Exhibit 10.14
ASSET PURCHASE AGREEMENT
among
SUMMIT HEALTHCARE, INC., CAMDEN HOLDINGS, INC.,
XXXXXXX VENTURES, INC., XXXX XXXXXXXX
and
NEW MILLENNIUM CAPITAL PARTNERS, LLC
December 31, 2002
This ASSET PURCHASE AGREEMENT, is made as of December 31, 2002 (this
"Agreement"), among Summit Healthcare, Inc., a Nevada corporation ("Summit"),
Camden Holdings, Inc., a Nevada corporation ("Camden"), Xxxxxxx Ventures, Inc.,
a Nevada Corporation ("Summit Ventures"), Xxxx Xxxxxxxx, an individual
("Xxxxxxxx"; collectively, Camden, Summit and Xxxxxxxx are referred to herein as
the "Seller"), and New Millennium Capital Partners, LLC, a Nevada limited
liability company ("Purchaser").
WHEREAS, Xxxxxxx Ventures is the holder of a promissory note in the
amount of $1,120,000 by and against NuWay Medical, Inc., and desires to assign
the rights and obligations under the note to Purchaser;
WHEREAS, Purchaser is associated with Xxxxxx Xxxxxxx, the current
President of NuWay Medical, Inc.;
WHEREAS, the Seller desires to sell its interest in NuWay Medical, Inc.
to the Purchaser, and the Purchaser desires to purchase same from Seller;
WHEREAS, the respective Boards of Directors of Seller and Purchaser of
each of the corporations have approved the terms of this Agreement and of the
transactions contemplated hereby; and
WHEREAS, the Seller and Purchaser desire to make certain
representations, warranties and agreements in connection with the transactions
provided for herein; and
WHEREAS, the Closing of the transactions contemplated by this Agreement
will take place with an effective date on or before December 31, 2002. This date
is used to determine the change of control over the assets, operations, and use
of the assets. The signing of this agreement is effective that date so signed by
both parties.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements herein contained, the parties hereto
agree as follows:
ARTICLE 1 - DEFINITIONS
DEFINITIONS. As used herein, the following terms shall have the following
meanings:
"ACQUIRED ASSETS" has the meaning specified in Section 2.01 hereof.
"AGREEMENT" has the meaning specified in the introductory paragraph
above.
"ANCILLARY DOCUMENTS" as to any Person means all agreements, releases,
certificates and other documents contemplated by this Agreement to be entered
into or executed by such Person; and where a reference to a Person is made in
conjunction with a reference to "ANCILLARY DOCUMENTS," the term shall refer only
to such documents which such Person has entered into or executed.
"CLOSING" has the meaning specified in Section 3.01 hereof.
"CLOSING DATE" has the meaning specified in Section 3.01 hereof.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMON STOCK" means the common stock, par value $0.0001 per share, of
Purchaser.
"DAMAGES" has the meaning specified in Section 6.02(a) hereof.
"ENCUMBRANCE" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest, conditional sale agreement, financing
statement or encumbrance of any kind, or any other type of preferential
arrangement that has the practical effect of creating a security interest in
respect of such asset.
"GOVERNMENTAL ENTITY" has the meaning specified in Section 4.02
hereof.
"INFORMATION STATEMENT" has the meaning specified in the introductory
paragraph above.
"INTELLECTUAL PROPERTY" means all of the service marks, copyrights,
franchises, software (including source codes), patents, patent applications,
licenses, trademarks, trade names, know-how, slogans, logotypes and other
similar intangible assets maintained, owned, used, held for use or otherwise
held in connection with the Acquired Assets (including any and all applications,
registrations, extensions and renewals relating thereto), and all of the rights,
benefits, licenses, contracts, agreements and privileges associated therewith.
"KNOWLEDGE" means, with respect to any Person, (i) actual knowledge of
such Person (including the actual knowledge of the officers, directors and key
employees of such Person) and (ii) actual knowledge that could have been
acquired by such Person after making such due inquiry and exercising such due
diligence as a prudent businessperson would have made or exercised in the
management of his or her business affairs in light of the circumstances.
"LAWS" means all applicable common law and any statute, law, code,
ordinance, regulation, rule, resolution, order, determination, writ, injunction,
award (including, without limitation, any award of any arbitrator), judgments
and decrees applicable to the specified persons or entities and to the
businesses and assets thereof.
"LIABILITIES" means all debts, claims, agreements, liabilities and
obligations (contingent or otherwise), including, without limitation, all
salaries, severance payments, accounts payable, obligations incurred under
license agreements, client contracts, supply contracts, leases and employment
agreements, litigation claims or demands and any other obligations whether or
not incurred in the ordinary course of business.
"PERSON" means a natural person, corporation, partnership or other
business entity, or any Governmental Entity.
"PURCHASE PRICE" has the meaning specified in Section 3.02 hereof.
"PURCHASER" has the meaning specified in the introductory paragraph
above.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SELLERS" has the meaning specified in the introductory paragraph
above.
"TAX" and "TAXES" shall mean all federal, state, local and foreign
property, sales and use, payroll, withholding, franchise and income taxes and
all assessments, rates, levies, fees and other governmental charges, including
any interest and penalties in respect of such amounts.
ARTICLE 2 - PURCHASE AND SALE; ASSUMPTION OF LIABILITIES
2.01 PURCHASE AND SALE OF ASSETS. Subject to the terms and conditions
of this Agreement and in reliance upon Seller's representations and warranties
contained herein, at the Closing Seller will sell, convey, assign, transfer and
deliver, and Purchaser will acquire the following assets:
(a) 5,000,000 common stock shares of NuWay Medical, Inc., a
Delaware Corporation (NASDAQ: NMED), formerly known as NuWay Energy,
Inc., Latin American Casinos, Inc., and Repossession Auction, Inc.
("ACQUIRED ASSETS"). These shares shall be comprised of: (i) Camden's
2,017,458 shares, (ii) Summit's 2,505,543 shares, and (iii) Xxxx
Xxxxxxxx'x shares.
(b) All rights and interests to receive payments from borrower
NuWay Medical, Inc. with respect to that certain promissory note by and
between Summit Ventures, Inc. and NuWay Energy, Inc., expressly dated
July 16, 2001 (but actually dated July 16, 2002), in the amount of
$1,120,000, payable in "one year" on June 15, 2003, a copy of which is
attached hereto as Exhibit "A".
2.02. ASSUMPTION OF LIABILITIES. The Acquired Assets consist only of
stock in a publicly held corporation. Purchaser shall not assume any liabilities
associated with the Acquired Assets.
ARTICLE 3 - THE CLOSING; ACQUISITION PRICE
3.01. THE CLOSING. The closing of the transactions contemplated by this
Agreement (the "CLOSING") shall take place at the offices of Purchaser on or
before December 31, 2002 (the "CLOSING DATE").
3.02. THE PURCHASE PRICE. At the Closing, Purchaser shall pay to Sellers the sum
of Nine Hundred Thousand Dollars ($900,000), for the Acquired Assets (the
"PURCHASE PRICE"). The Purchase Price shall be paid through a Promissory Note, a
copy of which is attached to Schedule A, which must be executed on or prior to
the Closing.
3.03. TRANSFER OF ASSETS. At the Closing, the Seller shall execute all
documentation necessary to transfer ownership of the Acquired Assets to
Purchaser, including the execution (with Medallion guarantees) of Irrevocable
Stock Powers attached hereto as Schedule B.
3.04. DOMAIN NAME TRANSFER. At the Closing, Seller shall sign the documentation
attached as Schedule C to effectuate the transfer of the domain name
XXX.XXXXXXXXXXXX.XXX to NuWay Medical, Inc.
ARTICLE 4 - REPRESENTATIONS AND WARRANTIES
OF SELLERS
Seller hereby represents and warrants to Purchaser as follows:
4.01 ORGANIZATION, GOOD STANDING AND FOREIGN QUALIFICATION. Seller is
a corporation duly incorporated and validly existing and in good standing under
the laws of the State of Delaware. Seller is duly licensed or qualified to do
business as a foreign corporation and is in good standing under the laws of each
other jurisdiction in which the character of the properties owned or leased by
it therein or in which the transaction of business makes such qualification
necessary, except where the failure to so qualify would not have a material
adverse effect on Seller.
4.02 AUTHORITY RELATIVE TO AGREEMENTS. Seller has the requisite
corporate power and authority to enter into this Agreement and all Ancillary
Documents, and to carry out their obligations hereunder and thereunder. The
execution and delivery of this Agreement and each Ancillary Document, and the
consummation of the transactions provided for herein and therein, have been duly
authorized by the unanimous consent of the Boards of Directors of Seller and do
not violate any provision of the Certificate of Incorporation or Bylaws of
Seller. The execution by Seller of this Agreement and each Ancillary Document,
and the consummation of the transactions provided for hereby and thereby, will
not conflict with or effect a breach, violation, default, or cause an event of
default, under any mortgage, lease, or other material agreement or instrument,
or any statute, regulation, order, judgment or decree to which Seller are a
party or by which they are bound, or any law or governmental regulation
applicable to Seller, or require the consent of any Person (other than the
parties to this Agreement). Without limiting the generality of the foregoing, no
notices, reports or other filings are required to be made by Seller with, nor
are any consents, registrations, approvals, permits or authorizations required
to be obtained by Seller from, any government or governmental, regulatory or
administrative authority or agency, domestic or foreign (each, a "GOVERNMENTAL
ENTITY"), in connection with the execution and delivery of this Agreement by
Sellers and the consummation by Seller of the transactions contemplated by this
Agreement and the Ancillary Documents. This Agreement and the Ancillary
Documents constitute legal, valid and binding obligations of Seller, enforceable
in accordance with their terms, except as enforcement thereof may be limited by
applicable bankruptcy, reorganization, insolvency, moratorium or other laws
affecting rights of creditors generally and general principles of equity,
whether applied at law or in equity.
4.03 TAX MATTERS. Seller have duly and timely filed all Tax returns and
reports required to be filed by Seller prior to the Closing Date, except to the
extent that any failure or alleged failure to file any Tax return or report
would not have a material adverse effect on Seller or the Acquired Assets. All
of Seller's Tax returns and reports are true and complete in all material
respects. Seller has paid all Taxes shown to be due on the aforesaid Tax returns
and reports. Purchaser shall not become liable for any of Seller's liabilities
for Taxes as a result of the transactions contemplated hereby, and no unpaid
Taxes of Seller create any Encumbrance on the Acquired Assets.
4.04. LITIGATION. There is no prosecution, suit, action, arbitration
proceeding or governmental proceeding pending, or to the best Knowledge of
Seller, threatened, against or affecting the transactions contemplated by this
Agreement. There is not outstanding against Seller any decision, judgment,
decree, injunction, rule or order of any court, arbitrator or Governmental
Entity.
4.05. BROKERS. There are no brokers involved in this sale and purchase,
and neither Purchaser nor Seller shall have any obligation or liability to pay
any fee or other compensation to any Person engaged by the other party in
connection with this Agreement and the transactions contemplated hereby.
4.06. TRUE COPIES. All copies of documents delivered or made available
to Purchaser in connection with this Agreement are true and correct copies of
the originals thereof.
4.07. COMPLIANCE WITH LAW. Seller is in material compliance with all
federal, state and local laws, regulations and ordinances applicable to its
business and operations.
4.08. INTELLECTUAL PROPERTY. Seller does not have any Knowledge and
Seller has not received any notice to the effect that (i) the use of the
Acquired Assets or the Intellectual Property may infringe on any intellectual
property right or other legally protectable right of another, or (ii) any Person
is using any patents, copyrights, trademarks, service marks, trade names, trade
secrets or similar property that are confusingly similar with the Acquired
Assets or Intellectual Property. Seller has not granted any license or other
right to any other Person with respect to the Acquired Assets or Intellectual
Property. To the best of Seller's Knowledge, the consummation of the
transactions contemplated by this Agreement will not result in the termination
or impairment of any of the Acquired Assets or Intellectual Property. Seller is
not aware of any reason that would prevent any pending trademark, service xxxx,
copyright, patent or other intellectual property applications required for the
use of the Acquired Assets or Intellectual Property from having registration
granted.
4.09. ACQUIRED ASSETS. Camden currently holds 2,017,458 shares in NuWay
Medical, Inc. Summit currently holds 2,505,543 shares in NuWay Medical, Inc.
Xxxxxxxx currently holds approximately 500,000 shares. The total number of
shares being transferred is 5,000,000 shares. The acquired assets include all
Seller's rights to receive funds pursuant to the promissory note with NuWay
Energy, Inc. This note was referred to in the license agreement, and a copy of
the note is attached hereto as Schedule D. This note is the only note between
Sellers and NuWay Energy, Inc., and it replaces in its entirety the note between
Seller and Med Wireless, Inc. There is no existing note between Seller and Med
Wireless, Inc.
4.10. DISCLOSURE. No representation or warranty by Seller in, and no
document, statement, certificate, schedule or exhibit to be furnished or
delivered to Purchaser pursuant to, this Agreement contains or will contain any
material untrue or misleading statement of fact or omits or will omit any fact
necessary to make the statements contained herein or therein not materially
misleading.
4.11. INVESTMENT INTENT. This Agreement is made with Seller in reliance
upon each Seller's representations to Purchaser, evidenced by each Seller's
execution of this Agreement, that Seller are acquiring the Common Stock for
investment for Seller's own accounts, not as nominee or agent, and not with a
view to, or for resale in connection with, any distribution or public offering
thereof within the meaning of the Securities Act.
4.12. COMMON STOCK NOT REGISTERED. Seller understands and acknowledges
that the offering of Common Stock pursuant to this Agreement will not be
registered under the Securities Act on the grounds that the offering and sale of
securities contemplated by this Agreement are exempt from registration under the
Securities Act pursuant to Section 4(2) thereof, and that Purchaser's reliance
upon such exemption is predicated upon Seller's representations set forth in
this Agreement. Sellers understand and acknowledge that the Common Stock must be
held indefinitely unless the Common Stock is subsequently registered under the
Securities Act or an exemption from such registration is available.
4.13 OWNERSHIP OF ASSETS. Seller owns one hundred percent (100%) the
Acquired Assets, free of any lien, right, title or interest of any third party.
ARTICLE 5 - REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Sellers as follows:
5.01. ORGANIZATION AND GOOD STANDING. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada and is duly qualified and in good standing as a foreign corporation in
each jurisdiction where the failure to be so qualified would have a material
adverse effect on Purchaser.
5.02. AUTHORITY RELATIVE TO THIS AGREEMENT. Purchaser has the requisite
corporate power and authority to enter into this Agreement and all Ancillary
Documents, and to carry out its obligations hereunder and thereunder. The
execution and delivery of this Agreement and each Ancillary Document, and the
consummation of the transactions contemplated hereby and thereby, have been duly
authorized by the Board of Directors of Purchaser, or an authorized Committee
thereof, and do not violate any provision of the Certificate of Incorporation or
Bylaws of Purchaser, and no other corporate proceedings on the part of Purchaser
are necessary to authorize this Agreement and the Ancillary Documents and the
transactions contemplated hereby and thereby. The execution and delivery of this
Agreement and each Ancillary Document and the consummation of the transactions
provided for hereby and thereby will not conflict with or effect a breach,
violation or default, or cause an event of default, under any mortgage, lease,
or other material agreement or instrument, or any statute, regulation, order,
judgment or decree to which it is a party or by which it is bound, or any law or
governmental regulation applicable to Purchaser, or require the consent of any
Person (other than the parties to this Agreement). This Agreement and the
Ancillary Documents constitute the legal, valid and binding obligations of
Purchaser, enforceable in accordance with their terms, except as enforcement
thereof may be limited by any applicable bankruptcy, reorganization, insolvency,
moratorium, or similar laws affecting rights of creditors generally and general
principles of equity, whether applied at law or in equity.
5.03. NO BROKER. Sellers shall not have any obligation or liability to
pay any fee or other compensation to any Person engaged by Purchaser in
connection with this Agreement and the transactions contemplated hereby.
5.04. LITIGATION. There are no civil, criminal or administrative
actions, suits, claims, hearings, investigations, arbitrations, or proceedings
pending or threatened against Purchaser preventing, or which, if determined
adversely to Purchaser would prevent Purchaser from consummating the
transactions contemplated by this Agreement and the Ancillary Documents.
5.05. KNOWLEDGE AND EXPERIENCE. Purchaser (i) has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of Sellers' prospective investment in the Common Stock; (ii)
has the ability to bear the economic risk of Purchaser prospective investment;
(iii) has been furnished with and has had access to such information as
Purchaser have considered necessary to verify the accuracy of the information
supplied; (iv) has had all questions which have been asked by Purchaser
satisfactorily answered by Seller; and (v) has not been offered the Common Stock
by any form of advertisement, article, notice or other communication published
in any newspaper, magazine, or similar media or broadcast over television or
radio, or any seminar or meeting whose attendees have been invited by any such
media.
5.06. NOT ORGANIZED TO PURCHASE. Purchaser have not been organized for
the purpose of purchasing the Common Stock. Purchaser is an accredited investor
as defined in Rule 501(a) of Regulation D promulgated under the Securities Act.
5.07. COMMON STOCK NOT REGISTERED. Purchaser understands and
acknowledges that the offering of Common Stock pursuant to this Agreement will
not be registered under the Securities Act on the grounds that the offering and
sale of securities contemplated by this Agreement are exempt from registration
under the Securities Act pursuant to Section 4(2) thereof, and that the Seller's
reliance upon such exemption is predicated upon Purchaser's representations set
forth in this Agreement. Purchaser understands and acknowledges that the Common
Stock must be held indefinitely unless the Common Stock is subsequently
registered under the Securities Act or an exemption from such registration is
available.
ARTICLE 6 - SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION
6.01. SURVIVAL OF REPRESENTATIONS AND WARRANTIES OF THE PARTIES. Except
as provided in the next sentence, all representations and warranties made by any
party hereto contained in this Agreement or in any Ancillary Document, and the
indemnification obligations of each party hereto with respect to representations
and warranties, shall survive for a period ending two years following the
Closing Date. Notwithstanding the foregoing, the representations and warranties
relating to Section 4.03 hereof, and the indemnity obligations with respect to
such representations and warranties, shall remain operative and in full force
and effect until the expiration of the applicable statute of limitations.
6.02. INDEMNIFICATION BY SELLER. Seller hereby agree, jointly and
severally, to indemnify and hold Purchaser harmless from and against any and all
damages, losses, Liabilities, deficiencies, costs and/or expenses (including all
reasonable legal fees, expenses and other out-of-pocket costs) (collectively,
"DAMAGES") resulting from, arising out of or in connection with or related to
(1) the Acquired Assets, (2) any misrepresentation or breach of warranty on the
part of Seller, (3) non-fulfillment by Seller of any covenant or agreement under
this Agreement or any Ancillary Document, (4) any lawsuit filed against Seller
or Purchaser arising in whole or in part out of Seller's acquisition of the
Acquired Assets; in each instance whether or not any such Damages are in
connection with any action, suit, proceeding, demand or judgment of a third
party (including Governmental Entities).
6.03. INDEMNIFICATION BY PURCHASER. Purchaser hereby agrees to
indemnify and hold Seller harmless from and against any and all Damages
resulting from, arising out of or in connection with or related to (1) any
misrepresentation or breach of warranty on the part of Purchaser or (2)
non-fulfillment by Purchaser of any covenant or agreement under this Agreement
or any Ancillary Document.
ARTICLE 7 - CONDITIONS TO THE CLOSING
7.01. CONDITION TO OBLIGATIONS OF PURCHASER. The obligations of
Purchaser to close the transactions contemplated hereby are subject to the
satisfaction of the following condition: The representations and warranties made
by Seller in Section 4 hereof shall be true and correct when made, and shall be
true and correct in all material respects on the Closing Date with the same
force and effect as if they had been made on and as of said date. The Acquired
Assets shall not have been adversely affected in any material way prior to the
Closing Date. Seller shall have delivered the original share certificates
evidencing and constituting the ownership of the Acquired Assets, as well as any
documentation required to properly transfer said share certificates, to attorney
Xxxx X. Xxxxxxxx, counsel for both parties, who shall act as a facilitator of
this transaction, and shall have endorsed said share certificates to Purchaser.
7.02. CONDITION TO OBLIGATIONS OF SELLERS. The obligations of Seller to
close the transactions contemplated hereby are subject to the satisfaction of
the following conditions: The representations and warranties made by Purchaser
in Section 5 hereof shall be true and correct when made, and shall be true and
correct in all material respects on the Closing Date with the same force and
effect as if they had been made on and as of said date. Purchaser shall have
signed the Promissory Note and delivered said note to the attorney Xxxx X.
Xxxxxxxx, counsel for both parties, who shall act as a facilitator of this
transaction.
ARTICLE 8 - ADDITIONAL AGREEMENTS
8.01. AGREEMENTS AS TO TAX MATTERS. The parties to this Agreement will
cooperate fully with each other, in connection with the preparation, signing and
filing of tax returns and in any administrative, judicial or other proceeding
involving taxes relating to the Acquired Assets.
8.02. POST-CLOSING DOCUMENTS. The parties hereto will cooperate with
one another after Closing and, without any further consideration, will execute
and deliver such other documents as shall be reasonably required after the
Closing to transfer title to the Acquired Assets to Purchaser and to take any
other action necessary to carry out the intent and purposes of this Agreement.
8.03. NOTICE. Each party shall notify the others of any claim, demand,
action, suit or proceeding relating to or arising in connection with, the
Acquired Assets as soon as practicable after learning of such claim, demand,
action, suit, or proceeding.
ARTICLE 9 - GENERAL PROVISIONS
9.01. EXPENSES. Each party shall pay its own expenses (including legal
and accounting costs and expenses) in connection with the negotiation,
preparation and consummation of this Agreement and the Ancillary Documents, and
the transactions contemplated hereby and thereby.
9.02. GOVERNING LAW; WAIVER OF JURY TRIAL. All questions concerning the
construction, interpretation and validity of this Agreement shall be governed by
and construed and enforced in accordance with the domestic laws of the State of
California without giving effect to any choice or conflict of law provision or
rule (whether in the State of California or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the State of
California. In furtherance of the foregoing, the internal law of the State of
California will control the interpretation and construction of this Agreement,
even if under such jurisdiction's choice of law or conflict of law analysis, the
substantive law of some other jurisdiction would ordinarily or necessarily
apply.
BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND
EXPERT PERSON AND THE PARTIES WISH APPLICABLE LAWS TO APPLY (RATHER THAN
ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A
JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION
OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO
WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO
ENFORCE OR DEFEND ANY RIGHTS OR REMEDIES UNDER THIS AGREEMENT OR ANY DOCUMENTS
RELATED HERETO.
9.03. SUBMISSION TO JURISDICTION. Any legal action or proceeding with
respect to this Agreement or the other Ancillary Documents may be brought in the
courts of the State of California and the United States of America located in
the City of Los Angeles, California and, by execution and delivery of this
Agreement, the Purchaser hereby accepts for itself and in respect of its
property, generally and unconditionally, the jurisdiction of the aforesaid
courts. Each Seller hereby irrevocably waives, in connection with any such
action or proceeding, any objection, including, without limitation, any
objection to the venue or based on the grounds of forum non conveniens, which it
may now or hereafter have to the bringing of any such action or proceeding in
such respective jurisdictions. Each Seller hereby irrevocably consents to the
service of process of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to it at its address as set forth herein.
9.04. HEADINGS. Article and Section headings used in this Agreement are
for convenience only and shall not affect the meaning or construction of this
Agreement.
9.05. NOTICES. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally or mailed by
certified mail (return receipt requested) to the parties at the following
address (or at such other address for a party as shall be specified by like
notice), or if sent by telecopy to the parties at the following telecopy
numbers;
if to Seller:
Summit Healthcare, Inc.
Camden Holdings, Inc.
0000 Xxxxxxxx Xxxx
xxxxx 000
Xxxxxxx Xxxxx Xx 00000
if to Purchaser:
New Millennium Capital Partners, LLC
00000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
9.06. PARTIES IN INTEREST. All the terms and provisions of this
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the successors of Sellers and Purchaser.
9.07. FINAL AGREEMENT; ENTIRE AGREEMENT. This Agreement, including any
agreements set forth as an annex to any this Agreement, is the final agreement
between the parties and constitutes the entire agreement between the parties
hereto and supersedes all prior agreements and understandings, both written and
oral, whether signed or unsigned, with respect to the subject matter hereof.
9.08. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be considered an original, but all of which
together shall constitute the same instrument.
9.09. AMENDMENT. This Agreement may be amended only by an instrument in
writing signed by or on behalf of each of the parties hereto.
9.10. PREPARATION OF AGREEMENT/WAIVER OF CONFLICT. Each party to this
Agreement acknowledges that: (i) this Agreement was written by attorney Xxxx X.
Xxxxxxxx, who has represented the Seller and Purchaser in prior matters, and
that each party acknowledges the conflict in having one attorney draft the
Agreement, that each party has been advised and had the opportunity to obtain
independent counsel to review the terms of this Agreement, that attorney
Xxxxxxxx did not negotiate the terms of this Agreement, and each party knowingly
and voluntarily waives any conflict of interest in having attorney Xxxxxxxx
prepare the agreement; (ii) the terms of the transactions contemplated by this
Agreement are fair and reasonable to such party; and (iii) such party has
voluntarily entered into the transactions contemplated by this Agreement without
duress or coercion. Each party further acknowledges that such party was not
represented by the legal counsel of any other party hereto in connection with
the transactions contemplated by this Agreement, nor was he or it under any
belief or understanding that such legal counsel was representing his or its
interests. Each party agrees that no conflict, omission or ambiguity in this
Agreement, or the interpretation thereof, shall be presumed, implied or
otherwise construed against any other party to this Agreement on the basis that
such party was responsible for drafting this Agreement.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have duly executed this Asset Purchase
Agreement as of the date first written above.
SUMMIT HEALTHCARE, INC
/s/
By:___________________________
Name: Xxxx Xxxxxxxx
Title: President
XXXXXXX VENTURES, INC.
/s/
By:___________________________
Name: Xxxx Xxxxxxxx
Title: President
CAMDEN HOLDINGS, INC.
/s/
By:___________________________
Name: Xxxx Xxxxxxxx
Title: President
XXXX XXXXXXXX, an individual
/s/
------------------------------
NEW MILLENNIUM CAPITAL PARTNERS, LLC
/s/
By:___________________________
Name: Xxxxxx Xxxxxxx
Title: Manager
SCHEDULE A
Form of Promissory Note
SCHEDULE B
Irrevocable Stock Powers
SCHEDULE C
Domain Name Transfer
SCHEDULE D
Summit Ventures / NuWay Energy Promissory Note
