EXHIBIT (6)(x)
MedAway International, Inc.
0000 Xxxx Xxxxx Xxxxx, Xxxxx 0000, Xx. Xxxxxxxxxx XX 00000
June 12, 1996
Via Hand Delivery
Xx. Xxxxxxx Xxxxxxx, Chairman
health Care Centers of America, Inc.
0000 Xxxxx Xxxx.
Xxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
RE: Health Care Centers of America, Inc. ("HCCA") - Agreement to Purchase
all of the assets of MedAway International, Inc., a Delaware
corporation ("MedAway")
Dear Xx. Xxxxxxx:
This letter, when signed by you in the space provided below, will
constitute a binding agreement between HCCA and MedAway to consummate the
transaction described below:
1. Asset Purchase. On the Closing Date (defined below), HCCA shall purchase from
MedAway, and medAway shall sell to HCCA, all of MedAway's assets (including but
not limited to all MedAway machines, trademarks, state permits etc.) free and
clear of all liens, claims and encumbrances ("MedAway Assets").
2. Purchase Price. In exchange for the MedAway Assets, HCCA shall deliver to
MedAway on the Closing Date: Class A Common Stock of HCCA stock ("HCCA Stock")
with a market value of no less than Two Million U.S. Dollars ($2,000,000.00)
based on the closing price for such stock on the "pink sheets" on the date
immediately preceding the Closing Date; provided, however, that in no event
shall HCCA deliver to MedAway less than two million shaers of HCCA stock
regardless of whether the value thereof exceeds Two Million U.S. ollars. HCCA
represents and warrants to MedAway that: (i) all of the HCCA Stock will be duly
authorized, validly issued, fully paid, non-assessable and free and clear of all
liens, claims and encumbrances; (ii) all of the HCCA Stock has not been duly
registered with the United States Securities and Exchange Commission; and (iii)
upon expiration of the two (2) year holding period to which the HCCA Stock shall
be subject immediately following the Closing Date, all of the HCCA Stock shall
be freely tradeable in whichever market HCCA's capital stock is then currently
trading or HCCA shall, at its own expense, take such steps as may be necessary
to ensure compliance with the foregoing.
[letter truncated]
MedAway
International
CONSENT OF THE SHAREHOLDERS AND BOARD OF DIRECTORS
IN LIEU OF MEETING
The undersigned, being directors and holders of a majority of the
issued and outstanding capital stock of MedAway International Inc., a Delaware
corporation (hereinafter called the "Corporation"), do hereby consent, pursuant
to the General Corporation Law of the State of Delaware, to the taking of the
following actions:
RESOLVED, that the Corporation shall be authorized to sell all of the
Corporation's assets to Health Care Centers of America, Inc. ("HCCA") in
exchange for (ii) the greater of two million (2,000,000) shares of HCCA's
capital stock; or (ii) such number of HCCA' shares of capital stock as shall
have a market value of no less than Two Million U.S. Dollars ($2,000,000) as
determined by reference to the closing price for such stock on the "pink sheets"
on the day immediately preceding the closing of the transaction.
RESOLVED, that certain of the HCCA capital stock to be received by the
corporation in exchange for its assets in connection with the transaction
described above shall be issued directly to those parties and in such amounts as
set forth in Exhibit A attached hereto in satisfaction of certain outstanding
indebtedness of the Corporation.
RESOLVED, that the Corporation's officers and directors be, and hereby
are, authorized and directed to take all necessary and appropriate actions to
effect the foregoing.
DATED effective as of June 12, 1996.
DIRECTORS SHAREHOLDERS
/s/ Xxxx X. Xxxxxx /s/ Xxxx X. Xxxxxx
XXXX X. XXXXXX XXXX X. XXXXXX
/s/ X. X. Xxxxxxx (unsigned)
X.X. XXXXXXX XXXXXXX XXXXXX-XXXXX
+MedAway
International [letterhead]
Xx. Xxxxxxx Xxxxxxx, Chairman
Health Care Centers of America, inc.
000 Xxxxx Xxxx.
Xxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000 June 13th., 1996
Dear Xxxxxxx,
It was a pleasure meeting you yesterday with Xxxxxx>
Your plans for the future growth of HCCA are very impressive, and I am delighted
to be a new shareholder.
With regards to our agreement yesterday I thank you for your assurance to
Edweard, Xxxxxx and myself that the HCCA stock used to purchase all of MedAway's
assets will be registered in the next few weeks at no cost to us.
As per our discussion, I am enclosing the information you require:
1.) List of Machines
2.) State Approvals
3.) Registered Trade Xxxx
4.) Financial Report by Xxx Xxxxxx
5.) Xxxxxxx Letter
6.) Gibraltar Report
7.) Report for O.S.H.A.
8.) Brochures
The resolution for the sale of all of MedAway's assets along with the list for
the distribution of the stock will follow shortly.
Finally, I would just like to repeat that I am very happy to be associated with
you in HCCA.
Sincerely,
XXXX X. XXXXXX, President
/s/ Xxxx X. Xxxxxx
Encls.
MedAway International, Inc.
0000 Xxxx Xxxxx Xxxxx, Xxxxx 0000, Xx. Xxxxxxxxxx XX 00000
(000) 000-0000 FAX (000) 000-0000
MedAway
International
VIA HAND DELIVERY
Xx. Xxxxxxx Xxxxxxx
health Care Centers of America, Inc.
0000 Xxxxx Xxxx.
Xxxxxxxx Xxxxxxx, Xx 00000
Re: Health Care Centers of America, Inc. ("HCCA") - Letter Agreement ("Letter
Agreement") between MedAway International, Inc. a Delaware corporation
("MedAway") whereby HCCA agreed to purchase all of the assets of MedAway
Dear Xxxxxxx,
It was a pleasure meeting with you yesterday and executing the Letter Agreement.
Further to our meeting, I am writing to confirm our discussion wherein you
agreed that all of the HCCA stock delivered to MedAway pursuant to the Letter
Agreement will be duly registered at HCCA's sole cost and expense, with the
United States Securities and Exchange Commission within the next few months.
Kindly acknowledge the foregoing by executing this letter in the space provided
below. I look foward to working with you to promptly finalize this matter.
Very truly yours, MEDAWAY
INTERNATIONAL, INC.
/s/ Xxxx X. Xxxxxx, President
XXXX X. XXXXXX, PRESIDENT
ACCEPTED AND AGREED TO
THIS 21 DAY OF JUNE, 1996
HEALTH CARE CENTERS OF AMERICA, INC.
/s/ Xxxxxxx Xxxxxxx
XXXXXXX XXXXXXX, CHAIRMAN
MedAway International, Inc.
0000 Xxxx Xxxxx Xxxxx, Xxxxx 0000, Xx. Xxxxxxxxxx, XX 00000
HCCA [letterhead]
October 26, 1996
Xx. Xxxx Xxxxxx
Pesident
MedAway International, Inc.
0000 Xxxx Xxxxx Xxxxx, Xxxxx 0000
Xxxx Xxxxxxxxxx, XX 00000
Re: Health Care Centers of America, Inc. (HCCA) Purchase of the Assets of
MedAway International, Inc. (MedAway) Amendment
Dear Xx. Xxxxxx:
The purpose of this letter is to amend the purchase agreement entered into on
June 12, 1996 between HCCA and MedAway. The amendment is for the purpose of
conforming the written purchase agreement to the understanding between the
parties.
For good and valuable consideration, the sufficiency and receipt of which is
hereby acknowledged, the parties agree as follows:
1. Assets Extended in Purchase -- The assets purchased by HCCA do not include
any current litigation involving MedAway nor any clauses in action possessed by
MedAway as of June 12, 1996. Any recovery of any money judgment by medAway is
the sole property of MedAway, to which HCCA has no claim interest nor rights.
Any expenses related to same remain the obligations of MedAway. MedAway further
agrees to indemnify, defend and hold harmless HCCA from any expenses, costs
judgments, adverse findings or other obligations that would be charged against
HCCA as a result of said litigation.
2. Facsimile Signatures -- Any facsimile transmissions containing the signatures
and/or initials of the parties will be cnsidered the same as originals.
Please signify your acceptance of this agreement by offering your signature
below and returning same via facsimile. Thank you.
Sincerely, Agreed to and accepted the
/s/ Xxxxxxx X. Xxxxxxx 31 of October, 0000
Xxxxxxx X. Xxxxxxx MedAway International, Inc.
President /s/ Xxxx Xxxxxx, President - MedAway Int.
Xxxx Xxxxxx, President
HEALTH CARE CENTERS OF AMERICA, INC.
0000 Xxxx Xxx Xxxx Xxxx.
Xxxxx 000, Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
FILED
in the Office of the
Secretary of State of the
STATE OF NEVADA
Sep 11, 1996
No. C19128-96
Articles of Incorporation
(Pursuant to NRS 78)
STATE OF NEVADA
Secretary of State
(For filing office) /s/ Xxxx Xxxxxx
Xxxx Xxxxxx, Secretary of State
1. NAME OF CORPORATION: Medaway International, Inc.
2. RESIDENT AGENT: (designated resident agent and his STREET ADDRESS in Nevada
where process may be served) Name of Resident Agent: Xxxxx Xxxxxxx Street
Address: 000 Xxxxx Xxxxx Xxx Xxxxx Xxxxxx 00000
3. SHARES: (number of shares the corporation is authorized to issue) Number of
Shares with par value Par value Number of shares without par value 10,000
4. GOVERNING BOARD: shall be as (check one) X Directors Trustees The first
BOARD OF DIRECTORS shall consist of 2 members and the names and addresses are as
follows (attach additional pages if necessary):
Xxxxxxx X. Xxxxxxx 00 Xxx Xxxxxx, Xx. Xxxxxxxxxx, XX 00000
Name Address City/State/Zip
Xxxxxxx X. Xxxxxxxx 0000 Xxxxx Xxxx., Xxxxxxxx Xxxxxxx, XX 00000
Name Address City/State/Zip
5. PURPOSE (optional--see reverse side) The purpose of the corporation shall be:
--
6. OTHER MATTERS: This form includes the minimal statutory requirements to
incorporate under NRS 78. You may attach additional information pursuant to NRS
78.037 or any other information you deem appropriate. If any of the additional
information is contradictory to the form it cannot be filed and will be returned
to you for correction. Number of pages attached 7. SIGNATURES OF INCORPORATORS:
The names and addresses of each of the incorporators signing the aritcles:
(Signatures must be notarized.) (Attach additional pages if there are more than
two incorporators) Xxxxxxx X. Xxxxxxxx 0000 Xxxxx Xxxx., Xxxxxxxx Xxxxxxx, XX
00000 /s/ Xxxxxxx X. Xxxxxxxx State of Illinois County of DuPage
This instrument was acknowledged before me on
August 15, 1996 by
as Incorporator of Medaway International, Inc.
/s/ Xxx X. Xxxxxxxx [Notary Seal, State of Illinois]
CERTIFICATE OF ACCEPTANCE OF APPOINTMENT OF RESIDENT AGENT
I, Xxxxx Xxxxxxx hereby accept appointment as Resident Agent for the above named
corporation
/s/ [signature illegible] August 15, 1996
Signature of Resident Agent Date
ANNUAL LIST OF OFFICERS, DIRECTORS AND AGENTS OF:
MEDAWAY INTERNATIONAL, INC.
19128-1996
FOR THE PERIOD SEP 1999 TO 2000, DUE BY SEP 30, 1999.
The Corporation's duly appointed resident agent in the
State of Nevada upon whom process can be served is: RA# 19177
NEVADA AGECY & TRUST COMPANY
00 X XXXXXXX XX XXX 000
XXXX XX 00000
[instructions for completing form]
FILING FEE: $85.00 PENALTY: $15.00
Name Title Xxxxxx Xxxxxxx Xxxx/Xxxxx/Xxx
Xxxxxxx X. Xxxxxxx President 000 X Xxxxxxxxx Xxx 00X Xxxx XX 00000
Xxxxxxx X. Xxxxxxxx Secretary 000 X Xxxxxxxxx Xxx 00X Xxxx XX 00000
Treasurer
Xxxxxxx X. Xxxxxxx Director100 N Arlington Ste 22F Xxxx XX 00000
Xxxxxxx X. Xxxxxxxx Director100 N Arlington Ste 22F Xxxx XX 00000
I hereby certify this annual list
/s/ Xxxxxxx X. Xxxxxxxx Date: 9/9/99
CERTIFICATE STATE OF NEVADA - SECRETARY OF STATE FILE NUMBER
MEDAWAY INTERNATIONAL, INC. 19128-1996
FOR THE PERIOD SEP 1999 TO 2000. DUE BY SEP 30, 1999.
[Stamp --
NEVADA AGENCY & TRUST COMPANY C A FILED
00 X XXXXXXX XX XXX 000 SEP 15 1999
XXXX XX 00000 Xxxx Xxxxxx
Secretary of State]
The Secretary of State of Nevada does hereby certify that the above Corporation,
after having paid the annual fee of $50.00 for filing in this office a list of
its officers and directors and designation of resident agent for the above
filing period, together with penalty in the sum of , and having also filed the
aforesaid list as required by Nevada Revised Statutes Sections 78.150-78.165 and
80.110-80.140, as amended, is hereby authorized to transact and conduct business
within this state for the aforesaid period.
THIS CERTIFICATE BECOMES A RECEIPT UPON BEING
VALIDATED BY THE OFFICE OF SECRETARY OF STATE /s/ Xxxx Xxxxxx
Secretary of State
[Great Seal of the State of Nevada superimposed]
SECRETARY OF STATE
[Great Seal of the State of Nevada]
STATE OF NEVADA
CERTIFICATE OF EXISTENCE
WITH STATUS IN GOOD STANDING
I, XXXX XXXXXX, the duly elected and qualified Nevada Secretary of State, do
hereby certify that I am, by the laws of said State, the custodian of the
records relating to filings by corporations, limited-liability companies,
limited partnerships, and limited-liability partnerships pursuant to Title 7 of
the Nevada Revised Statutes which are either presently in a status of good
standing or were in good standing for a time period subsequent of 1976 and am
the proper officer to execute this certificate.
I further certify that the records of the Nevada Secretary of State, at the date
of this certificate, evidence, MEDAWAY INTERNATIONAL, INC., as a corporation
organized under the laws of Nevada and existing under and by virtue of the laws
of the State of Nevada since September 11, 1996, and is in good standing in this
state.
IN WITNESS WHEREOF, I have hereunto
set my hand and affixed the Great
Seal of State, at my office, in
carson
City, Nevada, on October 14, 1999.
/s/ Xxxx Xxxxxx
Secretary of State
By
/s/ [signature illegible]
Certification Clerk
ANNUAL LIST OF OFFICERS, DIRECTORS AND AGENTS OF:
MEDAWAY INTERNATIONAL, INC.
19128-1996
FOR THE PERIOD SEP 1999 TO 2000, DUE BY SEP 30, 1999.
The Corporation's duly appointed resident agent in the
State of Nevada upon whom process can be served is: RA# 19177
NEVADA AGECY & TRUST COMPANY
00 X XXXXXXX XX XXX 000
XXXX XX 00000
[instructions for completing form]
FILING FEE: $85.00 PENALTY: $15.00
Name Title Xxxxxx Xxxxxxx Xxxx/Xxxxx/Xxx
Xxxxxxx X. Xxxxxxx President 000 X Xxxxxxxxx Xxx 00X Xxxx XX 00000
Xxxxxxx X. Xxxxxxxx Secretary 000 X Xxxxxxxxx Xxx 00X Xxxx XX 00000
Treasurer
Xxxxxxx X. Xxxxxxx Director100 N Arlington Ste 22F Xxxx XX 00000
Xxxxxxx X. Xxxxxxxx Director100 N Arlington Ste 22F Xxxx XX 00000
I hereby certify this annual list
/s/ Xxxxxxx X. Xxxxxxxx Date: 9/9/99
CERTIFICATE STATE OF NEVADA - SECRETARY OF STATE FILE NUMBER
MEDAWAY INTERNATIONAL, INC. 19128-1996
FOR THE PERIOD SEP 1999 TO 2000. DUE BY SEP 30, 1999.
[Stamp --
NEVADA AGENCY & TRUST COMPANY C A FILED
00 X XXXXXXX XX XXX 000 SEP 15 1999
XXXX XX 00000 Xxxx Xxxxxx
Secretary of State]
The Secretary of State of Nevada does hereby certify that the above Corporation,
after having paid the annual fee of $50.00 for filing in this office a list of
its officers and directors and designation of resident agent for the above
filing period, together with penalty in the sum of , and having also filed the
aforesaid list as required by Nevada Revised Statutes Sections 78.150-78.165 and
80.110-80.140, as amended, is hereby authorized to transact and conduct business
within this state for the aforesaid period.
THIS CERTIFICATE BECOMES A RECEIPT UPON BEING
VALIDATED BY THE OFFICE OF SECRETARY OF STATE /s/ Xxxx Xxxxxx
Secretary of State
[Great Seal of the State of Nevada superimposed]
SECRETARY OF STATE
[Great Seal of the State of Nevada]
STATE OF NEVADA
CERTIFICATE OF EXISTENCE
WITH STATUS IN GOOD STANDING
I, XXXX XXXXXX, the duly elected and qualified Nevada Secretary of State, do
hereby certify that I am, by the laws of said State, the custodian of the
records relating to filings by corporations, limited-liability companies,
limited partnerships, and limited-liability partnerships pursuant to Title 7 of
the Nevada Revised Statutes which are either presently in a status of good
standing or were in good standing for a time period subsequent of 1976 and am
the proper officer to execute this certificate.
I further certify that the records of the Nevada Secretary of State, at the date
of this certificate, evidence, MEDAWAY INTERNATIONAL, INC., as a corporation
organized under the laws of Nevada and existing under and by virtue of the laws
of the State of Nevada since September 11, 1996, and is in good standing in this
state.
IN WITNESS WHEREOF, I have hereunto
set my hand and affixed the Great
Seal of State, at my office, in
carson
City, Nevada, on October 14, 1999.
/s/ Xxxx Xxxxxx
Secretary of State
By
/s/ [signature illegible]
Certification Clerk
DISTRIBUTION AGREEMENT
THIS AGREEMENT made and effective as of the 7th day of April 1993
between MEDICAL MARKETING INTERNATIONAL INC. (hereinafter referred to as
("MedMark"), a corporation organized and existing under the laws of the State of
Delaware, having its principal place of usiness at 0-00 Xxxxxxx Xxxxxxxx, Xxxxx
Xxxxxx, Xxx Xxxx 00000, and IMSEC Corporation (hereinafter referred to as the
"IMSEC"), a corporation organized and existing under the laws of Japan, having
its principal place of business at 50 Teigaibuchi, Ohashibe, Xxxxxxxx-Xxx,
Kuze-Gun, Kyoto Prefecture, Japan. For purposes of this Agreement, "IMSEC"
refers to IMSEC as stated above and "IMSEC USA" refers to IMSEC's authorized
agent in the United States, having an address as stated in paragraph 24.
1. APPOINTMENT. IMSEC hereby appoints MedMark its exclusive distributor
in North America, the Caribbean and Taiwan, for its present dry-heat
decontamination product line, including any additions or improvements to that
product line (hereinafter referred to collectively as the "Products"). IMSEC
acknowledges and agrees that the Products shall be marketed by MedMark under
MedMark's "MedAway" registered trademark.
2. ACCEPTANCE OF APPOINTMENT. MEDMARK hereby accepts the appointment
described in Section I and agrees to use its best efforts to promote and sell
the Products in its assigned geographic territory.
3. TERM OF AGREEMENT. This Agreement shall commence on the date first
above written and shall terminate one (1) year from said date. The Agreement may
be renewed for subsdquent one (1) year periods by mutual agreement of the
parties. Either party desiring to renew the contract shall give notice to the
other at least three (3) months prior to termination. Renewal shall not be
effective unless agreed to by both parties in writing>
4. PRICE (a) The unit price to MedMark for IMSEC's current model
(exclusive of filters, which are not part of the system), is US $23,250.00, if
units ordered on a single purchase ordewr are less than five (5) and is US
$22,750.00 if units ordered on a single purchase order are six (6) or more and
is F.O.B. IMSEC's dock United States port of entry, and is fixed for the term of
this Agreement. (b) IMSEC acknowledges and agrees that prices to MedMark for the
Products include all shipping costs to US port of entry, customs duties, imposts
or surcharges, which may not or hereafter be imposed by national, federal, state
or local authorities by reason of the sale by IMSEC of Products to MedMark.
IMSEC shall pay all such taxes, duties, imposts or surcharges other than income
taxes imposed on MedMark by any governmental authority.
5. TERMS OF PAYMENT. With respect to the first ten (10) units, MedMark
shall pay one half of the purchase price per unit to IMSEC USA, on behalf of
IMSEC Japan upon placement of the order and acceptance of the order by IMSEC
USA, thirty (30) days prior to shipment and shall provide to IMSEC USA on behalf
of IMSEC a letter of credit for the balance due, payable upon IMSEC's
presentation of Final Quality Test Results Inspection Certificate in the form
attached hereto as Exhibit A and a certificate of customer sign-off and
acceptance of the unit in the form attached hereto as Exhibit B. For all units
ordered after the first ten (10), payment shall be on the following terms: upon
placement of the order and acceptance of the order by IMSEC USA, MedMark shall
pay one half of the purchase price, thirty (30) days prior to shipment and shall
provided to IMSEC USA on behalf of IMSEC a letter of credit for the balance due,
payable upon ZIMSEC's confirmation of shipment and presentation of Final Quality
Test Results and Inspection Certificate in the form attached hereto as Exhibit
A; provided that in the event that both the certificates attached hereto as
Exhibits A & B are not provded for any of the first ten (1) units ordered, trhen
the payment terms for the first ten (10) units, as hereabove provided shall be
extended until such certificates shall be provided for an aggregate of ten (10)
units.
6. SHIPMENT. IMSEC agreesd to ship all units within sixty (60) days of
acceptance of the order, unless a longer shipment date is requested by MedMark.
IMSEC shall promptly notify MedMark of all scheduled shipments to MedMark prior
to units being delivered to a common carrier. Should MedMark specify shipment
other than by boat, then MedMark shall pay the difference betweeen the shipment
by boat and the requested shipment cost from port of exit to port of entry.
7. RISK OF LOSS. IMSEC shall bear all risk of loss or damage for any
unit(s) until delivered to a common carrier for delivery to MedMark at IMSEC's
US port of entry. Thereafter MedMark shall bear all risk of loss or damage for
any unit(s) until delivery to MedMark. MedMark shall accept all shipments upon
arrival at their destination and the parties shall cooperate to provide each
other with any data required to file claims with or against the carrier or
insurer for any losses, shortages or damage of any kind. Title shall pass to
MedMark only upon payment in full for Products.
8. WARRANTY. IMSEC warrants all units to be free of defects in
materials and workmanship for a period of one (1) year subject to normal use.
9. DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN IMSEC'S WARRANTY, IMSEC
MAKES NO WARRANTY OF ANY KIND WITH RESPECT TO THE PRODUCTS, AND EXCLUDES ALL
OTHER WARRANTIES (INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE), WHETHER WRITTEN, ORAL, EXPRESS OR IMPLIED,
STATUTORY OR OTHERWISE, AND IMSEC SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR
CONSEQUENTIAL DAMAGES.
10. WARRANTY PARTS. IMSEC agrees to provide to IMSEC USA spare parts in
sufficient quantities to permit IMSEC USA to provide warranty service during the
warranty period for the Products in accordance with paragraph 8.
11. NON-WARRANTY PARTS. MedMark shall purchase spare parts from IMSEC
at the List price less a discount to be identified by IMSEC by line item, unless
MedMark can buy comemrcially available parts for less, in which case MedMark
shall not be obligated to purchase such parts from IMSEC. IMSEC agrees to
provide to MedMark the names of suppliers of all commercially available parts.
IMSEC shall continue to make spare parts available to MedMark on such terms
after any termination of this Agreement (whether by reason of non-renewal or
otherwise) for a period of four (4) years after termination of this Agreement.
12. WARRANTY SERVICE. IMSEC, through IMSEC USA, shall be responsible
for the installation, warranty labor and material of all units placed at
end-user sites by Medmark or any of MedMark's distributors, within its
designated Territory, for a period of one year from the date the unit is first
installed by IMSEC USA and accepted by a customer. ISSEC USA shall respond to
requests for warranty service from customers within 24 hours by phone and agrees
to have a service repairman on site within 48 hours of the customer's initial
phone request with sufficient parts to execute normal repairs.
13. PRODUCT IDENTIFICATION. Each Product sold by Medmark shall bear
such markings on the back panel, including trademarks, name plates or other
indications of source of origin of the Products as may be place thereon by IMSEC
and medmark shall not alter, obscure, remove, conceal or otherwise interfvere
with any such markings without the prior written consent of IMSEC. IMSEC shall
place logos and identification on the system front panel as directed by MedMark
to include the Medmark name and the MedMark "MedAway (TM) 1" trademark.
14. TECHNICAL SPECIFICATIONS AND ACCEPTANCE. Prior to releasing each
unit to a common carrier for delivery, IMSEC shall inspect all units shipped to
MedMark, to determine conformance to the specifications annexed to this
Agreement as Exhibit "A" and shall perform the final quality test protocol set
forth therein. IMSEC will furnish MedMark, via Fax or overnight air, upon
notification of shipment a Certificate of Inspection for specifications and
Final Quality Test Results for each unit of the Product delivered to a common
carrier for shipment to MedMark. The certificate of inspection for
specifications and Final Quality Test Protocol referred to in Exhibit "A"
constitute the acceptance criteria.
15. PRODUCT STANDARDS. All Products delivered under the terms of this
Agreement shall comply with the standards for such Products as have been set by
the appropriate governing authorities. The Products shall also comply with all
appropriate sections of applicable industrial standards and codes. Medmark shall
provide IMSEC with all appropriate controlling standards and regulations as
promulgated by those authorities having jurisdiction over such matters. IMSEC
USA will determine if IMSEC will share in teting costs for states approvals.
16. PERFORMANCE CRITERIA. In the event that Medmark fails to purchase
from IMSEC for sale to customers minimum of twenty-five (25) current units
during the first 8 months and twenty-five (25) current units during the
remaining 4 months of this Agreement, IMSEC shall have the right, upon thirty
(30) days written notice to terminate this agreement, or to convert this
agreement to a nonexclusive agreement, at IMSEC's sole discretion. In the event
that an approved or enhanced product is made available during the term of this
Agreement, sales of such units shall be deemed sales of the current unit for
purposes of this section.
17. PERFORMANCE EXCUSED. Whenever either party shall be prevented from
or delayed in carrying out any obligation of such party hereunder (other than
for the payment of money) by reason of any act of God, war, riot, accident,
strike, lock-out, injunction, boycott, inability to obtain power, raw materials
or transportation facilities, breakage of machinery, national defense
rquirements, or any other cause beyond the control of such party, the
performance of such obligation by such party shall be excused to the extent of
such prevention or delay.
18. TERMINATION OF AGREEMENT. Either party may terminate this Agreement
on thirty (30) days written notice upon the breach of a material obligation
hereunder by the other party, and the failure of such other party to cure such
breach within such 30 day period after receipt of notice. Either party may
ternminate this Agreement immediately upon written notice of any one the
following occurrences (a) an assignment by the other party of all or a
substantial part of its assets for the benefit of creditors; (b) the insolvency
of the other party; (c) the institution of voluntary or involuntary proceedings
by or against the other party in bankruptcy or under insolvency laws or for
receivership or for dissolution of the other party. Each party agrees to advise
the other immediately in writing with sufficient particularity of the occurrence
of any event specified in this section. In addition, IMSEC shall be entitled to
terminate this Agreement immediately upon written notice in the event MedMark
assigns or attempts to assign its rights under this Agreement in violation of
paragraph 25 hereof.
19. OBLIGATIONS UPON TERMINATION. (a) Upon the effecitve date of
termination of this Agreement, MedMark shall come to use stationary or other
printed matter identifying it as an IMSEC authorized distributor, shall remove
signs from the exterior and interior of its building so identifying it, shall
take all necessary steps to change its listing in telephone directories and to
do all other acts necessary to remove any identification as an IMSEC authorized
distributor and shall cease and refrain from any use or identification of any
kind of IMSEC's patents, trademarks, trade names, or other proprietary
information or rights of IMSEC relating to the Products or otherwise, or any
xxxx or work so nearly resembling such trademark or trade name as to be likely
to deceive or cause confusion with respect to any of its goods or advertising or
otherwise; provided that the foregoing shall not be construed to restrict
MedMark in the continued use of the MedAway (TM) name and xxxx after
termination. (b) If, after the effective date of termination, IMSEC elects to
accept orders from Medmark or otherwise transacts business with Medmark related
to the sale of the Products, all such transactions will be governed by the same
terms that this Agreement provides to far as those terms are applicable, but no
such acceptance of orders or transaction of business shall be construed as a
renewal of this Agreement or as a waiver of termination.
20. DISTRIBUTOR IS NOT AN AGENT. This Agreement does not create the
relationship of principal and agent between IMSEC and MedMark and under no
circumstances is either party to be considered the agent of the other. MedMark
has no authority either to bind IMSEC to any obligation or to represent IMSEC in
any circumstances, and MedMark shall not bind or represent IMSEC.
21. CONFIDENTIALITY. The parties each shall, during the term of this
Agreement, keep confidential and not disclose, divulge, or distribute to any
third party this Agreement, any proprietary information and rights or trade
secrets, or confidential information regarding the Products divulged or made
known to such party by the other party, except where such disclosure is
necessary in order for such disclosing party to perform its duties hereunder.
For purposes hereof, "confidential information" shall be deemed to refer only to
such written information which is marked "confidential" prior to disclosure to
the other party and which is not at the time of such disclosure already known to
such other party or is then or therafter in the public domain.
22. RELATIONSHIP OF THE PARTIES. Each party hereto is an independent
contractor. Neither party shall act as the representative or legal agent of the
other and neither party shall assume or create any obligation, express or
implied, in the name of or on behalf of the other.
23. COMPLIANCE WITH LAWS. MedMark shall comply with all statutes, laws
and regulations of national, federal, state and local authorities of the united
States or of any country which statutes, laws and regulations are applicable to
MedMark's business and to the performance by it of its obligations pursuant to
this Agreement, and shall not take any action the effect of which, to MedMark's
knowledge, may cause IMSEC to be in violation of any such statute, law or
regulation, and to the extent known to MedMark shall promptly notify IMSEC of
any such statute, law or regulation relating to the form or specifications of
any product or any packaging, invoicing or shipping documents required to be
provided with respect to any shipment of Products, and or of any change to any
such statute, law or regulation.
24. NOTICES. All notices given, pursuant to this agreement shall be in
writing in the English language and shall be considered given if sent by telex
or fax transmission or if sent by commercial overnight carrier with written
verification of receipt, or by registered air mail, return receipt requested,
addressed if to MedMark to it at the address of MedMark stated in the opening
paragraph of this Agreement, and if to IMSEC, to its agent IMSEC USA, 000 Xxxxxx
Xxxx, Xxxxx Xxxxxxx, Xxxxxxxxxxxxx 00000-0000 provided, however, that by ;notice
as specified in this paragraph either party may specify a different address for
receiving notice under this Agreement. Any notice so sent shll be deemed given
ten (10) days after mailing, if sent postage prepaid by registered air mail,
return receipt requested, or on the date of dispatch, if sent by telex, or fax,
charge prepaid.
25. ASSIGNMENT. MedMark may not assign its rights under this Agreement
in whole or in part without the prior written consent of IMSEC, which consent
shall not be unreasonably withheld; provided that the foregoing shall not
restrict Medmark from an assignment to an entity controlled by, or under common
control with, medMark or its principal stockholders. Any attempted assignment or
delegation in violation of the foregoing shall be void.
26. INDEMNIFICATION. MedMark hereby agrees to indemnify and save IMSEC
harmless from and against any and all losses, claims, suits demands, actions and
liabilities of any kind or nature solely to the extent the same arise out of
otherwise rlate to any act or omission by MedMark in the sale, promotion and
distribution of the Products. The foregoing shall not obligate Medmark to
indemnify IMSEC in respect of any loss, etc., arising out of or relating to the
performance or non-performance of any Product or any defect in material or
workmanship of any Product and the foregoing indemnity shall not apply to any
settlement of any such claim, action or proceeding if such settlement is entered
into without the wirtten consent of medMark. Each party hereto shall give the
other prompt notice of any claim, or commencement of any action or proceeding
which may give rise to any claim for indemnification pursuant to the foregoing.
Medmark, at it selection, may assume the defense of any such action or
proceeding including the employment of counsel selected by medmark (who shall be
reasonably satisfactory to IMSEC).
27. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding and agreement of and between the parties with respect to the
subject matter hereof and supersedes all prior representations and agreements.
It shall not be varied, amended or modified by any oral agreement or
representation or otherwise than by an instrument in writing of subsequent date
hereto duly executed by the parties.
28. GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with the laws of the State of New York applicable to agreements
executed and to be formed in such state.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
duly executed by the following persons who are duly authorized, as of the
effective date hereinabove set forth.
IMSEC CORPORATION MEDICAL MARKETING
INTERNATIONAL, INC.
By: /s/ Jsuyooshi Ikeda By: /s/ A.P. Agnichi
Title: President Title: President
Date: April 7, 1993 Date: April 7, 1993
1154/0417 [seal] UNITED STATES DEPARTMENT OF COMMERCE
Patent and Trademark Office
Assistant Secretary and Commissioner
of Patents and Trademarks
Washington, D.C.
JUNE 14, 1994
NO5B
TO: L. XXXX XXXXXX, ESQ.
XXXXXXXX, KRINZMAN, EQUELS,
XXXXXX & XXXXX
0000 X. XXXXXXXX XXXXX, XXXXX 000
XXXXX, XX 00000
XXXXXX XXXXXX PATENT AND TRADEMARK OFFICE
NOTICE OF RECORDATION OF ASSIGNMENT DOCUMENT
THE ENCLOSED DOCUMENT HAS BEEN RECORDED BY THE ASSIGNMENT BRANCH OF THE U.S.
PATENT AND TRADEMARK OFFICE. A COMPLETE MICROFILM COPY IS AVAILABLE AT THE U.S.
PATENT AND TRADEMARK OFFICE ON THE REEL AND FRAME NUMBER REFERENCED BELOW.
PLEASE REVIEW ALL INFORMATION CONTAINED ON THIS NOTICE. THE INFORMATION
CONTAINED ON THIS RECORDATION NOTICE REFLECTS THE DATA PRESENT IN THE TRADEMARK
ASSIGNMENT PROCESSING SYSTEM. IF YOU SHOULD FIND ANY ERRORS OR QUESTIONS
CONCERNING THIS NOTICE, YOU MAY CONTACT THE EMPLOYEE WHOSE NAME APPEARS ON THIS
NOTICE AT 000-000-0000. PLEASE SEND REQUEST FOR CORRECTION TO: U.S. PATENT AND
TRADEMARK OFFICE, ASSIGNMENT BRANCH, XXXXX XXXXX XXXXXXXX, XXXXX 00X00,
XXXXXXXXXX, X.X. 00000.
ASSIGNOR:
BUSINESS DEVELOPMENT RESOURCES, INC. DOC DATE: 03/11/1994
CITIZENSHIP: NEW YORK
ENTITY: CORPORATION
ASSIGNEE:
MEDICAL MARKETING INTERNATIONAL, INC.
0000 XXXX XXXXX XXXXX CITIZENSHIP: DELAWARE
FT. XXXXXXXXXX, XX 00000
ENTITY: CORPORATION
BRIEF:
ASSIGNS THE INTEREST AND THE GOODWILL
NO. OF PAGES: 003
REEL/FRAME: 1154/0417 DATE RECORDED: 05/10/19--
APPLICATION NUMBER: 74-239338 FILING DATE: 01/22/1994
REGISTRATION NUMBER: 1816389 REGISTRATION DATE: 01/11/1994
XXXX: MEDAWAY
DRAWING TYPE: WORDS, LETTERS, OR NUMBERS IN TYPED FORM
Int. Cl.: 10
Prior U.S. Cl.: 44
Reg. No. 1,816,389
United States Patent and Trademark Office Registered Jan. 11, 1994
TRADEMARK
PRINCIPAL REGISTER
MEDAWAY
Business Development Resources, Inc. Used by Hospitals and Medical Lab
(New York Corporation) Oratories, In Class 10 (U.S. Cl. 44)
0-00 Xxxxxxx Xxxxxxxx First Use 9-9-1992; In Commerce
9-9-1992
3N 74-239,338, FILED 1-22-1992
FOR: Ovens For Dry Heat Decontami-
nation of Regulated Medical Waste Xxxx Xxxxxx, Examining Attorney
The United States of America
[seal]
No. 1816389
CERTIFICATE OF REGISTRATION
This is to certify that the records of the Patent and Trademark Office
show that an application was filed in said Office for registration of the Xxxx
shown herein, a copy of said Xxxx and pertinent data from the Application being
annexed hereto and made a part hereof,
And there having been due compliance with the requirements of the law
and with the regulations presecribed by the Commissioner of Patents and
Trademarks,
Upon examination, it appeared that the applicant was entitled to have
said Xxxx registered under the Trademark Act of 1946, as amended, and the said
xxxx has been duly registered this day in the patent and Trademark office on the
PRINCIPAL REGISTER
to the registrant named herein.
This registration shall remain in force for TEN years unless sooner
terminated as provided by law.
In Testimony
Whereof I have
hereunto set my
hand and caused
the seal of the
Patent and
Trademark Office
to be affixed this
eleventh day of
January 1994.
[seal]
/s/ Xxxxx Xxxxxx
Commissioner of Patents and Trademarks
