SHARE EXCHANGE AGREEMENT
THIS
AGREEMENT is
made
as of the 27th
day of
December,
2007
AMONG:
MARINE
PARK HOLDINGS, INC.,
a
corporation formed pursuant to the laws of the State of Delaware and having
an
office for business at 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000
(“Marine Park”)
AND:
NEWCARDIO,
INC.,
a
company formed pursuant to the laws of the State of Delaware and having an
office for business located at 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxx,
Xxxxxxxxxx 00000 ("NewCardio")
AND:
the
holders of NewCardio equity, each of whom are set forth on the signature page
of
this Agreement (the “NewCardio Shareholders”)
WHEREAS:
A. The
NewCardio Shareholders own such number of (i) shares of common stock, $0.0001
par value (“NewCardio Common Shares”), (ii) shares of preferred stock, $0.0001
par value (“NewCardio Preferred Shares”), (iii) debt obligations convertible
into shares of common stock, $0.0001 par value (“NewCardio Convertible Debt”),
and (iv) options and/or warrants convertible into shares of common stock,
$0.0001 par value (“NewCardio Convertible Securities”) as set forth on Exhibit
“A” annexed hereto, collectively being 100% of the presently issued and
outstanding NewCardio equity on a fully converted basis;
B. Marine
Park is a reporting company whose common stock is quoted on the Over-the-Counter
Bulletin Board; and
C. The
respective Boards of Directors of Marine Park and NewCardio deem it advisable
and in the best interests of Marine Park and NewCardio that NewCardio become
a
wholly-owned subsidiary of Marine Park (the “Acquisition”) pursuant to this
Agreement.
NOW
THEREFORE THIS AGREEMENT WITNESSETH THAT
in
consideration of the premises and the mutual covenants, agreements,
representations and warranties contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the
parties hereto hereby agree as follows:
ARTICLE
1
DEFINITIONS
AND INTERPRETATION
Definitions
1.1 In
this
Agreement the following terms will have the following meanings:
| (a) |
“Acquisition”
means the Acquisition, at the Closing, of NewCardio by Marine Park
pursuant to this Agreement;
|
| (b) |
“Acquisition
Shares”
means the Marine Park Common Shares, set forth on Exhibit “A,” to be
issued to the NewCardio Shareholders at Closing pursuant to the terms
of
the Acquisition;
|
| (c) |
“Agreement”
means this share exchange agreement among Marine Park, NewCardio,
and the
NewCardio Shareholders;
|
|
(d)
|
“Closing”
means the completion, on the Closing Date, of the transactions
contemplated hereby in accordance with Article 9
hereof;
|
|
(e)
|
“Closing
Date”
means the day on which all conditions precedent to the completion
of the
transaction as contemplated hereby have been satisfied or waived,
but in
any event no later than January 5,
2008;
|
| (f) |
“Marine
Park Accounts Payable and Liabilities”
means all accounts payable and liabilities of Marine Park, on a
consolidated basis, due and owing or otherwise constituting a binding
obligation of Marine Park and its subsidiaries (other than a Marine
Park
Material Contract) as of September 30, 2007 as set forth is Schedule
“A”
hereto;
|
| (g) |
“Marine
Park Accounts Receivable”
means all accounts receivable and other debts owing to Marine Park,
on a
consolidated basis, as of September 30, 2007 as set forth in Schedule
“B”
hereto;
|
| (h) |
“Marine
Park Assets”
means the undertaking and all the property and assets of the Marine
Park
Business of every kind and description wheresoever situated including,
without limitation, Marine Park Equipment, Marine Park Inventory,
Marine
Park Material Contracts, Marine Park Accounts Receivable, Marine
Park
Cash, Marine Park Intangible Assets and Marine Park Goodwill, and
all
credit cards, charge cards and banking cards issued to Marine
Park;
|
| (i) |
“Marine
Park Bank Accounts”
means all of the bank accounts, lock boxes and safety deposit boxes
of
Marine Park and its subsidiaries or relating to the Marine Park Business
as set forth in Schedule “C”
hereto;
|
| (j) |
“Marine
Park Business”
means all aspects of any business conducted by Marine Park and its
subsidiaries;
|
| (k) |
“Marine
Park Cash”
means all cash on hand or on deposit to the credit of Marine Park
and its
subsidiaries on the Closing Date;
|
| (l) |
“Marine
Park Common Shares”
means the shares of common stock in the capital of Marine
Park;
|
| (m) |
“Marine
Park Debt to Related Parties”
means the debts owed by Marine Park to any affiliate, director or
officer
of Marine Park as described in Schedule “D”
hereto;
|
| (n) |
“Marine
Park Equipment”
means all machinery, equipment, furniture, and furnishings used in
the
Marine Park Business, including, without limitation, the items more
particularly described in Schedule “E”
hereto;
|
-
2 -
| (o) |
“Marine
Park Financial Statements”
means, collectively, the audited consolidated financial statements
of
Marine Park for the fiscal year ended December 31, 2006, together
with the
unqualified auditors' report thereon, and the unaudited consolidated
financial statements of Marine Park for the three month period ended
September 30, 2007, true copies of which are attached as Schedule
“F”
hereto;
|
| (p) |
“Marine
Park Goodwill”
means the goodwill of the Marine Park Business including the right
to all
corporate, operating and trade names associated with the Marine Park
Business, or any variations of such names as part of or in connection
with
the Marine Park Business, all books and records and other information
relating to the Marine Park Business, all necessary licenses and
authorizations and any other rights used in connection with the Marine
Park Business;
|
| (q) |
“Marine
Park Insurance Policies”
means the public liability insurance and insurance against loss or
damage
to the Marine Park Assets and the Marine Park Business as described
in
Schedule “G” hereto;
|
| (r) |
“Marine
Park Intangible Assets"
means all of the intangible assets of Marine Park and its subsidiaries,
including, without limitation, Marine Park Goodwill, all trademarks,
logos, copyrights, designs, and other intellectual and industrial
property
of Marine Park and its
subsidiaries;
|
| (s) |
“Marine
Park Inventory”
means all inventory and supplies of the Marine Park Business as of
September 30, 2007, as set forth in Schedule “H” hereto;
and
|
| (t) |
“Marine
Park Material Contracts”
means the burden and benefit of and the right, title and interest
of
Marine Park and its subsidiaries in, to and under all trade and non-trade
contracts, engagements or commitments, whether written or oral, to
which
Marine Park or its subsidiaries are entitled whereunder Marine Park
or its
subsidiaries are obligated to pay or entitled to receive the sum
of
$10,000 or more including, without limitation, any pension plans,
profit
sharing plans, bonus plans, loan agreements, security agreements,
indemnities and guarantees, any agreements with employees, lessees,
licensees, managers, accountants, suppliers, agents, distributors,
officers, directors, attorneys or others which cannot be terminated
without liability on not more than one month's notice, and those
contracts
listed in Schedule “I” hereto.
|
|
(u)
|
“NewCardio
Accounts Payable and Liabilities”
means all accounts payable and liabilities of NewCardio, due and
owing or
otherwise constituting a binding obligation of NewCardio (other than
a
NewCardio Material Contract) as of September 30, 2007 as set forth
in
Schedule “J” hereto;
|
|
(v)
|
“NewCardio
Accounts Receivable”
means all accounts receivable and other debts owing to NewCardio,
as of
September 30, 2007 as set forth in Schedule “K”
hereto;
|
| (w) |
“NewCardio
Assets“
means the undertaking and all the property and assets of the NewCardio
Business of every kind and description wheresoever situated including,
without limitation, NewCardio Equipment, NewCardio Inventory, NewCardio
Material Contracts, NewCardio Accounts Receivable, NewCardio Cash,
NewCardio Intangible Assets and NewCardio Goodwill, and all credit
cards,
charge cards and banking cards issued to
NewCardio;
|
| (x) |
“NewCardio
Bank Accounts”
means all of the bank accounts, lock boxes and safety deposit boxes
of
NewCardio or relating to the NewCardio Business as set forth in Schedule
“L” hereto;
|
-
3 -
| (y) |
“NewCardio
Bridge Warrants”
shall mean any warrant to purchase or otherwise acquire shares of
capital
stock of NewCardio issued in connection with a NewCardio financing
transaction upon NewCardio’s consummation of such financing
event;
|
| (z) |
“NewCardio
Business”
means all aspects of the business conducted by
NewCardio;
|
| (aa) |
“NewCardio
Cash”
means all cash on hand or on deposit to the credit of NewCardio on
the
Closing Date;
|
| (bb) |
“NewCardio
Common Warrants”
shall mean warrants to purchase or otherwise acquire NewCardio Shares,
which were issued in connection with NewCardio’s Series A-2 Preferred
Stock financing;
|
| (cc) |
“NewCardio
Debt to Related Parties”
means the debts owed by NewCardio and its subsidiaries to the NewCardio
Shareholders or to any family member thereof, or to any affiliate,
director or officer of NewCardio or the NewCardio Shareholders as
described in Schedule “M”;
|
| (dd) |
“NewCardio
Equipment”
means all machinery, equipment, furniture, and furnishings used in
the
NewCardio Business, including, without limitation, the items more
particularly described in Schedule “N”
hereto;
|
| (ee) |
“NewCardio
Financial Statements”
means collectively, the audited financial statements of NewCardio
for the
two fiscal years ended December 31, 2006, together with the unqualified
auditors' report thereon, and the unaudited consolidated financial
statements of NewCardio for the nine month period ended September
30,
2007, true copies of which are attached as Schedule “O” hereto;
|
| (ff) |
“NewCardio
Goodwill”
means the goodwill of the NewCardio Business together with the exclusive
right of Marine Park to represent itself as carrying on the NewCardio
Business in succession of NewCardio subject to the terms hereof,
and the
right to use any words indicating that the NewCardio Business is
so
carried on including the right to use the name "NewCardio” or “NewCardio
International" or any variation thereof as part of the name of or
in
connection with the NewCardio Business or any part thereof carried
on or
to be carried on by NewCardio, the right to all corporate, operating
and
trade names associated with the NewCardio Business, or any variations
of
such names as part of or in connection with the NewCardio Business,
all
telephone listings and telephone advertising contracts, all lists
of
customers, books and records and other information relating to the
NewCardio Business, all necessary licenses and authorizations and
any
other rights used in connection with the NewCardio
Business;
|
| (gg) |
“NewCardio
Insurance Policies”
means the public liability insurance and insurance against loss or
damage
to NewCardio Assets and the NewCardio Business as described in Schedule
“P” hereto;
|
| (hh) |
“NewCardio
Intangible Assets”
means all of the intangible assets of NewCardio, including, without
limitation, NewCardio Goodwill, all trademarks, logos, copyrights,
designs, and other intellectual and industrial property of NewCardio
and
its subsidiaries;
|
-
4 -
| (ii) |
“NewCardio
Inventory”
means all inventory and supplies of the NewCardio Business as of
September
30, 2007 as set forth in Schedule “Q”
hereto;
|
| (jj) |
“NewCardio
Material Contracts”
means the burden and benefit of and the right, title and interest
of
NewCardio in, to and under all trade and non-trade contracts, engagements
or commitments, whether written or oral, to which NewCardio is entitled
in
connection with the NewCardio Business whereunder NewCardio is obligated
to pay or entitled to receive the sum of $10,000 or more including,
without limitation, any pension plans, profit sharing plans, bonus
plans,
loan agreements, security agreements, indemnities and guarantees,
any
agreements with employees, lessees, licensees, managers, accountants,
suppliers, agents, distributors, officers, directors, attorneys or
others
which cannot be terminated without liability on not more than one
month's
notice, and those contracts listed in Schedule “R”
hereto;
|
| (kk) |
“NewCardio
Option”
shall mean any option to purchase or otherwise acquire NewCardio
Shares
(whether or not vested) outstanding under any NewCardio Option
Plan;
|
| (ll) |
“NewCardio
Option Plan”
shall mean (i) NewCardio’s 2004 Equity Incentive Plan and (ii) any other
compensatory option plans or contracts of NewCardio, including option
plans or contracts assumed by the NewCardio pursuant to a merger
or
acquisition;
|
| (mm) |
“NewCardio
Related Party Debts”
means the debts owed by the NewCardio Shareholders or by any family
member
thereof, or by any affiliate, director or officer of NewCardio or
the
NewCardio Shareholders, to NewCardio as described in Schedule “S”;
|
|
(nn)
|
“NewCardio
Shares”
means all of the issued and outstanding shares of common stock, $0.0001
par value, of NewCardio, whether or not certificates have been issues
with
respect to such shares, and shares of common stock issuable upon
conversion and/or exercise of all NewCardio Preferred Shares and
NewCardio
Convertible Debt;
|
|
(oo)
|
“NewCardio
Warrants”
shall mean the NewCardio Common Warrants and the NewCardio Bridge
Warrants;
|
|
(pp)
|
“Place
of Closing”
means the offices of Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP, or such
other
place as Marine Park and NewCardio may mutually agree upon;
and
|
|
(qq)
|
“Return
to Treasury Agreement”
means the Return to Treasury Agreement to be entered into on the
Closing
Date between Marine Park and Harborview Master Fund L.P. and Diverse
Trading Ltd. in the form attached hereto as Exhibit
“B.”
|
Any
other
terms defined within the text of this Agreement will have the meanings so
ascribed to them.
Captions
and Section Numbers
1.2 The
headings and section references in this Agreement are for convenience of
reference only and do not form a part of this Agreement and are not intended
to
interpret, define or limit the scope, extent or intent of this Agreement or
any
provision thereof.
-
5 -
Section
References and Schedules
1.3 Any
reference to a particular “Article”, “section”, “paragraph”, “clause” or other
subdivision is to the particular Article, section, clause or other subdivision
of this Agreement and any reference to a Schedule by letter will mean the
appropriate Schedule attached to this Agreement and by such reference the
appropriate Schedule is incorporated into and made part of this Agreement.
The
Schedules to this Agreement are as follows:
Information
concerning Marine Park
|
Schedule
“A”
|
Marine
Park Accounts Payable and Liabilities
|
|
Schedule
“B”
|
Marine
Park Accounts Receivable
|
|
Schedule
“C”
|
Marine
Park Bank Accounts
|
|
Schedule
“D”
|
Marine
Park Debts to Related Parties
|
|
Schedule
“E”
|
Marine
Park Equipment
|
|
Schedule
“F”
|
Marine
Park Financial Statements
|
|
Schedule
“G”
|
Marine
Park Insurance Policies
|
|
Schedule
“H”
|
Marine
Park Inventory
|
|
Schedule
“I”
|
Marine
Park Material Contracts
|
Information
concerning NewCardio
|
Schedule
“J”
|
NewCardio
Accounts Payable and Liabilities
|
|
Schedule
“K”
|
NewCardio
Accounts Receivable
|
|
Schedule
“L”
|
NewCardio
Bank Accounts
|
|
Schedule
“M”
|
NewCardio
Debts to Related Parties
|
|
Schedule
“N”
|
NewCardio
Equipment
|
|
Schedule
“O”
|
NewCardio
Financial Statements
|
|
Schedule
“P”
|
NewCardio
Insurance Policies
|
|
Schedule
“Q”
|
NewCardio
Inventory
|
|
Schedule
“R”
|
NewCardio
Material Contracts
|
|
Schedule
“S”
|
NewCardio
Related Party Debts
|
Exhibits
|
Exhibit
“A”
|
Share
Exchange Structure
|
|
Exhibit
“B”
|
Return
to Treasury Agreement
|
|
Exhibit
“C”
|
Director
Nominees
|
|
Certificate
of Designation
|
|
|
Exhibit
“E”
|
Form
of Legal Opinion
|
Severability
of Clauses
1.4 If
any
part of this Agreement is declared or held to be invalid for any reason, such
invalidity will not affect the validity of the remainder which will continue
in
full force and effect and be construed as if this Agreement had been executed
without the invalid portion, and it is hereby declared the intention of the
parties that this Agreement would have been executed without reference to any
portion which may, for any reason, be hereafter declared or held to be
invalid.
-
6 -
ARTICLE
2
THE
ACQUISITION
Sale
of Shares
2.1 The
NewCardio Shareholders hereby agree to sell to Marine Park the NewCardio Shares
in exchange for the Acquisition Shares on the Closing Date and to transfer
to
Marine Park on the Closing Date a 100% undivided interest in and to the
NewCardio Shares free from all liens, mortgages, charges, pledges, encumbrances
or other burdens with all rights now or thereafter attached
thereto.
|
2.2
|
Treatment
of NewCardio Options.
|
(a) At
the
Closing, by virtue of the transactions contemplated hereunder and without any
action on the part of the holders of any shares of NewCardio Options, each
NewCardio Option that is issued and outstanding immediately prior to the Closing
Date, whether or not then exercisable, will be assumed by Marine Park and
converted automatically into an option to purchase Marine Park Common Shares
(“Assumed
Options”)
as set
forth below. Each Assumed Option will continue to have, and be subject to,
the
same terms and conditions set forth in the NewCardio Option Plan and the
agreements evidencing the grant thereof immediately prior to the Closing Date,
including provisions with respect to vesting and the number of whole shares
they
shall be exercisable for of Marine Park Common Shares.
It is
the intention of the parties that each Assumed Option that qualified as an
incentive stock option (as defined in Section 422 of the Code) shall continue
to
so qualify, to the maximum extent permissible, following the Closing
Date.
(b) Promptly
following the Closing Date, Marine Park shall issue to each holder of a
NewCardio Option that was assumed by Marine Park pursuant to Section 2.2(a)
a
document evidencing the assumption of such NewCardio Option by Marine
Park.
(c) Following
the Closing Date, Marine Park will be able to grant stock awards, to the extent
permissible by applicable Law and regulations, under the terms of the NewCardio
Option Plan or the terms of another plan adopted by Marine Park to issue the
reserved but unissued NewCardio Shares under such NewCardio Option Plan and
the
shares that would otherwise return to the NewCardio Option Plan pursuant to
Section 4(b) thereof (which provides that NewCardio Shares subject to
unexercised portions of any award granted thereunder that expires or otherwise
terminates will return and may be used for awards to be granted under the
NewCardio Option Plan), except that (i) NewCardio Shares covered by such awards
will be shares of Marine Park Common Shares and (ii) all references to a number
of NewCardio Shares will be changed to reference Marine Park Common Shares.
Notwithstanding the foregoing, neither NewCardio, nor any NewCardio Stockholder,
nor any holder of a NewCardio Option, makes any representation or warranty
or
shall have any obligation or any liability whatsoever, including without
limitation any indemnification obligation under this Agreement, or be required
to take any action with respect to or arising out of this Section 2.2(c).
|
2.3
|
Treatment
of NewCardio Warrants.
|
(a) At
the
Closing, by virtue of the transactions contemplated hereunder and without any
action on the part of the holders of any shares of NewCardio Warrants, each
NewCardio Warrant that is issued and outstanding immediately prior to the
Closing Date will be assumed by Marine Park and converted automatically into
a
warrant to purchase a number of shares of Marine Park Common Shares as set
forth
in the agreements evidencing such NewCardio Warrant at the exercise price set
forth in the agreements evidencing such NewCardio Warrant.
-
7 -
(b) Promptly
following the Closing Date, Marine Park shall issue to each holder of a
NewCardio Warrant that was assumed by Marine Park pursuant to
Section 2.3(a) a
document evidencing the assumption of such NewCardio Warrant by Marine
Park.
2.4 Treatment
of Restricted Stock Grants.
Notwithstanding anything herein to the contrary, each NewCardio Shareholder
who
originally purchased NewCardio Shares pursuant to a restricted stock purchase
agreement or other agreement, in any case outside the NewCardio Option Plan,
which provides for the release or vesting of such NewCardio Shares over the
course of time, and as of the Closing Date, all or any portion of the
Acquisition Shares exchange therewith shall remain subject to release or vesting
pursuant to such agreement, and such NewCardio Shareholder agrees that the
portion of Acquisition Shares remaining subject to release or vesting as of
the
Closing Date shall continue to remain subject to release or vesting upon and
following the Closing Date subject to the terms and conditions set forth in
the
agreement through which such NewCardio Shares were originally issued. At the
Closing, by virtue of the transactions contemplated hereunder and without any
action on the part of the holders of any such NewCardio Shares, Marine Park
shall assume all of NewCardio’s rights and obligations under such agreements
with respect to the release or vesting of such Acquisition Shares upon and
following the Closing Date.
2.5 Treatment
of NewCardio Preferred Shares and NewCardio Convertible
Debt.
On the
Closing Date, by virtue of the sale to Marine Park of the NewCardio Shares
in
exchange for the Acquisition Shares, the NewCardio Shareholders who previously
held NewCardio Preferred Shares and/or NewCardio Convertible Debt hereby confirm
the conversion thereof and agree that such NewCardio Preferred Shares and/or
NewCardio Convertible Debt shall automatically be cancelled and extinguished,
without any action on the part of the holder thereof, in exchange for the right
to receive the Acquisition Shares at the Closing. All such NewCardio Preferred
Shares and/or NewCardio Convertible Debt shall no longer be outstanding and
shall automatically be cancelled and retired and shall cease to exist, and
each
holder thereof shall cease to have any rights with respect thereto, except
the
right to receive the Acquisition Shares paid in consideration therefor upon
the
surrender of such in accordance with this Agreement. Furthermore, the NewCardio
Shareholders hereby waive any requirement or obligation of NewCardio to provided
any notice or take any other actions with respect to the conversion of the
NewCardio Preferred Shares and/or NewCardio Convertible Debt.
Allocation
of Consideration
2.6 The
Acquisition Shares shall be allocated to the NewCardio Shareholders on the
basis
of one Acquisition Share for each one NewCardio Share held by a NewCardio
Shareholder as set forth in Schedule 2.2 attached hereto.
Adherence
with Applicable Securities Laws
2.7 The
NewCardio Shareholders agree that they are acquiring the Acquisition Shares
for
investment purposes and will not offer, sell or otherwise transfer, pledge
or
hypothecate any of the Acquisition Shares issued to them (other than pursuant
to
an effective Registration Statement under the Securities
Act of 1933,
as
amended) directly or indirectly unless:
|
(a)
|
the
sale is to Marine Park;
|
|
(b)
|
the
sale is made pursuant to the exemption from registration under the
Securities
Act of 1933, as amended,
provided by Rule 144 thereunder; or
|
|
(c)
|
the
Acquisition Shares are sold in a transaction that does not require
registration under the Securities
Act of 1933, as amended,
or
any applicable United States state laws and regulations governing
the
offer and sale of securities, and the vendor has furnished to Marine
Park
an opinion of counsel to that effect or such other written opinion
as may
be reasonably required by Marine
Park.
|
-
8 -
The
NewCardio Shareholders acknowledge that the certificates representing the
Acquisition Shares shall bear the following legend:
NO
SALE,
OFFER TO SELL, OR TRANSFER OF THE SHARES REPRESENTED BY THIS CERTIFICATE SHALL
BE MADE UNLESS A REGISTRATION STATEMENT UNDER THE FEDERAL SECURITIES ACT OF
1933, AS AMENDED, IN RESPECT OF SUCH SHARES IS THEN IN EFFECT OR AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF SAID ACT IS THEN IN FACT APPLICABLE TO
SAID SHARES.
ARTICLE
3
REPRESENTATIONS
AND WARRANTIES
OF
MARINE PARK
Representations
and Warranties
3.1 Marine
Park hereby represents and warrants in all material respects to NewCardio and
the NewCardio Shareholders, with the intent that NewCardio and the NewCardio
Shareholders will rely thereon in entering into this Agreement and in approving
and completing the transactions contemplated hereby, that:
Marine
Park - Corporate Status and Capacity
| (a) |
Incorporation.
Marine Park is a corporation duly incorporated and validly subsisting
under the laws of the State of Delaware and in good standing with
the
office of the Secretary of State for the State of
Delaware;
|
| (b) |
Carrying
on Business.
Marine Park conducts the business described in its filings with the
Securities and Exchange Commission and does not conduct any other
business. Marine Park is duly authorized to carry on such business
in the
State of New York. The nature of the Marine Park Business does not
require
Marine Park to register or otherwise be qualified to carry on business
in
any other jurisdictions;
|
| (c) |
Corporate
Capacity.
Marine Park has the corporate power, capacity and authority to own
the
Marine Park Assets and to enter into and complete this
Agreement;
|
| (d) |
Reporting
Status; Listing.
Marine Park is required to file current reports with the Securities
and
Exchange Commission pursuant to section 15(d) of the Securities Exchange
Act of 1934, Marine Park filed a registeration statement under the
Securities Act of 1933 and are quoted on the Over-the-Counter Bulletin
Board, and all reports required to be filed by Marine Park with the
Securities and Exchange Commission or NASD have been filed;
|
-
9 -
Marine
Park - Capitalization
| (e) |
Authorized
Capital.
The authorized capital of Marine Park consists of 99,000,000 Marine
Park
Common Shares, $0.001 par value and 1,000,000 shares of preferred
stock,
$0.001 par value, of which 10,940,000 Marine Park Common Shares,
and no
shares of preferred stock are presently issued and
outstanding;
|
| (f) |
No
Option, Warrant or Other Right.
No person, firm or corporation has any agreement, option, warrant,
preemptive right or any other right capable of becoming an agreement,
option, warrant or right for the acquisition of Marine Park Common
Shares
or for the purchase, subscription or issuance of any of the unissued
shares in the capital of Marine
Park;
|
Marine
Park - Records and Financial Statements
|
(g)
|
Charter
Documents.
The charter documents of Marine Park and its subsidiaries have not
been
altered since the incorporation of each, respectively, except as
filed in
the record books of Marine Park or its subsidiaries, as the case
may
be;
|
|
(h)
|
Corporate
Minute Books.
The corporate minute books of Marine Park and its subsidiaries are
complete and each of the minutes contained therein accurately reflect
the
actions that were taken at a duly called and held meeting or by consent
without a meeting. All actions by Marine Park and its subsidiaries
which
required director or shareholder approval are reflected on the corporate
minute books of Marine Park and its subsidiaries. Marine Park and
its
subsidiaries are not in violation or breach of, or in default with
respect
to, any term of their respective Certificates of Incorporation (or
other
charter documents) or by-laws.
|
|
(i)
|
Marine
Park Financial Statements.
The Marine Park Financial Statements present fairly, in all material
respects, the assets and liabilities (whether accrued, absolute,
contingent or otherwise) of Marine Park, on a consolidated basis,
as of
the respective dates thereof, and the sales and earnings of the Marine
Park Business during the periods covered thereby, in all material
respects
and have been prepared in substantial accordance with generally accepted
accounting principles consistently
applied;
|
|
(j)
|
Marine
Park Accounts Payable and Liabilities.
There are no material liabilities, contingent or otherwise, of Marine
Park
or its subsidiaries which are not disclosed in Schedule “A” hereto or
reflected in the Marine Park Financial Statements except those incurred
in
the ordinary course of business since the date of the said schedule
and
the Marine Park Financial Statements, and neither Marine Park nor
its
subsidiaries have guaranteed or agreed to guarantee any debt, liability
or
other obligation of any person, firm or corporation. Without limiting
the
generality of the foregoing, all accounts payable and liabilities
of
Marine Park as of September 30, 2007, are described in Schedule “A”
hereto;
|
|
(k)
|
Marine
Park Accounts Receivable.
All the Marine Park Accounts Receivable result from bona fide business
transactions and services actually rendered without, to the knowledge
and
belief of Marine Park, any claim by the obligor for set-off or
counterclaim. Without limiting the generality of the foregoing, all
accounts receivable of Marine Park as of September 30, 2007, are
described
in Schedule “B” hereto;
|
|
(l)
|
Marine
Park Bank Accounts.
All of the Marine Park Bank Accounts, their location, numbers and
the
authorized signatories thereto are as set forth in Schedule “C”
hereto;
|
-
10 -
|
(m)
|
No
Debt to Related Parties.
Except as disclosed in Schedule “D” hereto, neither Marine Park nor any of
its subsidiaries is, and on Closing will not be, indebted to any
affiliate, director or officer of Marine Park except accounts payable
on
account of bona fide business transactions of Marine Park incurred
in
normal course of the Marine Park Business, including employment
agreements, none of which are more than 30 days in
arrears;
|
|
(n)
|
No
Related Party Debt to Marine Park.
No director or officer or affiliate of Marine Park is now indebted
to or
under any financial obligation to Marine Park or any subsidiary on
any
account whatsoever, except for advances on account of travel and
other
expenses not exceeding $1,000 in
total;
|
|
(o)
|
No
Dividends.
No dividends or other distributions on any shares in the capital
of Marine
Park have been made, declared or authorized since the date of Marine
Park
Financial Statements;
|
|
(p)
|
No
Payments.
No payments of any kind have been made or authorized since the date
of the
Marine Park Financial Statements to or on behalf of officers, directors,
shareholders or employees of Marine Park or its subsidiaries or under
any
management agreements with Marine Park or its subsidiaries, except
payments made in the ordinary course of business and at the regular
rates
of salary or other remuneration payable to
them;
|
|
(q)
|
No
Pension Plans.
There are no pension, profit sharing, group insurance or similar
plans or
other deferred compensation plans affecting Marine
Park;
|
|
(r)
|
No
Adverse Events.
Since the date of the Marine Park Financial
Statements
|
|
(i)
|
there
has not been any material adverse change in the consolidated financial
position or condition of Marine Park, its subsidiaries, its liabilities
or
the Marine Park Assets or any damage, loss or other change in
circumstances materially affecting Marine Park, the Marine Park Business
or the Marine Park Assets or Marine Park’ right to carry on the Marine
Park Business, other than changes in the ordinary course of
business,
|
|
(ii)
|
there
has not been any damage, destruction, loss or other event (whether
or not
covered by insurance) materially and adversely affecting Marine Park,
its
subsidiaries, the Marine Park Business or the Marine Park
Assets,
|
|
(iii)
|
there
has not been any material increase in the compensation payable or
to
become payable by Marine Park to any of Marine Park’ officers, employees
or agents or any bonus, payment or arrangement made to or with any
of
them,
|
|
(iv)
|
the
Marine Park Business has been and continues to be carried on in the
ordinary course,
|
|
(v)
|
Marine
Park has not waived or surrendered any right of material
value,
|
|
(vi)
|
neither
Marine Park nor its subsidiaries have discharged or satisfied or
paid any
lien or encumbrance or obligation or liability other than current
liabilities in the ordinary course of business,
and
|
-
11 -
|
(vii)
|
no
capital expenditures in excess of $10,000 individually or $30,000
in total
have been authorized or made.
|
Marine
Park - Income Tax Matters
| (s) |
Tax
Returns.
All tax returns and reports of Marine Park and its subsidiaries required
by law to be filed have been filed and are true, complete and correct,
and
any taxes payable in accordance with any return filed by Marine Park
and
its subsidiaries or in accordance with any notice of assessment or
reassessment issued by any taxing authority have been so
paid;
|
| (t) |
Current
Taxes.
Adequate provisions have been made for taxes payable for the current
period for which tax returns are not yet required to be filed and
there
are no agreements, waivers, or other arrangements providing for an
extension of time with respect to the filing of any tax return by,
or
payment of, any tax, governmental charge or deficiency by Marine
Park or
its subsidiaries. Marine Park is not aware of any contingent tax
liabilities or any grounds which would prompt a reassessment including
aggressive treatment of income and expenses in filing earlier tax
returns;
|
Marine
Park - Applicable Laws and Legal Matters
| (u) |
Licenses.
Marine Park and its subsidiaries hold all licenses and permits as
may be
requisite for carrying on the Marine Park Business in the manner
in which
it has heretofore been carried on, which licenses and permits have
been
maintained and continue to be in good standing except where the failure
to
obtain or maintain such licenses or permits would not have a material
adverse effect on the Marine Park
Business;
|
|
(v)
|
Applicable
Laws.
Neither Marine Park nor its subsidiaries have been charged with or
received notice of breach of any laws, ordinances, statutes, regulations,
by-laws, orders or decrees to which they are subject or which apply
to
them the violation of which would have a material adverse effect
on the
Marine Park Business, and neither Marine Park nor its subsidiaries
are in
breach of any laws, ordinances, statutes, regulations, bylaws, orders
or
decrees the contravention of which would result in a material adverse
impact on the Marine Park Business;
|
|
(w)
|
Pending
or Threatened Litigation.
There is no material litigation or administrative or governmental
proceeding pending or threatened against or relating to Marine Park,
its
subsidiaries, the Marine Park Business, or any of the Marine Park
Assets
nor does Marine Park have any knowledge of any deliberate act or
omission
of Marine Park or its subsidiaries that would form any material basis
for
any such action or proceeding;
|
|
(x)
|
No
Bankruptcy.
Neither Marine Park nor its subsidiaries have made any voluntary
assignment or proposal under applicable laws relating to insolvency
and
bankruptcy and no bankruptcy petition has been filed or presented
against
Marine Park or its subsidiaries and no order has been made or a resolution
passed for the winding-up, dissolution or liquidation of Marine Park
or
its subsidiaries;
|
|
(y)
|
Labor
Matters.
Neither Marine Park nor its subsidiaries are party to any collective
agreement relating to the Marine Park Business with any labor union
or
other association of employees and no part of the Marine Park Business
has
been certified as a unit appropriate for collective bargaining or,
to the
knowledge of Marine Park, has made any attempt in that
regard;
|
-
12 -
|
(z)
|
Finder's
Fees.
Neither Marine Park nor its subsidiaries are party to any agreement
which
provides for the payment of finder's fees, brokerage fees, commissions
or
other fees or amounts which are or may become payable to any third
party
in connection with the execution and delivery of this Agreement and
the
transactions contemplated herein;
|
Execution
and Performance of Agreement
| (aa) |
Authorization
and Enforceability.
The execution and delivery of this Agreement, and the completion
of the
transactions contemplated hereby, have been duly and validly authorized
by
all necessary corporate action on the part of Marine
Park;
|
| (bb) |
No
Violation or Breach.
The execution and performance of this Agreement will
not:
|
|
(i)
|
violate
the charter documents of Marine Park or result in any breach of,
or
default under, any loan agreement, mortgage, deed of trust, or any
other
agreement to which Marine Park or its subsidiaries are
party,
|
|
(ii)
|
give
any person any right to terminate or cancel any agreement including,
without limitation, the Marine Park Material Contracts, or any right
or
rights enjoyed by Marine Park or its
subsidiaries,
|
|
(iii)
|
result
in any alteration of Marine Park’ or its subsidiaries’ obligations under
any agreement to which Marine Park or its subsidiaries are party
including, without limitation, the Marine Park Material
Contracts,
|
|
(iv)
|
result
in the creation or imposition of any lien, encumbrance or restriction
of
any nature whatsoever in favor of a third party upon or against the
Marine
Park Assets,
|
|
(v)
|
result
in the imposition of any tax liability to Marine Park or its subsidiaries
relating to the Marine Park Assets,
or
|
|
(vi)
|
violate
any court order or decree to which either Marine Park or its subsidiaries
are subject;
|
Marine
Park Assets - Ownership and Condition
| (cc) |
Business
Assets.
The Marine Park Assets comprise all of the property and assets of
the
Marine Park Business, and no other person, firm or corporation owns
any
assets used by Marine Park or its subsidiaries in operating the Marine
Park Business, whether under a lease, rental agreement or other
arrangement, other than as disclosed in Schedules “E” or “H”
hereto;
|
|
(dd)
|
Title.
Marine Park or its subsidiaries are the legal and beneficial owner
of the
Marine Park Assets, free and clear of all mortgages, liens, charges,
pledges, security interests, encumbrances or other claims whatsoever,
save
and except as disclosed in Schedules “E” or “H”
hereto;
|
| (ee) |
No
Option.
No person, firm or corporation has any agreement or option or a right
capable of becoming an agreement for the purchase of any of the Marine
Park Assets;
|
-
13 -
|
(ff)
|
Marine
Park Insurance Policies.
Marine Park and its subsidiaries maintain the public liability insurance
and insurance against loss or damage to the Marine Park Assets and
the
Marine Park Business as described in Schedule “G”
hereto;
|
| (gg) |
Marine
Park Material Contracts.
The Marine Park Material Contracts listed in Schedule “I” constitute all
of the material contracts of Marine Park and its
subsidiaries;
|
| (hh) |
No
Default.
There has not been any default in any material obligation of Marine
Park
or any other party to be performed under any of the Marine Park Material
Contracts, each of which is in good standing and in full force and
effect
and unamended (except as disclosed in Schedule “I” hereto), and Marine
Park is not aware of any default in the obligations of any other
party to
any of the Marine Park Material
Contracts;
|
| (ii) |
No
Compensation on Termination.
There are no agreements, commitments or understandings relating to
severance pay or separation allowances on termination of employment
of any
employee of Marine Park or its subsidiaries. Neither Marine Park
nor its
subsidiaries are obliged to pay benefits or share profits with any
employee after termination of employment except as required by
law;
|
Marine
Park Assets - Marine Park Equipment
|
(jj)
|
Marine
Park Equipment.
The Marine Park Equipment has been maintained in a manner consistent
with
that of a reasonably prudent owner and such equipment is in good
working
condition;
|
Marine
Park Assets - Marine Park Goodwill and Other Assets
| (kk) |
Marine
Park Goodwill.
Marine Park and its subsidiaries do not carry on the Marine Park
Business
under any other business or trade names. Marine Park does not have
any
knowledge of any infringement by Marine Park or its subsidiaries
of any
patent, trademarks, copyright or trade
secret;
|
Marine
Park Business
| (ll) |
Maintenance
of Business.
Since the date of the Marine Park Financial Statements, Marine Park
and
its subsidiaries have not entered into any material agreement or
commitment except in the ordinary course and except as disclosed
herein;
|
| (mm) |
Subsidiaries.
Marine Park does not own any subsidiaries and does not otherwise
own,
directly or indirectly, any shares or interest in any other corporation,
partnership, joint venture or firm;
and
|
Marine
Park - Acquisition Shares
| (nn) |
Acquisition
Shares.
The Acquisition Shares when delivered to the NewCardio Shareholders
pursuant to the Acquisition shall be validly issued and outstanding
as
fully paid and non-assessable shares and the Acquisition Shares shall
be
transferable upon the books of Marine Park, in all cases subject
to the
provisions and restrictions of all applicable securities
laws.
|
-
14 -
Non-Merger
and Survival
3.2 The
representations and warranties of Marine Park contained herein will be true
at
and as of Closing in all material respects as though such representations and
warranties were made as of such time. Notwithstanding the completion of the
transactions contemplated hereby, the waiver of any condition contained herein
(unless such waiver expressly releases a party from any such representation
or
warranty) or any investigation made by NewCardio or the NewCardio Shareholders,
the representations and warranties of Marine Park shall survive the Closing.
Indemnity
3.3 Marine
Park agrees to indemnify and save harmless NewCardio and the NewCardio
Shareholders from and against any and all claims, demands, actions, suits,
proceedings, assessments, judgments, damages, costs, losses and expenses,
including any payment made in good faith in settlement of any claim (subject
to
the right of Marine Park to defend any such claim), resulting from the breach
by
it of any representation or warranty made under this Agreement or from any
misrepresentation in or omission from any certificate or other instrument
furnished or to be furnished by Marine Park to NewCardio or the NewCardio
Shareholders hereunder.
ARTICLE
4
COVENANTS
OF MARINE PARK
Covenants
4.1 Marine
Park covenants and agrees with NewCardio and the NewCardio Shareholders that
it
will:
|
(a)
|
Conduct
of Business.
Until the Closing, conduct the Marine Park Business diligently and
in the
ordinary course consistent with the manner in which the Marine Park
Business generally has been operated up to the date of execution
of this
Agreement;
|
|
(b)
|
Preservation
of Business.
Until the Closing, use its best efforts to preserve the Marine Park
Business and the Marine Park Assets and, without limitation, preserve
for
NewCardio Marine Park’s and its subsidiaries’ relationships with any third
party having business relations with
them;
|
|
(c)
|
Access.
Until the Closing, give NewCardio, the NewCardio Shareholders, and
their
representatives full access to all of the properties, books, contracts,
commitments and records of Marine Park, and furnish to NewCardio,
the
NewCardio Shareholders and their representatives all such information
as
they may reasonably request; and
|
|
(d)
|
Procure
Consents.
Until the Closing, take all reasonable steps required to obtain,
prior to
Closing, any and all third party consents required to permit the
Acquisition and to preserve and maintain the Marine Park Assets
notwithstanding the change in control of NewCardio arising from the
Acquisition.
|
Authorization
4.2 Marine
Park hereby agrees to authorize and direct any and all federal, state,
municipal, foreign and international governments and regulatory authorities
having jurisdiction respecting Marine Park and its subsidiaries to release
any
and all information in their possession respecting Marine Park and its
subsidiaries to the NewCardio Shareholders. Marine Park shall promptly execute
and deliver to the NewCardio Shareholders any and all consents to the release
of
information and specific authorizations which the NewCardio Shareholders
reasonably requires to gain access to any and all such
information.
-
15 -
Survival
4.3 The
covenants set forth in this Article shall survive the Closing for the benefit
of
NewCardio and the NewCardio Shareholders.
ARTICLE
5
REPRESENTATIONS
AND WARRANTIES OF
NEWCARDIO
AND THE NEWCARDIO SHAREHOLDERS
Representations
and Warranties
5.1 NewCardio
and the NewCardio Shareholders hereby represent and warrant in all material
respects to Marine Park, with the intent that it will rely thereon in entering
into this Agreement and in approving and completing the transactions
contemplated hereby, that:
NewCardio
- Company Status and Capacity
|
(a)
|
Formation.
NewCardio is a corporation duly incorporated and validly subsisting
under
the laws of the State of Delaware and in good standing with the office
of
the Secretary of State for the State of
Delaware;
|
|
(b)
|
Carrying
on Business.
NewCardio carries on the NewCardio Business primarily in the State
of
California and does not carry on any material business activity in
any
other jurisdiction. The nature of the NewCardio Business does not
require
NewCardio to register or otherwise be qualified to carry on business
in
any other jurisdiction;
|
|
(c)
|
Legal
Capacity.
NewCardio has the legal power, capacity and authority to own NewCardio
Assets, to carry on the Business of NewCardio and to enter into and
complete this Agreement;
|
NewCardio
- Capitalization
|
(d)
|
Authorized
Capital.
The authorized capital of NewCardio consists of 40,000,000 shares
of
common stock, $0.0001 par value;
|
|
(e)
|
Ownership
of NewCardio Common Shares.
The issued and outstanding shares of NewCardio common stock will
on
Closing consist of 10,507,300 shares of common stock, $0.001 par
value,
(being the NewCardio Common Shares), which shares on Closing shall
be
validly issued and outstanding as fully paid and non-assessable shares.
The NewCardio Shareholders at Closing will be the registered and
beneficial owners of the NewCardio Common Shares. The NewCardio Common
Shares owned by the NewCardio Shareholders will on Closing be free
and
clear of any and all liens, charges, pledges, encumbrances, restrictions
on transfer and adverse claims
whatsoever;
|
|
(f)
|
Ownership
of NewCardio Preferred Shares.
The issued and outstanding shares of NewCardio preferred stock will
on
Closing consist of 7,155,206 shares of preferred stock, $0.001 par
value,
(being the NewCardio Preferred Shares), which shares on Closing shall
be
validly issued and outstanding as fully paid and non-assessable shares.
The NewCardio Shareholders at Closing will be the registered and
beneficial owners of the NewCardio Preferred Shares. The NewCardio
Preferred Shares owned by the NewCardio Shareholders will on Closing
be
free and clear of any and all liens, charges, pledges, encumbrances,
restrictions on transfer and adverse claims
whatsoever;
|
-
16 -
|
(g)
|
Options,
Warrants or Other Rights.
Except for the NewCardio Convertible Securities and the NewCardio
Convertible Debt, no person, firm or corporation has any agreement,
option, warrant, preemptive right or any other right capable of becoming
an agreement, option, warrant or right for the acquisition of NewCardio
Common Shares held by the NewCardio Shareholders or for the purchase,
subscription or issuance of any of the unissued shares in the capital
of
NewCardio. The NewCardio Shareholders at Closing will be the registered
and beneficial owners of the NewCardio Convertible Securities and
the
NewCardio Convertible Debt. The NewCardio Convertible Securities
and the
NewCardio Convertible Debt owned by the NewCardio Shareholders will
on
Closing be free and clear of any and all liens, charges, pledges,
encumbrances, restrictions on transfer and adverse claims whatsoever;
|
|
(h)
|
No
Restrictions.
There are no restrictions on the transfer, sale or other disposition
of
NewCardio Shares contained in the charter documents of NewCardio
or under
any agreement;
|
NewCardio
- Records and Financial Statements
|
(i)
|
Charter
Documents.
The charter documents of NewCardio have not been altered since its
formation date, except as filed in the record books of
NewCardio;
|
|
(j)
|
Minute
Books.
The minute books of NewCardio are complete and each of the minutes
contained therein accurately reflect the actions that were taken
at a duly
called and held meeting or by consent without a meeting. All actions
by
NewCardio which required director or shareholder approval are reflected
on
the corporate minute books of NewCardio. NewCardio is not in violation
or
breach of, or in default with respect to, any term of its Certificate
of
Incorporation (or other charter documents) or
by-laws.
|
|
(k)
|
NewCardio
Financial Statements.
The NewCardio Financial Statements present fairly, in all material
respects, the assets and liabilities (whether accrued, absolute,
contingent or otherwise) of NewCardio as of the date thereof, and
the
sales and earnings of the NewCardio Business during the periods covered
thereby, in all material respects, and have been prepared in substantial
accordance with generally accepted accounting principles consistently
applied;
|
|
(l)
|
NewCardio
Accounts Payable and Liabilities.
There are no material liabilities, contingent or otherwise, of NewCardio
which are not disclosed in Schedule “J” hereto or reflected in the
NewCardio Financial Statements except those incurred in the ordinary
course of business since the date of the said schedule and the NewCardio
Financial Statements, and NewCardio has not guaranteed or agreed
to
guarantee any debt, liability or other obligation of any person,
firm or
corporation. Without limiting the generality of the foregoing, all
accounts payable and liabilities of NewCardio as of September 30,
2007 are
described in Schedule “J” hereto;
|
|
(m)
|
NewCardio
Accounts Receivable.
All the NewCardio Accounts Receivable result from bona fide business
transactions and services actually rendered without, to the knowledge
and
belief of the NewCardio Shareholders, any claim by the obligor for
set-off
or counterclaim. Without limiting the generality of the foregoing,
all
accounts receivable of NewCardio as of September 30, 2007, are described
in Schedule “K” hereto;
|
-
17 -
|
(n)
|
NewCardio
Bank Accounts.
All of the NewCardio Bank Accounts, their location, numbers and the
authorized signatories thereto are as set forth in Schedule “L”
hereto;
|
|
(o)
|
No
Debt to Related Parties.
Except as disclosed in Schedule “M” hereto, NewCardio is not and on
Closing will not be, indebted to the NewCardio Shareholders nor to
any
family member thereof, nor to any affiliate, director or officer
of
NewCardio or the NewCardio Shareholders except accounts payable on
account
of bona fide business transactions of NewCardio incurred in normal
course
of NewCardio Business, including employment agreements with the NewCardio
Shareholders, none of which are more than 30 days in
arrears;
|
|
(p)
|
No
Related Party Debt to NewCardio.
Except as set forth on Schedule ”M” hereto, no NewCardio Shareholder nor
any director, officer or affiliate of NewCardio is now indebted to
or
under any financial obligation to NewCardio on any account whatsoever,
except for advances on account of travel and other expenses not exceeding
$5,000 in total;
|
|
(q)
|
No
Dividends.
No dividends or other distributions on any shares in the capital
of
NewCardio have been made, declared or authorized since the date of
the
NewCardio Financial Statements;
|
|
(r)
|
No
Payments.
No payments of any kind have been made or authorized since the date
of the
NewCardio Financial Statements to or on behalf of the NewCardio
Shareholders or to or on behalf of officers, directors, shareholders
or
employees of NewCardio or under any management agreements with NewCardio,
except payments made in the ordinary course of business and at the
regular
rates of salary or other remuneration payable to
them;
|
|
(s)
|
No
Pension Plans.
There are no pension, profit sharing, group insurance or similar
plans or
other deferred compensation plans affecting NewCardio, except as
set forth
in the NewCardio Financial
Statements;
|
|
(t)
|
No
Adverse Events.
Since the date of the NewCardio Financial
Statements:
|
|
(i)
|
there
has not been any material adverse change in the consolidated financial
position or condition of NewCardio, its liabilities or the NewCardio
Assets or any damage, loss or other change in circumstances materially
affecting NewCardio, the NewCardio Business or the NewCardio Assets
or
NewCardio’s right to carry on the NewCardio Business, other than changes
in the ordinary course of business,
|
|
(ii)
|
there
has not been any damage, destruction, loss or other event (whether
or not
covered by insurance) materially and adversely affecting NewCardio,
the
NewCardio Business or the NewCardio
Assets,
|
|
(iii)
|
there
has not been any material increase in the compensation payable or
to
become payable by NewCardio to the NewCardio Shareholders or to any
of
NewCardio's officers, employees or agents or any bonus, payment or
arrangement made to or with any of
them,
|
-
18 -
|
(iv)
|
the
NewCardio Business has been and continues to be carried on in the
ordinary
course,
|
|
(v)
|
NewCardio
has not waived or surrendered any right of material
value,
|
|
(vi)
|
NewCardio
has not discharged or satisfied or paid any lien or encumbrance or
obligation or liability other than current liabilities in the ordinary
course of business, and
|
|
(vii)
|
no
capital expenditures in excess of $10,000 individually or $30,000
in total
have been authorized or made;
|
NewCardio
- Income Tax Matters
|
(u)
|
Tax
Returns.
All tax returns and reports of NewCardio required by law to be filed
have
been filed and are true, complete and correct, and any taxes payable
in
accordance with any return filed by NewCardio or in accordance with
any
notice of assessment or reassessment issued by any taxing authority
have
been so paid;
|
|
(v)
|
Current
Taxes.
Adequate provisions have been made for taxes payable for the current
period for which tax returns are not yet required to be filed and
there
are no agreements, waivers, or other arrangements providing for an
extension of time with respect to the filing of any tax return by,
or
payment of, any tax, governmental charge or deficiency by NewCardio.
NewCardio is not aware of any contingent tax liabilities or any grounds
which would prompt a reassessment including aggressive treatment
of income
and expenses in filing earlier tax
returns;
|
NewCardio
- Applicable Laws and Legal Matters
|
(w)
|
Licenses.
NewCardio holds all licenses and permits as may be requisite for
carrying
on the NewCardio Business in the manner in which it has heretofore
been
carried on, which licenses and permits have been maintained and continue
to be in good standing except where the failure to obtain or maintain
such
licenses or permits would not have a material adverse effect on the
NewCardio Business;
|
|
(x)
|
Applicable
Laws.
NewCardio has not been charged with or received notice of breach
of any
laws, ordinances, statutes, regulations, by-laws, orders or decrees
to
which they are subject or which applies to them the violation of
which
would have a material adverse effect on the NewCardio Business, and,
to
the knowledge of the NewCardio Shareholders, NewCardio is not in
breach of
any laws, ordinances, statutes, regulations, by-laws, orders or decrees
the contravention of which would result in a material adverse impact
on
the NewCardio Business;
|
|
(y)
|
Pending
or Threatened Litigation.
There is no material litigation or administrative or governmental
proceeding pending or threatened against or relating to NewCardio,
the
NewCardio Business, or any of the NewCardio Assets, nor do the NewCardio
Shareholders have any knowledge of any deliberate act or omission
of
NewCardio that would form any material basis for any such action
or
proceeding;
|
|
(z)
|
No
Bankruptcy.
NewCardio has not made any voluntary assignment or proposal under
applicable laws relating to insolvency and bankruptcy and no bankruptcy
petition has been filed or presented against NewCardio and no order
has
been made or a resolution passed for the winding-up, dissolution
or
liquidation of NewCardio;
|
-
19 -
|
(aa)
|
Labor
Matters.
NewCardio is not party to any collective agreement relating to the
NewCardio Business with any labor union or other association of employees
and no part of the NewCardio Business has been certified as a unit
appropriate for collective bargaining or, to the knowledge of the
NewCardio Shareholders, has made any attempt in that
regard;
|
|
(bb)
|
Finder's
Fees.
NewCardio is not a party to any agreement which provides for the
payment
of finder's fees, brokerage fees, commissions or other fees or amounts
which are or may become payable to any third party in connection
with the
execution and delivery of this Agreement and the transactions contemplated
herein;
|
Execution
and Performance of Agreement
|
(cc)
|
Authorization
and Enforceability.
The execution and delivery of this Agreement, and the completion
of the
transactions contemplated hereby, have been duly and validly authorized
by
all necessary corporate action on the part of
NewCardio;
|
|
(dd)
|
No
Violation or Breach.
The execution and performance of this Agreement will
not
|
|
(i)
|
violate
the charter documents of NewCardio or result in any breach of, or
default
under, any loan agreement, mortgage, deed of trust, or any other
agreement
to which NewCardio is a party,
|
|
(ii)
|
give
any person any right to terminate or cancel any agreement including,
without limitation, NewCardio Material Contracts, or any right or
rights
enjoyed by NewCardio,
|
|
(iii)
|
result
in any alteration of NewCardio's obligations under any agreement
to which
NewCardio is a party including, without limitation, the NewCardio
Material
Contracts,
|
|
(iv)
|
result
in the creation or imposition of any lien, encumbrance or restriction
of
any nature whatsoever in favor of a third party upon or against the
NewCardio Assets,
|
|
(v)
|
result
in the imposition of any tax liability to NewCardio relating to NewCardio
Assets or the NewCardio Shares, or
|
|
(vi)
|
violate
any court order or decree to which either NewCardio is subject;
|
NewCardio
Assets - Ownership and Condition
|
(ee)
|
Business
Assets.
The NewCardio Assets, comprise all of the property and assets of
the
NewCardio Business, and neither the NewCardio Shareholders nor any
other
person, firm or corporation owns any assets used by NewCardio in
operating
the NewCardio Business, whether under a lease, rental agreement or
other
arrangement, other than as disclosed in Schedules “N” or “Q”
hereto;
|
|
(ff)
|
Title.
NewCardio is the legal and beneficial owner of the NewCardio Assets,
free
and clear of all mortgages, liens, charges, pledges, security interests,
encumbrances or other claims whatsoever, save and except as disclosed
in
Schedules “N” or “Q” hereto;
|
-
20 -
|
(gg)
|
No
Option.
No person, firm or corporation has any agreement or option or a right
capable of becoming an agreement for the purchase of any of the NewCardio
Assets;
|
|
(hh)
|
NewCardio
Insurance Policies.
NewCardio maintains the public liability insurance and insurance
against
loss or damage to the NewCardio Assets and the NewCardio Business
as
described in Schedule “P” hereto;
|
|
(ii)
|
NewCardio
Material Contracts.
The NewCardio Material Contracts listed in Schedule “R” constitute all of
the material contracts of
NewCardio;
|
|
(jj)
|
No
Default.
There has not been any default in any material obligation of NewCardio
or
any other party to be performed under any of NewCardio Material Contracts,
each of which is in good standing and in full force and effect and
unamended (except as disclosed in Schedule “R”), and NewCardio is not
aware of any default in the obligations of any other party to any
of the
NewCardio Material Contracts;
|
|
(kk)
|
No
Compensation on Termination.
There are no agreements, commitments or understandings relating to
severance pay or separation allowances on termination of employment
of any
employee of NewCardio. NewCardio is not obliged to pay benefits or
share
profits with any employee after termination of employment except
as
required by law;
|
NewCardio
Assets - NewCardio Equipment
|
(ll)
|
NewCardio
Equipment.
The NewCardio Equipment has been maintained in a manner consistent
with
that of a reasonably prudent owner and such equipment is in good
working
condition;
|
NewCardio
Assets - NewCardio Goodwill and Other Assets
|
(mm)
|
NewCardio
Goodwill.
NewCardio carries on the NewCardio Business only under the name
"NewCardio
Technologies, Inc."
and variations thereof and under no other business or trade names.
The
NewCardio Shareholders do not have any knowledge of any infringement
by
NewCardio of any patent, trademark, copyright or trade
secret;
|
The
Business of NewCardio
|
(nn)
|
Maintenance
of Business.
Since the date of the NewCardio Financial Statements, the NewCardio
Business has been carried on in the ordinary course and NewCardio
has not
entered into any material agreement or commitment except in the ordinary
course; and
|
|
(oo)
|
Subsidiaries.
NewCardio does not own any subsidiaries and does not otherwise own,
directly or indirectly, any shares or interest in any other corporation,
partnership, joint venture or firm and NewCardio does not own any
subsidiary and does not otherwise own, directly or indirectly, any
shares
or interest in any other corporation, partnership, joint venture
or
firm.
|
-
21 -
NewCardio
Shareholder Representations and Warranties
|
(pp)
|
Investment
Intent.
The Acquisition Shares are being acquired hereunder by the NewCardio
Shareholders for investment purposes only, for their own account,
not as a
nominee or agent and not with a view to the distribution thereof.
The
NewCardio Shareholders have no present intention to sell or otherwise
dispose of the Acquisition Shares and they will not do so except
in
compliance with the provisions of the Securities Act of 1933, as
amended,
and applicable law. The NewCardio Shareholders understand that the
Acquisition Shares which may be acquired hereunder must be held by
them
indefinitely unless a subsequent disposition or transfer of any of
said
shares is registered under the Securities Act of 1933, as amended,
or is
exempt from registration therefrom. The NewCardio Shareholders further
understand that the exemption from registration afforded by Rule
144 (the
provisions of which are known to such Seller) promulgated under the
Securities Act of 1933, as amended, depends on the satisfaction of
various
conditions, and that, if and when applicable, Rule 144 may afford
the
basis for sales only in limited
amounts.
|
|
(qq)
|
Investment
Experience; Suitability.
The NewCardio Shareholders are each sophisticated investors familiar
with
the type of risks inherent in the acquisition of securities such
as the
Acquisition Shares and the NewCardio Shareholders’ financial position is
such that the NewCardio Shareholders can afford to retain the shares
of
Acquisition Shares for an indefinite period of time without realizing
any
direct or indirect cash return on its
investment.
|
|
(rr)
|
Accreditation.
The NewCardio Shareholders are each an “accredited investor” within the
meaning of Rule 501(a) of Regulation D promulgated under the Securities
Act of 1933, as amended. The NewCardio Shareholders understand that
the
Acquisition Shares are being offered to them in reliance upon specific
exemptions from the registration requirements of United States federal
and
state securities laws and that Marine Park is relying upon the truth
and
accuracy of, and the NewCardio Shareholders’ compliance with, the
representations, warranties, agreements, acknowledgments and
understandings of the NewCardio Shareholders set forth herein in
order to
determine the availability of such exemptions and the eligibility
of the
NewCardio Shareholders to acquire the Acquisition
Shares.
|
Non-Merger
and Survival
5.2 The
representations and warranties of NewCardio contained herein will be true at
and
as of Closing in all material respects as though such representations and
warranties were made as of such time. Notwithstanding the completion of the
transactions contemplated hereby, the waiver of any condition contained herein
(unless such waiver expressly releases a party from any such representation
or
warranty) or any investigation made by Marine Park, the representations and
warranties of NewCardio shall survive the Closing.
-
22 -
Indemnity
5.3 NewCardio
and the NewCardio Shareholders agree to indemnify and save harmless Marine
Park
from and against any and all claims, demands, actions, suits, proceedings,
assessments, judgments, damages, costs, losses and expenses, including any
payment made in good faith in settlement of any claim (collectively, the
“Claims”) (subject to the right of the NewCardio Shareholders to defend any such
claim), resulting from the breach by any of them of any representation or
warranty of such party made under this Agreement or from any misrepresentation
in or omission from any certificate or other instrument furnished or to be
furnished by NewCardio or the NewCardio Shareholders to Marine Park hereunder;
provided, however, the NewCardio Shareholders shall not be required to indemnify
Marine Park for any such Claims in excess of the value of the NewCardio
Shares.
ARTICLE
6
COVENANTS
OF NEWCARDIO AND
THE
NEWCARDIO SHAREHOLDERS
Covenants
6.1 NewCardio
and the NewCardio Shareholders covenant and agree with Marine Park that they
will:
|
(a)
|
Conduct
of Business.
Until the Closing, conduct the NewCardio Business diligently and
in the
ordinary course consistent with the manner in which the NewCardio
Business
generally has been operated up to the date of execution of this Agreement;
|
|
(b)
|
Preservation
of Business.
Until the Closing, use their best efforts to preserve the NewCardio
Business and the NewCardio Assets and, without limitation, preserve
for
Marine Park NewCardio’s relationships with their suppliers, customers and
others having business relations with
them;
|
|
(c)
|
Access.
Until the Closing, give Marine Park and its representatives full
access to
all of the properties, books, contracts, commitments and records
of
NewCardio relating to NewCardio, the NewCardio Business and the NewCardio
Assets, and furnish to Marine Park and its representatives all such
information as they may reasonably request;
and
|
|
(d)
|
Procure
Consents.
Until the Closing, take all reasonable steps required to obtain,
prior to
Closing, any and all third party consents required to permit the
Acquisition and to preserve and maintain the NewCardio Assets, including
the NewCardio Material Contracts, notwithstanding the change in control
of
NewCardio arising from the
Acquisition.
|
Authorization
6.2 NewCardio
hereby agrees to authorize and direct any and all federal, state, municipal,
foreign and international governments and regulatory authorities having
jurisdiction respecting NewCardio to release any and all information in their
possession respecting NewCardio to Marine Park. NewCardio shall promptly execute
and deliver to Marine Park any and all consents to the release of information
and specific authorizations which Marine Park reasonably require to gain access
to any and all such information.
-
23 -
Survival
6.3 The
covenants set forth in this Article shall survive the Closing for the benefit
of
Marine Park.
ARTICLE
7
CONDITIONS
PRECEDENT
Conditions
Precedent in favor of Marine Park
7.1 Marine
Park’s obligations to carry out the transactions contemplated hereby are subject
to the fulfillment of each of the following conditions precedent on or before
the Closing:
|
(a)
|
all
documents or copies of documents required to be executed and delivered
to
Marine Park hereunder will have been so executed and
delivered;
|
|
(b)
|
all
of the terms, covenants and conditions of this Agreement to be complied
with or performed by NewCardio or the NewCardio Shareholders at or
prior
to the Closing will have been complied with or
performed;
|
|
(c)
|
title
to the NewCardio Shares held by the NewCardio Shareholders will be
free
and clear of all mortgages, liens, charges, pledges, security interests,
encumbrances or other claims whatsoever, save and except as disclosed
herein, and the NewCardio Shares shall be duly transferred to Marine
Park;
|
|
(d)
|
subject
to Article 8 hereof, there will not have
occurred
|
|
(i)
|
any
material adverse change in the financial position or condition of
NewCardio, its liabilities or the NewCardio Assets or any damage,
loss or
other change in circumstances materially and adversely affecting
NewCardio, the NewCardio Business or the NewCardio Assets or NewCardio's
right to carry on the NewCardio Business, other than changes in the
ordinary course of business, none of which has been materially adverse,
or
|
|
(ii)
|
any
damage, destruction, loss or other event, including changes to any
laws or
statutes applicable to NewCardio or the NewCardio Business (whether
or not
covered by insurance) materially and adversely affecting NewCardio,
the
NewCardio Business or the NewCardio Assets;
|
|
(e)
|
the
transactions contemplated hereby shall have been approved by all
other
regulatory authorities having jurisdiction over the subject matter
hereof,
if any; and
|
|
(f)
|
the
transactions contemplated hereby shall have been approved by the
board of
directors of NewCardio.
|
Waiver
by Marine Park
7.2 The
conditions precedent set out in the preceding section are inserted for the
exclusive benefit of Marine Park and any such condition may be waived in whole
or in part by Marine Park at or prior to the Closing by delivering to NewCardio
a written waiver to that effect signed by Marine Park. In the event that the
conditions precedent set out in the preceding section are not satisfied on
or
before the Closing, Marine Park shall be released from all obligations under
this Agreement.
-
24 -
Conditions
Precedent in Favor of NewCardio and the NewCardio
Shareholders
7.3 The
obligations of NewCardio and the NewCardio Shareholders to carry out the
transactions contemplated hereby are subject to the fulfillment of each of
the
following conditions precedent on or before the Closing:
| (a) |
all
documents or copies of documents required to be executed and delivered
to
NewCardio under Section 9 will have been so executed and
delivered;
|
| (b) |
all
of the terms, covenants and conditions of this Agreement to be complied
with or performed by Marine Park at or prior to the Closing will
have been
complied with or performed;
|
| (c) |
Marine
Park will have delivered the Acquisition Shares to be issued pursuant
to
the terms of the Acquisition to NewCardio at the Closing and the
Acquisition Shares will be registered on the books of Marine Park
in the
name of the holder of NewCardio Shares at the time of
Closing;
|
| (d) |
title
to the Acquisition Shares will be free and clear of all mortgages,
liens,
charges, pledges, security interests, encumbrances or other claims
whatsoever;
|
| (e) |
subject
to Article 8 hereof, there will not have
occurred
|
|
(i)
|
any
material adverse change in the financial position or condition of
Marine
Park, its subsidiaries, their liabilities or the Marine Park Assets
or any
damage, loss or other change in circumstances materially and adversely
affecting Marine Park, the Marine Park Business or the Marine Park
Assets
or Marine Park’ right to carry on the Marine Park Business, other than
changes in the ordinary course of business, none of which has been
materially adverse, or
|
|
(ii)
|
any
damage, destruction, loss or other event, including changes to any
laws or
statutes applicable to Marine Park or the Marine Park Business (whether
or
not covered by insurance) materially and adversely affecting Marine
Park,
its subsidiaries, the Marine Park Business or the Marine Park
Assets;
|
|
(f)
|
the
transactions contemplated hereby shall have been approved by all
other
regulatory authorities having jurisdiction over the subject matter
hereof,
if any;
|
|
(g)
|
the
transactions contemplated hereby shall have been approved by the
board of
directors of Marine Park;
|
|
(g)
|
each
of the directors and officers of Marine Park shall have resigned
as
directors and/or officers of Marine Park;
|
|
(h)
|
the
nominees of the NewCardio Shareholders, set forth on Exhibit “C,” annexed
hereto, shall have been appointed as members of the board of directors
of
Marine Park.
|
-
25 -
Waiver
by NewCardio and the NewCardio Shareholders
7.4 The
conditions precedent set out in the preceding section are inserted for the
exclusive benefit of NewCardio and the NewCardio Shareholders and any such
condition may be waived in whole or in part by NewCardio or the NewCardio
Shareholders at or prior to the Closing by delivering to Marine Park a written
waiver to that effect signed by NewCardio and the NewCardio Shareholders. In
the
event that the conditions precedent set out in the preceding section are not
satisfied on or before the Closing, NewCardio and the NewCardio Shareholders
shall be released from all obligations under this Agreement.
Nature
of Conditions Precedent
7.5 The
conditions precedent set forth in this Article are conditions of completion
of
the transactions contemplated by this Agreement and are not conditions precedent
to the existence of a binding agreement. Each party acknowledges receipt of
the
sum of $10.00 and other good and valuable consideration as separate and distinct
consideration for agreeing to the conditions of precedent in favor of the other
party or parties set forth in this Article.
Termination
7.6 Notwithstanding
any provision herein to the contrary, if the Closing does not occur on or before
January 5, 2008 (the “Termination Date”), this Agreement will be at an end and
will have no further force or effect, unless otherwise agreed upon by the
parties in writing.
Confidentiality
7.7 Notwithstanding
any provision herein to the contrary, the parties hereto agree that the
existence and terms of this Agreement are confidential and that if this
Agreement is terminated pursuant to the preceding section the parties agree
to
return to one another any and all financial, technical and business documents
delivered to the other party or parties in connection with the negotiation
and
execution of this Agreement and shall keep the terms of this Agreement and
all
information and documents received from NewCardio and Marine Park and the
contents thereof confidential and not utilize nor reveal or release same,
provided, however, that Marine Park will be required to issue a news release
regarding the execution and consummation of this Agreement and file a Current
Report on Form 8-K with the Securities and Exchange Commission respecting the
proposed Acquisition contemplated hereby together with such other documents
as
are required to maintain the currency of Marine Park’s filings with the
Securities and Exchange Commission.
ARTICLE
8
RISK
Material
Change in the Business of NewCardio
8.1 If
any
material loss or damage to the NewCardio Business occurs prior to Closing and
such loss or damage, in Marine Park' reasonable opinion, cannot be substantially
repaired or replaced within sixty (60) days, Marine Park shall, within two
(2)
days following any such loss or damage, by notice in writing to NewCardio,
at
its option, either:
| (a) |
terminate
this Agreement, in which case no party will be under any further
obligation to any other party; or
|
| (b) |
elect
to complete the Acquisition and the other transactions contemplated
hereby, in which case the proceeds and the rights to receive the
proceeds
of all insurance covering such loss or damage will, as a condition
precedent to Marine Park' obligations to carry out the transactions
contemplated hereby, be vested in NewCardio or otherwise adequately
secured to the satisfaction of Marine Park on or before the Closing
Date.
|
-
26 -
Material
Change in the Marine Park Business
8.2 If
any
material loss or damage to the Marine Park Business occurs prior to Closing
and
such loss or damage, in NewCardio's reasonable opinion, cannot be substantially
repaired or replaced within sixty (60) days, NewCardio shall, within two (2)
days following any such loss or damage, by notice in writing to Marine Park,
at
its option, either:
| (a) |
terminate
this Agreement, in which case no party will be under any further
obligation to any other party; or
|
| (b) |
elect
to complete the Acquisition and the other transactions contemplated
hereby, in which case the proceeds and the rights to receive the
proceeds
of all insurance covering such loss or damage will, as a condition
precedent to NewCardio's obligations to carry out the transactions
contemplated hereby, be vested in Marine Park or otherwise adequately
secured to the satisfaction of NewCardio on or before the Closing
Date.
|
ARTICLE
9
CLOSING
Closing
9.1 The
Acquisition and the other transactions contemplated by this Agreement will
be
closed at the Place of Closing on Closing Date in accordance with the closing
procedure set out in this Article.
Documents
to be Delivered by NewCardio
9.2 On
or
before the Closing, NewCardio and the NewCardio Shareholders will deliver or
cause to be delivered to Marine Park:
| (a) |
the
original or certified copies of the charter documents of NewCardio,
including amendments thereof, and all corporate records documents
and
instruments of NewCardio, the corporate seal of NewCardio and all
books
and accounts of NewCardio;
|
| (b) |
all
reasonable consents or approvals required to be obtained by NewCardio
for
the purposes of completing the Acquisition and preserving and maintaining
the interests of NewCardio under any and all NewCardio Material Contracts
and in relation to NewCardio
Assets;
|
| (c) |
certified
copies of such resolutions of the directors of NewCardio as are required
to be passed to authorize the execution, delivery and implementation
of
this Agreement;
|
| (d) |
an
acknowledgement from NewCardio of the satisfaction of the conditions
precedent set forth in section 7.3
hereof;
|
| (e) |
the
certificates or other evidence of ownership of the NewCardio Shares,
together with such other documents or instruments required to effect
transfer of ownership of the NewCardio Shares to Marine Park;
|
-
27 -
| (f) |
declaration
of acceptance by nominees of the NewCardio Shareholders set forth
on
Exhibit “C” of being elected as members of the board of directors of
Marine Park, and
|
| (g) |
such
other documents as Marine Park may reasonably require to give effect
to
the terms and intention of this
Agreement.
|
Documents
to be Delivered by Marine Park
9.3 On
or
before the Closing, Marine Park shall deliver or cause to be delivered to
NewCardio and the NewCardio Shareholders:
| (a) |
share
certificates representing the Acquisition Shares duly registered
in the
names of the holders of shares of NewCardio Common
Stock;
|
| (b) |
certified
copies of such resolutions of the directors of Marine Park as are
required
to be passed to authorize the execution, delivery and implementation
of
this Agreement;
|
| (c) |
a
certified copy of a resolution of the directors of Marine Park dated
as of
the Closing Date appointing the nominees of the NewCardio Shareholders
set
forth on Exhibit “C” to the board of directors of Marine
Park;
|
| (d) |
resignations
of all of the officers and directors of Marine Park as of the Closing
Date;
|
| (e) |
an
acknowledgement from Marine Park of the satisfaction of the conditions
precedent set forth in section 7.1
hereof;
|
| (f) |
certificate
of incorporation and good standing certificate of Marine Park;
|
|
(g)
|
the
Return to Treasury Agreements, duly executed by Marine Park and Harborview
Master Fund L.P. and Diverse Trading Ltd., along with all applicable
share
certificates of Marine Park and any other documents required thereunder;
|
|
(h)
|
the
Certificate of Designation, duly filed with the Secretary of State
of
Delaware by Marine Park;
|
|
(i)
|
a
legal opinion of counsel to Marine Park, in substantially the form
of
Exhibit “E” attached hereto; and
|
| (j) |
such
other documents as NewCardio may reasonably require to give effect
to the
terms and intention of this
Agreement.
|
ARTICLE
10
POST-CLOSING
MATTERS
Forthwith
after the Closing, Marine Park, NewCardio and the NewCardio Shareholders, as
the
case may be, agree to use all their best efforts to:
| (a) |
file
a Form 8-K with the Securities and Exchange Commission disclosing
the
terms of this Agreement within 4 days of the Closing which includes
the
audited financial statements of NewCardio as well as pro forma financial
information of NewCardio and Marine Park as required by Item 310
of
Regulation SB as promulgated by the Securities and Exchange Commission;
and
|
-
28 -
| (b) |
change
the name of Marine Park to such other name as determined by the board
of
directors of Marine Park.
|
ARTICLE
11
GENERAL
PROVISIONS
Arbitration
11.1 The
parties hereto shall attempt to resolve any dispute, controversy, difference
or
claim arising out of or relating to this Agreement by negotiation in good faith.
If such good negotiation fails to resolve such dispute, controversy, difference
or claim within fifteen (15) days after any party delivers to any other party
a
notice of its intent to submit such matter to arbitration, then any party to
such dispute, controversy, difference or claim may submit such matter to
arbitration in the City of New York, New York.
Notice
11.2 Any
notice required or permitted to be given by any party will be deemed to be
given
when in writing and delivered to the address for notice of the intended
recipient by personal delivery, prepaid single certified or registered mail,
or
telecopier. Any notice delivered by mail shall be deemed to have been received
on the fourth business day after and excluding the date of mailing, except
in
the event of a disruption in regular postal service in which event such notice
shall be deemed to be delivered on the actual date of receipt. Any notice
delivered personally or by telecopier shall be deemed to have been received
on
the actual date of delivery.
Addresses
for Service
11.3 The
address for service of notice of each of the parties hereto is as
follows:
|
(a)
|
Marine
Park:
|
000
Xxxxx
Xxxxxx, Xxxxx 0000
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxx Xxxxxxxxx
Telephone
no. (000) 000-0000
Facsimile
no.
With
a
copy to:
Xxxxxx
& Xxxxxx, LLP
000
Xxxxx
0 Xxxxx, Xxxxx 000
Xxxxxxxxx,
Xxx Xxxxxx 00000
Attn:
Xxxxx X. Xxxxxx, Esq.
Telephone
no. (000) 000-0000
Facsimile
no. (000) 000-0000
|
(b)
|
NewCardio
or the NewCardio Shareholders:
|
0000
Xxxxxxx Xxxxx, Xxxxx 000
Xxx
Xxxx,
Xxxxxxxxxx 00000
Attention:
Telephone
no.
Facsimile
no.
-
29 -
With
a
copy to:
Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxx Xxxx, Esq.
Phone:
(000) 000-0000
Telecopier:
(000) 000-0000
Change
of Address
11.4 Any
party
may, by notice to the other parties change its address for notice to some other
address in North America and will so change its address for notice whenever
the
existing address or notice ceases to be adequate for delivery by hand. A post
office box may not be used as an address for service.
Further
Assurances
11.5 Each
of
the parties will execute and deliver such further and other documents and do
and
perform such further and other acts as any other party may reasonably require
to
carry out and give effect to the terms and intention of this
Agreement.
Time
of the Essence
11.6 Time
is
expressly declared to be the essence of this Agreement.
Entire
Agreement
11.7 The
provisions contained herein constitute the entire agreement among NewCardio,
the
NewCardio Shareholders and Marine Park respecting the subject matter hereof
and
supersede all previous communications, representations and agreements, whether
verbal or written, among NewCardio, the NewCardio Shareholders and Marine Park
with respect to the subject matter hereof.
Enurement
11.8 This
Agreement will enure to the benefit of and be binding upon the parties hereto
and their respective heirs, executors, administrators, successors and permitted
assigns.
Assignment
11.9 This
Agreement is not assignable without the prior written consent of the parties
hereto.
Counterparts
11.10 This
Agreement may be executed in counterparts, each of which when executed by any
party will be deemed to be an original and all of which counterparts will
together constitute one and the same Agreement. Delivery of executed copies
of
this Agreement by telecopier will constitute proper delivery, provided that
originally executed counterparts are delivered to the parties within a
reasonable time thereafter.
-
30 -
Applicable
Law
11.11 This
Agreement shall be enforced, governed by and construed in accordance with the
laws of the State of New York applicable to agreements made and to be performed
entirely within such state, without regard to the principles of conflict of
laws
The parties hereto hereby submit to the exclusive jurisdiction of the United
States federal courts located in New York, New York with respect to any dispute
arising under this Agreement, the agreements entered into in connection herewith
or the transactions contemplated hereby or thereby. All parties irrevocably
waive the defense of an inconvenient forum to the maintenance of such suit
or
proceeding. All parties further agree that service of process upon a party
mailed by first class mail shall be deemed in every respect effective service
of
process upon the party in any such suit or proceeding. Nothing herein shall
affect either party’s right to serve process in any other manner permitted by
law. All parties agree that a final non-appealable judgment in any such suit
or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on such judgment or in any other lawful manner. The party which does not
prevail in any dispute arising under this Agreement shall be responsible for
all
fees and expenses, including attorneys’ fees, incurred by the prevailing party
in connection with such dispute.
[Remainder
of page intentionally left blank.]
-
31 -
IN
WITNESS WHEREOF
the
parties have executed this Agreement effective as of the day and year first
above written.
|
/s/
Xxxxx Xxxxxxxxx
|
|
|
Xxxxx
Xxxxxxxxx
|
|
|
President,
Chief Executive Officer and
|
|
|
Chief
Financial Officer
|
|
|
NEWCARDIO,
INC.
|
|
|
By:
|
/s/
Xxxxxxxxx Xxxxxx
|
|
President
and Chief Executive Officer
|
|
[Signature
page to Share Exchange Agreement]
Exhibit
A
|
Name
|
NewCardio
Shares
|
Marine
Park
Shares
|
||
