Case 4:15-cv ALM-CAN Document 22 Filed 10/26/15 Page 1 of 20 PageID #: 226

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1 Case 4:15-cv ALM-CAN Document 22 Filed 10/26/15 Page 1 of 20 PageID #: 226 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS SHERMAN DIVISION PRUVIT VENTURES, INC., Plaintiff, Civil Action No. 4:15-cv ALM-CAN vs. AXCESS GLOBAL SCIENCES, LLC, and FOREVERGREEN INTERNATIONAL, LLC, Defendants. AXCESS GLOBAL SCIENCES, LLC S MOTION FOR JUDGMENT ON THE PLEADINGS UNDER RULES 9(b) AND 12(c) AXCESS GLOBAL SCIENCES, LLC, and AXCESS GLOBAL, LLC, Counterclaimants and Third-party Plaintiffs, Honorable Judge Amos L. Mazzant vs. PRUVIT VENTURES, INC., LACORE LABS, LLC, TERRY LACORE, BRIAN UNDERWOOD, CHRISTOPHER N. HARDING, SAVIND, INC., and KETOTECH, INC., Counterclaim and Third-party Defendants.

2 Case 4:15-cv ALM-CAN Document 22 Filed 10/26/15 Page 2 of 20 PageID #: 227 TABLE OF CONTENTS Page I. INTRODUCTION...1 A. BRIEF HISTORY OF THIS DISPUTE...1 B. PROCEDURAL BACKGROUND...3 II. STATEMENT OF ISSUES Whether Pruvit s breach of contract claims state a claim when (a) it is undisputable that AGS provided the powder formula within five days, as required in the Pruvit Sublicense; (b) Pruvit s allegation that AGS failed to adequately license the technology fails as a matter of law, and (c) Pruvit s allegation that AGS wrongfully sent a notice of termination to Pruvit fails to state a claim for breach Whether Pruvit s fraud claim against AGS, which fails to recite materiality, reasonable reliance, and intent and which alleges misrepresentations that, as a matter of law, cannot reasonably be relied upon, meets the heightened pleading requirements of Rule 9(b) Whether Pruvit s Lanham Act allegations state a claim when Pruvit cannot establish that it had a right to sell its product when the alleged false marketing statements were made Whether Pruvit s promissory estoppel claim can stand when Pruvit s alleged injury was caused by its own voluntary choice....4 III. LEGAL STANDARDS GOVERNING THIS MOTION Motion to Dismiss under Rule 12(b)(6) Fraud Must be Pled with Particularity under Rule 9(b)...5 IV. ARGUMENT...6 A. Pruvit s Breach of Contract Claims Fail AGS Timely Sent Pruvit the Formula...6 ii

3 Case 4:15-cv ALM-CAN Document 22 Filed 10/26/15 Page 3 of 20 PageID #: Pruvit s Claim that AGS Failed to Adequately License Pruvit is Nonsensical Pruvit s Claim for Wrongful Termination Notice Also Fails...8 B. Pruvit s Fraud Claims Fail...8 C. Pruvit Has no Standing to Assert its Lanham Act Claims D. Pruvit s Promissory Estoppel Claims Similarly Fail...12 V. CONCLUSION...13 iii

4 Case 4:15-cv ALM-CAN Document 22 Filed 10/26/15 Page 4 of 20 PageID #: 229 Cases TABLE OF AUTHORIES Ashcroft v. Iqbal, 556 U.S. 662 (2009)...4, 5, 8 Bazan v. White, 275 Fed. Appx. 312 (5th Cir. 2008)...5 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)...4, 8 Florida Recycling Services, Inc. v. Greater Orlando Auto Auction, Inc., 898 So.2d 129 (Fla. App. 5 Dist. 2005)...7 United States ex rel. Grubbs v. Kanneganti, 565 F.3d 180 (5th Cir. 2009)...5, 6 Hole v. Texas A & M Univ., 360 Fed. Appx 571 (5th Cir. 2010)...5 Legendary Lighting Group, Inc. v. Optigenix, Inc., Civil Action No. 4:15cv53-LG-CMC, slip op. (E. D. Tex. June 26, 2015, Dkt # 25)...11 Lexmark Int l Inc. v. Static Control Components Inc., 134 Sup. Ct (2014)...12, 13 S. Christian Leadership Conference v. Supreme Ct., 252 F.3d 781 (5th Cir. 2001)...5 Shandong Yinguang Chem. Indus. Joint Stock Co. v. Potter, 607 F.3d 1029 (5th Cir. 2010)...5 Tuchman v. DSC Commc ns Corp., 14 F.3d 1061 (5th Cir. 1994)...5 Wells v. United States Bank Nat'l Ass n, 587 Fed. Appx. 158 (5th Cir. 2014)...9 iv

5 Case 4:15-cv ALM-CAN Document 22 Filed 10/26/15 Page 5 of 20 PageID #: 230 Rules FEDERAL RULE OF CIVIL PROCEDURE 9... passim FEDERAL RULE OF CIVIL PROCEDURE , 6 Local Rule CV-5(a)...15 Statutes 15 U.S.C. 1125(a)(1)...11, 12 v

6 Case 4:15-cv ALM-CAN Document 22 Filed 10/26/15 Page 6 of 20 PageID #: 231 MOTION Defendant Axcess Global Sciences, LLC ( AGS ) hereby moves the Court for judgment on the pleadings, dismissing the four claims filed against it by plaintiff Pruvit Ventures, Inc. ( Pruvit ) in Pruvit s Amended Complaint pursuant to Rules 9(b) and 12(c) of the Federal Rules of Civil Procedure. AGS submits this Motion on the grounds that: (1) Pruvit s breach of contract claim fails because it is indisputable that AGS provided the powder formula within five days and because Pruvit s claim that AGS failed to adequately license the technology and wrongfully sent a notice of termination fail as a matter of law; (2) Pruvit s fraud claim, despite having been amended, still fails to comply with Rule 9, the alleged misrepresentations cannot support fraud because they are not material and/or cannot be reasonably relied upon as a matter of law; (3) Pruvit s Lanham Act claim fails because it lacks standing to assert it; and (4) Pruvit s promissory estoppel claim fails because it is largely duplicative of its fraud claims and fails for the same reasons. A proposed order granting AGS s motion is submitted herewith. MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION a. Brief History of this Dispute AGS is licensee to patent rights in a technology developed at the University of South Florida for rapidly inducing and maintaining a state of ketosis in mammals. Ketosis is a metabolic state where most of the body s energy supply comes from ketone bodies in the blood, in contrast to a state of glycolysis where blood glucose provides most of the energy. Medical literature supports ketosis as positively influencing those with metabolic syndrome, diabetes, 1

7 Case 4:15-cv ALM-CAN Document 22 Filed 10/26/15 Page 7 of 20 PageID #: 232 chronic neurodegeneration (Alzheimer s, Parkinson s, dementia, ALS, etc.), traumatic brain injury, epilepsy, and other maladies. AGS developed proprietary formulations for a nutritional supplement based on this patented technology ( AGS s formulations ). AGS signed a non-exclusive sublicense with Pruvit (the Pruvit Sublicense ), expressly conditioned on the approval of USF. 1 The Pruvit Sublicense would have given Pruvit nonexclusive rights to the USF patent rights and AGS s know how (including AGS s formulations). Because of concern over potential product liability claims associated with marketing a nutritional supplement, Pruvit and AGS agreed that Pruvit would maintain substantial liability insurance coverage and name a number of entities and individuals as additional insureds on the policy. In its rush to get to market and capitalize on AGS s technology, Pruvit neglected to obtain the insurance it had agreed to purchase. AGS subsequently put Pruvit on notice of its obligation to obtain insurance, giving it 30 days to cure this breach (as required in the sub-license). Notwithstanding this notice and the 30-day window to cure, Pruvit snubbed AGS, refusing to comply with its contractual obligation to obtain the insurance during the cure period. As such, the Pruvit Sublicense terminated at the end of the cure period by operation of law as expressly set forth in the sub-license. Though not required, AGS followed up with a letter putting Pruvit on notice that the Pruvit Sublicense had terminated. Having ignored its contractual obligations in the first place, and again when placed on notice of its breach, Pruvit has now filed this action in an attempt to keep the parties entangled in litigation while it continues to avoid its legal obligations and profit from AGS s efforts and 1 The parties dispute whether USF ever approved the Pruvit Sublicense and, thus, whether the Pruvit Sublicense ever became effective. The arguments presented herein assume a valid sub-license and point out that the Pruvit Sublicense, even if approved by USF, was terminated shortly thereafter due to Pruvit s breach and failure to cure. AGS s motion for summary judgment on the termination issue is submitted herewith. Thus, the arguments submitted herein are without prejudice to AGS s position that USF never approved the Pruvit Sublicense in the first place. 2

8 Case 4:15-cv ALM-CAN Document 22 Filed 10/26/15 Page 8 of 20 PageID #: 233 investment in obtaining and developing its technology. Without a word of its own contractual failings, Pruvit alleges subterfuge, fraud, and a number of other specious legal theories against AGS and its subsequent sub-licensee, ForeverGreen. Looking through the faint smokescreen created by Pruvit, however, this case is clear cut. Pruvit has no rights and should be enjoined from using AGS s patented and trade secret technology immediately. Ironically, Pruvit seeks to enforce its rights in the Pruvit Sublicense, yet flagrantly breaches its provisions. It still has insufficient insurance and has stopped making royalty payments, just to name a few. Pruvit has no contract. It is infringing AGS s patent rights. It is misappropriating AGS s trade secrets in AGS s formula. By filing this action, Pruvit is now using the legal system to avoid the consequences of its acts. B. Procedural Background In response to the original complaint of Pruvit Ventures, LLC, AGS filed a motion to dismiss (Docket # 13). After filing an opposition to AGS s motion, Pruvit Ventures, Inc. ( Pruvit ) filed an Amended Complaint (Docket # 17) purporting to remedy the defects in the original Complaint. However, the Amended Complaint fares no better. It alleges causes of action against AGS for: (1) breach of contract; (2) fraud; (3) Lanham Act violations; and (4) promissory estoppel. The defects in each are addressed below. II. STATEMENT OF ISSUES 1. Whether Pruvit s breach of contract claims state a claim when (a) it is undisputable that AGS provided the powder formula within five days, as required in the Pruvit Sublicense; (b) Pruvit s allegation that AGS failed to adequately license the technology fails 3

9 Case 4:15-cv ALM-CAN Document 22 Filed 10/26/15 Page 9 of 20 PageID #: 234 as a matter of law, and (c) Pruvit s allegation that AGS wrongfully sent a notice of termination to Pruvit fails to state a claim for breach. 2. Whether Pruvit s fraud claim against AGS, which fails to recite materiality, reasonable reliance, and intent and which alleges misrepresentations that, as a matter of law, cannot reasonably be relied upon, meets the heightened pleading requirements of Rule 9(b). 3. Whether Pruvit s Lanham Act allegations state a claim when Pruvit cannot establish that it had a right to sell its product when the alleged false marketing statements were made. 4. Whether Pruvit s promissory estoppel claim can stand when Pruvit s alleged injury was caused by its own voluntary choice. III. LEGAL STANDARDS GOVERNING THIS MOTION 1. Motion to Dismiss under Rule 12(b)(6) To survive a motion to dismiss pursuant to Rule 12(b)(6), a plaintiff must plead facts that, when assumed to be true, state a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plaintiff must then plead factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). Under this standard, [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id.; see also Twombly, 550 U.S. at 555 ( [w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff s obligation to provide the grounds of his entitle[ment] to relief 4

10 Case 4:15-cv ALM-CAN Document 22 Filed 10/26/15 Page 10 of 20 PageID #: 235 requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do (citation omitted)). A complaint must do more than simply state that the plaintiff is entitled to relief it must show such an entitlement through its facts. S. Christian Leadership Conference v. Supreme Ct., 252 F.3d 781, 756 (5th Cir. 2001) ( [C]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss. (citation omitted)). [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged but it has not shown that the pleader is entitled to relief. Iqbal, 556 U.S. at 679; Hole v. Texas A & M Univ., 360 Fed. Appx 571, 873 (5th Cir. 2010). 2. Fraud Must be Pled with Particularity under Rule 9(b) In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Fed. R. Civ. P. 9(b). In the Fifth Circuit, courts apply Rule 9(b) to fraud complaints with bite and without apology. United States ex rel. Grubbs v. Kanneganti, 565 F.3d 180, 185 (5th Cir. 2009). At a minimum, the complaint must allege the who, what, when, where, and how of the alleged fraud. Shandong Yinguang Chem. Indus. Joint Stock Co. v. Potter, 607 F.3d 1029, 1032 (5th Cir. 2010); Bazan v. White, 275 Fed. Appx. 312, 313 (5th Cir. 2008); Tuchman v. DSC Commc ns Corp., 14 F.3d 1061, 1068 (5th Cir. 1994) (pleading fraud with particularity in this circuit requires the plaintiff to allege the particulars of time, place and contents of the false representations, as well as the identity of the person making the misrepresentation and what [that person] obtained thereby. ) (quoting Tel-Phonic Servs., Inc. v. TBS Int l, Inc., 975 F.2d 1134,1139 (5th Cir. 1992)). Failure to plead fraud with 5

11 Case 4:15-cv ALM-CAN Document 22 Filed 10/26/15 Page 11 of 20 PageID #: 236 particularity under Rule 9(b) is treated as a dismissal for failure to state a claim under Rule 12(b)(6). United States ex rel. Grubbs, 565 F.3d at 185. IV. ARGUMENT A. Pruvit s Breach of Contract Claims Fail Pruvit alleges the following conduct constitutes a breach of the Pruvit Sublicense: Pruvit did not receive a formula that utilized the Licensed Technology within the time period agreed. (Amended Complaint, 69) That AGS failed to adequately license the Technology to Pruvit, and thereafter licensing [sic] the Technology to ForeverGreen for use within the Licensed Territories. (Amended Complaint, 70) That while disputing the existence of the contract, AGS wrongfully sent a notice of termination to Pruvit, and embroiled themselves in a subterfuge between Pruvit and ForeverGreen. (Amended Complaint, 71) 1. AGS Timely Sent Pruvit the Formula The Pruvit Sublicense provides: Licensee shall be entitled to receive a copy of a single serve powder formula utilizing the Licensed Technology within five days of the signing hereof. This formula shall remain the property of AGS and shall be treated as confidential. (Ex. A, Section 3.1.1) As per the preamble to the Pruvit Sublicense, the agreement is made effective as of the date of the last signature hereto. (Exhibit A, preamble) The Pruvit Sublicense was executed by AGS and Pruvit on December 31, (Ex. A, p. 18) As noted in footnote 1, supra, USF was required to approve the sub-license in order for it to be effective, yet never signed the sublicense. (Ex. A, p. 18) However, even if the Pruvit Sublicense became effective as of December 31, 2014, there is no breach by AGS as alleged by Pruvit. 6

12 Case 4:15-cv ALM-CAN Document 22 Filed 10/26/15 Page 12 of 20 PageID #: 237 To be sure, on January 2, 2015, Gary Millet of AGS ed Brian Underwood of Pruvit the base formula of the AGS product. (Exhibit B, filed under seal) Subsequent communications between the parties focused on Pruvit s desire to modify the formula to suit Pruvit s preferences, and AGS worked to refine that formula to Pruvit s liking. Even assuming, arguendo, that the formula was not provided within the five days, Pruvit s remedy was not to file suit against AGS nine months later. Pruvit s remedy, as expressly outlined in the Pruvit Sublicense, was to give AGS notice of the problem and comply with the ADR provisions of the Pruvit Sublicense. Florida Recycling Services, Inc. v. Greater Orlando Auto Auction, Inc., 898 So.2d 129, 131 (Fla. App. 5 Dist. 2005) 2 (judgment reversed because plaintiff failed to provide written notice of breach and written notice of termination, as provided in the contract). This is just another example of Pruvit s attempts to tie up the parties in court while Pruvit uses AGS s technology, including AGS s formula, without permission. 2. Pruvit s Claim that AGS Failed to Adequately License Pruvit is Nonsensical Pruvit asserts that AGS breached the Pruvit Sublicense by failing to adequately license the Technology to Pruvit, and thereafter licensing the Technology to ForeverGreen for use within the Licensed Territories. (Amended Complaint, 70) Of course, technology is not licensed, only rights to technology are licensed. It remains unclear what technology Pruvit is even referencing. Pruvit capitalizes technology as though it is a defined term, yet never defines it. Even more perplexing is the statement that the technology was not adequately licensed. The Pruvit Sublicense was negotiated through counsel for both parties after exchanging multiple 2 The Pruvit Sublicense provides that it shall be construed in accordance with the internal laws of the State of Florida. (Ex. A, 14.1) 7

13 Case 4:15-cv ALM-CAN Document 22 Filed 10/26/15 Page 13 of 20 PageID #: 238 iterations of drafts of the sublicense. If the license is inadequate, Pruvit has only itself to blame. If there was ever a cause of action failing the requirements of Twombly and Iqbal, this is it. 3. Pruvit s Claim for Wrongful Termination Notice Also Fails Pruvit asserts that its terminated sublicense is the result of a subterfuge and that the Pruvit Sublicense was wrongfully terminated. This assertion, apart from hinting at a victim mentality, fails as a matter of law. To be sure, on June 8, 2015, AGS sent Pruvit a letter identified as a Notice of Termination of Sublicense. (Exhibit C) However, this letter merely confirmed that the Pruvit Sublicense had already terminated by operation of contract. By the terms of the Pruvit Sublicense, if a breach is not cured within 30 days of notice of the breach, the license is terminated. (Exhibit A, 9.3) However, there can be nothing wrongful about giving notice of a breach that is expressly provided for in the license. The only wrongful acts were Pruvit s misrepresentation that it had liability insurance coverage when it signed the sub-license (Ex. A, 12.2) and Pruvit s refusal to cure that breach even after it was given notice of the breach. There is nothing actionable about a party exercising its lawful rights under a contract. B. Pruvit s Fraud Claims Fail Pruvit s amended fraud claim relies on the following alleged misrepresentations: 74. Axcess Global committed Fraud by misrepresenting the status of negotiations with ForeverGreen, and the nature of its relationship with ForeverGreen. 75. Axcess, through its agent Rob Rogers misrepresented in a meeting in late 2014 between he and Brian Underwood of Pruvit in Dallas that all negotiations with ForeverGreen had ceased, and Axcess had the authority to License the Products and Processes in the Licensed Territory. 8

14 Case 4:15-cv ALM-CAN Document 22 Filed 10/26/15 Page 14 of 20 PageID #: Axcess in s from Gary Millet to Brian Underwood and others also falsely represented the nature of the Licensed Patents included the right associate [sic] nutritional ketosis with the possibility of weight loss. Noticeably absent from these allegations is any assertion that these alleged misrepresentations were material, that they were false, that AGS knew they were false, that AGS intended that Pruvit act upon the alleged misrepresentations, or that Pruvit acted in reliance upon the alleged misrepresentations. Wells v. United States Bank Nat'l Ass n, 587 Fed. Appx. 158, 161 (5th Cir. 2014). Although these very deficiencies were pointed out in AGS s initial Motion to Dismiss, they are not cured in the Amended Complaint forcing AGS to again move the Court for their dismissal. Perhaps most troubling is that even a cursory analysis of the statements reveals that they cannot form the basis for fraud. Although not entirely clear (a common thread in Pruvit s pleadings), the allegations appear to assert that (1) AGS had already licensed ForeverGreen, thereby depriving AGS of the right to license Pruvit and/or (2) that Pruvit s right to associate nutritional ketosis with the possibility of weight loss was falsely represented. Pruvit overlooks the undisputable fact that its non-exclusive sublicense (the Pruvit Sublicense) was executed before AGS s sublicense to ForeverGreen. The Pruvit Sublicense was executed on December 31, 2014 (Ex. A, p. 18), whereas the ForeverGreen sub-license was executed over six months later, on July 7, (Ex. D, p. 21). Therefore, AGS s subsequent license with ForeverGreen could not have, post hoc, deprived AGS of the right to license Pruvit. And, because the Pruvit Sublicense was non-exclusive, it has no legal basis to complain that a subsequent license was granted. 9

15 Case 4:15-cv ALM-CAN Document 22 Filed 10/26/15 Page 15 of 20 PageID #: 240 Finally, although draped in subtlety, Pruvit s assertion that AGS misrepresented that the nature of the Licensed Patents included the right associate [sic] nutritional ketosis with the possibility of weight loss appears to be a reference that Pruvit never acquired rights under U.S. Patent No. 6,613,356, a patent invented by Victor Vlahakos, M.D. of Houston, Texas (the Vlahakos patent ) which claims a process for causing weight loss by consuming, inter alia, salts of beta-hydroxybutyrate and which is exclusively licensed to AGS. Without a license to this patent, Pruvit cannot make weight loss claims for its product. Such a claim cannot support fraud, however, because Pruvit had full knowledge of the Vlahakos patent and chose not to license it. Indeed, the Vlahakos patent was referenced in a term sheet (the Pruvit Term Sheet ) signed by Pruvit less than two months before Pruvit signed the Pruvit Sublicense. (Ex. E, last page) It was also referenced in two versions of a supply agreement Pruvit and AGS were considering at the time (Exhibit F from to counsel for Pruvit, attaching draft Supply Agreement referencing Vlahakos patent, and Exhibit G to counsel for Pruvit attaching red-line version of draft Supply Agreement referencing Vlahakos patent). In a cover to Pruvit s counsel with a revised document, counsel for AGS stated: Attached is the updated Supply Agreement in which I have made the changes we discussed. I also removed reference to the Vlahakos sub-license. ). (Exhibit H) The reality is that in the eight weeks between the execution of the Pruvit Term Sheet and the execution of the Pruvit Sublicense, Pruvit negotiated a deal that was substantially different from that outlined in the Pruvit Term Sheet in exchange for a much lower royalty, it gave up exclusivity and rights to the Vlahakos patent (among other things). 10

16 Case 4:15-cv ALM-CAN Document 22 Filed 10/26/15 Page 16 of 20 PageID #: 241 As with its original complaint, Pruvit alleges some misrepresentations, but fails to allege that the misrepresentations were fraudulent. As noted above, even if it had so alleged, the cause of action still fails because, even if the misrepresentations were made, Pruvit could not have relied on them to its detriment. Because there is no explanation of why the statements were fraudulent, Pruvit has failed to sufficiently meet Rule 9(b) s requirements and plausibly plead fraud. See Legendary Lighting Group, Inc. v. Optigenix, Inc., Civil Action No. 4:15cv53-LG-CMC, slip op. (E. D. Tex. June 26, 2015, Dkt # 25) 3 (citing Plotkin v. IP Axess, Inc., 407 F.3d 690, 696 (5th Cir. 2005)). All of Pruvit s fraud claims should be dismissed. C. Pruvit Has no Standing to Assert its Lanham Act Claims Pruvit complains that a number of representations AGS made to the consuming public constitute false advertising. The Lanham Act allows any person who believes that he or she is or is likely to be damaged by such act to sue for relief. 15 U.S.C. 1125(a)(1). Pruvit lacks standing, however, because it lost all rights to sell its competing product on June 15, 2015 when the Pruvit Sublicense was terminated for Pruvit s failure to comply with its insurance obligations. (See AGS s Motion for Summary Judgment of Termination of the Pruvit Sublicense, filed concurrently herewith). This fact, coupled with the fact that AGS did not begin to market its own product in retail channels until September 17, 2015 (Ex. I, Millet Decl., 4-5), means that it was legally impossible for Pruvit to have been damaged by any statements made by AGS because Pruvit lost all rights to sell products based on AGS s technology more than three months before AGS s product launch. 3 Ironically, Legendary Lighting is represented by the same counsel as Pruvit. Despite having multiple fraud claims dismissed in the Legendary Lighting case for failure to plead with particularity, the same conduct is repeated here. 11

17 Case 4:15-cv ALM-CAN Document 22 Filed 10/26/15 Page 17 of 20 PageID #: 242 The U.S. Supreme Court recently clarified the test for standing to assert false advertising claims under the Lanham Act. In Lexmark Int l Inc. v. Static Control Components Inc., 134 Sup. Ct (2014), the Court held that to have standing to assert a false advertising claim under the Lanham Act, the plaintiff must first establish that it comes within the zone of interests for a suit for false advertising under the Lanham Act. To do this, the plaintiff must allege that it suffered an injury to a commercial interest in its business reputation or sales. The plaintiff must then claim that the alleged false advertising proximately caused its injuries. Id., at Pruvit can do neither because it should have discontinued its business as of June 15, 2015, three months before AGS s alleged false advertising occurred. Pruvit has not (and cannot) allege an injury to a commercial interest in its business reputation or sales because it had no legally cognizable business when the statements were made. More significantly, however, is Pruvit s inability to allege that AGS s statements proximately caused its injuries. To be sure, Pruvit s injuries were caused by its own recklessness in failing to purchase insurance (as it represented it would do in the Pruvit Sublicense) and failing to cure that omission when given written notice by AGS. Pruvit cannot now blame its failure on AGS s advertising, whether false or not. D. Pruvit s Promissory Estoppel Claims Similarly Fail Pruvit s promissory estoppel claims (pleaded in the alternative) track many of the statements on which Pruvit relies for its fraud claim. And, for similar reasons, they also fail. Pruvit s promissory estoppel claim relies on one allegation; that Axcess promised to Pruvit that it [sic, Axcess?] had the right to license the USF technology and that the technology 12

18 Case 4:15-cv ALM-CAN Document 22 Filed 10/26/15 Page 18 of 20 PageID #: 243 was significant to the general public as a result of its properties with respect to a weight loss campaign. As noted previously, that AGS had the right to sublicense rights in the USF technology to Pruvit is beyond doubt. Axcess Global licensed the rights in the USF technology from USF, with the right to sublicense, and then transferred that license to AGS. AGS had the right to issue sublicenses and it had not issued any sublicenses prior to signing the Pruvit Sublicense; thus, its right to grant a sub-license to Pruvit cannot be disputed. Id. The allegation that the technology was significant to the general public as a result of its properties with respect to a weight loss campaign, again appears to be a reference to Pruvit s failure to license the Vlahakos patent from AGS. As noted in Section IV. B, supra, Pruvit had full knowledge of the Vlahakos patent and voluntarily excluded it from the final version of the Pruvit Sublicense. It cannot now recoup through litigation what it knowingly surrendered. V. CONCLUSION Pruvit s Amended Complaint is a thinly veiled attempt to shield its own malfeasance. Its claims do not withstand the most cursory analysis. Despite having already amended its complaint, it still cannot show actionable claims against AGS. The Amended Complaint should be dismissed as against AGS. 13

19 Case 4:15-cv ALM-CAN Document 22 Filed 10/26/15 Page 19 of 20 PageID #: 244 DATED: October 26, 2015 By: /s/ Charles L. Roberts Charles L. Roberts (pro hac vice admission) WASATCH-IP, A PROFESSIONAL CORP E. Cottonwood Parkway, Suite 500 Salt Lake City, Utah croberts@wasatch-ip.com Phone: Facsimile: Attorney for defendant and counterclaimant Axcess Global Sciences, LLC and third-party plaintiff Axcess Global, LLC 14

20 Case 4:15-cv ALM-CAN Document 22 Filed 10/26/15 Page 20 of 20 PageID #: 245 CERTIFICATE OF SERVICE I hereby certify that on October 26, 2015, I caused a true and correct copy of the foregoing document to be filed with the Clerk of Court and served on all counsel of record via CM/ECF pursuant to Local Rule CV-5(a). /s/ Charles L. Roberts CERTIFICATE OF AUTHORIZATION TO FILE UNDER SEAL Pursuant to Local Rule CV-5(a)(7)(A), this is to certify that defendant and counterclaimant Axcess Global Sciences, LLC has filed a motion to seal Exhibit B to the to the foregoing. /s/ Charles L. Roberts 15

21 Case 4:15-cv ALM-CAN Document 22-2 Filed 10/26/15 Page 1 of 7 PageID #: 249 Exhibit A Exhibit A

22 Case 4:15-cv ALM-CAN Document 22-2 Filed 10/26/15 Page 2 of 7 PageID #: 250 NON-EXCLUSIVE SUBLICENSE AGREEMENT This NON-EXCLUSIVE SUB-LICENSE AGREEMENT (the Agreement ) is made effective as of the date of the last signature hereto (the Effective Date ) by and between Axcess Global Sciences, LLC, a Utah limited liability company having a place of business at 7810 South Prospector Drive, Salt Lake City, Utah (hereinafter Licensor ) and PRUVIT VENTURES, INC. (hereinafter Licensee ), a Texas corporation having a principal place of business at 901 Sam Rayburn Highway, Melissa, Texas RECITALS WHEREAS, Licensor is the exclusive licensee of the University of South Florida Research Foundation, Inc., a non-stock, non-profit Florida corporation, under Chapter 617 Florida Statutes, a direct support organization of the University of South Florida Board of Trustees, a public body corporate, pursuant to section Florida Statutes (collectively referred to as USF ) of certain inventions that are described in the Licensed Patents defined below (AG Agreement No ; USF Reference # 12B109_D Agostino), and Licensor is willing to grant a license to Licensee under the Licensed Patents and Licensee desires a license under all of them. NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth below, the parties covenant and agree as follows: TERMS AND CONDITIONS Section 1 Definitions 1.1 (reserved). 1.2 (reserved). 1.3 (reserved). 1.4 Investigator means Dominic D Agostino and Shannon Kesl, while employed by the University of South Florida. 1.5 Licensed Field shall be limited to the field of products for human consumption, with the exception of pharmaceuticals, in the Multi-level Marketing Channel. 1.6 Licensed Patents means all of the following intellectual property: The provisional patent application filed March 19, 2013 as U.S. Serial No. 61/803,203 entitled Compositions and Methods for Producing Elevated and Sustained Ketosis, naming as inventors Dominic D Agostino and Patrick Arnold and the provisional patent application filed January 13, 2014 as U.S. Serial No. 61/926,664 entitled Methods of Sustaining Dietary Ketosis and Its Effects on Lipid Profile, naming as inventors Dominic D Agostino and Shannon Kesl; Page 1 Exhibit A

23 Case 4:15-cv ALM-CAN Document 22-2 Filed 10/26/15 Page 3 of 7 PageID #: 251 educational, and clinical purposes and to meet all applicable governmental and peer review journal requirements governing the transfer of materials The license granted hereunder shall not be construed to confer any rights upon Licensee by implication, estoppel, or otherwise as to any technology not part of the Licensed Patents in the specified Licensed Field and specified Licensed Territory. Section 3 Due Diligence 3.1 Development Licensee shall be entitled to receive a copy of a single serve powder formula utilizing the Licensed Technology within five days of the signing hereof. This formula shall remain the property of AGS and shall be treated as confidential Licensee agrees to and warrants that: (a) it has, or will, obtain the expertise necessary to independently evaluate the inventions of the Licensed Patents and Know-How; (b) it will actively and diligently pursue development to the end that the inventions of the Licensed Patents will be utilized to provide Licensed Products and/or Licensed Processes for sale in the markets within the Licensed Field; (c) it will use its best efforts to diligently develop markets for Licensed Products and Licensed Processes in the Licensed Field within the Licensed Territory; and (d) Licensee will actively market the Licensed Products, will make available product literature for its distributors for the Licensed Products, and will provide product support on the Internet for the Licensed Products Licensee agrees that the first commercial sale of products to consumers in the markets identified in section 3.1.1(b) shall occur on or before March 15, 2015 or Licensor shall have the right to terminate this Agreement pursuant to Section 9.3 hereto (reserved) USF s policies may require approval of clinical trials involving technology invented by Licensor. Accordingly, Licensee will notify Licensor prior to commencing any clinical trials Licensee will determine and pay for studies it wants conducted by Licensor. Licensor will provide Licensee with all data and results of such studies at the actual cost of such studies. Studies paid for by Licensee and performed by Licensor concerning licensed technology shall be jointly owned by both Licensor and Licensee, and both shall have the right of access to and use of such studies. Page 4 Exhibit A

24 Case 4:15-cv ALM-CAN Document 22-2 Filed 10/26/15 Page 4 of 7 PageID #: In the event Licensee contests the validity of any Licensed Patents, unless and until Licensor terminates this Agreement pursuant to 9.4, Licensee shall continue to pay royalties and make other payments pursuant to this Agreement with respect to the contested Licensed Patent(s) as if such contest were not underway until the contested Licensed Patent(s) is adjudicated invalid or unenforceable by a court of last resort. Section 9 Term and Termination 9.1 The term of this license under Section 2.1 shall begin on the Effective Date and continue until the later of the date that (a) no Licensed Patent remains a pending application or an enforceable patent in each country and (b) twenty (20) years from the first commercial sale of the Licensed Product or Licensed Process in such country, or the date on which Licensee s obligation to pay royalties expires pursuant to Section 4.3 above Know-How. In addition to the obligations outlined in Section 9.1, royalty obligations for licensed Know-How shall continue for the longer of (a) any period of regulatory exclusivity; or (b) until such time as Know-How enters the public domain through either common knowledge or publication. 9.2 Licensee may terminate this Agreement at any time by giving at least sixty (60) days written notice of such termination to Licensor. Such a notice shall be accompanied by a statement of the reasons for termination. 9.3 Licensor may terminate this Agreement if (a) Licensee (i) is delinquent on providing Licensor with the Licensor Royalty Report under Section or royalties owed under section 4.3; (ii) is not diligently developing and commercializing Licensed Products and Licensed Processes; (iii) fails to meet its first commercial sale as set forth in section 3.1.2; (iv) is in breach of any provision; (v) provides any false report; (vi) goes into bankruptcy, liquidation or proposes having a receiver control any assets; (vii) violates any laws or regulations of applicable government entities; or (viii) shall cease to carry on its business pertaining to Licensed Patents; or (b) if payments of earned royalties under Section 4.3, once begun, cease for more than two (2) months. Termination under this Section 9.3 will take effect thirty (30) days after written notice by Licensor, unless Licensee remedies the problem in that 30-day period, except that termination under Section 9.3 (vi) will occur immediately and automatically upon the occurrence of the event and require no action by Licensor. 9.4 If Licensee or any of its Affiliates brings a Patent Challenge against Licensor or USF, or assists another party in bringing a Patent Challenge against Licensor or USF (except as required under a court order or subpoena), then Licensor may immediately terminate this Agreement and/or the license granted hereunder. 9.5 If Licensee or any of its Affiliates (i) brings a Patent Challenge against Licensor or USF, or (ii) assists another party in bringing a Patent Challenge against Licensor or USF (except as required under a court order or subpoena), and if Licensor does not choose to exercise its rights to terminate this Agreement pursuant to Section 9.4 then, in the event Page 10 Exhibit A

25 Case 4:15-cv ALM-CAN Document 22-2 Filed 10/26/15 Page 5 of 7 PageID #: 253 procedure required under this Section shall be paid by the party incurring the same Positions taken and statements made during this alternative dispute resolution procedure shall be deemed settlement negotiations and shall not be admissible for any purpose in any subsequent proceeding Failure to Resolve Dispute. If any issue is not resolved at the meeting with the Neutral Advisor, either party may file appropriate administrative or judicial proceedings with respect to the issue that remains in dispute. No new issues may be included in the lawsuit without the mandatory procedures set forth in this section having first been followed. Section 12 Product Liability; Conduct of Business 12.1 Licensee shall, at all times during the term of this Agreement and thereafter, indemnify, defend and hold Licensor and its affiliates, USF, its board, the University of South Florida and its Affiliates and Trustees, the Florida Board of Governors, and each of their directors, officers, employees, and agents, and the inventors of the Licensed Patents, regardless of whether such inventors are employed by Licensor at the time of the claim, harmless against all claims and expenses, including legal expenses and reasonable attorneys fees, whether arising from a third-party claim or resulting from Licensor s enforcing this indemnification clause against Licensee, arising out of the death of or injury to any person or persons or out of any damage to property and against any other claim, proceeding, demand, expense and liability of any kind whatsoever (other than patent infringement claims) resulting from the development, production, manufacture, sale, use, lease, consumption, marketing, or advertisement of Licensed Products or Licensed Process(es) or arising from any right or obligation of Licensee hereunder. Notwithstanding the above, USF at all times reserve the right to retain counsel of its own to defend Licensor s, its board, University and its Affiliates and Trustees, the Florida Board of Governors, and the inventor s interests Licensee warrants that it now maintains and will continue to maintain liability insurance coverage appropriate to the risk involved in development, producing, manufacturing, clinical trials, selling, marketing, using, leasing, consuming, or advertising the products subject to this Agreement, but in no event less than $3 million in the aggregate, $1 million per occurrence, and that such insurance coverage lists Licensor and its affiliates, USF, its Affiliates, its Trustees, the Florida Board of Governors, and the inventors of the Licensed Patents as additional insureds. Within ninety (90) days after the execution of this Agreement and thereafter annually between January 1 and January 31 of each year, Licensee will present evidence to Licensor that the coverage is being maintained with Licensor, University and its Affiliates and Trustees, the Florida Board of Governors, and its inventors listed as additional insureds. In addition, Licensee shall provide Licensor with at least thirty (30) days prior written notice of any change in or cancellation of the Page 13 Exhibit A

26 Case 4:15-cv ALM-CAN Document 22-2 Filed 10/26/15 Page 6 of 7 PageID #: 254 insurance coverage. Licensee shall be responsible for maintaining insurance for development, production, manufacturing, and clinical trials of the Licensed Products. Section 13 Use of Names Licensee shall not use the names of Licensor, USF, the University of South Florida, nor of any of either institution s employees, agents, or affiliates, nor the name of any inventor of Licensed Patents, nor any adaptation of such names, in any promotional, advertising or marketing materials or any other similar form of publicity, or to suggest any endorsement by the such entities or individuals, without the prior written approval of Licensor in each case. Section 14 Miscellaneous 14.1 This Agreement shall be construed in accordance with the internal laws of the State of Florida The parties hereto are independent contractors and not joint venturers or partners Licensee shall ensure that it applies patent markings that meet all requirements of U.S. law, 35 U.S.C. 287, with respect to all Licensed Products subject to this Agreement This Agreement constitutes the full understanding between the parties with reference to the subject matter hereof, and no statements or agreements by or between the parties, whether orally or in writing, shall vary or modify the written terms of this Agreement. Neither party shall claim any amendment, modification, or release from any provisions of this Agreement by mutual agreement, acknowledgment, or otherwise, unless such mutual agreement is in writing, signed by the other party, and specifically states that it is an amendment to this Agreement Licensee shall not encumber or otherwise grant a security interest in any of the rights granted hereunder to any third party. For purposes of this sub-section 14.5, an Affiliate shall not constitute a third party Licensee acknowledges that it is subject to and agrees to abide by the United States laws and regulations (including the Export Administration Act of 1979 and Arms Export Contract Act) controlling the export of technical data, computer software, laboratory prototypes, biological material, and other commodities. The transfer of such items may require a license from the cognizant agency of the U.S. Government or written assurances by Licensee that it shall not export such items to certain foreign countries without prior approval of such agency. Licensor neither represents that a license is or is not required or that, if required, it shall be issued All payments made hereunder will be made by check unless specifically requested by Licensor, in which case Licensor is responsible for any and all wire/bank fees associated with such payments. Page 14 Exhibit A

27 Case 4:15-cv ALM-CAN Document 22-2 Filed 10/26/15 Page 7 of 7 PageID #: 255 ~~nc:es, LLCDate: December 31, 2014 Chief Executive Officer LICENSEE: PRUVIT VENTURES, INC. :W~ Date: December 3l,2014 Name: 81t.1.IM/ ~D Title: C@ ACKNOWLEDGED AND AGREED: UNIVERSITY OF SOUTH FLORIDA RESEARCH FOUNDATION Date: January, 2015 Name: Valerie Landrio McDevitt Title: Associate Vice President, Patents & Licensing Page 18 Exhibit A

28 Case 4:15-cv ALM-CAN Document 22-3 Filed 10/26/15 Page 1 of 1 PageID #: 256 Exhibit B (filed under seal)

29 Case 4:15-cv ALM-CAN Document 22-4 Filed 10/26/15 Page 1 of 3 PageID #: 257 Exhibit C Exhibit C

30 Case 4:15-cv ALM-CAN Document 22-4 Filed 10/26/15 Page 2 of 3 PageID #: 258 W A S A T C H I P A PROFESSIONAL CORPORATION 2825 E. COTTONWOOD PARKWAY, SUITE 500 SALT LAKE CITY, UTAH CHARLES L. ROBERTS CROBERTS@WASATCH-IP.COM via jenifer.grace@gracefirm.com Jenifer L. Grace, Esq. GRACE FIRM, PLLC 901 Sam Rayburn Highway Melissa, TX July 22, 2015 Re: Notice of Termination of Sublicense Axcess Global Sciences, LLC/Pruvit Ventures, Inc. Dear Jenifer: Pursuant to sub-section 9.3 of the Non-exclusive License Agreement 1 (the Agreement ), Axcess Global Sciences ( AGS ) hereby gives formal notice that the Agreement has been terminated for at least the following reason: Pruvit s failure to cure its breach of sub-section 12.2 of the Agreement. Specifically, AGS provided written notice of Pruvit s breach of sub-section 12.2 per correspondence dated May 14, In response, AGS was provided with a Certificate of Liability Insurance indicating a policy effective date of June 24, 2015, well beyond the 30-day cure period provided in sub-section 9.3 of the Agreement. Further, even if the policy was purchased in a timely manner, sub-section 12.2 of the Agreement requires that insurance coverage of at least $3 million in the aggregate. The Certificate of Liability Insurance provided to AGS only supports a policy with coverage of $2 million in the aggregate. Finally, sub-section 12.2 of the Agreement requires that the policy name Licensor and its affiliates, USF, its Affiliates, its Trustees, the Florida Board of Governors, and the inventors of the Licensed Patents. None of these entities is identified as additional insureds on the Certificate of Liability Insurance that was provided. Although the Agreement does not require a formal Notice of Termination, this notice is being provided as a courtesy and to ensure that there is no misunderstanding as to AGS s view of the issue. Accordingly, AGS hereby demands that Pruvit immediately cease and desist marketing and selling the Licensed Product, using the Licensed Process, and using the Know How, as those terms are defined in the Agreement. 1 AGS disputes that the Agreement is an enforceable contract; thus, this communication is made without waiving AGS s right to challenge the enforceability of the Agreement. Exhibit C

31 Case 4:15-cv ALM-CAN Document 22-4 Filed 10/26/15 Page 3 of 3 PageID #: 259 Jenifer L. Grace, Esq. GRACE FIRM, PLLC July 22, 2015 Page 2 Although this Notice of Termination is based on sub-section 12.2 of the Agreement, it is provided without waiver to AGS s right to assert that Pruvit has failed to cure other breaches of the Agreement in a timely manner or otherwise engaged in conduct that would give rise to termination of the Agreement. I note that the parties are presently following the mandatory dispute resolution procedures outlined in section 11 of the Agreement. While we remain optimistic that AGS and Pruvit will be able to wind down their relationship without resort to litigation, we felt it imperative to provide this notice to convey the seriousness of the issue. Because AGS exclusively sub-licensed this technology to ForeverGreen after the effective date of termination of Pruvit s sub-license, AGS does not have the right to restore a sub-license to Pruvit. However, AGS has spoken to ForeverGreen to determine interest in engaging in a discussion about an agreeable business solution. ForeverGreen has stated it is willing to meet informally to consider possible solutions. May we use the date set aside next week for that purpose? Please let me know Pruvit s preferences. Best regards, WASATCH-IP, A PROFESSIONAL CORPORATION CHARLES L. ROBERTS cc: Ms. Valerie McDevitt, USF Exhibit C

32 Case 4:15-cv ALM-CAN Document 22-5 Filed 10/26/15 Page 1 of 3 PageID #: 260 Exhibit D Exhibit D

33 Case 4:15-cv ALM-CAN Document 22-5 Filed 10/26/15 Page 2 of 3 PageID #: 261 SUBLICENSE AGREEMENT re USF TECHNOLOGY This Agreement is made effective as of the date of the last signature hereto (the "Effective Date") by and between Axcess Global Sciences, LLC, a Utah limited liability company having a place of business at 7810 South Prospector Drive, Salt Lake City, Utah (hereinafter "Licensor") and Forever Green International, LLC (hereinafter "Licensee"), a Utah limited liability company having a principal place of business at 644 North 2000 West, Lindon, Utah 84042, wholly owned by ForeverGreen Worldwide Corporation, a corporation organized and existing under the laws of Nevada ("ForeverGreen"); WHEREAS, Licensor is the exclusive licensee of the University of South Florida Research Foundation, Inc., a nonstock, nonprofit Florida corporation, under Chapter 617 Florida Statutes, a direct support organization of the University of South Florida Board of Trustees, a public body corporate, pursuant to section Florida Statutes (collectively referred to as "USF") of certain inventions that are described in the "Licensed Patents" defined below (AG Agreement No ; USF Reference# 12B109 _D' Agostino), and Licensor is willing to grant a license to Licensee under the Licensed Patents and Licensee desires a license under.all of them; and WHEREAS, Licensor and Licensee have entered into a certain Exclusive Sublicense Agreement re Vlahakos Technology as of the date hereof with respect to certain teclmology, rights and licenses held by Licensor and ce1iain rights licensed from Vic Vlahakos, M.D. (the "Vlahakos Sub-license"). NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth below, the parties covenant and agree as follows: Section 1 Definitions 1.1 "Affiliate" means: (a) any person or entity which controls at least fifty percent (50%) of the equity or voting stock of the Licensee or (b) any person or entity fifty percent (50%) of whose equity or voting stock is owned or controlled by the Licensee or (c) any person or entity of which at least fifty percent (50%) of the equity or voting stock is owned or controlled by the same person or entity owning or controlling at least fifty percent (50%) of Licensee or (d) any entity in which any officer or employee is also an officer or employee of Licensee or any person who is an officer or employee of Licensee or ( e) any other relationship as in fact, constitutes actual control. 1.2 (reserved) 1.3 (reserved) 1.4 "Investigator" means Dominic D'Agostino and Shannon Kesl, while employed by the University of South Florida. 1.5 "Know-How" means unpatented technology and/or information that has been or will' be developed by the Investigator, Licensor, Licensor's Affiliates and joint venture partners, including without limitation the information listed in Appendix A, methods, processes, teclmiques, compounds, cell lines, materials, sequences, drawings, indications, data, results of tests, or studies, plans, and expertise, whether patentable or not, which relates Page 1 Exhibit D

34 Case 4:15-cv ALM-CAN Document 22-5 Filed 10/26/15 Page 3 of 3 PageID #: 262 JN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the dates indicated below to be effective as of the date first set forth above. ~;I;es,LLCDate : July L 2015 Managing Director LICENSEE: Forever Green International, LLC _L/ ~=j=-~~1-,,.ill...-\-~=--..,.. - -( Date: July.J..., 2015 ~ Name: Ron William~ Title: Chief Executive Officer ACKNOWLEDGED AND AGREED: UNIVERSITY OF SOUTH FLORIDA RESEARCH FOUNDATION 4)~~ ---~ Date: July -1:_, 2015 Name: Valerie Landrio McDevitt Title: Associate Vice President, Technology Transfer and Business Partnerships Page 21 Exhibit D

35 Case 4:15-cv ALM-CAN Document 22-6 Filed 10/26/15 Page 1 of 4 PageID #: 263 Exhibit E EXHIBIT E

36 Case 4:15-cv ALM-CAN Document 22-6 Filed 10/26/15 Page 2 of 4 PageID #: 264 NON-BINDING TERM SHEET FOR A LICENSE AGREEMENT This Tenn Sheet (the "Term Sheet") contains the basic terms to be included in a future,definitive License Agreement (the "License Agreement" or the "Agreement") for the Technology described below. The parties are NEWCO Inc., a Delaware corporation having an address at and Axcess Global Sciences Inc. ("Axcess"); a Utah Limited Liability Company having an address at Salt Lake City, Utah. The proposed transaction js subject to (i) the acceptance by both NEWCO and Axcess of the principal tenns as finally negotiated, and (ii) the negotiation, execution and delivery of a definitive License Agreement and any other agreements related thereto. h is understood that this Term Sheet does not constitute a binding contract. and that the parties do not intend to be legally bound, IDV.ess and until a definitive License Agreement has been executed by both parties (except as expressly provided below concerning "Publicity" and "Confidentiality"). Unless and untt1 a definitive License Agreement has been executed by both parties~ either party is free to terminate further negotiations at any time, with or without cause. GENERAL TERMS: Technology: Patent Rights: Products: Know How: License: The Patent Rights, Trade Secrets and Know How defined below. Axcess shall remain owner of the Technology, subject to the tenns of the Agreement Axcess's rights under the patents and/or patent applicationslisted<i:n.., Exhibit A, and any divisionals, continuations, reissues, reexaminations; : and extensions, including both U.S. rights and any foreign rights in,the Territory (collectively, the "Patent Rights")... Axcess shall prosecute and maintain the Patent Rights, using counsel of Axcess's choice in the event NEWCO does not pursue those rights under.. their sublicense agreement. Products as defined, created or formulated by Axcess with }>atented Technology or trade secret infonnation or Know How of AXcess for use bynewco. Any infonnation, data. process, method, or know.how that is developed by Axcess on or before the Effective Date, and that is useful in practicing any invention taught or claimed in the Patent Rights. Exclusive license by Axcess to NEWCO to make, use sell, offer to sell and import products and processes~ under the Patent Rights, Trad~. v Secrets and Know How within the Field of Use.. The term of the license: would continue until the latest expiration date of any patent with~ the.. Patent Rights, or in oountries where no Patents exist, for twenty year~ from the date of th,e license. :. r bf- : EXHIBIT E

37 Case 4:15-cv ALM-CAN Document 22-6 Filed 10/26/15 Page 3 of 4 PageID #: 265 Iftltls Term Sheet sets forth the general terms of the proposed transaction in a manner.consistent with your understanding, kindly so indicate by signing on behalf of Axcess and returning to the undersigned the enclosed duplicate of this Term Sheet. This Term Sheet does not constitute a. binding contract, and the parties do not intend to be legally bound unless and until a definitive License Agreement has been executed by both parties. Nevertheless, the parties agree to be legally hound by the provisions above concerning "publicity" and "confidentiality,', each of which shall survive the abandonment of the negotiations and transactions contemplated by this Term Sheet, and which shall be binding in accordance with their respective terms..1': Accepted and agreed to this 1 day of /J~ "<!"<>'IJ~/', 2014 by: NEW CO Name Title... ' 1,... :. -:.. :. t; EXHIBIT E

38 Case 4:15-cv ALM-CAN Document 22-6 Filed 10/26/15 Page 4 of 4 PageID #: 266 EXHIBIT A TO THE NON BINDING TERM SHEET FOR LICENSE AGREEMENT BETWEEN NEWCO INC AND AXCESS GLOBAL INC PATENTS, PATENT APPLICATIONS, AND PRODUCTS 1. US Utility Application Patent for Compositions and Method for Producing and Sustaining Elevated Ketosis 2. International Utility Application Patent for Compositions and Method for Producing and Sustaining Elevated Ketosis 3. US Patent #6,613,356 Bl - Weight Loss Medication and Method - Vlakbous. ~ EXHIBIT E

39 Case 4:15-cv ALM-CAN Document 22-7 Filed 10/26/15 Page 1 of 5 PageID #: 267 Exhibit F Exhibit F

40 Case 4:15-cv ALM-CAN Document 22-7 Filed 10/26/15 Page 2 of 5 PageID #: 268 Subject: Attachments: FW: updated docs Exclusive Sublicense Agreement - Pruvit AG.docx; Supply Agreement AG.docx Forwarded message From: Charles Roberts <croberts@wasatch-ip.com> Date: Sat, Nov 29, 2014 at 1:57 PM Subject: updated docs To: Jenifer Grace <legal@lacore.com> Hi Jenifer, Attached are a revised set of the docs. Is there time Monday we could discuss them? I ve embedded some markers to identify areas that I think would be productive to discuss. Many thanks, --Charles Charles L. Roberts WASATCH-IP, A Professional Corporation 2825 E. Cottonwood Parkway, Suite 500 Salt Lake City, Utah croberts@wasatch-ip.com 1 Exhibit F

41 Case 4:15-cv ALM-CAN Document 22-7 Filed 10/26/15 Page 3 of 5 PageID #: 269 SUPPLY AGREEMENT THIS SUPPLY AGREEMENT ( Agreement ) is made and entered into as of the date of the last signature hereto (the Effective Date ) by and between Axcess Global Sciences, LLC, a Utah limited liability company having a principal place of business at 7810 South Prospector Drive, Salt Lake City, Utah ( AGS ) and Pruvit, Inc., ( Pruvit ) a Texas Corporation having a place of business at 901 Sam Rayburn Highway, Melissa, Texas (hereinafter Pruvit ). AGS and Pruvit may be referred to individually as a Party and collectively as the Parties. WHEREAS AGS has expertise in the development of ketone related nutritional supplements (the Products ); WHEREAS Pruvit intends to market the Products on an exclusive basis, Territory by Territory, as set forth in the Exclusive Sub-License Agreement Re USF Technology by and among AGS and Pruvit of even date herewith (the USF Sub-License Agreement ), a copy of which is attached hereto as Appendix A and incorporated by reference herein and in the Exclusive Sub-License Agreement Re Vlahakos Technology by and among AGS and Pruvit of even date herewith (the Vlahakos Sub-License Agreement ), a copy of which is attached hereto as Appendix B and incorporated by reference herein; WHEREAS Pruvit wishes AGS to manufacture and sell the Products to Pruvit as defined herein and Pruvit wishes to purchase the Products from AGS; and WHEREAS AGS is willing to manufacture and sell the Products to Pruvit, and Pruvit is willing to purchase the Products on the terms and conditions set forth below. NOW, THEREFORE, in consideration of the mutual covenants set forth below and for other good and valuable consideration, the receipt and sufficiency of which the Parties hereby acknowledge, the Parties agree as follows: 1. Purpose of Agreement. Under the terms and conditions of this Agreement, AGS agrees to manufacture and sell to Pruvit and Pruvit agrees to purchase from AGS, the Products. 2. Price of the Products. AGS agrees to sell the finished Products to Pruvit at its actual cost for any such Products on which a royalty is paid pursuant to one of the Sublicenses. In the event AGS s manufacturing costs of any of the Products increases, AGS reserves the right to adjust the price charged to Pruvit for such product to compensate for such cost increase. Any such price increases will be discussed with Pruvit prior to implementation, and Pruvit will receive at least sixty (60) days notice of any proposed price increase. In the event that AGS is unable to manufacture an order for the finished goods for those prices set forth herein, or in the time frame required for production to ensure supply, Pruvit reserves the right to engage alternative manufacturers for production of the products utilizing AGS raw materials for such order. 3. New Products. Pruvit agrees that in the event it desires to formulate and sell any new products utilizing the Ketone technology licensed under the Sublicense Agreements, it will work with AGS in AGS s formulation of such new products. Any such new products on which a Exhibit F

42 Case 4:15-cv ALM-CAN Document 22-7 Filed 10/26/15 Page 4 of 5 PageID #: 270 To Pruvit: Salt Lake City, Utah garymillet@axcess-global.com Pruvit, Inc. Attn: Brian Underwood 901 Sam Rayburn Highway Melissa, TX CEO@pruvit.com (d) Governing Law. The validity, construction and performance of this agreement will be governed by and interpreted in accordance with the laws of the State of Utah (excluding its rules of conflict of laws). (e) Entire Agreement. Along with the Sub-License Agreements between the parties, this Agreement, any appendices hereto and each accepted Purchase Order contain the entire agreements between Pruvit and AGS with respect to the subject matter hereto and no other agreements or understandings purporting to add to or modify the terms and conditions hereof shall be binding upon Pruvit or AGS unless agreed to by both Parties in writing on or subsequent to the date of this Agreement. (f) Counterparts/ or Fax execution. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original of this Agreement, but all of which together shall constitute one and the same instrument. The Parties acknowledge that electronic or facsimile copies of their respective signatures shall be treated as original signatures. IN WITNESS WHEREOF, the parties hereto have executed this Distribution Agreement through their duly authorized representatives as of the date of the last signature hereto. AXCESS GLOBAL SCIENCES, LLC PRUVIT, INC South Prospector Drive Salt Lake City, Utah By: Name: Gary Millet/Manager Date : By: Position: Date: Exhibit F

43 Case 4:15-cv ALM-CAN Document 22-7 Filed 10/26/15 Page 5 of 5 PageID #: 271 Appendix B (Exclusive Sub-License Agreement re Vlahakos Technology) Exhibit F

44 Case 4:15-cv ALM-CAN Document 22-8 Filed 10/26/15 Page 1 of 5 PageID #: 272 Exhibit G Exhibit G

45 Case 4:15-cv ALM-CAN Document 22-8 Filed 10/26/15 Page 2 of 5 PageID #: 273 Subject: Attachments: FW: redline of supply agreement Supply Agreement AG (redline showing changes from JLG version).docx Forwarded message From: Charles Roberts <croberts@wasatch-ip.com> Date: Wed, Dec 3, 2014 at 8:02 AM Subject: redline of supply agreement To: Jenifer Grace <legal@lacore.com> Here you go. Charles L. Roberts WASATCH-IP, A Professional Corporation 2825 E. Cottonwood Parkway, Suite 500 Salt Lake City, Utah croberts@wasatch-ip.com Exhibit G 1

46 Case 4:15-cv ALM-CAN Document 22-8 Filed 10/26/15 Page 3 of 5 PageID #: 274 SUPPLY AGREEMENT THIS SUPPLY AGREEMENT ( Agreement ) is made and entered into as of the date of the last signature hereto (the Effective Date ) by and between Axcess Global Sciences, LLC, a Utah limited liability company having a principal place of business at 7810 South Prospector Drive, Salt Lake City, Utah ( AGS ) and Pruvit, Inc., ( Pruvit ) a Texas Corporation having a place of business at 901 Sam Rayburn Highway, Melissa, Texas (hereinafter Pruvit ). AGS and Pruvit may be referred to individually as a Party and collectively as the Parties. WHEREAS AGS has expertise in the development of ketone related nutritional supplements (the Products ); WHEREAS Pruvit intends to market the Products on an exclusive basis, Territory by Territory as further set forth herein and is the Sub-License Agreement between the parties, as set forth in the Exclusive Sub-License Agreement Re USF Technology by and among AGS and Pruvit of even date herewith (the USF Sub-License Agreement ), a copy of which is attached hereto as Appendix A and incorporated by reference herein and in the Exclusive Sub-License Agreement Re Vlahakos Technology by and among AGS and Pruvit of even date herewith (the Vlahakos Sub-License Agreement ), a copy of which is attached hereto as Appendix B and incorporated by reference herein; WHEREAS Pruvit has signed, concurrently herewith, an exclusive sublicense (the USF Sublicense ) for selected fields of use in the United States and Canada under provisional patent application filed March 19, 2013 as U.S. Serial No. 61/803,203 entitled Compositions and Methods for Producing Elevated and Sustained Ketosis, naming as inventors Dominic D Agostino and Patrick Arnold and a provisional patent application filed January 13, 2014 as U.S. Serial No. 61/926,664 entitled Methods of Sustaining Dietary Ketosis and Its Effects on Lipid Profile, naming as inventors Dominic D Agostino and Shannon Kesl, and all U.S. and foreign patent applications claiming priority to the foregoing provisional applications, including any continuation-in-part application(s) to the extent that the subject matter claimed in such continuation-in-part application(s) is supported under 35 U.S.C. 112 in the foregoing provisional applications; WHEREAS Pruvit wishes AGS to manufacture and sell the Products to Pruvit as defined herein and PruvitwishesPruvit wishes to purchase the Products from AGS; and WHEREAS AGS is willing to manufacture and sell the Products to Pruvit, and Pruvit is willing to purchase the Products on the terms and conditions set forth below. NOW, THEREFORE, in consideration of the mutual covenants set forth below and for other good and valuable consideration, the receipt and sufficiency of which the Parties hereby acknowledge, the Parties agree as follows: 1. Purpose of Agreement. Under the terms and conditions of this Agreement, AGS agrees to manufacture and sell to Pruvit and Pruvit agrees to purchase from AGS, the Products. Exhibit G

47 Case 4:15-cv ALM-CAN Document 22-8 Filed 10/26/15 Page 4 of 5 PageID #: 275 IN WITNESS WHEREOF, the parties hereto have executed this Distribution Agreement through their duly authorized representatives as of the date of the last signature hereto. AXCESS GLOBAL SCIENCES, LLC PRUVIT, INC South Prospector Drive Salt Lake City, Utah By: Name: Gary Millet/Manager Date : By: Position: Date: Exhibit G

48 Case 4:15-cv ALM-CAN Document 22-8 Filed 10/26/15 Page 5 of 5 PageID #: 276 Appendix B (Exclusive Sub-License Agreement re Vlahakos Technology) Formatted: Font: Bold Formatted: Normal Exhibit G

49 Case 4:15-cv ALM-CAN Document 22-9 Filed 10/26/15 Page 1 of 2 PageID #: 277 Exhibit H Exhibit H

50 Case 4:15-cv ALM-CAN Document 22-9 Filed 10/26/15 Page 2 of 2 PageID #: 278 Subject: Attachments: FW: supply agreement Supply Agreement AG.docx Forwarded message From: Charles Roberts <croberts@wasatch-ip.com> Date: Thu, Dec 4, 2014 at 8:08 AM Subject: supply agreement To: Jenifer Grace <legal@lacore.com> Jenifer, Attached is the updated Supply Agreement in which I have made the changes we discussed. I also removed reference to the Vlahakos sub-license. Best regards, --Charles Charles L. Roberts WASATCH-IP, A Professional Corporation 2825 E. Cottonwood Parkway, Suite 500 Salt Lake City, Utah croberts@wasatch-ip.com 1 Exhibit H

51 Case 4:15-cv ALM-CAN Document Filed 10/26/15 Page 1 of 3 PageID #: 279 Exhibit I Exhibit I

52 Case 4:15-cv ALM-CAN Document Filed 10/26/15 Page 2 of 3 PageID #: 280 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS SHERMAN DIVISION PRUVIT VENTURES, LLC, Plaintiff, vs. AXCESS GLOBAL SCIENCES, LLC, and FOREVERGREEN INTERNATIONAL, LLC, Defendants. Civil Action No. 4:15-cv ALM-CAN DECLARATION OF GARY MILLET IN SUPPORT OF AXCESS GLOBAL SCIENCES, LLC S MOTION FOR JUDGMENT ON THE PLEADINGS UNDER RULES 9(b) AND 12(c) Honorable Judge Amos L. Mazzant I, Gary Millet, hereby declare as follows: 1. I am a Managing Partner at Axcess Global, LLC ( Axcess Global ) which wholly owns Axcess Global Sciences, LLC ( AGS ). I am also a Managing Partner at AGS. 1. I am over 18 years of age and I am competent to testify. I make this declaration based upon my own personal knowledge and based upon records maintained by AGS and Axcess Global to which I have access in the course of fulfilling my duties at Axcess Global and AGS. 2. I submit this declaration in support of Axcess Global Sciences, LLC s Motion for Judgment on the Pleadings under Rules 9(b) and 12(c) in the above-captioned lawsuit. 3. AGS developed a dietary supplement based on patented technology it licensed from the University of South Florida Research Foundation, Inc. and from Dr. Victor Vlahakos 1 Exhibit I

53 Case 4:15-cv ALM-CAN Document Filed 10/26/15 Page 3 of 3 PageID #: 281 which it sells in retail markets through an affiliated company, Real Ketones, LLC. The product is sold under the trademark Kegenix. To date, this is the only product being commercialized directly by AGS. 4. The Kegenix product was launched on September 17, 2015 at Joe Weider s Olympia Fitness & Performance Weekend 2015 which includes a large trade show in Las Vegas, Nevada. I personally attended the show and participated in the product launch. 5. Our web site, went live concurrently with the product launch, on September 17, Thus, our first marketing of the Kegenix product to the general public occurred on September 17, Executed this 22nd day of October, 2015, in Salt Lake City, UT. Gary Millet 2 Exhibit I