NOTICE OF INTENT TO ACQUIRE ASSETS OF “FIZZIQUE”
Dated: June 10, 2021
(Original -redacted- Agreement Attached Herewith)
GenTech Holdings, Inc. Stockholders
On June 9, 2021, GenTech Holdings’ (www.gentechholdings.com) subsidiary SINFIT NUTRITION INC., (www.sinfitnutrition.com) signed a letter of intent to acquire certain assets of the FIZZIQUE brand of Sports Energy Drink from Next Proteins, Inc.
The Company intends for the Asset Purchase Agreement to be drawn up immediately with a view to ‘closing’ occurring on or before Friday 18th June 2021.
The agreement is attached, but has been redacted until the Asset Purchase Agreement is ‘closed’.
SINFIT Nutrition, Inc.
11427 West I-70 Frontage Road North,
Wheat Ridge. CO. 80033
Dear Mr. David Jenkins,
SINFIT Nutrition, Inc. (“SF”), and collectively with its affiliates, “we” or the “Purchaser”), submit this letter of intent (this “Letter”) to purchase all or substantially all of the assets of FIZZIQUE LLC (“you,” or “FIZQ” or the “Company”) (the “Transaction”) from Next Proteins Inc.. We have confirmed our interest in the investment opportunity through our review of the information provided to date and conversations with David Jenkins the “Seller” or “you”).
We believe that in our discussions thus far, SF can achieve all the discussed outcomes in this transaction including (1) the full cash element of the purchase price paid to seller in cash at close within 5 days of closing (2) provide a platform and partner to continue to grow the brand. We believe that FIZQ is an extremely compelling investment opportunity for our company given its alignment with some of our current product offering and with our sales, market, financial backing and our existing corporate infrastructure.
As such, we are pleased to submit this Letter with respect to the Transaction.
Overview of Proposed Transaction
- Purchased Assets. Subject to the terms and conditions of this Agreement, and in reliance on the representations, warranties, and conditions set out in this Agreement, the Seller hereby sells the following assets of the Company (collectively hereinafter referred to as the “Purchased Assets”), free and clear of all liens, restrictions, claims or encumbrances of any kind, nature or description (except hereinafter set forth):
- All inventory on hand in the East Coast Warehouse including finished product as well as any other product, packaging and raw material and anything else relating to products, any and all marketing material, clothing, swag and samples
- Fizzique Trademark and all design and artwork materials related to the logos and branding of the company name and products
- All outstanding accounts receivable owed to the Seller as of the date of closing the transaction
- All outstanding accounts receivable
- Any and all clients contact detail databases and all sales lists, historical order records and any data related to the marketing to customers of the products.
- Goodwill: to include but not limited to complete customer list including full up to date contact details in the sellers possession (both business to business and business to consumer), Amazon store and any other online stores owned by the Seller outside of their standard ‘corporate’ website, recurring revenue, monthly average sales information and complete customer breakdown; all FIZQBR intellectual property; research and development documentation.
- The website: www.drinkFizzique.com
- Exclusive rights to use trademarked and patented formulas and drinks products for until 8/16/25.Fizzique Formula can not be replicated or sold to anyone else for their use.
- All Media material (video’s etc.), where possible in both their edited and unedited (raw) formats.
- Formulas for both the 15 and 20 gram product
- Manufacturing SOP
- Beverage Source referral
- Protein powder direct referral: Milk Specialties Global Protein.
- Printing plates for printing shrink wrap for cases Made for the 3 current flavors
- Printing plates for printing cans At Ball Can Factory (12 oz. Sleek) Need new plates made for 12 oz. standard cans.
- All formulas and flavor profiles designed for Fizzique that may or may not have been released yet.
- All R&D for future Fizzique products
- Excluded Assets. Notwithstanding anything herein contained to the contrary, this sale does not include any cash or cash equivalents on hand at the time of closing, or any cash or cash equivalents in financial or investment institutions or any assets of the Business not specifically provided for in Section 1
- The Purchase Price and Payment. The price to be paid by the Purchaser to the Seller for the Purchased Assets will be $xxx.xxx.xxx USD. The Purchase Price shall be payable on the Closing Date as follows:
- $xxx.xxx.xxx paid by wire transfer, certified or bank check at Closing for disbursement according to the Seller’s direction.
- xxx% royalty on the gross profits of sales of trademarked & patented formulas for the carbonated protein drink where the trademark & patent remains in force with exclusive rights to use globally for a period of 5 years. No royalty will be due in the first twelve months, thereafter paid quarterly in arrears on 30 day terms.
- Closing Deliverables by Seller. At the Closing, the Seller will deliver to Purchaser the following:
- a Bill of Sale (the “Bill of Sale”), duly executed by the Seller, transferring to the Purchaser good title to all tangible and intangible assets comprising the Purchased Assets
- a copy of resolutions duly adopted by the authorized governing body of Seller authorizing and approving the transactions contemplated hereby, Seller’s performance of the transactions contemplated hereby and the execution, delivery and performance of this Agreement and the other documents described herein to which Seller is a party, certified by an appropriate officer of Sellers
- access to the Purchased Assets for the Purchaser to take possession and accept the buyer will have the right to operate the business;
- The following financial reports
- Balance Sheet as of Dec 2019 and Dec 2020 & as of end of previous 2021 quarter
- Statement of equity (since inception) & as of end of previous 2021 quarter
- P&L as of December 2019 and December 2020 & as of end of previous 2021 quarter
- Closing Deliveries by the Purchaser. At the Closing, the Purchaser will deliver to Seller each of the following:
- the Purchase Price payment;
- a copy of resolutions duly adopted by the authorized governing body of Purchaser authorizing and approving the transactions contemplated hereby, Purchaser’s performance of the transactions contemplated hereby and the execution, delivery and performance of this Agreement and the other documents described herein to which Purchaser is a party, certified by an appropriate officer of the Seller
- Timeline / Due Diligence. Upon acceptance of this proposal, we will work to finalize our diligence, sign definitive agreements andclose as soon as possible. We would move to conduct our remaining diligence review in an expeditious manner. Based on our experience executing similar transactions, we believe that we can complete our business diligence within 5 days of execution of this Letter, assuming sufficient access to management and information.
- Definitive Agreement. All of the terms and conditions of the Transaction would be set forth in a definitive, written acquisition agreement (the “Definitive Agreement”) prepared by counsel to the Purchaser. The Definitive Agreement would contain representations, warranties, agreements, indemnification, survival periods, baskets and caps, and other provisions as are customary in transactions of this size and nature or otherwise appropriate under the circumstances and, in all cases, as agreed by the Purchaser and Seller. The closing would occur simultaneously with the execution of the Definitive Agreement, subject to the satisfaction of a customary set of closing conditions, including execution of all agreements relating to the Transaction and releases of all liens encumbering the assets and real properties of the Companies.
- Non-Compete. We would request that the Seller enter a customary non-compete and non-solicit arrangements including a three-year restrictive covenant agreement related to the manufacture and sale of any products in the protein drink vertical, except for customer they are already working with as of date of the signed LOI. Fizzique formula can never be sold to anyone else for their use, but buyer understands that the use of the patent can be licensed and is being licensed to other parties, but may not be in the same field as Fizzique.
- Exclusivity. Upon its execution of this Letter, FIZQ covenants and agrees that until the earlier of (i) the 10th day after this Letter isexecuted by the last party to sign (the “Exclusivity Expiration Date”), and (ii) the time, if any, that Purchaser and the Seller execute the Definitive Agreement for the Transaction, the Sellers or the Company, and such persons and entities, will not authorize or permitany of their respective affiliates, equity holders, partners, directors, officers, managers, employees, agents, advisors or representatives to: (1) solicit, initiate or encourage any inquiry, proposal, offer or contact from any entity or person (other than the Purchaser) relating to (A) any transaction involving the direct or indirect sale of any equity interest or assets (other than the sale of inventory in the ordinary course of business) of the Company or (B) any acquisition, divestiture, merger, consolidation, business combination, or similar transaction directly or indirectly involving the Company; or (2) participate in any discussion or negotiation regarding, furnish any information with respect to, assist or participate in, or facilitate in any other manner any effort or attempt by any entity or person (other than the Purchaser) to do or seek any transaction described above. If any entity or person makes any inquiry, proposal, offer or contact with respect to any transaction described above, The Company will immediately notify the Purchaser of such incident. The Exclusivity Expiration Date will automatically extend for one additional 30-day period if, on or around the Exclusivity Expiration Date, Purchaser is continuing to work in good faith toward a closing of the Transaction.
- Access and Operations. Until the consummation or earlier termination of the Transaction by either party (whichever shall first occur), the Company will permit the Purchaser, through its employees, agents and other representatives, to have access, with reasonable prior notice to the Company and the properties, personnel, books, records and documents of the Company for the purpose of the Purchaser’s investigations of the Company and except with the prior written consent of the Purchaser, the Company will only operate in the ordinary course of business consistent with past practice. Notwithstanding anything at law or equity to the contrary, each party understands and agrees that the Company is solely responsible for operating its businesses prior to any closing of theTransaction, and neither the Purchaser nor any of its affiliates or subsidiaries, nor any of their respective stockholders, partners, members, directors, officers, managers, employees or agents, shall be liable to the Company or any of their affiliates or any of their respective stockholders, partners, members, directors, officers, managers, employees or agents for any loss, liability, cost, damage or expense arising out of, relating to, or in connection with any assistance, advice and suggestions that the Purchaser or any of its affiliates or subsidiaries, or any of their respective stockholders, partners, members, directors, officers, managers, employees or agents may offer to the Company or any of their affiliates or subsidiaries or any of their respective stockholders, partners, members, directors, officers, managers, employees or agents at any time prior to any closing of the Transaction.
- Public Announcements. The existence, and proposed terms, of the Transaction may not be disclosed to any person or entity exceptby the Purchaser and the Company to their respective boards of directors (or equivalent governing bodies), management personnel,legal, accounting and financial advisors, lenders, employees, consultants, agents and other representatives on a “need-to-know” basis; provided, that if a party reasonably believes that any disclosure relating to the Transaction is required by applicable law or in connection with any deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process, andthe party proposing to make such disclosure (to the extent permitted by applicable law) promptly notifies the other party of such proposed disclosure and the reason therefor, such party may make such disclosure (and only such disclosure) as is required to comply with law or such process.
- Expenses. Except as expressly contemplated herein, the Purchaser and the Company will be responsible for and bear all of their owncosts and expenses (including any broker’s or finder’s fees and the expenses of its representatives) incurred at any time in connectionwith pursuing or consummating the Transaction. Notwithstanding the preceding sentence, if Section 8 (Exclusivity) hereof is breached, Seller shall immediately pay (or reimburse the Purchaser, to the extent previously paid by such entities) all out-of- pocket fees and expenses incurred by the Purchaser with respect to the Transaction (including the negotiation thereof and due diligence related thereto). Purchaser will pay attorney fees for the cost of preparing a licensing and sale agreement.
- Binding Effect, Counterparts, Miscellaneous. The parties acknowledge and agree that all provisions and Sections of this Letter (other than the Sections entitled “Exclusivity”, “Access and Operations”, “Public Announcements”, “Expenses” and “Binding Effect, Counterparts, Miscellaneous”, which are hereinafter referred to as the “Binding Provisions”) represent only the intent of the parties, do not constitute acontract or agreement, and shall not be enforceable against the Company or the Purchaser. Upon the execution of this Letter by the Company, notwithstanding the non-binding nature of this Letter, the Binding Provisions shall become binding agreements between the parties hereto, in consideration of the mutual promises contained herein, are subject only to the conditions set forth herein, and will inure to the benefit of each party and their respective successors. Except as set forth in the Binding Provisions, neither party shall have any legally binding obligation or duties to the other unless and until the Definitive Agreement is executed. This Letter may be signed in two or more counterparts, any one of which need not contain the signature of more than one party, but all such counterparts taken together will constitute one and the same agreement. Signatures hereto delivered by facsimile or email shall have the same force and effect as original signatures delivered in person. The Binding Provisions of this Letter shall be governed by the laws of the State Colorado, without giving effect to any of the conflicts of laws or choice of law provisions thereof that would compel the application of the substantive laws of any other jurisdiction. This Letter may not be assigned without the other party’s written consent. This Letter constitutes the agreement between the parties, and supersedes all prior oral or written agreements, understandings, representations, andwarranties, and courses of conduct and dealing between the parties on the subject matter hereof other than the Confidentiality Agreement.
Again, we at SF are extremely excited about the opportunity to move forward with this process and welcome your brand into our organization. If this Letter is acceptable, please acknowledge below and deliver a signed copy to us at your earliest convenience. We look forward to working with you toward the consummation of the Transaction. If we have not received the Company’s acceptance prior to such time and date, this Letter will expire on June 15, 2021.
SINFIT Nutrition, Inc
Name: David W. Lovatt
Acknowledged and accepted:
Next Proteins, Inc.