MEMBERSHIP INTEREST CONTRIBUTION AGREEMENT
THIS MEMBERSHIP INTEREST CONTRIBUTION AGREEMENT ("Agreement") is made and
entered into the 7th day of May, 2004, to be effective on the 10th day of May,
by and among RKDA, Inc., a Michigan corporation ("Assignee"), Xxxx X. Xxxxxxx,
XX ("Xxxxxxx") and Xxxxxxxx Xxxxxxx ("Xxxxxxx"). Xxxxxxx and Xxxxxxx are
sometimes hereinafter individually referred to as "Assignor" and collectively as
"Assignors". Capitalized terms used herein that are not otherwise defined in the
context in which they are being used are defined in Article V.
R E C I T A L S :
WHEREAS, Assignors own all of the issue and outstanding membership
interests ("Membership Interests") of SSAC, LLC, a Florida limited liability
company ("Company"), d/b/a ArcradiaRx, with Xxxxxxx owning 60% of the Membership
Interests and Xxxxxxx owning 40% of the Membership Interests ("Membership
Interest Percentage");
WHEREAS, Assignors desire to assign to Assignee all of the Membership
Interests in the Company upon the terms and subject to the conditions contained
in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual promises
representations, warranties and covenants herein contained, the parties agree as
follows:
ARTICLE I
CONTRIBUTION OF MEMBERSHIP INTERESTS
1.1 Contribution of Membership Interests. Subject to the terms and
conditions of this Agreement, at the Closing, Assignors will assign, transfer
and convey all of the Membership Interests in the Company owned by them to
Assignee. Each Assignor shall execute and deliver to an Assignment of Membership
Interest in the form attached hereto as Exhibit "A".
1.2 Effective Time. The assignment of the Membership Interests shall be
effective immediately following the time at which a certain merger ("Merger")
between the parties hereto, Critical Home Care, Inc., CHC Sub, Inc. and others
becomes effective. In the event the Merger does not become effective for any
reason whatsoever, then this Agreement shall be null and void.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLERS
Sellers, jointly and severally, hereby make the following representations
and warranties to Buyer:
2.1 Organization and Good Standing. Company is a limited liability company
duly organized, validly existing, and in good standing under the respective laws
of the state of its organization, with full power and authority to conduct its
business as it is now being conducted. Company is duly qualified to do business
as a foreign company and is in good standing under the laws of each state or
other jurisdiction in which the Company is legally required to be so qualified.
1
2.2 Authority/Enforceability. This Agreement constitutes the legal, valid,
and binding obligation of Assignors, enforceable against them in accordance with
its terms.
2.3 Capitalization. The outstanding Membership Interests of the Company are
duly authorized, validly issued, fully paid and non-assessable and represent all
of the issued and outstanding membership interests in the Company. Assignors
are, the legal, record and beneficial owner and holder of all of membership
interests in the Company. There are no Contracts relating to the issuance, sale,
or transfer of any Membership Interests or other equity securities of the
Company.
2.4 Compliance with Legal Requirements. Company is, and at all times has
been, in material compliance with each material Legal Requirement that is or was
applicable to it or to the conduct or operation of its business or the ownership
or use of any of its assets.
2.5 Legal Proceedings. There is no pending legal proceeding: (a) that has
been commenced by or against any Acquired Company or that otherwise relates to
or may affect the business of, or any of the assets owned, leased or used by
Company.
All representations and warranties contained in this Agreement will survive
the Closing for a period of one (1) year, except for any representation and
warranties with respect to a specified date in which case such representations
and warranties shall terminate and expire as of the Closing.
ARTICLE III
GENERAL PROVISIONS
3.1 Waiver. Neither the failure nor any delay by any party in exercising
any right, power, or privilege under this Agreement or the documents referred to
in this Agreement will operate as a waiver of such right, power, or privilege,
and no single or partial exercise of any such right, power, or privilege will
preclude any other or further exercise of such right, power, or privilege or the
exercise of any other right, power, or privilege.
3.2 Entire Agreement and Modification. This Agreement supersedes all prior
agreements between the parties with respect to its subject matter and
constitutes (along with the documents referred to in this Agreement) a complete
and exclusive statement of the terms of the agreement between the parties with
respect to its subject matter.
3.3 Construction. The parties have participated jointly in the negotiation
and drafting of this Agreement. In the event an ambiguity or question of intent
or interpretation arises, this Agreement shall be construed as if drafted
jointly by the parties and no presumptions or burden of proof shall arise
favoring or disfavoring any party by virtue of the authoring of any of the
provisions of this Agreement.
2
3.4 Assignments; Successors; No Third Party Rights. Except as expressly
provided herein, no party may assign any of its rights under this Agreement
without the prior consent of the other parties, except that Buyer may assign any
of its rights under this Agreement to any subsidiary, parent, or affiliate.
Subject to the preceding sentence, this Agreement will apply to, be binding in
all respects upon, and inure to the benefit of the successors and permitted
assigns of the parties. Nothing contained in this Agreement will be construed to
give any person other than the parties to this Agreement (and their successors
and assigns) and those persons expressly identified herein as receiving or
obtaining rights or benefits hereunder, any legal or equitable right, remedy, or
claim under or with respect to this Agreement or any provision of this
Agreement.
3.5 Section Headings. The headings of Sections in this Agreement are
provided for convenience only and will not affect their construction or
interpretation. All references to "Section" or "Sections" refer to the
corresponding Section or Sections of this Agreement.
3.6 Governing Law. This Agreement shall be governed by the internal laws of
the State of Florida without regard to conflicts of laws principles.
3.7 Counterparts/Facsimile Signatures. This Agreement may be executed in
one or more counterparts, each of which shall be deemed to be an original of
this Agreement and all of which, when taken together, shall be deemed to
constitute one and the same agreement. A facsimile signature of any party shall
be immediately binding upon such party and have the same legal effect as a
original signature of such party.
[Signatures Follow On Succeeding Page]
3
The parties have executed and delivered this Agreement as of the date first
written above.
ASSIGNEE:
RKDA, INC.,
a Michigan corporation
/s/Xxxx X. Xxxxxxx, XX
By:_________________________________________
Its: President
ASSIGNORS:
/s/Xxxx X. Xxxxxxx, XX
_____________________________________________
Xxxx X. Xxxxxxx, XX
/s/Xxxxxxxx Xxxxxxx
____________________________________________
Xxxxxxxx Xxxxxxx
4
EXHIBIT "A"
ASSIGNMENT
OF
MEMBERSHIP INTEREST
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, _____________________("Assignor"), hereby assigns,
transfers and conveys to RKDA, Inc. ("Assignee") all of Assignor's right, title
and interest in and to the 60 units of membership interest (the "Units") in
SSAC, LLC (the "Company").
Assignor represents that he is the sole owner of the Units and has the full
power and authority to assign such units to the Assignee and that he has not
previously assigned, mortgaged or encumbered in any manner whatsoever the Units
assigned hereunder and that Assignor owns no other Units in the Company.
The Assignor has executed this Assignment this 7th day of May, 2004, to be
effective at the time set forth in the Membership Interest Contribution
Agreement of an even date hereof.
5