EXHIBIT 10
STOCK ACQUISITION AND
TECHNOLOGY TRANSFER AGREEMENT
This Stock Acquisition and Technology Transfer Agreement (the
"Agreement") is entered into as of this 12th day of September 2002, by and
between ARC Finance Group, LLC ("ARC"), a Delaware limited liability
corporation and Recom Managed Systems, Inc., a Delaware corporation ("Recom").
RECITALS
WHEREAS, Recom is a publicly-traded company that has been presented with
an opportunity to acquire certain Technology from ARC, which ARC has stated it
intends to seek commercial development of or with respect to, and Recom wishes
to acquire that Technology, whether now owned by ARC or developed hereinafter
by or on behalf of ARC, in order to maximize Recom's future business
development; and
WHEREAS, for purposes of this Agreement the term "Technology" shall mean
all intellectual property (including, without limitation, all know-how,
patents, copyrights, trade secrets, applications for patents, or other methods
now or hereafter acquired or developed with the involvement of ARC) that ARC
claims ownership of and which ARC is utilizing in order to bolster its plans
to develop certain valuable devices, products and/or services relating to the
business of heart monitoring, all of which ARC hopes -- upon the completion of
development --will be capable of (a) accurately measuring heart functions, (b)
automatically and remotely evaluating such functions by use of the telephones,
the Internet and other like transmission systems and (c) providing the patient
and the patient's physician with important data on a timely basis. ARC hopes
that this technology, if ultimately developed to a commercial state, will
result in medical products and devices that are capable of providing early
warnings to patients and physicians regarding heart malfunctioning; and
WHEREAS, ARC hopes to utilize the Technology to, ultimately, develop
medical products and devices that are capable of providing early warnings to
patients and physicians regarding potential heart function; and
WHEREAS, ARC desires to sell, convey and transfer all of its rights in
the Technology and in the above referenced enhancements thereof to Recom in
exchange for Recom issuing to ARC seven million eight hundred thousand
(7,800,000) restricted shares of common stock of Recom, which will represent
approximately 85% of the total Recom shares issued and outstanding on the
Closing, as hereinafter defined.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
representations set forth below and other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the parties hereby agree
as follows:
ARTICLE 1
ISSUANCE OF SECURITIES IN EXCHANGE
FOR ASSIGNMENT OF TECHNOLOGY
1.1 Issuance of Shares. Subject to the terms and conditions of this
Agreement, Recom hereby agrees to issue to ARC on the Closing Date, 7,800,000
shares of common stock of Recom ("Shares"), which are not registered under the
Securities Act of 1933 as amended (the "Act"), shall be fully restricted under
Rule 144 as promulgated under the Act but shall also be free and clear of any
and all encumbrances.
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1.2 Assignment of Technology. In exchange for the Shares being issued
to ARC, ARC hereby transfers and assigns to Recom, on the Closing, fully and
absolutely, all right, title and interest of ARC in and to the Technology, all
intellectual property rights and all other intangible property rights
appertaining or relating to the Technology hereafter developed by ARC. Upon
the Closing, Recom shall be the sole owner and beneficiary of the Technology
and all enhancements or other derivations of the Technology described anywhere
in this Agreement.
1.3 Exemption from Registration. The parties hereto intend that the
Common Stock to be issued by Recom to ARC shall be exempt from the
registration requirements of the Act, pursuant to Section 4(2) thereof and
other applicable exemptions contained in rules and regulations promulgated
thereunder.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF RECOM
Except as disclosed in Schedule 2, which is attached hereto and
incorporated herein by reference, Recom represents and warrants to ARC that:
2.1 Organization. Recom is a corporation duly organized, validly
existing, and in good standing under the laws of Delaware, has all necessary
corporate powers to own properties and to carry on business, and it is not now
conducting any business, except to the extent to which the effecting of the
transaction contemplated by this Agreement constitutes doing business. Recom
is duly qualified to do business as a foreign corporation and is in good
standing under the laws of California.
2.2 Capitalization. The authorized capital stock of Recom consists of
50,000,000 shares of $.001 par value Common Stock of which 1,429,928 shares of
Common Stock are currently issued and outstanding. All of the issued and
outstanding shares of Common Stock are duly authorized, validly issued, fully
paid and nonassessable. There are no outstanding subscriptions, options,
rights, warrants, convertible securities, or other agreements or commitments
obligating Recom to issue or to transfer from treasury any additional shares
of its capital stock of any class.
2.3 Subsidiaries. Recom does not presently have any subsidiaries or
own any interest in any other enterprise (whether or not such enterprise is a
corporation).
2.4 Directors and Officers. Schedule 2 contains the names and titles
of all directors and officers of Recom as of the date of this Agreement.
2.5 Financial Statements. Recom has delivered to ARC its audited
balance sheet and statements of operations and cash flows as of and for the
year ended December 31, 2001, and its unaudited balance sheet and statement of
operations for the six months ended June 30, 2002 (the "Financial
Statements"). The Financial Statements are complete and correct in all
material respects and have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis throughout the periods
indicated. The Financial Statements accurately set out and describe the
financial condition and operating results of the Company as of the dates, and
for the periods, indicated therein. As of the Closing, all payables and debts
of Recom shall have been paid.
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2.6 Absence of Changes. Since June 30, 2002, except for changes in the
ordinary course of business which have not in the aggregate been materially
adverse, to Recom's knowledge, Recom has not experienced or suffered any
material adverse change in its condition (financial or otherwise), results of
operations, properties, business or prospects or waived or surrendered any
claim or right of material value.
2.7 Absence of Undisclosed Liabilities. To Recom's knowledge and to
the extent not material, neither Recom nor any of its assets is subject to any
liabilities or obligations of any nature, whether absolute, accrued,
contingent or otherwise and whether due or to become due, that are not
reflected in the Financial Statements.
2.8 Tax Returns. Recom has filed all federal, state and local tax
returns required by law and has paid all taxes, assessments and penalties, if
any, due and payable.
2.9 Investigation of Financial Condition. Without in any manner
reducing or otherwise mitigating the representations contained herein, ARC
shall have the opportunity to meet with Recom's accountants and attorneys to
discuss the financial condition of Recom. Recom shall make available to ARC
all books and records of Recom.
2.10 Trade Names and Rights. Recom does not use any trademark, service
xxxx, trade name, or copyright in its business, or own any trademarks,
trademark registrations or applications, trade names, service marks,
copyrights, copyright registrations or applications.
2.11 Compliance with Laws. To its knowledge and except to the extent
not material, Recom has complied with, and is not in violation of, applicable
federal, state or local statutes, laws and regulations (including, without
limitation, any applicable building, zoning, or other law, ordinance, or
regulation) affecting its properties or the operation of its business.
2.12 Litigation. Recom is not a party to any suit, action,
arbitration, or legal, administrative, or other proceeding, or governmental
investigation pending or, to the knowledge of Recom, threatened against or
affecting Recom or its business, assets, or financial condition. Recom is not
in default with respect to any order, writ, injunction, or decree of any
federal, state, local, or foreign court, department agency, or
instrumentality. Recom is not engaged in any legal action to recover moneys
due to it.
2.13 No Pending Investigation. Recom is not aware of any pending
investigations or legal proceedings by the SEC, the NASD, any state securities
regulatory agency, or any other governmental agency regarding Recom or any
officers or directors of Recom.
2.14 Authority. Recom has full corporate power and authority to enter
into this Agreement and to consummate the transactions contemplated by this
Agreement. The Board of Directors of Recom has taken all action required to
authorize the execution and delivery of this Agreement by or on behalf of
Recom, the performance of the obligations of Recom under this Agreement and
the consummation by Recom of the transactions contemplated under this
Agreement. No other corporate proceedings on the part of Recom are necessary
to authorize the execution and delivery of this Agreement by Recom in the
performance of its obligations under this Agreement. This Agreement is, and
when executed and delivered by Recom, will be a valid and binding agreement of
Recom, enforceable against Recom in accordance with its terms, except as such
enforceability may be limited by general principles of equity, bankruptcy,
insolvency, moratorium and similar laws relating to creditors rights
generally.
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2.15 Ability to Carry Out Obligations. Neither the execution and
delivery of this Agreement, the performance by Recom of its obligations under
this Agreement, nor the consummation of the transactions contemplated under
this Agreement will, to Recom's knowledge: (a) violate any provision of
Recom's certificate of incorporation or bylaws; (b) with or without the
giving of notice or the passage of time, or both, violate, or be in conflict
with, or constitute a default under, or cause or permit the termination or the
acceleration of the maturity of, any debt, contract, agreement or obligation
of Recom, or require the payment of any prepayment or other penalties; (c)
require notice to, or the consent of, any party to any agreement or
commitment, lease or license, to which Recom is bound; (d) result in the
creation or imposition of any security interest, lien or other encumbrance
upon any property or assets of Recom; or (e) violate any statute or law or
any judgment, decree, order, regulation or rule of any court or governmental
authority to which Recom is bound or subject, except to the extent notice or
approval by shareholders and regulatory authorities may be required.
2.16 Validity of the Shares. The Shares, when issued and delivered
under the provisions of this Agreement, will be duly authorized, validly
issued, fully paid and nonassessable.
2.17 Full Disclosure. None of the representations and warranties made
by Recom herein, or in any exhibit, certificate or memorandum furnished or to
be furnished by Recom, or on its behalf, contains or will contain any untrue
statement of material fact, or omit any material fact the omission of which
would be misleading.
2.18 Material Contracts and Obligations. Recom has no material
contracts to which it is a party or by which it is bound.
2.19 Consents and Approvals. No consent, approval or authorization of,
or declaration, filing or registration with, any governmental or regulatory
authority is required to be made or obtained by Recom in order for Recom to:
(a) execute and deliver this Agreement; (b) perform its obligations under
this Agreement; or (c) consummate the transactions contemplated by this
Agreement. In the event shareholder approval of Recom is determined by Recom
prior to the Closing to be necessary to effectuate the Closing, Recom will
proceed under applicable State and Federal law to promptly obtain such
approval.
2.20 Real Property. Recom does not own, use or claim any interest in
any real property, including without limitation any license, leasehold or any
similar interest in real property.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF ARC
ARC represents, warrants and covenants to Recom that as of the date of
this Agreement and through and including the Closing Date:
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3.1 Consents, Authorization and Validity of Agreement. ARC has the
absolute and unrestricted right, power, authority and capacity to execute and
deliver this Agreement and the Closing Documents and to perform its
obligations under this Agreement. The execution, delivery and performance by
ARC of this Agreement, and any other documents relating thereto are within its
power and have been duly authorized. Upon execution hereof, this Agreement
shall constitute valid and binding agreements and obligations of ARC,
enforceable against ARC and its affiliates in accordance with their respective
terms.
3.2 Consents and Approvals; No Violations. The execution and delivery
of this Agreement by ARC and the consummation by ARC of the sale of the
Technology as contemplated herein and the other transactions contemplated
hereby will not (a) constitute a violation of any statute, rule, regulation,
order or decree of any public body or authority by which ARC or any of its
affiliates is bound or by which any of their respective properties or assets
are bound, except to the extent that any such violation proves to be
immaterial to the businesses of ARC or (after the Closing) Recom, (b) result
in a violation or breach of, conflict with, constitute a default, or result in
the creation of any encumbrance upon any of the properties or assets of ARC
under any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, franchise, permit, lease, franchise agreement or any other
instrument or obligation to which ARC or any company controlled by ARC is a
party, except to the extent that any such violation proves to be immaterial to
the businesses of ARC or (after the Closing) Recom.
3.3 Existence and Good Standing. ARC is a limited liability
corporation duly organized, validly existing and in good standing under the
laws of its state of incorporation and has all requisite corporate power and
authority to own, lease and operate its properties and to carry on its
business as now being conducted, and is duly qualified or licensed as a
foreign corporation to conduct its business or shall obtain qualification or
licensure in such a manner compliant with applicable law or, to the extent of
any non-compliance, such non-compliance being immaterial.
3.4 Compliance with Law. ARC is and at all times relevant to this
Agreement has been in compliance in all material respects with Legal
Requirements applicable to this Agreement. To the knowledge of ARC no event
has occurred or circumstance exists that (with or without notice or lapse of
time or both) may constitute or result in a violation by ARC of, or a failure
by ARC to comply with, any applicable Legal Requirement other than violations
which prove to be immaterial. For purposes of this Section 3.4, "Legal
Requirement" means any federal, state, local, municipal or other
administrative order, constitution, law, code, rule, directive, ordinance,
principle of common law, regulation, statute and similar provisions having the
force or effect of law and also means any award, decision, summons, writ,
injunction, judgment, order, ruling, subpoena, citation, decree or verdict
entered, issued, made, given or rendered by any court, administrative agency
or other governmental body or by any arbitrator.
3.5 Litigation. There are no (i) actions, suits or legal, equitable,
arbitrative or administrative proceedings pending, or to the knowledge of ARC,
threatened against ARC or (ii) judgements, injunctions, writs, rulings or
orders by any governmental agency or authority against ARC which relates to or
may have an adverse effect upon the Agreement or any provision thereof, except
as to such matters that are immaterial to this Agreement.
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3.6 Disclosures. No representation or warranty by ARC in this
Agreement or any Schedule or Exhibit, or any statement, list or certificate
furnished or to be furnished by the ARC pursuant to this Agreement, or in
connection with these transactions, contains or will contain any untrue
statement of a material fact, or omits or will omit to state a material fact
required to be stated herein or therein or necessary to make the statements
contained herein or therein not misleading.
3.7 Investment Representation. The Shares are restricted securities
within the meaning of the United States federal securities laws including the
Act, and ARC is acquiring the Shares for its own account for investment
purposes only and not with a view to or for sale in connection with the
distribution thereof. The certificate or certificates evidencing the Shares
shall bear a legend substantially as follows:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR ANY STATE OR SECURITIES LAWS
AND NEITHER THESE SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD,
TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR SUCH LAWS OR AN EXEMPTION
FROM REGISTRATION UNDER THE ACT AND SUCH LAWS WHICH, IN THE OPINION OF COUNSEL
SATISFACTORY TO THE ISSUER, IS AVAILABLE."
3.8 Technology. No officer, employee, owner, relative of such
officer, employee, or owner, or affiliate of ARC has any right or interest in
or to any part of the Technology. ARC has taken all reasonable security
measures to protect the secrecy, confidentiality and value of all of its trade
secrets and confidential information, including, without limitation, entering
into written agreements with its employees and other persons who may have
participated in the development, discovery or invention of any trade secret,
or who may have knowledge of or access to any trade secret or confidential
information, which provides for the non-disclosure of trade secrets and
confidential information and the transfer of all rights in and to the same to
ARC.
ARTICLE 4
COVENANTS
4.1 Investigative Rights. From the date of this Agreement until the
Closing Date, each party shall provide to the other party, and such other
party's counsels, accountants, auditors, and other authorized representatives,
full access during normal business hours and upon reasonable advance written
notice to all of each party's properties, books, contracts, commitments, and
records for the purpose of examining the same. Each party shall furnish the
other party with all information concerning each party's affairs as the other
party may reasonably request. If the transaction contemplated hereby is not
completed, all documents received by each party and/or its attorneys and
accountants, auditors or other authorized representatives shall be returned to
the other party who provided same upon request. The parties hereto, their
directors, employees, agents and representatives shall not disclose any of the
information described above unless such information is already disclosed to
the public, without the prior written consent of the party to which the
confidential information pertains. Each party shall take such steps as are
necessary to prevent disclosure of such information to unauthorized third
parties.
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4.2 Conduct of Business. Prior to the Closing, Recom shall conduct its
business in the normal course, and shall not sell, pledge, or assign any
assets, without the prior written approval of the other party, except in the
regular course of business. Recom shall not amend its Articles of
Incorporation or Bylaws, declare dividends, redeem or sell stock or other
securities, incur additional or newly-funded liabilities, acquire or dispose
of fixed assets, change employment terms, enter into any material or long-term
contract, guarantee obligations of any third party, settle or discharge any
balance sheet receivable for less than its stated amount, pay more on any
liability than its stated amount, or enter into any other transaction other
than in the regular course of business except as otherwise contemplated
herein.
ARTICLE 5
CONDITIONS PRECEDENT TO RECOM'S PERFORMANCE
5.1 Conditions. The obligations of Recom hereunder shall be subject to
the satisfaction, at or before the Closing, of all the conditions set forth in
this Article 5. Recom may waive any or all of these conditions in whole or in
part without prior notice; provided, however, that no such waiver of a
condition shall constitute a waiver by Recom of any other condition of or any
of Recom's other rights or remedies, at law or in equity, if ARC shall be in
default of any of its representations, warranties, or covenants under this
Agreement.
5.2 Accuracy of Representations. Except as otherwise permitted by this
Agreement, all representations and warranties by ARC in this Agreement or in
any written statement that shall be delivered to Recom by ARC under this
Agreement shall be true and accurate on and as of the Closing Date as though
made at that time.
5.3 Performance. ARC shall have performed, satisfied, and complied
with all covenants, agreements, and conditions required by this Agreement to
be performed or complied with by it, on or before the Closing Date.
5.4 Delivery of Assignment. ARC shall have delivered to Recom an
assignment of the Technology and of other rights as set forth in subparagraph
1.2 above, in form and substance acceptable to counsel for Recom consistent
with this Agreement.
5.5 Absence of Litigation. No action, suit, or proceeding before any
court or any governmental body or authority, pertaining to the transaction
contemplated by this Agreement or to its consummation, shall have been
instituted or threatened against ARC or against the Technology or any
component thereof on or before the Closing Date.
ARTICLE 6
CONDITIONS PRECEDENT TO ARC'S PERFORMANCE
6.1 Conditions. ARC's obligations hereunder shall be subject to the
satisfaction, at or before the Closing, of all the conditions set forth in
this Article 6. ARC may waive any or all of these conditions in whole or in
part without prior notice; provided, however, that no such waiver of a
condition shall constitute a waiver by ARC of any other condition of or any of
ARC's rights or remedies, at law or in equity, if Recom shall be in default of
any of its representations, warranties, or covenants under this Agreement.
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6.2 Accuracy of Representations. Except as otherwise permitted by this
Agreement, all representations and warranties by Recom in this Agreement or in
any written statement that shall be delivered to ARC by Recom under this
Agreement shall be true and accurate on and as of the Closing Date as though
made at that time.
6.3 Performance. Recom shall have performed, satisfied, and complied
with all covenants, agreements, and conditions required by this Agreement to
be performed or complied with by it, on or before the Closing Date.
6.4 Absence of Litigation. No action, suit or proceeding before any
court or any governmental body or authority, pertaining to the transaction
contemplated by this Agreement or to its consummation, shall have been
instituted or threatened against Recom on or before the Closing Date.
6.5 Sale of Warrants to Sim Xxxxx. Prior to the Closing, Sim Xxxxx
will purchase from Recom a warrant to purchase 200,000 shares of Recom common
stock (the "Warrant") at an exercise price of $2.00 per share commencing
September 1, 2004 and terminating thirty six months thereafter substantially
in a form acceptable to Recom. The purchase price of the Warrant shall be
$125,000. The Warrant shall contain customary antidilution provisions, shall
provide for cashless exercise, and the shares underlying the Warrant shall be
registered at the same time and within the same registration statement as that
provided for any other shareholder of Recom. Recom's bank account will have at
least $125,000 in cleared funds from this transaction as of the Closing, after
the payment of all payables and debts arising prior to the Closing.
6.6 Directors of Recom. Effective on the Closing, Recom shall have
appointed two directors and left one vacancy to be filled in the future, and
such two appointees shall be subject to the approval of Recom. The current
Officers and Directors of Recom shall have submitted their resignations as the
Officers and Directors of Recom effective on the Closing of this transaction.
6.7 Officers of Recom. Effective on the Closing, Recom shall have
appointed the persons named on Exhibit B hereto as new officers and
management.
ARTICLE 7
CLOSING
7.1 Closing. The Closing of this transaction shall be held at a
location designated by ARC in writing to Recom in the County of Los Angeles,
State of California, or such other place as shall be mutually agreed upon, on
September 19, 2002 or if not closed on that date for any reason as soon
thereafter as may be agreed upon by the parties. This Agreement may be
rescinded by either party (within its sole discretion) at any time prior to
the Closing, without liability upon delivery of written notice to the other
party.
7.2 Recom shall deliver to ARC a stock certificate representing
7,800,000 shares of Recom restricted common stock issued in the name of ARC or
its limited designees as may be approved by Recom.
7.3 ARC shall deliver to Recom an assignment of the technology and
other rights in accordance with subparagraph 1.2 above substantially in the
form of Exhibits A and B attached hereto.
7.4 Recom shall deliver a signed Consent and/or Minutes of the
Directors approving this transaction.
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ARTICLE 8
INDEMNIFICATION
8.1 (a) Each of Recom, ARC and Xxxxxx Xxxxxxx, (individually an
"Indemnitor" and collectively the "Indemnitors"), jointly and severally,
agrees to indemnify and hold Sim Xxxxx, Xxxx Xxxxx, Xxxxxx Xxxxx, Vanguard
West, LLC, Xxxx Xxxxx and Xxxxxx Xxxxx (individually an "Indemnitee" and
collectively the "Indemnitees") and each person, if any, who controls any of
the Indemnitees within the meaning of Section 15 of the Act or Section 20(a)
of the Exchange Act, against any and all losses, liabilities, claims, damages
and expenses whatsoever as incurred (including but not limited to attorneys'
fees and any and all expenses whatsoever incurred in investigating, preparing
or defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) arise
out of or are based upon the Technology, entering into this Agreement, or
arise out of or are based upon any act or omission or alleged omission
occurring after the date of this Agreement. This indemnity agreement will be
in addition to any liability which the Company may otherwise have under this
Agreement.
(b) The Indemnitees agree to indemnify and hold harmless the
Indemnitors, against any losses, liabilities, claims, damages and expenses
whatsoever as incurred (including but not limited to attorneys' fees and any
and all expenses whatsoever incurred in investigating, preparing or defending
against any litigation, commenced or threatened, or any claim whatsoever, and
any and all amounts paid in settlement of any claim or litigation), jointly or
several by, to which they or any of them may become subject under the Act, the
Exchange Act or otherwise, insofar as such losses, liabilities, claims,
damages or expenses (or actions in respect thereof) arise out of or are based
upon any untrue statement of a material fact contained in this Agreement,
provided that the provisions in this Section shall terminate and be of no
force or effect whatever six months from the date hereof and provided that in
the aggregate the amount of any liability hereunder by Indemnitees to the
Indemnitors shall not exceed $100,000.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement thereof (but
the failure so to notify an indemnifying party shall not relieve it from any
liability which it may have under this Article 8). In case any such action is
brought against any indemnified party, and it notifies an indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof with counsel
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be
at the expense of such indemnified party or parties unless:
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(i) the employment of such counsel shall have been authorized
in writing by one of the indemnifying parties in connection with the defense
of such action;
(ii) the indemnifying parties shall not have employed counsel
to have charge of the defense of such action within a reasonable time after
notice of commencement of the action; or
(iii) such indemnified party or parties shall have reasonably
concluded that there may be defenses available to it or them which are
different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have
the right to direct the defense of such action on behalf of the indemnified
party or parties), in any of which events such fees and expenses shall be
borne by the indemnifying parties. Anything in this subsection to the contrary
notwithstanding, an indemnifying party shall not be liable for any settlement
of any claim or action effected without its written consent; provided,
however, that such consent was not unreasonably withheld.
(d) The only claims subject to this indemnification provision are
those claims arising directly out of this Agreement, and no other claims may
be asserted by Indemnitors or Indemnitees under any circumstances whatsoever
that would limit or offset in any way the scope of this indemnification
provision.
8.2 Survival of Representations and Agreements. All representations and
warranties, covenants and agreements of the Indemnitors and Recom contained in
this Agreement, shall remain operative and in full force and effect regardless
of any investigation made by or on behalf of any Indemnitees or any
controlling person thereof or by or on behalf of the Indemnitees or any of
them, any of their officers and directors or any controlling person thereof,
and shall survive the execution and delivery of this Agreement except to the
extent expressly set forth herein.
ARTICLE 9
MISCELLANEOUS
9.1 Captions and Headings. The Article and paragraph headings
throughout this Agreement are for convenience and reference only, and shall in
no way be deemed to define, limit, or add to the meaning of any provision of
this Agreement.
9.2 No Oral Change. This Agreement and any provision hereof, may not
be waived, changed, modified, or discharged orally, but it can be changed by
an agreement in writing signed by the party against whom enforcement of any
waiver, change, modification, or discharge is sought.
9.3 Non-Waiver. Except as otherwise expressly provided herein, no
waiver of any covenant, condition, or provision of this Agreement shall be
deemed to have been made unless expressly in writing and signed by the party
against whom such waiver is charged; and (i) the failure of any party to
insist in any one or more cases upon the performance of any of the provisions,
covenants, or conditions of this Agreement or to exercise any option herein
contained shall not be construed as a waiver or relinquishment for the future
of any such provisions, covenants, or conditions, (ii) the acceptance of
performance of anything required by this Agreement to be performed with
knowledge of the breach or failure of a covenant, condition, or provision
hereof shall not be deemed a waiver of such breach or failure, and (iii) no
waiver by any party of one breach by another party shall be construed as a
waiver with respect to any other or subsequent breach.
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9.4 Time of Essence. Time is of the essence of this Agreement and of
each and every provision hereof.
9.5 Entire Agreement. This Agreement contains the entire Agreement and
understanding between the parties hereto, and supersedes all prior agreements
and understandings. There are and have in fact been no restrictions,
promises, warranties or undertakings other than those set forth herein.
Neither this Agreement nor any term hereof may be changed, waived, discharged
or terminated except by a subsequent amendment in writing signed by all
parties hereto.
9.6 Choice of Law; Arbitration. This Agreement and its application
shall be governed by the laws of the State of California, except to the extent
its conflict of laws provisions would apply the laws of another jurisdiction,
and California will be the proper venue for jurisdictional purposes for any
actions brought to enforce this Agreement. Any dispute hereunder shall be
subject to binding arbitration in accordance with the rules of the American
Arbitration Association and judgment thereon shall be not subject to appeal or
collateral attack.
9.7 Notices. All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given on the date of service if served personally on the party to whom notice
is to be given, or on the third day after mailing if mailed to the party to
whom notice is to be given, by first class mail, registered or certified,
postage prepaid, and properly addressed as follows:
Recom:
Sim Xxxxx, President
Recom Managed Systems, Inc.
000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
(000) 000-0000
(000) 0000-0000 fax
ARC:
Xxxxxx Xxxxxxx
Manager
ARC Finance Group, LLC
00000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000
(000) 000-0000
with copy not constituting notice to:
Xxx X. Xxxxxx
Xxxx Xxxxx, P.C.
000 00xx Xxxxxx, Xxxxx 0000 Xxxxx
Xxxxxx, Xxxxxxxx 00000
(000) 000-0000
(000) 000-0000 fax
Page 11
9.8 Binding Effect. This Agreement shall inure to and be binding upon
the heirs, executors, personal representatives, successors and assigns of each
of the parties to this Agreement.
9.9 Mutual Cooperation. The parties hereto shall cooperate with each
other to achieve the purpose of this Agreement, and shall execute such other
and further documents and take such other and further actions as may be
necessary or convenient to effect the transaction described herein.
9.10 Brokers. The parties hereto represent and agree that no broker has
brought about the aforementioned transaction. Each of the parties hereto
shall indemnify and hold the other harmless against any and all claims,
losses, liabilities or expenses which may be asserted against it as a result
of its dealings, arrangements or agreements with any broker or person, except
as described in this paragraph.
9.11 Announcements. Recom and ARC will consult and cooperate with each
other as to the timing and content of any announcements of the transactions
contemplated hereby to the general public or to employees, customers or
suppliers, subject to Recom's obligations under the Delaware General
Corporation Law and the federal securities laws. Recom expects to issue a
press release and to provide its shareholders with a letter generally
describing the transaction. Recom and ARC currently anticipate that the only
other public pronouncement necessary or appropriate with respect to this
transaction will be the filing of a Form 8-K with the Securities and Exchange
Commission in accordance with applicable law.
9.12 Expenses. Recom and ARC will pay their own legal, accounting and
any other out-of-pocket expenses reasonably incurred in connection with this
transaction, whether or not the transaction contemplated hereby is
consummated.
9.13 Exhibits. As of the execution hereof, the parties hereto have
provided each other with the Exhibits provided for herein above, including any
items referenced therein or required to be attached thereto. Any material
changes to the Exhibits shall be immediately disclosed to the other party.
9.14 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be considered an original instrument and all
of which together will be considered one and the same agreement, and will
become effective when counterparts, which together contain the signatures of
each party, will have been delivered to Recom and ARC. Delivery of executed
signature pages by facsimile transmission will constitute effective and
binding execution and delivery of this Agreement.
AGREED TO AND ACCEPTED as of the date first above written.
RECOM MANAGED SYSTEMS, INC.
By /s/ Sim Xxxxx
Sim Xxxxx, President
ARC FINANCE GROUP, LLC
By /s/ Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx, Manager
Page 12
SCHEDULE 2
Recom Managed Systems, Inc.
("Recom")
2.4 The Officers and Directors of Recom are as follows:
Name Position
---- --------
Sim Xxxxx Chairman of the Board, CEO and President
Xxxx Xxxxx CFO and Director
Xxxxxx Xxxxx Secretary and Director
EXHIBIT A
ASSIGNMENT OF TECHNOLOGY AND RIGHTS
Pursuant to the requirements of that certain Stock Acquisition and Technology
Transfer Agreement attached hereto, ARC Finance Group, LLC ("ARC") hereby
assigns and transfers to Recom Managed Systems, Inc., a Delaware corporation
("Recom"), all right, title and interest of ARC in and to the technology as
described in the foregoing Agreement, and ARC agrees that Recom shall and
hereby is the sole owner and beneficiary of all rights held by ARC in and to
the technology.
WHEREFORE, the assignor has set his signature below to confirm and acknowledge
the foregoing assignment.
___________________________________________
Xxxxxx Xxxxxxx, for ARC Finance Group, LLC
