AGREEMENT AND PLAN OF ACQUISTION
This AGREEMENT AND PLAN OF ACQUISITION
(“Agreement”), dated as of May 5, 2005, by and among
NEW LIFE SCIENTIFIC, INC., a Nevada corporation, a Nevada
corporation (“NWLF”), the stockholders of NOVO LIFE
Scientific Group, Inc. as listed on the signature page
(collectively, the “Stockholders”), a Ukrainian
enterprise-corporation (“NOVO LIFE”). The corporate
parties hereto are sometimes hereinafter referred to collectively
as the “Companies,” or individually as a
“Company.”
WHEREAS, the respective Boards of Directors/Managers
of the Companies deem it advisable and in the best interests of
their respective stockholders that NOVO LIFE be acquired by and
become a wholly owned subsidiary of NWLF and, in furtherance
thereof, the Boards of Directors/Managers of the Companies have
approved, as applicable, the share exchange provided for herein;
and
WHEREAS, for federal income tax purposes, it is
intended that the share exchange shall qualify as a reorganization
within the meaning of Section 368(a) of the Internal Revenue Code
of 1986, as amended (the “Code”), but a IRS ruling or
opinion of counsel is not being sought and such tax treatment is
not a condition to closing the share exchange herein;
NOW, THEREFORE, in consideration of the foregoing
and the respective representations, warranties, covenants, and
agreements set forth herein, the parties hereto agree as
follows:
ARTICLE I
THE SHARE
EXCHANGE
1.1
The Share exchange
. Subject to the terms
and conditions of this Agreement, at the Effective Time (as defined
in Section 1.2 hereof), NWLF shall issue its shares of common stock in
exchange for the common stock (or authorized share capital as
defined under Ukrainian law representing ownership of NOVO LIFE) of
NOVO LIFE as set forth on the signature page (the
“Transaction”).
1.2
Effective Time of the Share
exchange .
The Transaction shall become effective (the
“Effective Time”) upon the completion of the share
exchange as provided herein.
ARTICLE II
THE STOCKHOLDERS
REPRESENTATIVE
2.1 Shareholder Representative . The
NOVO LIFE Stockholders hereby irrevocably designate and appoint
Alexander Yelsky as their agent and attorney in fact (the
“Representative”) with full power and authority through
the Closing or termination of this Agreement, whichever occurs
first, to execute, deliver and receive on their behalf all notices,
requests, certificates, proceeds and other communications under or
pursuant to this Agreement; to fix and alter on their behalf the
date, time and place of the Closing; to waive, amend or modify any
provisions of this Agreement and to take such other action on their
behalf in connection with the Agreement, the Closing and the
transactions contemplated thereby as the Representative deems
appropriate; provided, however, that no such waiver, amendment or
modification may be made if it would decrease the purchase price
for the NOVO LIFE Shares to be paid to the Stockholders as set
forth in this Agreement or increase the liability of the
Stockholders herein.
ARTICLE III
CONVERSION OF
SHARES
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3.1
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Exchange
Ratio . At the Effective Time and subject to Section 7, by virtue of
the Transaction:
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a.) The common stock of NOVO LIFE (“NOVO LIFE
Common Share”) issued and outstanding immediately prior to
the Effective Time (other than NOVO LIFE Shares held by NWLF or any
subsidiary of NWLF, if any), shall be exchanged for 17,500,000
share(s) of restricted common stock, par value $.001 per share, of
NWLF (“NWLF Shares”). The aggregate number of NWLF
shares to be received by the NOVO LIFE shareholders shall be
17,500,000. The NOVO LIFE Common Shares are also referred to as the
“NOVO LIFE Shares.”
b.) If, prior to the Effective Time, except as
required to meet the terms of this Plan of Share Exchange, NWLF
should split or combine any of its outstanding stock or securities,
or pay a stock dividend or other stock distribution in, then the
NOVO LIFE Exchange Ratio shall be appropriately adjusted to reflect
such split, combination, dividend, or other
distribution.
e.) Each NOVO LIFE Share held in treasury (or a
subsidiary, as such term is defined in Article IV hereof)
immediately prior to the Effective Time shall be canceled and
retired and cease to exist, and no NWLF Shares shall be issued in
exchange therefore.
(a) Prior to
the Effective Time, NWLF shall select and enter into an agreement
with an attorney, transfer agent or trust company to act as
Exchange Agent hereunder (the “Exchange Agent”) in the
United States and in Kiev, Ukraine. No later than the Effective
Time, NWLF shall make available, to the Stockholders Representative
the NWLF Shares that the Stockholders shall be entitled to receive
in the Transaction for delivery to the Stockholders in exchange for
the NOVO LIFE Shares. The NWLF Shares for which the NOVO LIFE
Shares shall be exchanged in the Transaction shall be deemed to
have been issued at the Effective Time.
(b) In the
event that any stock certificate representing NOVO LIFE Shares
shall have been lost, stolen, or destroyed, upon the making of an
affidavit of that fact by the person claiming such certificate to
be lost, stolen, or destroyed, NWLF shall issue or cause to be
issued in exchange for such lost, stolen, or destroyed certificate
the number of NWLF Shares into which such shares are exchanged in
the Transaction in accordance with this Article III . When authorizing such
issuance in exchange therefore, the Board of Directors of NWLF may,
in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen, or destroyed
certificate to give NWLF a bond in such sum as it may direct as
indemnity, or such other form of indemnity as it shall direct,
against any claim that may be made against NWLF with respect to the
certificate alleged to have been lost, stolen, or
destroyed.
3.3
Dividends; Transfer
Taxes . No dividends that are declared on NWLF Shares shall be paid to
persons entitled to receive certificates representing NWLF Shares
until such persons surrender their certificates representing NOVO
LIFE Shares. Upon such surrender, there shall be paid to the person
in whose name the certificates representing such NWLF Shares shall
be issued any dividends which shall have become payable with
respect to such NWLF Shares between the Effective Time and the time
of such surrender. In no event shall the person entitled to receive
such dividends be entitled to receive interest on such dividends.
If any certificates for any NWLF Shares are to be issued in a name
other than that in which the certificate representing NOVO LIFE
Shares surrendered in exchange therefore is registered, it shall be
a condition of such exchange that the person requesting such
exchange shall pay to the Exchange Agent any transfer or other
taxes required by reason of the issuance of certificates for such
NWLF Shares in a name other than that of the registered holder of
the certificate surrendered, or shall establish to the satisfaction
of the Exchange Agent that such tax has been paid or is not
applicable. Notwithstanding the foregoing, neither the Exchange
Agent nor any party hereto shall be liable to a holder of Shares
for any NWLF Shares or dividends thereon or, in accordance
with Section 3.4 hereof, the cash payment for fractional interests, delivered to
a public official pursuant to applicable escheat laws.
3.4
No Fractional
Securities .
No certificates or scrip representing fractional
NWLF Shares shall be issued upon the surrender for exchange of
certificates representing Shares pursuant to this
Article III and no
dividend, stock split-up, or other change in the capital structure
of NWLF shall relate to any fractional security, and such
fractional interests shall not entitle the owner thereof to vote or
to any rights of a security holder. Any fractional shares to be
issued to the Stockholders shall be increased to the next whole
share.
3.5
Closing The closing of the transactions contemplated by this Agreement
(the “Closing”) shall take place via facsimile or in
person on the day on which the parties execute this Agreement and
on which all of the conditions set forth in Article VIII hereof are satisfied or
waived (other than those conditions which are to be satisfied at
Closing), or at such other date, time and place as the Companies
shall agree.
3.6
Supplementary Action
. If at any time after
the Effective Time, any further assignments or assurances in law or
any other things are necessary or desirable to vest or to perfect
or confirm of record in the Surviving Corporation the title to any
property or rights of either NWLF or NOVO LIFE, or otherwise to
carry out the provisions of this Agreement, the officers and
directors of the Surviving Corporation are hereby authorized and
empowered on behalf of each, in the name of and on behalf of them
as appropriate, to execute and deliver any and all things necessary
or proper to vest or to perfect or confirm title to such property
or rights in the Surviving Corporation, and otherwise to carry out
the purposes and provisions of this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF NOVO LIFE
As used in this Agreement, (i) the term
“Material Adverse Effect” means, with respect to NWLF
or NOVO LIFE, as the case may be, a material adverse effect on the
business, assets, results of operations, or financial condition of
such party and its subsidiaries taken as a whole or in the ability
of such party to perform its obligations hereunder, and (ii) the
word “subsidiary” when used with respect to any party
means any corporation or other organization, whether incorporated
or unincorporated, of which such party or any other subsidiary of
such party is a general partner (excluding partnerships the general
partnership interests of which held by such party or any subsidiary
of such party do not have a majority of the voting interests in
such partnership) or of which at least a majority of the securities
or other interests having by their terms ordinary voting power to
elect a majority of the Board of Directors or others performing
similar functions with respect to such corporations or other
organizations is directly or indirectly owned or controlled by such
party and/or by any one or more of the subsidiaries.
NOVO LIFE represents and warrants, with respect to
NOVO LIFE and its subsidiaries, except as disclosed to NWLF in the
NOVO LIFE Schedule of Exceptions (the “NOVO LIFE
Schedule”), attached hereto and incorporated herein by this
reference, as follows:
4.1
Organization
. Each of NOVO LIFE and
its subsidiaries is a corporation or limited liability company duly
organized, validly existing, and in good standing under the laws of
its jurisdiction of incorporation and has the corporate or other
power to carry on its business as it is now being conducted or
presently proposed to be conducted. Each of NOVO LIFE and its
subsidiaries is duly qualified as a foreign owned corporation in
the Country of Ukraine according to the laws, rules and regulations
required of such an entity in that jurisdiction to do business, and
is in good standing (to the extent the concept of good standing
exists), in each jurisdiction where the character of its properties
owned or held under lease or the nature of its activities makes
such qualification necessary, except where the failure to be so
qualified shall not have a Material Adverse Effect.
4.2
Capitalization
. The authorized
capital stock of NOVO LIFE and each of its subsidiaries consists of
100% of the share ownership of all shares of which are issued and
outstanding. All of the issued and outstanding Shares or Share
Capital of NOVO LIFE are validly issued, fully paid, and
non-assessable and free of preemptive rights or similar rights
created by statute, the Articles of Incorporation or Bylaws
of NOVO LIFE or any agreement by which NOVO
LIFE or any of its
subsidiaries is a party or by which it is bound.
Except (a) as set forth above or, (b) as disclosed in Section 4.2
of the NOVO LIFE Schedule, there are not as of the date of this
Agreement any shares of capital stock of NOVO LIFE issued or
outstanding or any options, warrants, subscriptions, calls, rights,
convertible securities, or other agreements or commitments
obligating NOVO LIFE to issue, transfer, or sell any shares of its
capital stock. As of the date hereof, no bonds, debentures, notes,
or other indebtedness having the right to vote (or convertible into
or exercisable for securities having the right to vote) on any
matters on which shareholders of NOVO LIFE may vote (“Voting
Debt”) were issued and outstanding.
4.3
Authority Relative to this
Agreement .
NOVO LIFE has the corporate power to enter into this
Agreement and to carry out its obligations hereunder. The execution
and delivery of this Agreement by NOVO LIFE and the consummation by
NOVO LIFE of the transactions contemplated hereby have been duly
authorized by its Board of Directors, and, except for approval by
the requisite votes cast by NOVO LIFE ‘s shareholders at the
meeting provided for herein or the Required Stockholders’
Consent, no other corporate proceedings on the part of NOVO LIFE
are necessary to approve this Agreement or the transactions
contemplated hereby.
4.4
Consents and Approvals; No
Violations .
No filing with, and no permit, authorization,
consent, or approval of, any public body or authority is necessary
for the consummation by NOVO LIFE of the transactions contemplated
by this Agreement. Except as set forth in Section 4.4 of the NOVO
LIFE Schedule, neither the execution and delivery of this Agreement
by NOVO LIFE, nor the consummation by it of the transactions
contemplated hereby, nor compliance by NOVO LIFE with any of the
provisions hereof, shall (a) result in any breach of the Articles
of Incorporation or Bylaws of NOVO LIFE, (b) result in a violation
or breach of, or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination,
cancellation, or acceleration) under, any of the terms, conditions,
or provisions of any note, bond, mortgage, indenture, license,
contract, agreement, or other instrument or obligation to which
NOVO LIFE or any of its subsidiaries is a party or by which any of
them or any of their properties or assets may be bound or (c)
violate any order, writ, injunction, decree, statute, rule, or
regulation applicable to NOVO LIFE , any of its subsidiaries or any
of their properties or assets, except in the case of clauses (b)
and (c) for violations, breaches, or defaults that would not have a
Material Adverse Effect.
4.5
Financial Statements
. Except as set forth
in Section 4.5 of the NOVO LIFE Schedule, the un-audited financial
statements dated March 31, 2005 (NOVO LIFE Un-Audited Statements)
(NOVO LIFE Un-audited Statements) fairly presents in all material
respects the consolidated financial position of NOVO LIFE and its
subsidiaries as of the respective dates thereof, and the other
related statements included therein fairly present in all material
respects the results of operations, changes in stockholders’
equity and cash flows of NOVO LIFE and its subsidiaries for the
respective periods or as of the respective dates set forth therein,
all in conformity with generally accepted accounting principles
consistently applied during the periods involved, except as
otherwise noted therein and subject, in the case of the un-audited
interim financial statements, to normal year-end adjustments and
any other adjustments described therein and the absence of any
notes thereto. The NOVO LIFE Un-audited Statements may collectively
be referred to as NOVO LIFE Financial Statements.
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4.6
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Absence of Certain Changes
or Events; Undisclosed Liabilities .
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(a) Since
March 31, 2005, except as set forth in Section 4.6 of the NOVO LIFE
Schedule, neither NOVO LIFE nor any of its subsidiaries has: (i)
taken any of the actions set forth in Sections 6.1 hereof; (ii) incurred
any liability material to NOVO LIFE and its subsidiaries on a
consolidated basis, except in the ordinary course of its business,
consistent with past practices; (iii) suffered a change, or any
event involving a prospective change, in the business, assets,
financial condition, or results of operations of NOVO LIFE or any
of its subsidiaries which has had, or is reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect, (other
than as a result of changes or proposed changes in federal or state
regulations of general applicability or interpretations thereof,
changes in generally accepted accounting principles, and changes
that could, under the circumstances, reasonably have been
anticipated in light of
disclosures made in writing by NOVO LIFE to NWLF
pursuant hereto); or (iv) subsequent to the date hereof, except as
permitted by Section 6.1
hereof, conducted its business and operations other
than in the ordinary course of business and consistent with past
practices.
(b) Neither
NOVO LIFE nor any of its subsidiaries has any liability (and there
is no basis for any present or future action, suit, proceeding,
hearing, investigation, charge, complaint, claim, or demand against
any of them giving rising to any liability) except for (i)
liability set forth on the face of the March 31, 2005 balance sheet
and (ii) liabilities which have risen after the March 31, 2005
balance sheet in the ordinary course of business (none of which
results from, arises out of, relates to, is in the nature of, or
was caused by any breach of contract, tort, infringement, or
violation of law).
4.7
Litigation As of the date of
this Agreement, (i) there is no action, suit, judicial, or
administrative proceeding, arbitration or investigation pending or,
to the best knowledge of NOVO LIFE, threatened against or involving
NOVO LIFE or any of its subsidiaries, or any of their properties or
rights, before any court, arbitrator, or administrative or
governmental body; (ii) there is no judgment, decree, injunction,
rule, or order of any court, governmental department, commission,
agency, instrumentality, or arbitrator outstanding against NOVO
LIFE or any of its subsidiaries; and (iii) NOVO LIFE and its
subsidiaries are not in violation of any term of any judgments,
decrees, injunctions, or orders outstanding against them. NOVO LIFE
has furnished to NWLF in writing, a copy of which is set forth in
Section 4.7 of the NOVO LIFE Schedule, a description of all
litigation, actions, suits, proceedings, arbitrations,
investigations known to it, judgments, decrees, injunctions or
orders pending; or to its best knowledge, threatened against or
involving NOVO LIFE or any of its subsidiaries, or any of their
properties or rights as of the date hereof.
(a) Each of
the material contracts, instruments, mortgages, notes, security
agreements, leases, agreements, or understandings, whether written
or oral, to which NOVO LIFE or any of its subsidiaries is a party
that relates to or affects the assets or operations of NOVO LIFE or
any of its subsidiaries or to which NOVO LIFE or any of its
subsidiaries or their respective assets or operations may be bound
or subject is a valid and binding obligation of NOVO LIFE and in
full force and effect (with respect to NOVO LIFE or such
subsidiary), except for where the failure to be in full force and
effect would not, individually or in the aggregate, have a Material
Adverse Effect. Section
4.8(a) of the NOVO LIFE Schedule sets forth a complete list of all
material contracts. For purposes of
this Agreement a material contract shall be any contract or
agreement, which involves consideration in excess of $25,000.
Except to the extent that the consummation of the transactions
contemplated by this Agreement may require the consent of third
parties, as disclosed in the NOVO LIFE Schedule, there are no
existing defaults by NOVO LIFE or any of its subsidiaries
thereunder or, to the knowledge of NOVO LIFE, by any other party
thereto, which defaults, individually or in the aggregate, would
have a Material Adverse Effect; and no event of default has
occurred, and no event, condition, or occurrence exists, that
(whether with or without notice, lapse of time, or the happening or
occurrence of any other event) would constitute a default by NOVO
LIFE or any of its subsidiaries thereunder which default would,
individually or in the aggregate, have a Material Adverse
Effect.
(b) Except for
this Agreement and those set forth on Section 4.8(b) of the NOVO
LIFE Schedule, neither NOVO LIFE nor any of its subsidiaries is a
party to any oral or written (i) consulting agreement not
terminable on 60 days’ or less notice requiring the payment
of more than $25,000 per annum, in the case of any such agreement
with an individual; (ii) joint venture agreement; (iii)
non-competition or similar agreements that restricts NOVO LIFE or
its subsidiaries from engaging in a line of business; (iv)
agreement with any executive officer or other employee of NOVO LIFE
or any subsidiary the benefits of which are contingent, or the
terms of which are materially altered, upon the occurrence of a
transaction involving NOVO LIFE of the nature contemplated by this
Agreement and which provides for the payment of in excess of
$10,000; (v) agreement with respect to any executive officer
of NOVO LIFE or any subsidiary providing any term of employment or
compensation guaranty in excess of $15,000 per annum; or (vi)
agreement or plan, including any stock option plan, stock
appreciation rights plan, restricted stock plan, or stock purchase
plan, any of the benefits of which shall be increased, or the
vesting
of the benefits of which shall be accelerated, by
the occurrence of any of the transactions contemplated by this
Agreement or the value of any of the benefits of which shall be
calculated on the basis of any of the transactions contemplated by
this Agreement.
(c) Except as
set forth in Section 4.8(c) of the NOVO LIFE Schedule, all
employment, consulting, stock option or other similar agreements of
NOVO LIFE and subsidiaries will be terminated at the Effective Time
and no obligations or liabilities of NOVO LIFE or its subsidiaries
will exist thereunder or as the result of such termination or
otherwise.
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4.9
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Employee Benefit
Plans .
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(a) Disclosed
in Section 4.9 of the NOVO LIFE Schedule is a true and complete
list of each written employee benefit plan, or similar such plans
which are implemented in the Ukraine (including, without
limitation, any “employee benefit plan” as defined in
Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended (“ERISA”)) policy or agreement that is
maintained (all of the foregoing, the “Benefit Plans”),
or is or was contributed to by NOVO LIFE or any trade or business,
whether or not incorporated (an “ERISA Affiliate”),
which together with NOVO LIFE would be deemed a “single
employer” within the meaning of Section 4001 of the Employee
Retirement Income Security Act of 1974, as amended
(“ERISA”). A copy of each Benefit Plan as currently in
effect and, if applicable, the most recent Annual Report (Form 5500
Series), Actuarial Report or Valuation, Summary Plan Description,
Trust Agreement, and a Determination Letter issued by the IRS for
each Benefit Plan have heretofore been delivered to NWLF. No
Benefit Plan was or is subject to Title IV of ERISA or Section 412
of the Code (including any “multiemployer plan,” as
defined in Section 3(37) of ERISA).
(b) Each of
the Benefit Plans that are described in Section 4.9 or which are
subject to ERISA is in substantial compliance the laws of the
Ukraine and/or with ERISA; each of the Benefit Plans intended to be
“qualified” within the meaning of Section 401 (a) of
the Internal Revenue Code of 1986, as amended (the
“Code”) is so qualified; and no event has occurred, and
to NOVO LIFE ‘s knowledge, there exists no condition or set
of circumstances, in connection with which NOVO LIFE or any ERISA
Affiliate is or could be subject to liability (except liability for
benefit claims and funding obligations payable in the ordinary
course) under ERISA, the Code, or any other applicable law with
respect to any Benefit Plan.
4.10
Taxes
. For the purposes of
this section, the term “tax” shall include all taxes,
charges, withholdings, fees, levies, penalties, additions,
interest, or other assessments imposed by any United States
federal, state, or local authority or any other taxing authority on
NOVO LIFE or any of its Tax Affiliates (as hereinafter defined) as
to their respective income, profit, franchise, gross receipts,
payroll, sales, employment, worker’s compensation, use,
property, withholding, excise, occupancy, environmental, and other
taxes, duties, or assessments of any nature, whatsoever. Except as
set forth in Section 4.10 of the NOVO LIFE Schedule, NOVO LIFE has
filed or caused to be filed timely all material federal, state,
local, and foreign tax returns required to be filed by each of its
and any member of its consolidated, combined, unitary, or similar
group (each such member a “Tax Affiliate”). Such
returns, reports, and other information are accurate and complete
in all material respects. NOVO LIFE has paid or caused to be paid
or has made adequate provision or set up an adequate accrual or
reserve for the payment of, all taxes shown to be due in respect of
the periods for which returns are due, and has established (or
shall establish at least quarterly) an adequate accrual or reserve
for the payment of all taxes payable in respect of the period
subsequent to the last of said periods required to be so accrued or
reserved. Neither NOVO LIFE nor any of its Tax Affiliates has any
material liability for taxes in excess of the amount so paid or
accruals or reserves so established. Except as set forth in Section
4.10 of the NOVO LIFE Schedule, neither NOVO LIFE nor any of its
Tax Affiliates is delinquent in the payment of any tax in excess of
the amount reserved or provided therefore, and no deficiencies for
any tax, assessment, or governmental charge in excess of the amount
reserved or provided therefore have been threatened, claimed,
proposed, or assessed. No waiver or extension of time to assess any
taxes has been given or requested. The Taxing Authority of the
Ukraine or comparable agencies have never audited NOVO LIFE tax
returns or questioned its status.
4.11 Compliance with Applicable
Law . NOVO LIFE and each of its subsidiaries holds all material
licenses, franchises, permits, variances, exemptions, orders,
approvals, and authorizations necessary for the lawful conduct of
its business under and pursuant to, and the business of each of
NOVO LIFE and its subsidiaries is not being conducted in violation
of, any provision of any material federal, state, local, or foreign
statute, law, ordinance, rule, regulation, judgment, decree, order,
concession, grant, franchise, permit or license, or other
governmental authorization or approval applicable to NOVO LIFE or
any of its subsidiaries.
4.12
Subsidiaries .
Section 4.12 of the NOVO LIFE Schedule lists all the
subsidiaries of NOVO LIFE as of the date of this Agreement and
indicates for each such corporate or limited liability company
subsidiary as of such date the jurisdiction of incorporation or
organization. All of the outstanding shares of capital stock or
other equity interests of each of the subsidiaries are (i) held by
NOVO LIFE or one of such wholly-owned subsidiaries; (ii) fully paid
and non-assessable; and (iii) owned by NOVO LIFE or one of such
wholly owned subsidiaries free and clear of any claim, lien, or
encumbrance.
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4.13
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Intellectual
Property .
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(a) Except to
the extent that the inaccuracy of any of the following (or the
circumstances giving rise to such inaccuracy) does not have or
could not reasonably be expected to have a Material Adverse
Effect:
(i) NOVO LIFE and each of its subsidiaries owns, or is licensed or
otherwise has the legally enforceable right to use (in each case,
clear of any liens or encumbrances of any kind), all Intellectual
Property (as hereinafter defined) used in or necessary for the
conduct of its business as currently conducted;
(ii) No
claims are pending or, to the best knowledge of NOVO LIFE,
threatened that NOVO LIFE or any of its subsidiaries is infringing
on or otherwise violating the rights of any person with regard to
any Intellectual Property used by, owned by, and/or licensed to
NOVO LIFE or any of its subsidiaries and, to the best knowledge of
NOVO LIFE, there are no valid grounds for any such
claims;
(iii) Except as
set forth on Schedule 4.13(a)(iii) of the NOVO LIFE Schedule, to
the best knowledge of NOVO LIFE, no person is infringing on or
otherwise violating any right of NOVO LIFE or any of its
subsidiaries with respect to any Intellectual Property owned by
and/or licensed to NOVO LIFE or any of its subsidiaries;
(iv) to the
best knowledge of NOVO LIFE , there are no valid grounds for any
claim challenging the ownership or validity of any Intellectual
Property owned by NOVO LIFE or any of its subsidiaries or
challenging NOVO LIFE ‘s or any of its subsidiaries’
license or legally enforceable right to use any Intellectual
Property licensed by it; and
(v) to
the best knowledge of NOVO LIFE , all patents, registered
trademarks, service marks, and copyrights held by NOVO LIFE and
each of its subsidiaries are valid and subsisting.
(b) For
purposes of this Agreement, “Intellectual Property”
means trademarks (registered or unregistered), service marks, brand
names, certification marks, trade dress, assumed names, trade
names, and other indications of origin, the goodwill associated
with the foregoing and registrations in any jurisdiction of, and
applications in any jurisdiction to register, the foregoing,
including any extension, modification or ren