service marks, and commercial symbols used by
Seller in the operation of the Business and the System (the “Marks”), which are set forth
on the Schedule of
Marks, attached to this Agreement as Exhibit
A and incorporated herein by this reference.
(b) The
current “trade dress,” including the store layout, of the Existing Outlet
(collectively, the “Trade
Dress”).
(c) All
internet domain names associated with the Business and the System (the “Domain Names”), which are set
forth on the Schedule
of Domain Names, attached to this Agreement as Exhibit
B and incorporated herein by this reference.
(d) All
works subject to copyright used in, or related to, the Business and the System;
including, but not limited to, the content on any website owned by Seller that
is subject to a copyright of Seller.
(e) All
right, title and interest of Seller in or under all contracts, agreements,
instruments, certificates, permits and licenses that relate to the Business and
that are being assigned to USI, as set forth on the Schedule of
Contracts attached to this Agreement as Exhibit
C and incorporated herein by this reference (collectively the “Contracts”).
(f) All
goodwill in the Business and the System, all methods of operation of the
Business and the System, and all other intangible property and intangible
property rights of whatever kind or nature related to the Business and the
System.
1.2. Encumbrances. All of the
Purchased Assets will be sold, conveyed, transferred, and assigned by Seller to
Buyer at the Closing free and clear of all liens and encumbrances.
1.3 No
Assumption of Liability. Buyer will not
assume any liabilities of Seller, the Business, or the System of any kind;
including, but not limited to, any of Seller’s contracts with vendors, suppliers
or servicemen (except for liabilities arising after the Closing Date, as defined
below, in the case of contracts Seller assigns to USI), or Seller’s employees’
salaries, taxes, benefits, or other expenses.
ARTICLE
2.
PURCHASE AND PURCHASE
PRICE
2.1. Agreement
of Purchase. Buyer purchases,
upon the terms and subject to the conditions of this Agreement, the Purchased
Assets as described in Article 1 above, and will pay to Seller the Purchase
Price, as defined below, in the manner and upon the terms set forth
below.
2.2. Purchase
Price. The total
consideration (the “Purchase
Price”) to be paid by Buyer to Seller is 100,000 restricted shares of HFF
common stock (the “HFF
Shares”). The Purchase Price shall be allocated among the Purchased
Assets as follows:
Intellectual
Property 100,000 shares
TOTAL: 100,000
shares
The
allocation above may be adjusted by agreement of the parties at, or after,
Closing.
2.3. Payment
of Purchase Price. Buyer shall pay
the Purchase Price at Closing by delivering to Seller at Closing a certificate
for the HFF Shares registered in the new name of Seller (as provided for in
Section 6.1 below).
ARTICLE
3.
DUE
DILIGENCE
3.1 Due
Diligence of Buyer. Buyer acknowledges that
it has had sufficient time to review the documents of Seller as it deemed
appropriate, and to inspect and review all of the Purchased
Assets. Buyer accepts the Purchased Assets.
ARTICLE
4.
SELLER’S REPRESENTATIONS,
WARRANTIES AND COVENANTS
4.1. Representations,
Warranties and Covenants of Seller. Seller
represents, warrants, and covenants to Buyer that the statements contained
in this Article 4 are correct and complete as of the date of this Agreement,
will be performed and will be correct and complete as of the Closing Date (as
though made then and as though the Closing Date were substituted for the
date of this Agreement throughout this Article 4).
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(a) Organization
of Seller. Seller is a
corporation duly organized, validly existing, and in good standing under
the laws of the jurisdiction of its incorporation.
(b) Authorization
of Transaction. The directors of
Seller have duly recommended to the shareholders of Seller this transaction and
the material terms of this Agreement, and the shareholders have duly approved
this transaction and the material terms of this Agreement. Seller has
full power and authority to execute and deliver this Agreement and to
perform its obligations hereunder. The execution and delivery of this
Agreement and performance of Seller’s obligations requires no further action or
approval to constitute this Agreement as a binding and enforceable obligation of
Seller.
(c) Marketable
Title. Seller has good
and marketable fee simple title to the Purchased Assets.
(d) Rights in
Intellectual Property. Seller is the
exclusive owner of the Marks, the Domain Names, the Trade Dress, the content on
websites associated with any of the Domain Names, and the other intellectual
property being transferred to Buyer under the terms of this Agreement
(collectively, the “Intellectual
Property”). Seller is not aware of any pending or threatened
claims against Seller asserting rights in any of the Intellectual Property or
asserting trademark infringement, copyright infringement, or patent
infringement.
(e) Scope of
Intellectual Property. The marks listed
in Exhibit A to this Agreement constitute all the registered and unregistered
marks owned by Seller that include the name “U-Swirl” or its variations, and all
other marks that are being used, or have been used in the past, in connection
with the Business or the System. The domain names listed in Exhibit B
to this Agreement constitute all the domain names owned by Seller that include
the name “U-Swirl” or its variations or that are being used, or have been used
in the past, in connection with the Business or the System. If any
other registered or unregistered marks or any other domain names were used by
Seller in connection with the Business or the System, Seller transfers those
marks and/or domain names to Buyer. Seller has no patents registered
or pending, or licensed to Seller by a third party, that relate in any way to
the Business or the System.
(f) Encumbrances. At the time of
Closing, the Purchased Assets will be free of any liens, encumbrances, or other
restrictions.
(g) Possession;
Transfer. Seller has the
exclusive right of possession of the Purchased Assets, and no restrictions on
transfer of the Purchased Assets exist.
(h) Third
Party Rights. No person or
entity, except as set forth in this Agreement, has any rights in or to acquire
the Purchased Assets or any part of them.
(i) Taxes. Seller has paid,
or by the Closing will have paid, all taxes of any kind or nature on or related
to the Purchased Assets.
(j) Litigation. There are no
actions, suits, or proceedings that have been instituted or, to Seller’s
knowledge, threatened against or affecting the Purchased Assets, at law or in
equity, or before any federal, state, or municipal governmental
commission, board, bureau, agency, or instrumentality that will
materially adversely affect the value or use of the Purchased
Assets.
(k) Compliance
With Law. Seller has
received no notice of any violation of any law, regulation, or other
governmental requirement affecting the Purchased Assets. Seller has
no reason to believe that any governmental authority contemplates issuing any
notices, or that any violation exists.
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(l) Noncontravention. Neither the
execution and delivery of this Agreement, nor the consummation of the
transaction contemplated by it will: (i) violate any statute, regulation, rule,
judgment, order, decree, stipulation, injunction, charge, or other
restriction of any government, governmental agency, or court to which Seller is
subject, or any provision of its charter; or (ii) conflict with, result in a
breach of, constitute a default under, result in the acceleration of, create in
any party the right to accelerate, terminate, modify, or cancel, or require any
notice under any contract, license, sublicense, agreement or other
arrangement to which Seller is a party or by which it is bound or to which any
of the Purchased Assets is subject. Seller does not need to give any
notice to, or make any filing with, or obtain any authorization, consent,
or approval of any government or governmental agency for the parties to
consummate the transaction contemplated by this Agreement.
(m) Investment
in HFF Shares. Seller: (i)
understands that the HFF Shares have not been, and will not be, registered under
the Securities Act of 1933, or under any state securities laws, and are being
offered and sold in reliance upon federal and state exemptions for transactions
not involving any public offering, (ii) is acquiring the HFF Shares solely for
its own account for investment purposes, and not with a view to the distribution
thereof (except to the shareholders of Seller, if so desired by Seller), (iii)
is a sophisticated investor with knowledge and experience in business and
financial matters, (iv) has received certain information concerning Buyer and
has had the opportunity to obtain additional information as desired in order to
evaluate the merits and the risks inherent in holding the HFF Shares, and (v) is
able to bear the economic risk and lack of liquidity inherent in holding the HFF
Shares.
If any of the warranties above are not
substantially true at the Closing, Buyer may cancel this Agreement at the
Closing, whereupon neither party will have further obligation or any
liability.
ARTICLE
5.
BUYER’S REPRESENTATIONS,
WARRANTIES AND COVENANTS
5.1. Representations,
Warranties and Covenants of Buyer. Buyer represents,
warrants, and covenants to Seller that the statements contained in this Article
5 are correct and complete as of the date of this Agreement, will be performed,
and will be correct and complete as of the Closing Date (as though made then and
as though the Closing Date were substituted for the date of this Agreement
throughout this Article 5).
(a) Organization
of Buyer. HFF and USI are
each a corporation duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation.
(b) Authorization
of Transaction. Buyer has full
power and authority to execute and deliver this Agreement and to perform
its obligations hereunder. This Agreement constitutes the valid
and legally binding obligation of Buyer, enforceable in accordance with its
terms and conditions.
(c) Noncontravention. Neither the
execution and delivery of this Agreement, nor the consummation of the
transaction contemplated by it will: (i) violate any statute, regulation, rule,
judgment, order, decree, stipulation, injunction, charge, or other
restriction of any government, governmental agency, or court to which Buyer is
subject, or any provision of HFF’s or USI’s charter; or (ii) conflict with,
result in a breach of, constitute a default under, result in the acceleration
of, create in any party the right to accelerate, terminate, modify or cancel, or
require any notice under any contract, license, sublicense, franchise,
agreement or other arrangement to which Buyer is a party or by which it is bound
that could have any adverse effect on Seller. Buyer does not need to
give any notice to, or make any filing with, or obtain any authorization,
consent, or approval of any government or governmental agency for the parties to
consummate the transaction contemplated by this Agreement.
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ARTICLE
6.
CONTINUED OPERATION AND
EXPANSION OF SELLER’S BUSINESS
6.1. Entity
Name Change. On the Closing
Date, Seller agrees to file with the Nevada Secretary of State the proper
document(s) to change Seller’s entity name from U-Swirl Yogurt, Inc. to a name
that does not contain the name “U-Swirl,” “U Swirl,” “Swirl,” or any similar
name. Seller will advise Buyer of that new entity name prior to or at
Closing. Seller will not thereafter change its entity name back to
U-Swirl Yogurt, Inc. or to any name that contains the name “U-Swirl,” “U Swirl,”
“Swirl,” or any similar name. References to Seller in this Agreement
are to Seller as it is renamed after the name is changed.
6.2. Continued Operation of
Existing Outlet.
(a) License
Agreement. At Closing,
Seller and USI shall enter into a license agreement, in the form of agreement
attached to this Agreement as Exhibit
D, and incorporated herein by this reference (the “License Agreement”),
authorizing Seller to use the Marks and the System in the continued operation of
the Existing Outlet.
(b) Franchise
Agreement. At the time that
USI is ready to begin offering franchises to third parties, Seller agrees to
execute a franchise agreement in the then-current form of franchise agreement
being offered, or to be offered, to third parties, which franchise agreement
will supersede the License Agreement; except that the terms of the franchise
agreement will be modified as follows: (i) Seller will not be required to pay an
initial franchise fee or royalties to USI, (ii) Seller’s advertising fund fees
will be waived for at least the first six months after the franchise agreement
becomes effective, (iii) USI will not provide the initial training program or
any other pre-opening training to Seller; and (iv) USI will not be obligated to
provide store opening assistance or any on-going training or
assistance to Seller, although USI may, at its sole option, elect to
do so.
6.3. Establishment of Additional
Outlets.
(a) Approval
of Requests for Expansion. Seller may at any
time and from time to time request approval from USI to establish and operate
additional Business outlets (besides the Existing Outlet) operating under the
Marks in the following cities in Nevada: Henderson, Boulder City, and
Pahrump (collectively, the “Territory”). USI
will not unreasonably withhold its approval; provided, however, that Seller must
be in full compliance with this Agreement, and all license agreements, franchise
agreements, and other agreements between Seller and Buyer.
(b) Conditions
of Expansion. Seller may
establish and operate one or more additional Business outlets in the Territory
only if USI has given its approval, as specified above, and Seller complies with
all of the following conditions for each new Business outlet:
(1) Seller
must provide USI with information about the proposed site for the Business
outlet as requested by USI, and Seller must receive approval for the site from
USI (which approval will not be unreasonably withheld).
(2) Seller
must, at USI’s sole determination, execute either: (a) a license agreement
similar to the License Agreement (in which case the site approval condition
above is waived); or (b) a franchise agreement in the then-current form of
franchise agreement being offered, or to be offered, to third parties by USI at
that time; except that the terms of the franchise agreement will be modified as
follows: (i) The initial franchise fee will be $5,000.00; (ii) the
royalty fee will be 1% of gross sales (or of whatever term is used in the
then-current form of franchise agreement as the basis for the royalty fee);
(iii) USI will not
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provide
the initial training program or any other pre-opening training to Seller; and
(iv) USI will not be obligated to provide store opening assistance or any
on-going training or assistance to Seller, although USI may, at its
sole option, elect to do so. Seller’s requirement to pay advertising
fund fees will be the same as in the then-current form of franchise
agreement.
ARTICLE
7.
TRAINING
FACILITY
7.1. Existing
Outlet as Training Facility. Beginning on the
Closing Date, and continuing for as long as Seller operates the Existing Outlet,
or until such earlier date on which USI no longer needs use of the facility,
Seller will permit USI to use the Existing Outlet as a training
facility. During this time, USI may place its employees, prospective
franchisees or their employees, and/or other persons in the Existing Outlet for
the purposes of providing training to those people in the operation of a U-Swirl
Frozen Yogurt business.
7.2 No
Additional Compensation.
(a) Regardless
of the extent of USI’s use of the Existing Outlet as a training facility,
neither USI nor HFF is obligated to pay any compensation or remuneration of any
kind to Seller for the use of the Existing Outlet for this purpose.
(b) Subject
to modification if required by applicable law, Seller is not obligated to pay
any compensation to any person placed into the Existing Outlet by USI for
training; and if any compensation is required to be paid to any such person, USI
will be responsible for paying that compensation.
ARTICLE
8.
CONDITIONS TO
CLOSE
8.1. Conditions
to Obligations of Buyer. The obligation of
Buyer to consummate the transaction to be performed by it in connection with the
Closing is subject to satisfaction of all of the following
conditions:
(a) Representations
and Warranties. The
representations and warranties set forth in Article 4 above are true
and correct in all material respects at and as of the Closing Date.
(b) No
Litigation. No material
action, suit, or proceeding is pending or threatened before any court or
quasi-judicial or administrative body, in any federal, state, local,
or foreign jurisdiction, nor is any unfavorable judgment, order, decree,
stipulation, injunction, or charge pending or threatened that would (i)
prevent consummation of the transaction contemplated by this
Agreement, or (ii) cause the transaction contemplated by this Agreement to be
rescinded following consummation; and no such judgment, order, decree,
stipulation, injunction, or charge is in effect.
(c) Form of
Documents. All actions to be
taken by Seller in connection with the consummation of the transaction
contemplated by this Agreement and all certificates, opinions, instruments,
and other documents required to effect the transaction contemplated by this
Agreement are satisfactory in form and substance to Buyer and its
counsel.
Buyer may, at its sole election, waive
any conditions specified in this Section if it executes a writing so stating at
or prior to the Closing, or if it proceeds with the Closing.
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8.2. Conditions
to Obligations of Seller. The obligation of
Seller to consummate the transaction to be performed by it in connection with
the Closing is subject to satisfaction of all of the following
conditions:
(a) Representations
and Warranties. The
representations and warranties set forth in Article 5 above are true
and correct in all material respects at and as of the Closing Date.
(b) No
Litigation. No material
action, suit, or proceeding is pending or threatened before any court or
quasi-judicial or administrative body, in any federal, state, local,
or foreign jurisdiction, nor is any unfavorable judgment, order, decree,
stipulation, injunction, or charge pending or threatened that would (i)
prevent consummation of the transaction contemplated by this
Agreement, or (ii) cause the transaction contemplated by this Agreement to be
rescinded following consummation; and no such judgment, order, decree,
stipulation, injunction, or charge is in effect.
(c) Form of
Documents Satisfactory. All actions to be
taken by Buyer in connection with the consummation of the transaction
contemplated by this Agreement and all certificates, opinions, instruments
and other documents required to effect the transaction contemplated by this
Agreement are satisfactory in form and substance to Seller and its
counsel.
Seller may, at its sole discretion,
waive any conditions specified in this Section if it executes a writing so
stating at or prior to the Closing, or if it proceeds with the
Closing.
ARTICLE
9.
CLOSING
9.1. The
Closing. The closing of
the transaction contemplated by this Agreement (the “Closing”) will take place at
the offices of Buyer, commencing at ______ a.m., local time, on September ___,
2008, or such other business day and/or time as agreed to by the
parties (the “Closing Date”).
9.2. Deliveries
at the Closing. At the Closing,
the parties will deliver all of the following:
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(a)
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Seller
shall deliver to Buyer all of the following
documents:
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(i) Assignments
for the Contracts and Domain Names properly executed and acknowledged, in
such form as USI reasonably requests.
(ii) A
copy of a resolution or consent minutes of Seller’s Board of Directors and
shareholders authorizing and approving this transaction.
(iii) The
License Agreement, signed on behalf of Seller.
(iv) Such
other instruments of sale, transfer, conveyance, and assignment as
Buyer reasonably may request.
(b) Buyer
shall deliver to Seller all of the following documents:
(i) A
stock certificate of HFF representing the Purchase Price, registered in the new
name of Seller.
(ii) The
License Agreement, signed on behalf of USI.
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(iii) Such
other instruments of sale, transfer, conveyance, and assignment as
Seller reasonably may request.
9.3 Prorations.
Personal property ad valorem taxes related to the Purchased Assets and prepaid
fees under any contracts being assigned, if any, and all other customary closing
costs incurred, if any, shall be prorated to the Closing Date based upon actual
days involved. If those charges are unavailable at the Closing Date,
a readjustment of these items will be made within 30 days after the
Closing. The proration of personal property taxes will be based upon
the most recent assessed value of the applicable portion of the Purchased Assets
and the most recent mill levy figures as available from the County Assessor’s
office for the county where the Purchased Assets are located and will be a final
proration. All special taxes, charges, and assessments affecting the
Purchased Assets payable in installments, if any, will be prorated between Buyer
and Seller based upon the period covered by the installment.
9.4 Possession. Possession
by USI of the Purchased Assets will occur on the Closing Date at
Closing.
ARTICLE
10.
INDEMNIFICATION
10.1 Indemnification
by Seller. Seller agrees to indemnify and hold HFF and USI,
and their respective directors, officers, employees, agents, representatives,
successors, and assigns (collectively, including HFF and USI, the “Buyer’s Group Members”)
harmless from and against any and all claims, demands, losses and expenses
incurred by any Buyer’s Group Member in connection with or arising from failure
or default of any of the covenants, agreements, representations, or warranties
of Seller under this Agreement, all known debts of Seller as of the Closing
Date, and any and all amounts that might be claimed, asserted, or established
for as deficiencies in or with respect to federal or state income taxes, or
franchise and other taxes and charges against Seller; and all such deficiencies
with respect to operations and business of Seller and the Existing Outlet during
the current fiscal year up to the Closing Date. If any claim is
asserted for which Seller will be obligated to indemnify the Buyer’s Group
Members pursuant to this provision, Seller shall, within 10 days after receiving
written notice of such claim, notify the Buyer’s Group Members in writing
whether Seller does or does not have any objection to the payment of the
claim. Seller shall not object to the payment of any such claim
unless Seller shall at the same time inform the Buyer’s Group Members in writing
that Seller disputes the claim, in whole or in part, and Seller promptly
initiates proper proceedings to contest the claim and undertake the appropriate
defense thereof at Seller’s sole cost and expense, and in a manner that may be
effective to protect against liability in connection therewith. If
within the 10-day period, Seller has no objection to the payment of the claim,
Seller shall be obligated to pay such claim within 10 days after the expiration
of the 10-day notice period. The failure of Seller to pay the claim
will constitute full authority to the Buyer’s Group Members to either contest
the claim or pay the claim. In that event, the Buyer’s Group Members
will be entitled to receive from Seller immediately the amount paid, and Seller
will have no right to contest the validity of the creditor’s claim against
Seller or the Buyer’s Group Members, as the case may be. In the event
Seller, within the above mentioned 10-day period, objects in writing to the
payment of the claim, and promptly initiates proper proceedings to contest the
claim and undertake the appropriate defense thereof, then the Buyer’s Group
Members will not have the authority to pay the claim as herein provided, unless
and until the claim in whole or in part is finally determined to be due and
owing. In that situation, the parties will be bound by the foregoing
provision with respect to payment of claims. In the event Seller
fails to indemnify and hold the Buyer’s Group Members harmless from any matter
described in this paragraph within a reasonable time, or fails to pay any
obligations of Seller in a timely manner, the Buyer’s Group Members may cure the
default, pay any obligations of Seller, and demand immediate reimbursement from
Seller.
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10.2 Indemnification
by Buyer. Buyer agrees to indemnify and hold Seller, its
directors, officers, employees, agents, representatives, successors, and assigns
(collectively, including Seller, the “Sellers Group Members”)
harmless from and against any and all claims, demands, losses, and expenses
incurred by any Sellers Group Member in connection with or arising from any
breach or failure to perform by Buyer any of its agreements, covenants, or
obligations in this Agreement or any other agreement between the parties; or any
breach of any warranty or the inaccuracy of any representation of Buyer
contained in this Agreement.
ARTICLE
11.
MISCELLANEOUS
11.1. Survival. All of the
representations, warranties, and covenants of Buyer and Seller contained in this
Agreement, and each party’s respective indemnification provision, will survive
the Closing. Seller’s obligations under Article 6 and Article 7 of
this Agreement will survive the Closing.
11.2. No
Third-Party Beneficiaries. This Agreement
will not confer any rights or remedies upon any entity or person other than the
parties and their respective successors and permitted assigns.
11.3. Entire
Agreement. This Agreement,
including the exhibits and documents referred to in this Agreement, constitutes
the entire agreement between the parties and supersedes any prior
understandings, agreements, or representations by or between the parties,
written or oral, that may have related in any way to the subject matter of this
Agreement.
11.4. Succession
and Assignment. This Agreement
will be binding upon and inure to the benefit of the parties and their
respective successors and permitted assigns. No party may assign this
Agreement or any of its rights, interest, or obligations hereunder without the
prior written approval of the other party; except that USI may assign its rights
and obligations under Sections 6.2 and 6.3 of this Agreement to a successor
entity without approval of Seller.
11.5. Counterparts. This Agreement
may be executed in one or more counterparts, each of which shall be deemed an
original but all of which together will constitute one and the same
instrument.
11.6. Headings. The Section
headings contained in this Agreement are inserted for convenience only and shall
not affect in any way the meaning or interpretation of this
Agreement.
11.7. Notices. All notices,
requests, demands, claims or other communications shall be given in
writing. Any notice, request, demand, claim or other
communication hereunder shall be deemed duly given if it is personally
delivered, or sent by certified mail, return receipt requested, postage prepaid
and addressed to the intended recipient as set forth below:
(a) If
to
Seller: (b) If
to Buyer:
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U-Swirl Yogurt,
Inc. Healthy
Fast Food, Inc. / U-Swirl International, Inc.
1075 American Pacific Suite
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▇▇ ▇▇▇▇▇ He▇▇▇▇▇▇▇,
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Any party
may change the address to which notices are to be delivered by giving the other
party(ies) notice in a manner set forth above.
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11.8. Governing
Law. This Agreement will be governed and construed in
accordance with the laws of the State of Nevada.
11.9. Amendments
and Waivers. No amendment of
any provision of this Agreement will be valid unless it is in writing and signed
by the parties. No waiver by any party of any default,
misrepresentation, or breach of warranty or covenant under this Agreement,
whether intentional or not, will be deemed to extend to any prior or subsequent
fault, misrepresentation, breach of warranty or covenant under this Agreement,
or effect in any way any rights arising by virtue of any prior or subsequent
occurrence.
11.10. Severability. Any term or
provision of this Agreement that is invalid or unenforceable under applicable
law will not affect the validity or enforceability of the remaining terms and
provisions of this Agreement or the validity or enforceability of the offending
term or provision in any other situation or in any other
jurisdiction.
11.11. Expenses. Except as
specified below, Buyer and Seller will each bear its own costs and expenses
(including legal fees and expenses) incurred in connection with this Agreement
and the transaction contemplated by this Agreement.
11.12. Construction. The language used
in this Agreement will be deemed to be the language chosen by the parties to
express their mutual intent, and no rule of strict construction will be applied
against any party. The parties intend that each representation, warranty,
and covenant contained in this Agreement will have independent
significance.
11.13 Attorney’s
Fees. If any action is
instituted by any party to interpret or enforce any provisions of this
Agreement, the prevailing party (or parties) is entitled to recover reasonable
attorneys’ fees and costs, in both the trial court and appellate court (if
applicable).
11.14. Further
Assurances. From time to time
after the execution of this Agreement or the Closing, Seller shall, if
reasonably requested by Buyer, make, execute and deliver to Buyer such
additional assignments, bills of sale, or other instruments of transfer as may
be necessary or proper to transfer to Buyer all of Seller’s right, title, and
interest in and to any of the Purchased Assets. Buyer shall likewise
execute and deliver to Seller any instruments or documents necessary to carry
out the intent and purposes of this Agreement.
| SELLER: | BUYER: | |||
| U-SWIRL YOGURT, INC. | HEALTHY FAST FOOD, INC. | |||
|
By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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By:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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President
|
President
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| U-SWIRL INTERNATIONAL, INC. | ||||
| By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | ||||
| ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | ||||
| President | ||||
10
EXHIBIT
A
Schedule of
Marks
“u-swirl
FROZEN YOGURT and Design,” U. S. Serial Number 77/561907
“U and
Design,” U. S. Serial Number 77/561906
“Worth
the Weight,” U. S. Serial Number 77/561905
EXHIBIT
B
Schedule of Domain
Names
▇-▇▇▇▇▇.▇▇▇
▇-▇▇▇▇▇.▇▇▇
▇-▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
▇-▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
▇-▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
▇-▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
EXHIBIT
C
Schedule of
Contracts
Internet
Domain Name Registrations Contract with Go ▇▇▇▇▇.▇▇▇, Inc., paid through
November 28, 2008.
EXHIBIT
D
License
Agreement
LICENSE
AGREEMENT
THIS AGREEMENT (“Agreement”) is made effective
as of the ___ day of __________, 20__ (the “Effective Date”), between U-SWIRL INTERNATIONAL, INC., a
Nevada corporation, located at 10▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇ (“USI”); and U-SWIRL YOGURT, INC., to be known as
U CREATE ENTERPRISES INCORPORATED, a Nevada corporation, located at 10▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ (“Licensee”).
RECITALS
A. USI
and Licensee entered into that certain Asset Purchase Agreement, dated as of the
same date of this Agreement (the “Purchase
Agreement”).
B. Under
the terms of the Purchase Agreement, Licensee transferred to USI all of its
ownership in the following service marks (collectively, the “Marks”):
1. “u-swirl
FROZEN YOGURT and Design,” U. S. Serial Number 77/561907
2. “U
and Design,” U. S. Serial Number 77/561906
3. “Worth
the Weight,” U. S. Serial Number 77/561905
C. The
Marks were used by Licensee in connection with the operation of a U-Swirl Frozen
Yogurt business.
D. Under
the terms of the Purchase Agreement, Licensee also transferred to USI all of its
ownership in certain other intellectual property (including “trade dress,” which
includes store layout; and copyrighted materials) used by Licensee in the
operation of a U-Swirl Frozen Yogurt Business, as referred to in the Purchase
Agreement (the “Licensed
Property”).
E. Under
the terms of the Purchase Agreement, USI and Licensee agreed to enter into an
agreement by which Licensee may continue to use the Marks and Licensed Property
in the operation of its existing U-Swirl Frozen Yogurt outlet, until USI and
Licensee enter into a new agreement that will supersede this Agreement, or until
such other date that this Agreement terminates.
F. Licensee
understands that USI may (i) add to, delete, or otherwise modify the Marks and
Licensed Property; (ii) create new methods of operation; (iii) create its own
proprietary materials; and/or (iv) otherwise develop the U-Swirl Frozen Yogurt
system by establishing new outlets or otherwise. (The Licensed Property, methods
of operation, proprietary materials and information, and know-how used in
connection with the operation of U-Swirl Frozen Yogurt outlets, as applicable
and as may be modified from time to time, are collectively referred to below as
the “System”).
g. Licensee
recognizes the necessity and desirability of protecting the reputation,
goodwill, trade secrets, and confidential business information of USI and the
System; and that disclosure of trade secrets and confidential business
information, including specifics of the System to any third party not authorized
to receive the information, will cause irreparable damage and harm to USI and
the System.
AGREEMENT
1. The
License. USI grants
Licensee a non-exclusive license (the “License”) to use the Marks and
the System, as the Marks and the System may be modified from time to time by
USI, on and in
connection
with the operation of Licensee’s U-Swirl Frozen Yogurt outlet (the “Services”) located at 79▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ (the “Licensed
Location”).
2. Term of
Agreement and License. The term of this
Agreement and the License will be ten years from the Effective Date, unless
sooner superseded by another agreement between USI and Licensee, or unless
terminated as specified below in this Agreement.
3. License
Fee. The License Fee
is waived. The consideration for this Agreement and the License is
contained in the Purchase Agreement.
4. Changes
in the Marks. If USI creates any new service ▇▇▇▇(s) or
trademark(s) for use in a U-Swirl Frozen Yogurt outlet, the new ▇▇▇▇(s) will
automatically be subject to this Agreement, and considered to be among the Marks
referred to in this Agreement, upon written notification from USI to Licensee
specifying the new ▇▇▇▇(s).
5. Changes
in the System. If
USI adds to, deletes, or otherwise modifies any of the Licensed Property or
other elements of the System, the Licensed Property or other elements of the
System, as supplemented, decreased, or otherwise modified will automatically be
subject to this Agreement, and considered to be the Licensed Property and/or
System referred to in this Agreement, upon written notification from USI to
Licensee specifying the modification.
6. Limitations
on Use of Marks and the System.
a. Licensee
agrees to use the Marks only in connection with the Services, and only as
specified from time to time by USI. Licensee further agrees to offer
only goods and services under the Marks that meet the standards and
specifications of quality and otherwise as established by USI from time to time
(the “Standards and
Specifications”). The initial Standards and Specifications are
set forth or described in the attached Rider, and made a part of this
Agreement. USI may change the Standards and Specifications from time
to time, and Licensee agrees to comply with the new Standards and Specifications
within a reasonable time.
b. To the
extent that the Licensed Property or other elements of the System affect the
quality of goods or services provided by Licensee under the Marks or the trade
dress of Licensee’s U-Swirl Frozen Yogurt outlet: (i) Licensee agrees
to use the Licensed Property only as it was using the Licensed Property
immediately prior to the effectiveness of the Purchase Agreement, or as
otherwise specified from time to time by USI; and (ii) Licensee agrees to use
the other elements of the System as specified from time to time by
USI.
c. Licensee
acknowledges and agrees that it is permitted to use the Marks and the System
only at, or in connection with the operation of, a U-Swirl Frozen Yogurt outlet
at the Licensed Location.
d. Licensee
shall not, directly or indirectly, apply to register, register, or otherwise
seek to control or in any way use (except as expressly permitted by this
Agreement, and recognizing that Licensee previously applied to register the
Marks that have been assigned to USI in the Purchase Agreement) “U-Swirl,”
“U-Swirl Yogurt,” or any other of the Marks, or any confusingly similar form or
variation, in any place or jurisdiction either within or outside the United
States; nor will Licensee assist any third parties to do so.
e. Licensee
agrees: (1) that it will not post any of USI’s confidential information on the
Internet, and (2) that it will not post any USI copyrighted material or
information on the Internet without USI’s prior written permission; nor shall
Licensee assist any third party in doing so.
-2-
7. Prior
Approval of USI Required for Advertising and Promotional Materials. Licensee agrees
to submit to USI for its approval prior to use all advertising and other
promotional materials that include the ▇▇▇▇, including any material that is
contained in any website owned by Licensee or otherwise is placed by, or under
the direction of, Licensee on the Internet, which approval will not be
unreasonably withheld.
8. Determination
of Quality of Services and Goods; Samples and Access to
Premises. USI has the sole right to determine whether the
Services, and the goods provided as part of the Services, being offered and/or
sold by Licensee are consistent with the Standards and
Specifications. USI has the right to require from time to time that
Licensee submit samples of the goods sold under the Marks to USI for testing
and/or other methods of evaluation. Licensee agrees to provide to
USI’s representatives access to its business premises to inspect the performance
of the Services or inspect the goods sold under the Marks.
9. Ownership,
Rights, and Goodwill. Licensee
acknowledges and agrees that the Marks and the System, all rights in the Marks
and the System, and the goodwill pertaining to the Marks and the System belong
exclusively to USI; and that all rights resulting from Licensee’s use of the
Marks and the System inure to the benefit of USI.
10. Third-Party
Infringement. Immediately upon
becoming known to Licensee, Licensee shall notify USI of any infringement of the
Marks, any challenge to its use of any of the Marks, and/or any claim by any
person of any rights in any of the Marks. Licensee agrees that it will not
communicate with any person other than representatives of USI in connection with
any such infringement, challenge, or claim. USI will have sole option
whether to take any action related to any infringement, challenge, or claim, as
it deems appropriate. USI will have the right to exclusively control
any litigation, or any U. S. Patent and Trademark Office or other proceeding
arising out of any infringement, challenge, or claim, or otherwise relating to
any of the Marks. Licensee agrees to execute any and all instruments
and documents, render such assistance, and do such acts and things as may, in
the opinion of USI, be necessary or advisable to maintain USI’s interests in any
such litigation or U. S. Patent and Trademark Office or other proceeding; or to
otherwise protect and maintain USI’s interest in the Marks.
11. Confidentiality.
a. Licensee
acknowledges that USI may provide to Licensee information that is confidential
information of USI, and that constitutes trade secrets and remains the sole
exclusive property of USI. Confidential information includes: (1)
information about products, services, or procedures used in the System before
they become public knowledge; and (2) other information disclosed to Licensee
through confidential notifications and/or an operating manual (if a manual is
created by USI). To the extent that Licensee transferred/transfers to
USI, in connection with the Purchase Agreement or otherwise, any trade secrets
or other confidential information that Licensee used in connection with the
operation of its U-Swirl Frozen Yogurt outlet, Licensee agrees those trade
secrets and that confidential information are trade secrets and confidential
information solely of USI. Licensee shall not disclose any such
information, except as authorized by USI. Licensee shall return all
materials such as manuals, recipes, menus, brochures and the like, and other
materials received from USI, to USI upon the termination of this Agreement for
any cause (other than it being superseded by a new agreement concerning its
subject matter). This provision will survive termination of this
Agreement to the extent not superseded by another agreement between the
parties.
b. If asked
to do so by USI, before disclosing confidential information or trade secrets to
its employees or other representatives, Licensee will require those people to
sign confidentiality agreements
-3-
in a form
supplied by, or approved by, USI, binding those people not to disclose the
information except as may be authorized in the agreement. In any
case, Licensee agrees it will take all steps necessary at Licensee’s own
expense, to protect the confidential information and trade secrets mentioned in
this Agreement.
12. No
Sublicenses by Licensee. Licensee has no
right to sublicense the Marks or the Licensed Property.
13. Rights
Retained by USI. Licensee
acknowledges and agrees that USI retains the right to use, or to license to any
third party the use of, the Marks, the Licensed Property, and/or the other
elements of the System for any and all goods or services, at any location other
the Licensed Location or within the Territory, as specified in the Purchase
Agreement. Licensee acknowledges and agrees that USI retains the
right to own and/or operate, or to license or franchise others to own and/or
operate, U-Swirl Frozen Yogurt outlets or other outlets providing goods and/or
services similar to those provided by Licensee at any location other the
Licensed Location or within the Territory, as specified in the Purchase
Agreement.
14. Indemnification
by USI. USI agrees that
Licensee will have no liability, and USI will indemnify, defend, and hold
Licensee, and its directors, officers, employees, agents, and representatives
(collectively, the “Licensee
Affiliates”) harmless against any and all damages, liabilities,
attorneys’ fees, or costs incurred by Licensee or the Licensee Affiliates in
defending against any third-party claims or threats of claims under trademark,
copyright, or unfair competition or deceptive trade practices acts arising from
Licensee’s use of the Marks or the System in full compliance with this
Agreement. Licensee and the Licensee Affiliates may, at their own
expense, appear through counsel of their own choosing to defend themselves
against any such action.
15. Indemnification
by Licensee. Licensee agrees
that USI will have no liability, and Licensee will indemnify, defend, and hold
USI, and its directors, officers, employees, agents, and representatives
(collectively, the “USI
Affiliates”), harmless against any and all damages, liabilities,
attorneys’ fees or costs incurred by USI or the USI Affiliates in defending
against any third-party claims or threats of claims arising from the business or
products of Licensee or the Licensee Affiliates, or Licensee’s or the Licensee
Affiliates’ use of the Marks or the System other than in full compliance with
this Agreement. USI and the USI Affiliates may, at their own expense,
appear through counsel of their own choosing to defend themselves in any such
action.
16. Termination
of Agreement and License. Licensee may
terminate this Agreement and the License at any time upon written notice to
USI. This Agreement and the License may not be terminated by USI
unless any of the following events occur: (a) Licensee ceases to do business;
(b) Licensee ceases to operate a business offering the Services under the Marks
and the System; (c) Licensee breaches any of the terms of this Agreement,
provided that Licensee will have ten days after the receipt of written notice
from USI specifying the breach in which to cure the breach, if the breach is
curable; or (d) USI and Licensee agree to an earlier termination of this
Agreement (such as by entering into a superseding agreement).
17. Effect of
Termination; Obligations of Licensee. Licensee agrees
that if this Agreement expires or terminates for any reason, except if it is
superseded by a new agreement between Licensee and USI covering its subject
matter, Licensee will do all of the following:
a. Immediately
cease using the Marks and the Licensed Property, including a complete
de-identification of Licensee’s U-Swirl Frozen Yogurt outlet as a U-Swirl Frozen
Yogurt outlet.
b. Immediately
return to USI all material containing any Marks or Licensed
Property.
-4-
c. Promptly
cease using all Listings (as defined below), and if instructed by USI to do so,
promptly execute all forms and documents required by USI and any service
provider at any time to transfer the service and any related Listings to USI;
and refrain from entering any “call forwarding” or similar instruction with a
service provider that has the effect of circumventing the unconditional
obligation of Licensee to surrender and cease using all Listings. For
purposes of this Agreement, “Listings” means Licensee’s
telephone or facsimile numbers and Yellow Pages listings/advertisements or other
business listings or directories, including any website, domain name, or other
Internet usage. Upon termination of this Agreement and the License,
USI will have the immediate right to the Listings and to have the service
transferred to USI. Licensee appoints USI its true and lawful agent
and attorney-in-fact with full power and authority for the sole purpose of
taking such action as is necessary to complete this
assignment. Licensee shall not thereafter use the Listings at or in
connection with any subsequent business owned or operated by Licensee, its
officers, directors, shareholders, employees, or representatives, or for any
other purpose. The obligations of Licensee in this provision are also
obligations of the Licensee Affiliates.
d. Immediately
cease operating a business offering frozen yogurt or ice cream or similar
products at the Licensed Location, and not operate a business of that type at
the Licensed Location or within one mile of any U-Swirl Frozen Yogurt outlet for
a period of two years thereafter. The prohibitions on subsequent use
of the Marks stated above apply to the use of the words “formerly,” “former,”
“formerly associated,” or any words conveying similar meaning and used in
conjunction with the Marks. The obligations of Licensee in this
provision are also obligations of the Licensee Affiliates.
e. If
a court of competent jurisdiction determines that restrictions in the preceding
paragraph are excessive in time, geographic scope, or otherwise, the court may
reduce the restriction to the level that provides the maximum restriction
allowed by law.
f. The
obligations of this Section and this power of attorney referred to above in this
Section will survive the termination of this Agreement.
18. Assignment. USI may assign or
otherwise transfer this Agreement to any party that acquires the ownership of,
or a license to sublicense, the Marks or the System. This Agreement
is personal to Licensee, and as such, it is not assignable by
Licensee.
19. Independent
Contractors. The
relationship between USI and Licensee is that of independent
contractors. Licensee is in no way to be deemed a partner, joint
venturer, agent, employee, or servant of USI. Licensee has no
authority to bind USI to any contractual obligation or incur any liability for
or on behalf of USI. Licensee shall install a sign at its U-Swirl
Frozen Yogurt outlet, at a location and in a form designated by USI, indicating
that Licensee is an independent contractor and is the owner of the
outlet. Licensee shall identify itself as an independent owner of the
outlet and the business in all dealings with customers, lessors, contractors,
suppliers, public officials, employees, and others. Licensee shall
put notices of this independent ownership on signs, forms, stationery,
advertising, and other materials as USI may at any time require.
20. Illegality;
Survival. If any of the
terms, conditions, or provisions of this Agreement violate or contravene any
applicable laws, that/those term(s), condition(s), or provision(s) will be
deemed not a part of this Agreement, and the remainder of this Agreement will
remain in full force and effect.
21. No
Guaranty of Licensee’s Success. Licensee
acknowledges that USI has made no guarantees or representations concerning the
success of Licensee’s business or the License granted by this
Agreement. Licensee has been informed and acknowledges its
understanding that because of the highly
-5-
competitive
nature of the business involved, successful operation of its U-Swirl Frozen
Yogurt business will depend in part, upon the best efforts, capabilities,
management, and efficient operation by Licensee; as well as the general economic
trend and other local marketing conditions.
22. Notices. All notices
specified by this Agreement or required by law must be in writing and given by
personal delivery or sent by certified mail, return receipt requested to the
address(es) set forth at the beginning of this Agreement or to such other
address(es) as the parties may designate in writing prior to the giving of any
notice. Notices will be deemed “delivered” when actually left
in the custody of an adult agent or employee if given by personal delivery; or
if given by certified mail, one business day after being deposited with the U.S.
Postal Service with proper address and postage paid.
23. Interpretation. All the terms and
provisions of this Agreement will be binding upon and inure to the benefit of
the successors and assigns of the parties. However, nothing in this
paragraph may be construed as consent by USI to the assignment or transfer of
this Agreement or any rights by Licensee.
24. No
Waiver. Failure of USI to
insist upon the strict performance of any term, covenant, or condition contained
in this Agreement will not constitute or be construed as a waiver or
relinquishment of USI’s rights to enforce thereafter any such term, covenant, or
condition; and it will continue in full force and effect.
25. Litigation
Expense. If an action at
law or suit in equity is brought to establish, obtain or enforce any right by
either of the parties to this Agreement, the prevailing party in the suit or
action, in the trial and/or appellate courts, will be entitled to reasonable
attorneys fees to be recovered from the other party as well as that party’s
costs and disbursements incurred in such suit or action.
26. Entire
Agreement. This Agreement,
including its Rider, and the Purchase Agreement contains the entire agreement
between the parties relating to its subject matter, and all prior proposals,
discussions or writings (other than the Purchase Agreement), are
superseded. The terms of this Agreement will be binding upon and will
inure to the benefit of the parties and their permitted successors, heirs, and
assigns (if any).
27. Applicable
Law and Forum. This Agreement
and the License will be governed, construed, and enforced in accordance with the
laws of the state of Nevada. The exclusive forum for any disputes
arising out of or in connection with this Agreement and/or the License will be
in the federal or state courts located in Nevada.
28. Headings. The Section
headings contained in this Agreement are inserted for convenience only and do
not affect in any way the meaning or interpretation of this
Agreement.
29. Counterparts. This Agreement
may be executed in one or more counterparts, each of which shall be deemed an
original but all of which together will constitute one and the same
instrument.
|
U-SWIRL
YOGURT, INC., to be known as
U CREATE ENTERPRISES
INCORPORATED
|
U-SWIRL INTERNATIONAL, INC. | |||
|
By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
|
By:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
|
|||
|
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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President
|
President
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-6-
STANDARDS
AND SPECIFICATIONS RIDER
TO
LICENSE AGREEMENT
USI establishes the following initial
standards and specifications for the Services offered and sold by Licensee under
the foregoing License:
The
Services offered and sold by Licensee, and any goods sold by licensee in
connection with the Services, must be of at least the same quality as Licensee
was providing through its business immediately prior to the effectiveness of the
Purchase Agreement.