Exhibit 10.11
EXCLUSIVE LICENSE AND ASSIGNEMENT AGREEMENT
among
MED WIRELESS, INC.
and
NUWAY ENERGY, INC.
August 21, 2002
[Execution Copy]
This EXCLUSIVE LICENSE AND ASSIGNMENT AGREEMENT, is made as of August
__, 2002 (this "Agreement"), among MED WIRELESS, INC., a Nevada corporation,
("Licensor"), and NUWAY ENERGY, INC., a Delaware corporation (the "Licensee").
WHEREAS, the respective Boards of Directors of the Licensor and
Licensee, and the majority stockholders of Licensee, have approved the terms of
this Agreement and of the transactions contemplated hereby; and
WHEREAS, this Agreement provides for the exclusive license by Licensor
of certain intangible assets to Licensee and the assignment by Licensor of
certain agreements to Licensee;
WHEREAS, the Licensor and Licensee 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 upon the effectiveness of the Schedule 14C Information Statement
to be filed by Licensee in compliance with the federal securities laws and
regulations (the "Information Statement");
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:
"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.
"Assumed Debt" shall have the meaning specified in Section 3.02 hereof.
"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 $0.00067 per share, of
Licensee.
"Damages" has the meaning specified in Section 6.02(a) hereof.
"Distribution Agreement" has the meaning specified in Section 2.03
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.
"Financing" has the meaning specified in Section 4.07 hereof.
"Governmental Entity" has the meaning specified in Section 4.02
hereof.
"Information Statement" has the meaning specified in the recitals
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 or licensed by Licensor in connection with the Licensed Assets (including
any and all applications, registrations, extensions and renewals relating
thereto), and all of the rights, benefits and privileges associated therewith.
"Intellectual Property Rights" has the meaning specified in Section
2.02 hereof.
"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.
"License" has the meaning specified in Section 2.02.
"Licensed Assets" has the meaning specified in Section 2.01.
"Licensee" has the meaning specified in the introductory paragraph
above.
"Licensor" has the meaning specified in the introductory paragraph
above.
"Licensor Common Stock" shall have the meaning specified in Section
3.02 hereof.
"Person" means a natural person, corporation, partnership or other
business entity, or any Governmental Entity.
"Purchase Agreements" has the meaning specified in Section 2.03 hereof.
"Purchase Price" has the meaning specified in Section 3.02 hereof.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Sideletter" shall have the meaning specified in Section 7.02 hereof.
"Xxxxxxx" has the meaning specified in Section 3.02 hereof.
"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 - LICENSE AND ASSIGNMENT
2.01. License of Assets. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties contained
herein, at the Closing Licensor will grant to Licensee a License in and to all
of Licensor's rights and interests in all of Licensor's proprietary software,
applications, applications related to compression of medical images, software
and source code reflecting the movement of data over a wireless platform,
databases of healthcare providers, physicians' names and data, historical data
and other documentation related to the use and production of the database,
customer lists and all related specifications, all as more specifically detailed
in Exhibit A attached hereto (the "Licensed Assets").
2.02 Terms of License. The license shall be an exclusive, irrevocable,
royalty-free, fully-paid, 15-year worldwide license to all of Licensor's rights
and interests as of the Closing Date in the Licensed Assets and shall permit
Licensee to:
(i) use any Intellectual Property currently embodied in the Licensed
Assets,
(ii) install, use, publicly perform and display, and copy the
Licensed Assets in any manner or medium, for any purpose in
connection with Licensee's business operations,
(iii) edit, modify, alter, adapt, enhance and create derivative
works from the Licensed Assets in any manner or medium, for
any purpose in connection with Licensee's business operations,
and
(iv) sublicense, distribute, sell, lease, and otherwise transfer
the Licensed Assets, and/or Licensee's rights under this
Agreement to any of Licensee's subsidiaries, operating units,
joint ventures and/or affiliates (collectively, the
"Intellectual Property Rights" and, together with the Licensed
Assets, the "License").
2.03. Assignment of Agreements. At the Closing, Licensor will assign to
Licensee all of its rights and interests in and to (i) its purchase agreements
with Vital Imaging and JFK Hospital of Liberia for the purchase of software and
related equipment (the "Purchase Agreements"), attached hereto as Exhibit B, and
(ii) its distribution and sales agreement with Medison America, Inc. (the
"Distribution Agreement"), attached hereto as Exhibit C.
2.04. No Assumption of Liabilities. Licensee shall not assume and shall
have no obligation with respect to any and all obligations or Liabilities
arising out of or in connection with the License, Licensed Assets or
Intellectual Property Rights.
ARTICLE 3 - THE CLOSING; PURCHASE PRICE
3.01 The Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Xxxxxx, Xxxxxxxxxx
and Xxxxx, 00000 Xxxxxxxx Xxxx., Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx on the date
that the Information Statement is declared effective by the SEC (the "Closing
Date").
3.02. The Purchase Price. The purchase price for the License (the
"Purchase Price") shall be:
(i) the issuance to Licensor of Thirty-Three Million (33,000,000)
shares of restricted Common Stock of Licensor (the "Licensor
Common Stock"), and
(ii) the assumption by Licensee of One Million One Hundred Twenty
Thousand Dollars ($1,120,000) of outstanding debt of Licensor to
Xxxxxxx Healthcare, Inc., a Nevada corporation and substantial
shareholder of Licensor ("Xxxxxxx"), (the "Assumed Debt" and,
together with the Licensor Common Stock, the "Purchase Price").
3.03. Restrictions on Transferability of Licensor Common Stock. The
shares of Licensor Common Stock to be issued and delivered pursuant to this
Agreement in accordance with the provisions hereof will not have been registered
under the Securities Act or under the securities laws of any state. Accordingly,
those shares of Licensor Common Stock (together with any other shares received
pursuant to conversions, exchanges, stock splits, stock dividends or other
reclassifications or changes thereof, or consolidations or reorganizations of
Licensee) will not be transferable if Licensee does not have a registration
statement covering the Licensor Common Stock under the Securities Act in effect
when Licensor decides to sell the Licensor Common Stock, and Licensor may be
required to hold the Licensor Common Stock for an indeterminate period. Licensor
also understands that any sale of the Licensor Common Stock that might be made
by Licensor in reliance upon Rule 144 under the Securities Act may be made only
in limited amounts in accordance with the terms and conditions of that rule.
3.04. Legend. The certificate(s) representing Licensor Common Stock
issued to Licensor shall be stamped or otherwise imprinted with a legend in the
following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
UNDER THE SECURITIES LAWS OF ANY STATE. SUCH SECURITIES MAY NOT BE SOLD
OR OFFERED FOR SALE OR OTHERWISE HYPOTHECATED OR DISTRIBUTED EXCEPT (A)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES
UNDER THE ACT, OR (B) PURSUANT TO A VALID EXEMPTION FROM SUCH
REGISTRATION UNDER THE ACT AND UNDER THE SECURITIES LAW OF ANY STATE
AND UPON RECEIPT BY LICENSEE OF AN OPINION OF COUNSEL SATISFACTORY IN
FORM AND SUBSTANCE TO IT THAT ANY SUCH SALE IS IN COMPLIANCE WITH, OR
NOT SUBJECT TO, THE ACT AND STATE SECURITIES LAWS."
Where applicable, Licensee shall remove such legend so as to facilitate
the sale of such shares, if and to the extent applicable, pursuant to Rule 144
under the Act, provided (in the case of Rule 144 sales) that if Licensor
requests such removal, Licensor shall have provided such documentation as
Licensee and its transfer agent shall reasonably require in connection
therewith.
ARTICLE 4 - REPRESENTATIONS AND WARRANTIES
OF LICENSOR
Except as otherwise set forth in the disclosure memorandum delivered by
Licensee to Licensor at or prior to the execution of this Agreement, attached
hereto as Exhibit D (the "Licensor Disclosure Memorandum"), which Licensor
Disclosure Memorandum shall indicate the Section of this Article 4 to which such
exception specifically relates, Licensor hereby represents and warrants to
Licensee as follows:
4.01. Organization, Good Standing and Foreign Qualification. Licensor
is a corporation duly incorporated and validly existing and in good standing
under the laws of the State of Nevada. Licensor 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 the Licensor.
4.02. Authority Relative to Agreements. Licensor 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 Board of Directors of Licensor and do
not violate any provision of the Certificate of Incorporation or Bylaws of
Licensor. The execution by Licensor 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
Licensor is a party or by which they are bound, or any law or governmental
regulation applicable to Licensor, 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
Licensor with, nor are any consents, registrations, approvals, permits or
authorizations required to be obtained by Licensor 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 Licensor and the consummation by Licensor of the
transactions contemplated by this Agreement and the Ancillary Documents. This
Agreement and the Ancillary Documents constitute legal, valid and binding
obligations of Licensor, 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. Licensor has duly and timely filed all Tax returns
and reports required to be filed by Licensor 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 Licensor or the Licensed
Assets. All of Licensor's Tax returns and reports are true and complete in all
material respects. Licensor has paid all Taxes shown to be due on the aforesaid
Tax returns and reports. Licensee shall not become liable for any of Licensor's
liabilities for Taxes as a result of the transactions contemplated hereby, and
no unpaid Taxes of Licensor create any Encumbrance on the Licensed Assets.
4.04. Litigation. There is no prosecution, suit, action, arbitration
proceeding or governmental proceeding pending, or to the best Knowledge of
Licensor, threatened, against or affecting Licensor or the transactions
contemplated by this Agreement. There is not outstanding against Licensor any
decision, judgment, decree, injunction, rule or order of any court, arbitrator
or Governmental Entity.
4.05. Intellectual Property. Exhibit A contains a true, correct and
complete description of the Licensed Assets and Intellectual Property Rights.
Except as disclosed in the Licensor Disclosure Memorandum, Licensor owns, or is
licensed or otherwise possesses legally enforceable rights to use the Licensed
Assets and Intellectual Property Rights, free and clear of all Encumbrances.
Licensor does not have any Knowledge and Licensor has not received any notice to
the effect that (i) the use of the Licensed Assets or Intellectual Property
Rights may infringe on any intellectual property right or other legally
protectable right of another, or (ii) any Person is using any patents, patent
applications, copyrights, trademarks, service marks, trade names, trade secrets
or similar property that are confusingly similar with the Licensed Assets or
Intellectual Property Rights. Licensor has not granted any license or other
right to any other Person with respect to the Licensed Assets or Intellectual
Property Rights. To the best of Licensor's Knowledge, the consummation of the
transactions contemplated by this Agreement will not result in the termination
or impairment of any of the Licensed Assets or Intellectual Property Rights.
Licensor 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 Licensed Assets or Intellectual Property Rights from
having registration granted.
4.06. Software. The proprietary software to be licensed to Licensee as
part of the License is the original product of Licensor and has been developed
by Licensor in its entirety.
4.07 Customer Purchase Orders. At the Closing, Licensor shall have
validly assigned all its rights and interests in the Purchase Agreements to
Licensee. While each of Vital Imaging and JFK Hospital of Liberia has applied
for financing to fund their respective Purchase Agreements (the "Financing") and
expects such Financing to be approved and granted, Licensor neither represents
nor warrants that the Financing is complete or final.
4.08. Distribution Sales Agreement. At the Closing, Licensor shall have
validly assigned all its rights and interests in the Distribution Agreement to
Licensee.
4.09. True Copies. All copies of documents attached to this Agreement
or otherwise delivered or made available to Licensee in connection with this
Agreement are true and correct copies of the originals thereof.
4.10. Compliance with Law. Licensor is in material compliance with all
federal, state and local laws, regulations and ordinances applicable to its
business and operations.
4.11. Confidentiality Agreements. Licensor has caused each person
currently or formerly employed by Licensor (including independent contractors,
if any) that has or had access to confidential information of Licensor relating
primarily or exclusively to the Licensed Assets or Intellectual Property Rights
to execute and deliver to Licensor a confidentiality, non-disclosure and
assignment of inventions agreement in one of the standard forms of Licensor.
4.12. Corporate Records. Copies of the minutes, stock transfer and
other record books of Licensor have been made available to Licensee and are true
and complete in all material respects.
4.13. Disclosure. No representation or warranty by Licensors in, and no
document, statement, certificate, schedule or exhibit to be furnished or
delivered to Licensee 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.
ARTICLE 5 - REPRESENTATIONS AND WARRANTIES OF THE LICENSEE
Except as otherwise set forth in the disclosure memorandum delivered
by Licensee to Licensor at or prior to the execution of this Agreement, attached
hereto as Exhibit E (the "Licensee Disclosure Memorandum"), which Licensee
Disclosure Memorandum shall indicate the Section of this Article 5 to which such
exception specifically relates, License hereby represents and warrants to
Licensor as follows:
5.01. Organization and Good Standing. Licensee is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware 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 Licensee.
5.02. Capitalization. The authorized capital stock of Licensee consists
of 15,000,000 shares of common stock, par value $0.00067 per share, of which [ ]
shares are issued and outstanding, and no authorized shares of preferred stock.
5.03. Authority Relative to this Agreement. Licensee 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. Except as
disclosed in the Licensee Disclosure Memorandum, 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 Licensee, or an authorized Committee thereof, and by the
holders of at least a majority of Licensee's outstanding capital stock, and do
not violate any provision of the Certificate of Incorporation or Bylaws of
Licensee, and no other corporate proceedings on the part of Licensee are
necessary to authorize this Agreement and the Ancillary Documents and the
transactions contemplated hereby and thereby. To the Company's knowledge, 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
Licensee, 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 Licensee, 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.
5.04. Source Code. Licensee acknowledges that the source code relating
to the Licensed Assets and Licensed Intellectual Property is not in completed
form and that the Licensee must expend additional resources, time and funds in
order to develop a marketable product based on the Licensed Assets and Licensed
Intellectual Property.
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 Licensor. Licensor hereby agrees to indemnify
and hold Licensee 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
License, Licensed Assets or Intellectual Property Rights, (2) any
misrepresentation or breach of warranty on the part of Licensor or (3)
non-fulfillment by Licensor of any covenant or agreement under this Agreement or
any Ancillary Document; 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).
ARTICLE 7 - CONDITIONS TO THE CLOSING
7.01. Effectiveness of Information Statement. The obligations of
Licensor and Licensee under this Agreement are subject to the declared
effectiveness by the SEC of the Information Statement.
7.02. Condition to Obligations of Licensee. The obligations of Licensee
to close the transactions contemplated hereby are subject to the satisfaction of
the following conditions:
(a) the representations and warranties made by Licensor 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. None of the License, Licensed Assets or
Intellectual Property Rights shall have been adversely
affected in any material way prior to the Closing Date, and
(b) the execution and delivery by Xxxxxxx to Licensee of a
sideletter in substantially the form of Exhibit F hereto (the
"Sideletter").
7.03. Condition to Obligations of Licensor. The obligations of Licensor
to close the transactions contemplated hereby are subject to the satisfaction of
the following condition: the representations and warranties made by Licensee 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.
ARTICLE 8 - ACTIONS AT THE CLOSING
At the Closing, the parties shall deliver the following documents and
instruments and take the following actions:
8.01. Actions by Licensee. Licensee shall deliver to Licensor:
(a) the Licensor Common Stock as set forth in Section
3.02 hereof. It is understood that the share certificate(s)
evidencing the Licensor's Common Stock will be delivered to
the Licensor at the Closing or as soon as thereafter as
commercially practicable, and
(b) the executed Promissory Note and documents
related thereto in the form of Exhibit G hereto.
8.02. Actions by Licensor. Licensor shall deliver to Licensee:
(a) the Licensed Assets,
(b) documentation satisfactory to Licensee confirming
the assignment to Licensee of Licensor's rights and interest
in the each of the Purchase Agreements and the Distribution
Agreement,
(c) the executed Sideletter, and
(d) an Investment Letter in the form of Exhibit H
hereto.
ARTICLE 9 - ADDITIONAL AGREEMENTS
9.01. 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 License.
9.02. 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 take any actions necessary to carry out the intent and purposes of
this Agreement.
9.03. Notice. Each party shall notify the others of any claim, demand,
action, suit or proceeding relating to or arising in connection with, the
License as soon as practicable after learning of such claim, demand, action,
suit, or proceeding.
ARTICLE 10 - GENERAL PROVISIONS
10.01. 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.
10.02. 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.
10.03. 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 Licensee hereby accepts for itself and in respect of its
property, generally and unconditionally, the jurisdiction of the aforesaid
courts. Licensor 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. Licensor 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.
10.04. Headings. Article and Section headings used in this Agreement
are for convenience only and shall not affect the meaning or construction of
this Agreement.
10.05. 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 Licensor:
Med Wireless, Inc
0000 Xxxxxxxx Xxxx.
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
if to Licensee:
NuWay Energy, Inc.
00000 Xxx Xxxxxx Xxx., Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
10.06. 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 Licensee and Licensor.
10.07. 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.
10.08. 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.
10.09. Amendment. This Agreement may be amended only by an instrument
in writing signed by or on behalf of each of the parties hereto.
10.10. Preparation of Agreement. Licensee prepared this Agreement and
the Ancillary Agreements solely on its behalf. Each party to this Agreement
acknowledges that: (i) the party had the advice of, or sufficient opportunity to
obtain the advice of, legal counsel separate and independent of legal counsel
for any other party hereto; (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.
SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have duly executed this Exclusive
License and Assignment Agreement as of the date first written above.
MED WIRELESS, INC.
/s/
By:___________________________
Name: Xxxxxx Xxxxxxx
Title: President
NUWAY ENERGY, INC.
/s/
By:___________________________
Name: Xxxxxx Xxxxxxx
Title: President
EXHIBITS TO THIS AGREEMENT
Exhibit A: Description of Licensed Assets
Exhibit B: Purchase Agreements
Exhibit C: Distribution Agreement
Exhibit D: Licensor Disclosure Memorandum
Exhibit E: Licensee Disclosure Memorandum
Exhibit F: Sideletter
Exhibit G: Promissory Note
Exhibit H: Investment Letter
EXHIBIT A
DESCRIPTION OF LICENSED ASSETS
EXHIBIT B
PURCHASE AGREEMENTS
EXHIBIT C
DISTRIBUTION AGREEMENT
EXHIBIT D
LICENSOR DISCLOSURE MEMORANDUM
Section 4.05.
The Licensed Assets are encumbered by that certain promissory note executed by
and between Licensor and Xxxxxxx in the amount of $1,120,000.
EXHIBIT E
LICENSEE DISCLOSURE MEMORANDUM
Section 6.03.
The authorized capital stock of Licensee consists of 15,000,000 shares of common
stock, par value $0.00067, and no shares of preferred stock. By written consent
action dated August __, 2002, the Board of Directors and by written consent
action dated August __, 2002, a majority of Licensee's Stockholders have adopted
the following resolutions:
(i) to file an amended Certificate of Incorporation to
increase Licensee's authorized capital stock to an
aggregate of 100,000,000 shares of common stock, par value
$0.0067, and 25,000,000 shares of preferred stock, par
value $0.00067 (the "Amended Certificate"), and
(ii) to provide that, upon the due filing of the Amended
Certificate with the Delaware Secretary of State, each
outstanding and reserved 1 share of Licensee common stock
will be automatically subdivided, changed and converted
into 5 shares of Licensee common stock.
Section 6.04.
Prior to Closing, Licensee must file the Information Statement and have it
declared effective by the SEC.
EXHIBIT F
SIDELETTER
EXHIBIT G
PROMISSORY NOTE
EXHIBIT H
INVESTMENT LETTER
Exhibit 10.11a
AMENDMENT TO
EXCLUSIVE LICENSE AND ASSIGNMENT AGREEMENT
This amendment, dated as of September 18, 2002 (the "Amendment"),
amends the Exclusive License and Assignment Agreement among NuWay Energy, Inc.,
a Delaware corporation ("Licensee"), and Med Wireless, Inc., a Nevada
corporation ("Licensor"), dated as of August 21, 2002 (the "Agreement").
Capitalized terms not defined herein shall have their respective meanings as
provided in the Agreement.
WHEREAS, in a written consent of Licensee dated as of July 19, 2002,
the Board of Directors of Licensee authorized a five for one forward split (the
"Stock Split") of the outstanding common stock of Licensee to take effect upon
the filing of an amendment of Licensee's Certificate of Incorporation increasing
Licensee's authorized common stock;
WHERAS, Section 3.02 of the Agreement provides that Licensee shall
issue to Licensor Thirty-Three Million (33,000,000) shares of restricted Common
Stock of Licensee after giving effect to the Stock Split;
WHEREAS, Licensee has determined that for the foreseeable future it is
no longer in the best interests of Licensee and its stockholders to enact the
proposed Stock Split;
NOW THEREFORE, in connection with the foregoing, the parties agree as
follows:
1. Section 3.02(i) Amendment. Section 3.02(i) of the Agreement shall be
amended and restated in its entirety as follows:
3.02 Purchase Price. The purchase price for the License (the "Purchase Price",
shall be:
(i) the issuance to Licensor of Six Million Six Hundred Thousand
(6,600,000) shares of restricted Common Stock of Licensee (the
"Licensor Common Stock").
2. Amendment Under the Agreement. This Amendment shall constitute an
amendment of the Agreement under Section 10.09 of the Agreement.
3. No Further Modification. Except as provided herein, the Agreement
shall remain in full force and effect without modification.
[SIGNATURES FOLLOW]
IN WITNESS WHEREOF, each of the undersigned has duly executed this
Amendment as of the date first written above.
MED WIRELESS, INC.
/s/
By:______________________
Name: Xxxxxx Xxxxxxx
Title: President
NUWAY ENERGY, INC.
/s/
By:______________________
Name: Xxxxxx Xxxxxxx
Title: President
