ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (the “Agreement”) is entered into as of
December 10,
2010 (the “Effective Date”) by and between RWIP, LLC, an
Oregon limited liability company (“Seller”), and I-Web Media Inc., a Delaware
corporation doing business as Heartland Bridge
Capital (“Purchaser”). The Seller and the
Purchaser shall each be referred to individually as a “Party” and collectively
as the “Parties.”
RECITALS
WHEREAS, the Seller is the owner, operator, and administrator of the assets described on Exhibit
A (the
“Assets”);
WHEREAS, the Seller is seeking to sell
the Assets to a third party that may be able to finance the development of the
Assets with the goal of either bringing to market a product based on the Assets
or selling the developed product to an established medical device
company;
WHEREAS, the Seller believes the best
opportunity to achieve such goals is by selling the Assets to
Purchaser;
WHEREAS, the Purchaser believes that the
acquisition of the Assets will further its business interests as a company
interested in assets and businesses in the medical technology field;
and
WHEREAS, the Seller desires to sell to Purchaser, and the Purchaser desires to purchase and
acquire from the Seller,
Seller’s interest in the Assets according to the terms set forth
herein.
NOW, THEREFORE, in consideration of the
mutual promises herein contained, the Parties hereby agree as
follows:
I. Purchase and Sale of
the Assets
1.1 Purchase and
Sale of Assets.
The Seller hereby sells, transfers, assigns, and delivers to the Purchaser, free and clear of any liens
or encumbrances of any kind, all of the Seller’s right, title, and interest in the Assets.
1.2 Assumption
of Liabilities. The Purchaser will not
assume any liabilities or obligations related to the Assets, and Seller
represents that there are no liabilities or obligations related to the
Assets.
1.3 Patent
Assignment. At Closing, the Seller shall deliver to Purchaser
a Patent Assignment assigning to Purchaser any and all rights, interest, and
title in and to its interest in the Assets in the form set forth in Exhibit B (the
“Patent Assignment”).
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1.4 Closing. The closing shall be deemed to have
taken place on the Closing Date, which shall be December 13,
2010.
1.5 Post-Closing
Activities. At
any time after the Closing Date, upon any Party’s written request and
without further
consideration, the other Party shall take such other actions as the
requesting Party may reasonably deem necessary or
desirable in order to consummate the terms, and recognize the
benefits, of obligations
under and transactions contemplated by this Agreement. The Parties recognize that the transfer
of the Assets with the United States Patent and Trademark Office may take
substantial time and agree to work together to complete the
process. Until the transfer of the Assets from the Seller to the
Purchaser is formalized, the Purchaser shall have an irrevocable, exclusive
license to the Assets.
II. Purchase
Price
In consideration of the Seller’s sale, transfer, and assignment of the Assets,
the Purchaser shall issue the Seller the
following:
2.1 Royalty
Payments. Royalties equal to Twenty
Percent (20%) of all net income (revenue minus expenses) received by the
Purchaser in connection with the Assets (the revenue and expenses related
to the Assets necessary to calculate the net income from the Assets shall
be calculated separately from the Purchaser’s other business segments, and, if
necessary, notwithstanding the other provisions of this Agreement, the Purchaser
shall be permitted to form a wholly-owned subsidiary to operate the portion of
the Purchaser’s business related to the Assets);
2.2 Convertible
Promissory
Note. A
promissory note in the form attached hereto as Exhibit
C, in the principal amount of One Hundred
Twenty Five Thousand Dollars ($125,000), which may be repaid by the Purchaser in
cash or in common stock at the value of One Dollar ($1) per share, or
convertible at the Seller’s discretion into the Purchaser’s common stock based
on a value of One Dollar
Fifty Cents ($1.50) per
share (the “Note”).
2.3 Warrant
Agreement. A
warrant in the form attached hereto as Exhibit
D, for the right to purchase One
Hundred Fifty Thousand (150,000) shares of the Corporation’s common stock,
restricted in accordance with Rule 144, with an exercise price of Two Dollars
($2.00) per share (the “Warrant,” and together with the Note, the “Securities”);
and
2.4 Consulting
Agreement. A consulting
agreement in the form attached hereto as Exhibit E, with RWIP,
LLC, an Oregon limited liability company (the “Consulting
Agreement”). This
Agreement, the Patent Assignment, the Note, the Warrant, and the Consulting
Agreements collectively are the “Transaction Documents.”
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III. Representations and
Warranties of the Seller
The
Seller represents and warrants to the Purchaser, as of the date of this
Agreement and again as of the Closing, as follows:
3.1 Organization. The Seller is a
limited liability company, duly organized, validly existing, and in good
standing under the laws of Oregon, and has all requisite corporate power and
authority to carry on its business as now conducted by it and to own and operate
its assets as now owned and operated by it. The Seller has delivered
to the Purchaser true and correct copies of the Seller’s Articles of
Incorporation (the “Organizational Documents”) as currently in
effect.
3.2 Authority;
Enforceability.
(a) The
Seller has the right, power, and authority to execute and deliver the
Transaction Documents executed or to be executed by the Seller pursuant to this
Agreement, and to perform its obligations thereunder. The Transaction
Documents, to which the Seller is a Party, constitute (or will, when executed
and delivered as contemplated herein, constitute) the legally binding
obligations of the Seller, enforceable in accordance with their respective
terms.
(b) The
execution, delivery, and performance of the Transaction Documents by the Seller,
and the consummation of the transactions contemplated thereby, do not and will
not: (i) require the consent, waiver, approval, license, or other authorization
of any Person, except as provided for herein; (ii) violate any of provision of
applicable law; (iii) contravene, conflict with, or result in a violation of any
provision of the Seller’s Organizational Documents; (iv) conflict with, require
a consent or waiver under, result in the termination of any provisions of,
constitute a default under, accelerate any obligations arising under, trigger
any payment under, result in the creation of any lien pursuant to, or otherwise
adversely affect, any contract to which the Seller is a party or by which any of
its assets are bound, in each such case whether with or without the giving of
notice, the passage of time, or both.
(c) All
requisite corporate action has been taken by the Seller to authorize and approve
the execution and delivery of the Transaction Documents, the performance by the
Seller of its obligations thereunder, and of all other acts necessary or
appropriate for the consummation of the transactions contemplated by the
Transaction Documents.
3.3 Legal Actions. There
is no demand, action, suit, claim, proceeding, complaint, grievance, charge,
inquiry, hearing, arbitration, or governmental investigation of any nature,
public or private, (each, a “Proceeding”) pending or, to the knowledge of the
Seller, threatened by or against the Seller (or any of its officers, directors,
partners, or employees) related to the Assets, or involving any of the Assets,
nor is there any basis for any such legal proceeding.
3.4 Personal Property,
Inventory, and Title of Assets. The Assets were acquired by
the Seller in bona fide, arms-length transactions entered into in the ordinary
course of business. The Seller owns, and at the Closing, the
Purchaser shall be vested with, all right, title, and interest in and to all of
the Assets free and clear of any and all liens.
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3.5 Tax
Matters.
(a) The
Seller has duly and timely filed all tax returns required to be filed by them
under applicable law. All such tax returns were correct and complete
in all material respects. All tax returns that have been made
available to the Purchaser for inspection prior to the date hereof were true and
complete copies of the tax returns actually filed by the Seller (or affiliates
thereof), and have not been subsequently amended. All taxes due and
payable by the Seller (whether or not shown on any tax return) relating to the
Assets or which could result in a lien on the Assets have been
paid. No claim has ever been made by an authority in a jurisdiction
where the Seller does not file tax returns that the Seller is or may be subject
to taxation by that jurisdiction in connection with or as a result of the
ownership of the Assets.
(b) All
taxes that the Seller is or was required by applicable law to withhold or
collect which could result in a lien on the Assets have been duly withheld or
collected and, to the extent required, have been paid to the proper governmental
authority or other person or, if not paid, have been appropriately
reserved.
(c) The
Seller has no reason to believe that any governmental authority will or intends
to assess any additional taxes which could result in a lien on the Assets for
any period for which tax returns have been filed. No dispute or claim
concerning any tax liability of the Seller which could result in a lien on the
Assets has been claimed or raised by any governmental authority in writing at
any time in the past six (6) years. There exists no proposed tax
assessment against the Seller which could result in a lien on the
Assets.
(d) The
Seller has not waived any statute of limitations in respect of Taxes which could
result in a lien on the Assets, or agreed to any extension of time with respect
to a Tax assessment or deficiency which could result in a lien on any
Assets.
(e) The
Seller has not entered into any agreements with federal, state, or local taxing
authorities, including any tax abatement or tax credit agreements, in connection
with the Assets.
3.6 Material
Contracts.
(a) The
Seller has previously delivered to the Purchaser true and correct copies of all
such material contracts (or accurate written summaries of any oral material
contract) related to the Assets, each as currently in effect.
(b) The
Seller has not breached, violated, or defaulted under (or taken or failed to
take any action that, with the giving of notice, the passage of time, or both
would constitute a breach, violation, or default under), or received notice
alleging that the Seller has breached, violated, or defaulted under (or taken or
failed to take any action that, with the giving of notice, the passage of time,
or both would constitute a breach, violation, or default under) any contract
included in the Assets. No other party obligated to the Seller
pursuant to any such contract has breached, violated, or defaulted under (or
taken or failed to take any action that, with the giving of notice, the passage
of time, or both would constitute a breach, violation, or default under) any
such contract.
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(c) All
of the contracts included in the Assets: (i) were entered into in the ordinary
course of business on commercially reasonable terms, with bona fide third
parties in arms-length transactions; (ii) are valid and enforceable in
accordance with their terms; (iii) are in full force and effect; and (iv) will
continue to be valid and enforceable and in full force and effect on identical
terms following the Closing. All such contracts can be fulfilled or
performed in accordance with their respective terms in the ordinary course of
business without undue or unusual expenditures of money or effort.
3.7 Certain
Changes. Since the Seller has owned the rights to the Assets,
solely in the ordinary course of business consistent with past practices, and
the Seller has used its reasonable best efforts to preserve the
Assets. Without limiting the foregoing, there has not been
any:
(a) event
or circumstance that has had or could reasonably be expected to have,
individually or in the aggregate, a material adverse effect on, or a material
adverse change in, the operations, affairs, prospects, condition (financial or
otherwise), results of operations, or assets associated with the Assets, taken
as a whole (“Material Adverse Change”);
(b) damage,
destruction, or loss (whether or not covered by insurance) that resulted in, or
could reasonably be expected to result in, losses or diminution of value with
respect to the Assets;
(c) revaluation
or write-down of any of the Assets;
(d) amendment
or termination of any material contract other than in the ordinary course of
business;
(e) change
in accounting principles, methods, or practices of the Seller relating to the
Assets, or in the manner the Seller keeps its books and records relating to the
Assets;
(f) any
settlement or compromise in any claim, suit, or cause of action relating to the
Assets; or
(g) agreement
by Seller to do, either directly or indirectly, any of the things described in
the preceding clauses (a) through (f).
3.8 Brokers. Neither
the Seller nor any other person acting on its behalf has incurred any obligation
or liability to any person for any brokerage fees, agent’s commissions, or
finder’s fees in connection with the execution or delivery of the Transaction
Documents or the consummation of the transactions contemplated
hereby.
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3.9 Certain
Payments. Neither the Seller nor any director, officer, or
employee thereof, nor any other person associated with or acting for or on
behalf of any of them, has, in connection with the Assets, directly or
indirectly: (a) made any contribution, gift, bribe, rebate, payoff,
influence payment, kickback, or other payment to any Person, private or public,
regardless of form, whether in money, property, or services (i) to obtain
favorable treatment in securing business, (ii) to pay for favorable treatment
for business secured, (iii) to obtain special concessions or for special
concessions already obtained, or (iv) in violation of any applicable law; or (b)
established or maintained any fund or asset that has not been recorded in the
books and records of Seller maintained in the ordinary course in connection with
the Assets.
3.10 Purchase for Own
Account. The Seller represents that it is acquiring the
Securities solely for its own account and beneficial interest for investment and
not for sale or with a view to distribution of the Securities or any part
thereof, has no present intention of selling (in connection with a distribution
or otherwise), granting any participation in, or otherwise distributing the
same, and does not presently have reason to anticipate a change in such
intention.
3.11 Ability to Bear Economic
Risk. The Seller acknowledges that investment in the
Securities involves a high degree of risk, and represents that it is able,
without materially impairing its financial condition, to hold the Securities for
an indefinite period of time and to suffer a complete loss of its
investment.
3.12 Further Limitations on
Disposition. The Seller further acknowledges that the
Securities are restricted securities under Rule 144 of the Act (as defined
below), and, therefore, when issued by the Purchaser to the Seller will contain
a restrictive legend substantially similar to the following:
THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ACT”). THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE
SECURITIES UNDER THE ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
THAT SUCH REGISTRATION IS NOT REQUIRED.
Without
in any way limiting the representations set forth above, the Seller further
agrees not to make any disposition of all or any portion of the Securities
unless and until:
(i) There
is then in effect a Registration Statement under the Act covering such proposed
disposition and such disposition is made in accordance with such Registration
Statement; or
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(ii) The
Seller shall have notified the Purchaser of the proposed disposition and shall
have furnished the Purchaser with a detailed statement of the circumstances
surrounding the proposed disposition, and if reasonably requested by the
Purchaser, the Seller shall have furnished the Purchaser with an opinion of
counsel, reasonably satisfactory to the Purchaser, that such disposition will
not require registration under the Act or any applicable state securities
laws.
Notwithstanding
the provisions of subparagraphs (i) and (ii) above, no such registration
statement or opinion of counsel shall be necessary for a transfer by the Seller
to a partner (or retired partner) of the Seller, or transfers by gift, will, or
intestate succession to any spouse or lineal descendants or ancestors, if all
transferees agree in writing to be subject to the terms hereof (including the
Registration Rights Agreement) to the same extent as if they were the Seller
hereunder.
IV. Representations and
Warranties of the Purchaser
4.1 Organization. The
Purchaser is a corporation duly organized, validly existing, and in good
standing under the laws of the State of Delaware.
4.2 Authority;
Enforceability. The Purchaser has full corporate power and
authority to execute and deliver the Transaction Documents to which it is, or
will be, a party, and to perform its obligations thereunder. The
Transaction Documents to which the Purchaser is a party constitute (or will,
when executed and delivered at the Closing, constitute) the legally binding
obligations of the Purchaser, enforceable in accordance with their respective
terms. The execution, delivery, and performance of the Transaction
Documents by the Purchaser, and the consummation of the transactions
contemplated thereby, do not and will not: (a) require the consent, waiver,
approval, license or other authorization of any Person; (b) violate any
provision of Applicable Law applicable to the Purchaser; (c) contravene,
conflict with, or result in a violation of: (i) any provision of the
Purchaser’s Articles of Incorporation, Regulations, or any other governing or
constitutive documents of the Purchaser; or (ii) any resolution adopted by the
manager, member, or other governing bodies of the Purchaser; or (d) conflict
with, result in the termination of any provisions of, constitute a default
under, accelerate any obligations arising under, trigger any payment under, or
otherwise adversely affect, any material contract to which the Purchaser is a
party, which, as to each of (a) through (d), would materially and adversely
affect the Purchaser’s ability to consummate the transactions contemplated
herein or to perform its obligations under the Transaction Documents to which
the Purchaser is a party. All requisite corporate action has been
taken by the Purchaser authorizing and approving the execution and delivery by
the Purchaser of the Transaction Documents to which the Purchaser is or will be
a party, the performance by the Purchaser of its duties and obligations
thereunder, and the taking of all other acts necessary and appropriate for the
consummation of the transactions contemplated thereby.
4.3 Brokers. The
Purchaser has not incurred any obligation or liability to any Person for any
brokerage fees, agent’s commissions, or finder’s fees in connection with the
execution or delivery of the Transaction Documents or the transactions
contemplated hereby.
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V. Consents
The
Seller will use its reasonable best efforts to obtain or cause to be obtained
any consents required in connection with the transactions contemplated by any of
the Transaction Documents that are requested by the Purchaser and that have not
been previously obtained prior to or at the Closing. Notwithstanding
anything to the contrary set forth herein, this Agreement shall not constitute
an assignment or attempt to assign or transfer any interest in any contract or
permit otherwise included in the Assets, or any claim, right or benefit arising
thereunder or resulting therefrom, if such assignment or transfer is without the
consent of a third party and would constitute a breach or violation thereof or
adversely affect the rights of the Purchaser or the Assets. Until all
such consents are obtained, the Seller shall cooperate in any arrangement
reasonably satisfactory to the Purchaser designed to fulfill the Seller’s
obligations thereunder and to afford the Purchaser the continued full benefits
thereof.
VI. Covenants
6.1 Further
Assurances. From time to time (including after the Closing),
the Parties will execute and deliver such other documents, certificates,
agreements, and other writings and take such other actions as may reasonably be
necessary or requested by another Party in order to consummate, evidence or
implement expeditiously the transactions contemplated by this
Agreement.
6.2 Fulfillment of
Conditions. The Parties hereto agree to take and to cause to
be taken in good faith commercially reasonable efforts to fulfill, as soon as
reasonably practicable, the conditions to Closing.
6.3 Certain
Filings. The Parties hereto shall cooperate with one another
in determining whether any action by or in respect of, or filing with, any
governmental authority is required, or any action, consent, approval, or waiver
from any party to any contract is required, in connection with the consummation
of the transactions contemplated by this Agreement. Subject to the
terms and conditions of this Agreement, in taking such actions or making any
such filings, the Parties hereto shall furnish information reasonably required
in connection therewith and timely seek to obtain any such actions, consents,
approvals, or waivers.
6.4 Non-Compete
Agreement. The Seller, and its principals, employees and
consultants, covenant and agree that for a period of five (5) years following
the Closing Date, they shall not individually or through any other Person or
Affiliate of the Seller, engage directly or indirectly in any Competitive
Business, whether such engagement be as an employer, officer, director, owner,
investor, employee, partner, consultant or other participant in any Competitive
Business. For purposes of this Agreement, “Person” shall mean a
corporation, partnership, trust, limited liability company, association, or
other business entity or an individual. “Affiliate” shall mean
another Person controlled by, controlling, or under common control with the
Seller. “Competitive Business”
means any business that is similar to the Assets. The Seller
acknowledges and agrees that, given the nature of Sellers’ business, the
restrictions set forth in this Section 6.4 are necessary and reasonable in terms
of the activities restricted, as well as the geographic and temporal scope of
such restrictions. The Seller further acknowledges and agrees that if
any of the provisions of this Section 6.4 shall ever be deemed to exceed the
time, activity, geographic, or other limitations permitted by applicable law,
then such provisions shall be and hereby are reformed to the maximum time,
activity, geographic, or other limitations permitted by applicable
law.
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VII. Indemnification
7.1 Agreement to
Indemnify.
(a) The
Seller shall indemnify, defend, and hold harmless the Purchaser and its
respective officers, directors, employees, representatives, agents, successors,
and assigns (collectively, the “Indemnitees”) from, against, and in respect of
any and all damages incurred by any Indemnitee arising out of or as a result
of: (i) any inaccuracy or misrepresentation in or breach of any
representation or warranty made by the Seller in this Agreement; (ii) any breach
of any covenant or agreement made by the Seller in this Agreement; and/or (iii)
any and all proceedings, judgments, decrees, awards, assessments, fees, and
expenses incident to any of the foregoing or incurred in investigating or
attempting to avoid the same or to oppose the imposition thereof, or in
enforcing this indemnification.
(b) The
Seller shall not be required to provide indemnification to any Indemnitee
pursuant to Section 7.1(a) unless and until the
aggregate amount of all damages incurred by all Indemnitees responsive to such
Section exceeds Five Thousand Dollars ($5,000) (the “Deductible”), whereupon the
Indemnitees shall be entitled to indemnification under such Section only with
respect to damages in excess of such Deductible. The maximum
aggregate monetary liability of the Seller to indemnify the Indemnitees under
Section 7.1(a) shall not exceed the
Purchase Price (the “Cap”) in the aggregate. Notwithstanding the
foregoing, neither the Deductible nor the Cap shall apply to claims arising out
of fraud, intentional misrepresentation, or gross negligence.
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(c) If
any third party notifies any Indemnitee with respect to any matter which may
give rise to a claim for indemnification against the Seller under this Article
VII, then the Indemnitee will notify the Seller thereof within thirty (30) days
thereafter, such notice to state the nature and basis of any claim made by the
third party; provided that, no delay on the part of the Indemnitee in notifying
the Seller will relieve the Seller from any obligation hereunder unless, and
then solely to the extent that, the Seller is demonstrably prejudiced
thereby. In the event the Seller notify the Indemnitee within thirty
(30) days after the date the Indemnitee has given notice of the matter that the
Seller will indemnify the Indemnitee in respect of such matter, then the Seller
may, by notice to the Indemnitee within such 30-day period, assume the defense
of such matter. If the Seller assume the defense of such matter, (i)
the Seller will defend the Indemnitee against the matter with counsel of
Seller’s choice reasonably satisfactory to the Indemnitee, (ii) the Indemnitee
may retain separate counsel at its sole cost and expense, and (iii) the Seller
will not consent to the entry of a judgment or consent order with respect to the
matter, or enter into any settlement, in each case which either (A) grants the
plaintiff or claimant any form of relief other than monetary damages which will
be satisfied by the Seller or (B) fails to include a provision whereby the
plaintiff or claimant in the matter releases the Indemnitees from all liability
with respect thereto, in either such case without the written consent of the
Indemnitee (which consent shall not be unreasonably withheld or
delayed). If the Seller has not assumed the defense of such matter,
(i) the Indemnitee may defend against the matter in any manner it reasonably may
deem appropriate and with counsel of its choice, and (ii) the Seller may retain
separate counsel at their sole cost and expense. Notwithstanding
anything to the contrary in the foregoing, if defendants in any action include
any Indemnitee and Seller, and such Indemnitee shall have been advised by its
counsel that there may be material legal defenses available to such Indemnitee
inconsistent with those available to Seller, or if a conflict of interest exists
between an Indemnitee and Seller with respect to such claim or the defense
thereof, or if an Indemnitee reasonably determines that Seller’s control of such
defense would reasonably be expected to have an adverse effect on the Assets or
the outcome of the matter, then in any such case, the Indemnitee shall have the
right to reassert such defense through its own counsel, and in such event (or in
the event that the Seller does not timely assume or diligently pursue the
defense of such matter as provided above) the reasonable fees and expenses of
the Indemnitee’s counsel shall be borne by the Seller and shall be paid by them
from time to time within twenty (20) days of receipt of appropriate invoices
therefore.
(d) In
the event that an Indemnitee notifies the Seller of any claim for
indemnification hereunder that does not involve a third party claim, the Seller
shall, within thirty (30) days after the date of such notice, pay to the
Indemnitee the amount of damages payable pursuant to this Section 7.1 and shall
thereafter pay any other damages payable pursuant to this Section 7.1 and
arising out of the same matter on demand, unless the Seller dispute in writing
its liability for, or the amount of, any such damages within such 30-day period,
in which case such payment shall be made as provided above in respect of any
matters or amounts not so disputed and any damages in respect of the matters so
disputed shall be paid within five (5) business days after any determination (by
agreement of Purchaser and Seller, or pursuant to arbitration in accordance with
Section 8.3) that the Seller are liable therefore pursuant to this Section
7.1.
(e) In
connection with any payment of damages pursuant to this Section 7.1, the Seller
shall pay to the Indemnitee(s) an amount calculated like interest on the amount
of such damages at the applicable interest rate from the date of Closing until
the Indemnitee(s) shall have been indemnified in respect thereof.
Section
7.2 Survival of Representations,
Warranties, and Covenants.
(a) Except
as otherwise provided in this Section 7.2, all representations and warranties
contained herein, and the right to assert claims in respect of any breach
thereof, shall survive the Closing and any investigation heretofore or hereafter
conducted by or on behalf of the Party entitled to benefit thereof, and shall
expire on the third (3rd) anniversary of the Closing Date.
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(b) Notwithstanding
anything to the contrary herein, the survival period in respect of any
representation or warranty in this Agreement, or any related claim, shall be
extended automatically to include any time period necessary to resolve a claim
which was asserted but not resolved before expiration of such survival
period. Liability for any such item shall continue until such claim
shall have been finally settled, decided, or adjudicated.
(c) Notwithstanding
anything herein to the contrary, all covenants, agreements and obligations
contained herein shall survive the Closing and not expire unless otherwise
specifically provided in this Agreement.
Section
7.3 No Other Representations;
Express Negligence.
(a) THE
REPRESENTATIONS AND WARRANTIES OF THE SELLER AND PURCHASER CONTAINED IN THIS
AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS CONSTITUTE THE SOLE AND EXCLUSIVE
REPRESENTATIONS AND WARRANTIES OF SUCH PARTIES, RESPECTIVELY, IN CONNECTION WITH
THE TRANSACTIONS CONTEMPLATED HEREBY. EXCEPT FOR SUCH REPRESENTATIONS
AND WARRANTIES (IN EACH CASE, AS MODIFIED BY THE SCHEDULES), NONE OF SELLER,
PURCHASER OR ANY OTHER PERSON MAKES ANY OTHER EXPRESS OR IMPLIED REPRESENTATION
OR WARRANTY WITH RESPECT TO SUCH PARTIES OR THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT, AND EACH PARTY DISCLAIMS ANY OTHER REPRESENTATIONS OR
WARRANTIES, WHETHER MADE BY SUCH PARTIES OR ANY OF THEIR OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS, OR REPRESENTATIVES. PURCHASER ACKNOWLEDGES AND
AGREES THAT IT HAS NOT RELIED ON ANY REPRESENTATIONS AND WARRANTIES OTHER THAN
THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT OR THE
OTHER TRANSACTION DOCUMENTS IN MAKING ITS INVESTMENT DECISION WITH RESPECT TO
THE ASSETS.
(b) THE
INDEMNITIES SET FORTH IN THIS ARTICLE VII ARE INTENDED TO BE ENFORCEABLE AGAINST
THE PARTIES IN ACCORDANCE WITH THE EXPRESS TERMS AND SCOPE THEREOF
NOTWITHSTANDING ANY EXPRESS NEGLIGENCE RULE OR ANY SIMILAR DIRECTIVE THAT WOULD
PROHIBIT OR OTHERWISE LIMIT INDEMNITIES BECAUSE OF THE SIMPLE OR GROSS
NEGLIGENCE (WHETHER SOLE, CONCURRENT, ACTIVE, OR PASSIVE) OR OTHER FAULT OR
STRICT LIABILITY OF ANY INDEMNITEE. THE PARTIES HERETO ACKNOWLEDGE
THAT THE INDEMNITIES SET FORTH HEREIN MAY RESULT IN THE INDEMNIFICATION OF A
PARTY FOR ITS SIMPLE OR GROSS NEGLIGENCE (WHETHER SOLE, CONCURRENT, ACTIVE, OR
PASSIVE) OR OTHER FAULT OR STRICT LIABILITY OF THE INDEMNIFIED
PARTY. NOTWITHSTANDING THE FOREGOING, NO INDEMNIFYING PARTY SHALL BE
OBLIGATED TO INDEMNIFY ANY OTHER PARTY FOR ANY LOSSES OR EXPENSES PURSUANT TO
THIS ARTICLE VII TO THE EXTENT THAT THE AMOUNT OF THE LOSSES OR EXPENSES
INCURRED BY THE INDEMNIFIED PARTY WERE GREATER THAN THEY OTHERWISE WOULD HAVE
BEEN AS A DIRECT RESULT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE
INDEMNIFIED PARTY.
11 of 15
VIII. Miscellaneous
8.1 Assignment. Neither this Agreement nor any interest
hereunder will be assignable in part or in whole by either Party without the prior written consent
of the non-assigning Party, which consent will not be
unreasonably withheld,
conditioned, or delayed.
8.2 Governing
Law and Venue. This Agreement is executed
pursuant to and shall be interpreted and governed for all purposes under the
laws of the State of Texas. Any cause of action brought to enforce
any provision of this Agreement shall be brought in the appropriate court in
Fort Bend County, Texas. If any provision of this Agreement is
declared void, such provision shall be deemed severed from this Agreement, which
shall otherwise remain in full force and effect. This Agreement shall
supersede any previous agreements, written or oral, expressed or implied,
between the parties relating to the subject matter hereof.
8.3 Dispute
Resolution. In the event of any controversy,
dispute, or claim arising out of or related to
this Agreement or the breach thereof, the Purchaser and the Seller agree to meet and confer in good faith
to attempt to resolve the controversy, dispute, or claim without an adversary
proceeding. If the controversy, dispute, or claim is not resolved to the mutual
satisfaction of the
Purchaser and the Seller within ten (10) business days of notice
of the controversy, dispute, or claim, the Purchaser and the Seller agree to waive their rights, if any, to
a jury trial, and to submit the controversy, dispute, or claim to a retired judge or justice
for binding arbitration in accordance with the Commercial Arbitration Rules of
the American Arbitration Association. The Purchaser and the Seller agree that the only proper venue for
the submission of claims shall be the Fort Bend County, Texas. Judgment on the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof.
Any dispute resolution proceedings
contemplated by this provision shall be as confidential and private as permitted
by law.
8.4 Notices. Any notice, request, demand, or other
communication given pursuant to the terms of this Agreement shall be deemed
given upon delivery, and may only be delivered or sent via hand delivery,
facsimile, or by overnight courier, correctly addressed to the addresses of the
parties indicated below or at such other address as such
Party shall in writing have advised the other
Party.
If to the
Purchaser: Xxxxx
X. Xxxxxxxxxx
Chief
Executive Officer
0 Xxxxxxxxxxxxx Xxxxxxxxx, Xxxxx
000
Xxxxxx,
XX 00000
E-mail:
xxxxxxxxxxx@xxxxxxxxx.xxx
Fax: (000)
000-0000
12 of 15
|
With
a copy to:
|
Xxxxx
X. Xxxxxx, Esq.
|
The Lebrecht Group, APLC
0000 Xxxxxxxx
Xxxxx
Xxxxxx,
XX 00000
Facsimile: (000) 000-0000
|
If
to the Seller:
|
RWIP
, LLC
|
00
Xxxxxxxxxx Xxxx
Xxxxx
Xxxx, XX 00000
Attn.:
Xxxxxx Xxxxxxxx
Fax:
Email:
8.5 Amendment. No amendment, modification, or supplement of any provision of this
Agreement will be valid or effective unless made in writing and signed by a duly
authorized officer of each Party.
8.6 Waiver. No provision of this Agreement will be
waived by any act, omission, or knowledge of a Party or its agents or employees except
by an instrument in writing expressly waiving such provision and signed by a
duly authorized officer of the waiving Party.
8.7 Severability. Whenever possible, each provision of
this Agreement will be interpreted in such manner as to be effective and valid
under the applicable law, but if any provision of
this Agreement is held to be prohibited by or invalid under applicable law, such
provision will be in effective only to the extent of such prohibition or
invalidity, without invalidating the remainder of this
Agreement.
8.8 Attorneys’
Fees. In the event that any suit, arbitration,
legal action, proceeding, or dispute between the Parties arises in connection with this
Agreement, the prevailing
Party shall be entitled to
recover all expenses, costs, and fees, including reasonable
attorney’s fees, actually incurred in association with such
action.
8.9 Entire
Agreement. This Agreement, including all
exhibits, is the complete,
final, and exclusive understanding and
agreement of the Parties and cancels and supersedes any
and all prior negotiations, correspondence, and agreements, whether oral or
written, between the Parties respecting the subject matter of
this Agreement.
[remainder of page intentionally left
blank; signature page to follow]
13 of 15
IN
WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date
first written hereinabove.
|
“Seller”
|
“Purchaser”
|
|||
|
RWIP,
LLC
|
||||
|
an
Oregon limited liability company
|
a
Delaware corporation
|
|||
|
/s/ Xxxxxx Xxxxxxxx
|
/s/ Xxxxx X. Xxxxxxxxxx
|
|||
|
By:
|
Xxxxxx
Xxxxxxxx
|
By:
|
Xxxxx
X. Xxxxxxxxxx
|
|
|
President
of Fandeck, Inc., the General
Partner
of Rivercoach Partners, LP, the
Managing
Member of RWIP LLC
|
Its:
|
Chief
Executive Officer
|
||
14 of 15
Exhibit
A
Assets
The
Assets are defined as the Patent Assignment and all rights, interests, and legal
claims to that certain invention entitled DELIVERY DEVICE WITH INVERTIBLE
DIAPHRAGM, including all information and intellectual property related to said
invention.
The
Assets, include, but are not limited to, the following patent applications that
have been filed regarding the invention:
U.S. Provisional Application No.
61/071,766, filed May 16, 2008
PCT Patent Application No.
PCT/US2009/044400, filed May 18, 2009
U.S. Continuation-in-Part Application
No. 12/946,671, filed November 15, 2010;
A-1
Exhibit
B
Patent
Assignment
A-2
ASSIGNMENT
WHEREAS,
the undersigned is the owner of a certain invention, entitled DELIVERY DEVICE
WITH INVERTIBLE DIAPHRAGM, for which the following applications have been
filed:
U.S. Provisional Application No.
61/071,766, filed May 16, 2008
PCT Patent Application No.
PCT/US2009/044400, filed May 18, 2009
U.S. Continuation-in-Part Application
No. 12/946,671, filed November 15, 2010; and
WHEREAS,
I-WEB MEDIA, INC., a corporation organized under the laws of the State of
Delaware, having a place of business at 0 Xxxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxx, XX 00000, desires to acquire an interest
therein:
NOW,
THEREFORE, for good and valuable consideration, the receipt of which is hereby
acknowledged, the undersigned hereby sells, assigns and transfers to I-WEB
MEDIA, INC., the full and exclusive right, title, and interest in and to said
invention, patent application, and patent rights throughout the world, including
foreign patent priority rights, the right to file and prosecute International
Applications under the Patent Cooperation Treaty, and the right to file and
prosecute applications under the European Patent Convention; said invention,
application and letters patent in this or any foreign country, and all
divisions, continuations, reissues and extensions thereof, to be held and
enjoyed by I-WEB MEDIA, INC., for its own use and benefit, and for its
successors and assigns to the full end of the term for which letters patent may
be granted in this or any foreign country, as fully and entirely as the same
would have been held by the undersigned had this assignment and sale not been
made, and covenant that the undersigned has full right so to do, and agree that
it will communicate to I-WEB MEDIA, INC., or its successors and assigns, any
facts known to it respecting said invention, and testify in any legal
proceeding, sign all lawful papers, execute all divisional, continuing and
reissue applications, make all rightful oaths, and do everything possible to aid
I-WEB MEDIA, INC., its successors and assigns to obtain and enforce proper
patent protection for said invention in this or any foreign
country.
A-3
The
undersigned hereby grants the law firm of The Lebrecht Group, APLC, or its
assigns, the power to insert on this Assignment any further information which
may be necessary or desirable in order to comply with all applicable legal
requirements, including the rules of the United States Patent and Trademark
Office, for submitting and recording this document.
Executed
in the City of _______________, State of ___________, this ___ day of December,
2010.
|
/s/ Xxxxxx Xxxxxxxx
|
||
|
By:
|
Xxxxxx
Xxxxxxxx
|
|
|
President
of Fandeck, Inc., the General
Partner
of Rivercoach Partners, LP, the
Managing
Member of RWIP LLC
|
||
|
STATE
OF OREGON
|
)
|
|
|
)
|
ss.
|
|
|
COUNTY
OF DESCHUTES
|
)
|
This ___
day of December, 2010, before me personally came the above-named Xxxxxx
Xxxxxxxx, who executed the foregoing instrument in my presence, and who
acknowledged to me that this instrument was executed by Xxxx Xxxxxxx’x own free
will for the purpose set forth therein.
|
Notary
Public for
|
||
|
My
commission expires:
|
||
[SEAL]
A-4
Exhibit
C
Convertible
Promissory Note
A-5
Exhibit
D
Warrant
A-6
Exhibit
E
Consulting
Agreement
A-7
