Exhibit 10.16 - Asset Purchase Agreement and Secured Convertible Note August 2008 by Attitude Drinks Inc.
Processing Fee:
$29.99
Company: Attitude Drinks Inc.
SEC CIK: 1416183
SEC Type: EX-10.16
SIC Code: 2080
SIC Industry: BEVERAGES
Date Filed: 2012-01-19
Date Filed:
01/19/2012 SKU: RDQ0NG-C-68-7
Text View
Exhibit 10.16 - Asset Purchase Agreement and Secured Convertible
Note August 2008
ASSET
PURCHASE AGREEMENT
BETWEEN
RFC BB
HOLDINGS, LLC
AND
ATTITUDE DRINKS, INC.
This ASSET PURCHASE AGREEMENT (this "Agreement") dated August 8,, 2008 is by and
between RFC BB HOLDINGS, LLC, a Delaware limited liability company ("Seller"), and ATTITUDE DRINKS, INC., a
Delaware corporation ("Buyer").
R E C I T A L S
WHEREAS, Seller desires to sell to Buyer
and Buyer desires to purchase from Seller certain assets of Seller under the terms of this
Agreement; and
WHEREAS, Buyer desires to assume all of
obligations and liabilities under and with respect to the assets being purchased by Buyer
hereunder.
NOW, THEREFORE, in consideration of the
foregoing and of the mutual covenants and agreements contained herein, the parties hereto covenant
and agree as follows:
AGREEMENT
ARTICLE 1
SALE OF ASSETS; ASSIGNMENT AND ASSUMPTION
1.1 Sale and
Assignment of Assets
. Seller does hereby sell, transfer, assign and deliver, or cause to be sold,
transferred, assigned and delivered, to Buyer all of Seller's right, title and interest in, to and
under those certain assets of Seller transferred to Seller pursuant to the (a) Quitclaim
Foreclosure Bill of Sale, dated as of January 18, 2008 between RFC BB Holdings, LLC., in its
capacity as secured party, and Seller, in its capacity as buyer, and (b) Foreclosure Assignment of
Trademarks, dated as of January 18, 2008, by Bravo! Brands, Inc. in favor of Seller, including but
not limited to, the assets set forth on Schedule 1.1 attached hereto (collectively, the "Assets"), and Buyer hereby agrees to
purchase all of Seller's right, title and interest in, to and under all of the Assets under the
terms of this Agreement. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, ALL OF
SELLER'S INTERESTS IN, TO AND UNDER THE ASSETS SHALL BE CONVEYED TO BUYER ON A "QUITCLAIM"BASIS,
WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, BUT NOT LIMITED
TO, THE QUALITY, CONTENT, OR CONDITION OF THE ASSETS, TITLE, MERCHANTABILITY, OR FITNESS OF THE
ASSETS FOR A PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE HERBY DISCLAIMED. BUYER IS
ACQUIRING SELLER'S RIGHT, TITLE AND INTEREST IN, TO AND UNDER THE ASSETS IN AN "AS IS" AND "WHERE
IS" CONDITION. BUYER HAS ASSESSED THESE MATTERS TO ITS SATISFACTION. IN NO
EVENT, SHALL SELLER BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN
CONNECTION WITH THIS CONVEYENCE.
1
1.2 Purchase
Price
. In consideration for the Assets, Buyer shall pay to Seller as the purchase price (the
"Purchase Price") Five Hundred
Seven Thousand Five Hundred Dollars ($507,500.00). On the date hereof, Buyer shall issue
to Seller a Secured Convertible Promissory Note (the "Note") in the amount of the Purchase
Price. The Note shall be secured by a grant of a first priority perfected security
interest in the Assets by Buyer in favor of Seller pursuant to the Security Agreement (Intellectual
Property) between Buyer and Seller, dated as of the date hereof (the "Security Agreement").
1.3 Acceptance and Assumption
. Buyer hereby accepts the assignment of the Assets and assumes and agrees to observe
and perform all of the duties, obligations, terms, provisions, burdens and covenants, and to assume
all of the liabilities to be observed, performed, paid or discharged of Seller under and with
respect to the Assets (the "Assumed
Liabilities"). Seller retains none of the Assumed Liabilities, and the parties
agree that all of the Assumed Liabilities shall be the sole responsibility of Buyer from and after
the date of this Agreement.
1.4 Intellectual Property Transfer and Filing Fees and
Costs. Seller shall pay all fees and costs that Seller or Buyer may incur in
filing documents in public offices in the Class I countries set forth on Schedule 1.1 in order to
effect the transfer of the Assets from Seller to Buyer. Buyer shall pay all fees and
costs that Seller or Buyer may incur in filing documents in public offices in the Class II
countries set forth on Schedule 1.1 in order to effect the transfer of the Assets from Seller to
Buyer (and including any fees and costs to effect the transfer of the Assets to Seller from Bravo!
Brands, Inc. and any other third party).
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents to Buyer as follows:
2.1 Ownership of
Assets
. Seller owns the Assets free and clear of all liens, claims and encumbrances of any
kind, and Seller has full legal right, power and authority to sell, transfer and assign the Assets
under this Agreement.
2.2 Authority
. Seller has all requisite authority to enter into this Agreement and to perform all the
obligations required to be performed by it hereunder.
2.3 Binding
Effect
. This Agreement is or will be, when executed and delivered, the legal, valid and
binding obligations of Seller, enforceable in accordance with its terms, except as may be limited
by bankruptcy or other factors generally affecting creditors rights.
ARTICLE 3
REPRESENTATIONS OF BUYER
Buyer represents to Seller as follows:
2
3.1 Authority
. Buyer has all requisite authority to enter into this Agreement and to perform all the
obligations required to be performed by it hereunder.
3.2 Binding
Effect
. This Agreement is or will be, when executed and delivered, the legal, valid and
binding obligations of Buyer, enforceable in accordance with its terms, except as may be limited by
bankruptcy or other factors generally affecting creditors rights.
3.3 No
Consents
. No consent, approval, order or authorization of, or registration, declaration or
filing with, any court, governmental, regulatory or administrative body or agency, or other third
party is required to be obtained or made in connection with the execution and delivery of this
Agreement, the Note, the Security Agreement or any other agreement contemplated hereby by Buyer or
the consummation by Buyer of the transactions contemplated hereby and thereby.
3.4 Title to
Assets
. BUYER ACKNOWLEDGES THAT ALL OF SELLER'S INTERESTS IN, TO AND UNDER THE ASSETS ARE SOLD
"AS IS"AND "WHERE IS" CONDITION, WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, AS TO ANY MATTER
WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, THE QUALITY, CONTENT, OR CONDITION OF THE ASSETS, TITLE,
MERCHANTABLITY, OR FITNESS OF THE ASSETS FOR A PARTICULAR PURPOSE.
.
ARTICLE 4
MISCELLANEOUS
4.1 Entire
Agreement
. This Agreement and any schedules attached hereto contain the complete agreement among
the parties with respect to the transactions contemplated hereby and supersede all prior agreements
and understandings among the parties with respect to such transactions.
4.2 Counterparts
. This Agreement may be executed in any number of counterparts, each of which when so
executed and delivered shall be deemed an original, and such counterparts together shall constitute
only one original.
4.3 Successors and
Assigns
. This Agreement and the rights, interest, and obligations hereunder shall be binding
upon and shall inure to the benefit of the parties hereto and their respective successors and
assigns, including but not limited to successors and assigns by merger, purchase, liquidation or
other acquisition or disposition.
4.4 Governing
Law
. This Agreement shall be governed, construed and enforced in accordance with the laws
of Delaware, without regard to the conflicts of law rules of such state.
4.5 Waiver and
Other Action
. This Agreement may be amended, modified or supplemented only by a written instrument
executed by Buyer and Seller.
3
4.6 Severability
. The parties hereto intend all provisions of this Agreement to be enforced to the
fullest extent permitted by law. Accordingly, should a court of competent jurisdiction
determine that the scope of any provision is too broad to be enforced as written, the parties
intend that the court should reform the provision to such narrower scope as it determines to be
enforceable. If, however, any provision of this Agreement is held to be illegal,
invalid, or unenforceable under present or future law, such provision shall be fully severable;
this Agreement shall be construed and enforced as if such illegal, invalid, or unenforceable
provision were never a part hereof; and the remaining provisions of this Agreement shall remain in
full force and effect and shall not be affected by the illegal, invalid or unenforceable provision
or by its severance, except to the extent such remaining provisions constitute obligations of
another party to this Agreement corresponding to the unenforceable provision.
4.7 Further
Actions
. Each of the parties hereto covenants and agrees, at its own expense, to execute and
deliver, at the request of the other party hereto, such further instruments of transfer and
assignment and to take such other action as such other party may reasonably request to more
effectively consummate the assignments and assumptions contemplated by this Agreement.
[Signature Page Follows]
4
IN WITNESS WHEREOF, the parties have
executed this Agreement as of the day and year first above written.
|
SELLER:
| |
|
RFC BB Holdings, LLC
| |
|
By:
|
/s/ Robert Possehl
|
|
Name:
|
Robert Possehl
|
|
Title:
|
Vice President
|
|
BUYER:
| |
|
Attitude Drinks, Inc.
| |
|
By:
|
/s/ Roy Warren
|
|
Name:
|
Roy Warren
|
|
Title:
|
CEO
|
SCHEDULE 1.1
ASSETS
|
TRADEMARK
|
COUNTRY CLASS
|
|
BLENDERS 78719566
United States of America
Class(es):
|
Class I
|
|
BLENDERS 78661707
United States of America
Class(es):
|
Class I
|
|
BODY SLAMMERS 78119374
United States of America
Class(es):
|
Class I
|
|
BRAVO! BLENDERS 65818/ 1317894
Canada
Class(es):
|
Class I
|
|
BRAVO! BLENDERS 65818/ 5 522 032 018/2007
European Community
Class(es): 005
|
Class II
|
|
BRAVO! BLENDERS 65818/ 77000337
United States of America
Class(es): 005
|
Class I
|
|
BRAVO! SHOOTERS 66515/ 1340455
Canada
Class(es): 005
|
Class I
|
|
BRAVO! SHOOTERS 66515/ 844072
Mexico
Class(es): 005
|
Class I
|
|
BRAVO! SHOOTERS 66515/ 77/024,094
United States of America
Class(es): 005:
|
Class I
|
|
BRAVO! Stylized 64388/2 49394
Bahrain
Class(es): 029
|
Class II
|
| TRADEMARK |
COUNTRY CLASS
| ||
|
BRAVO! Stylized 64388/1 49393
Bahrain
Class(es): 005
|
Class II
| ||
|
BRAVO! Stylized 64388/3 49395
Bahrain
Class(es): 030
|
Class II
| ||
|
BRAVO! Stylized 64388/4 49396
Bahrain
Class(es): 032
|
Class II
| ||
|
BRAVO! Stylized 64388/ 1300116
Canada
Class(es):
|
Class I
| ||
|
BRAVO! Stylized 64388/ 5137799 052/2006
European Community
Class(es): 005, 029, 030, 032
|
Class II
| ||
|
BRAVO! Stylized 64388/
Jordan
Class(es): 005, 029, 030, 032
|
Class II
| ||
|
BRAVO! Stylized 64388/ 77356 801 64347
Kuwait
Class(es): 005
|
Class II
| ||
|
BRAVO! Stylized 64388-2/ 77357
Kuwait
Class(es): 029
|
Class II
| ||
|
BRAVO! Stylized 64388-3/ 77358 816 65831
Kuwait
Class(es): 030
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