Attached files
Exhibit
10.1
CONTRIBUTION
AGREEMENT
This Agreement is made and entered into
effective as of December 30, 2009 (the "Effective Date"), by and
between WS Technologies LLC dba Windswept Technologies, an Oregon limited
liability company ("Company"), and Aequitas
Capital Management, Inc., an Oregon corporation ("Contributing
Party").
Background
A. Contributing
Party services and collects consumer receivables generated by hospitals on a
recourse basis with respect to the hospital (the "Business").
B. Contributing
Party and certain other parties have entered into an Operating Agreement (the
"Operating Agreement")
pursuant to which Company will own and operate the Business as a result of the
contribution of the Assets (defined below) by Contributing Party and certain
assets contributed by the other parties to the Operating Agreement, who
collectively will own all of the ownership interests in Company.
C. Contributing
Party wishes to make the contribution of Assets in return for the receipt of
ownership interests of Company and the assumption by Company of the Assumed
Liabilities under this Agreement.
Agreement
In consideration of the mutual promises
and covenants set forth in this Agreement, the parties agree as
follows:
1. Contribution of Business
Assets.
1.1 Contribution. Subject
to the terms and conditions set forth in this Agreement, Contributing Party
agrees to transfer to Company at Closing (defined below) the following assets of
the Business (collectively, the "Assets"), wherever located,
free and clear of all mortgages, liens, security interests, pledges,
encumbrances, claims, conditions and restrictions, of any nature whatsoever,
direct or indirect, whether accrued, absolute or contingent, known or unknown
(collectively, "Encumbrances"):
1.1.1 The
exclusive right to service and receive compensation and origination fees for all
recourse consumer credit accounts now owned and generated in the future by
CarePayment, LLC, all under the terms of the Servicing Agreement (the "Servicing Agreement") between
Company and CarePayment LLC attached as Exhibit A and entered
into simultaneously with the Closing;
1.1.2 All
supplies, disclosure materials, marketing materials and collateral, used in
connection with the Business, including all correspondence, procedures and
process schematics, and other documents and records used or useful in the
Business (collectively, the "Supplies"), together with any
replacements or additions to the Supplies made before the Closing Date, but
excluding Supplies disposed of in the ordinary course of Contributing Party's
Business;
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1.1.3 All
books and records of the Business, including customer lists, customer
information, customer files and sales leads, merchandising materials and access
to other books and records, or copies thereof, including computerized data,
relating to the continuation of the Business as conducted by Contributing
Party;
1.1.4 The
contracts (including contracts relating to intellectual property used in
connection with the Business and employment contracts, if any, for employees
engaged in the Business) and prepaid expenses of the Business and contracts
identified on attached Schedule 1.1.4; provided,
however, that if such contracts have not been transferred by Closing,
Contributing Party shall maintain those contracts for Company's
benefit;
1.1.5 All
rights to all telephone lines and numbers, email addresses used in the conduct
of the Business, including those listed on Schedule 1.1.5;
1.1.6 The
Zero Interest Recourse (ZIR) software product that incorporates Contributing
Party's proprietary CarePayment System, a specialized accounting system designed
to interface with multiple systems to receive and submit data and process that
data in such a way that all accounting and settlement activities are supported,
and which contains several proprietary algorithms to support the allocation of
account transactions and account settlement with hospitals and funding sources
(the "Software");
1.1.7 All
written instructions, user and technical manuals, reference guides, training
materials, release notes, installation notes, descriptions, specifications, and
any other materials, in paper, electronic or any other form, that describe the
requirements, features, functions, support, maintenance and/or use of the
Software (the "Documentation");
and
1.1.8 All
of the goodwill and general intangibles related to the Business.
1.2 Assets not to be
Transferred. Contributing Party will retain, and Company will
not acquire, any assets of Contributing Party not specifically identified in
Section 1.1 above, including
without limitation the excluded assets ("Excluded Assets") identified
on Schedule 1.2.
1.3 Assumed Liabilities and
Obligations. Subject to the terms and conditions set forth in
this Agreement, Company agrees to assume at Closing only those costs and
liabilities associated with the Business that are to be described on Schedule 1.3 to be attached to
this Agreement at or prior to Closing (collectively, the "Assumed Liabilities"), and no
others. Except for the Assumed Liabilities, Company will not assume
or agree to pay, perform, or discharge, and Contributing Party will remain
liable for, any cost, debt, obligation, tax, or liability, whether known or
unknown, contingent or otherwise, of Contributing Party of any kind or nature
whatsoever.
2. Ownership
Interests. Concurrently with Contributing Party's contribution
of the Assets to Company at Closing, and in exchange for the Assets, Company
will issue to Contributing Party a 28% ownership interest in Company, which will
be held by Contributing Party pursuant to the terms of and will have all of the
rights set forth in the Operating Agreement.
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3. Closing. The
closing of the transactions contemplated by this Agreement (the "Closing") will take place at
the offices of Tonkon Torp LLP at 1600 Pioneer Tower, 888 SW Fifth Avenue,
Portland, Oregon 97204, at 10:00 a.m. Pacific Time on December 31,
2009, or at such other place or time as Company and Contributing Party mutually
agree (the "Closing
Date").
3.1 Company's Conditions to
Closing. The obligations of Company to consummate the Closing
and otherwise effect the transactions contemplated by this Agreement are subject
to the satisfaction at or prior to the Closing of each of the following
conditions, any of which may be waived, in writing, exclusively by
Company:
3.1.1 Representations and
Warranties. The representations and warranties of Contributing
Party in this Agreement will be true and correct as of the Closing as if made as
of the Closing, except (i) for changes contemplated by this Agreement, and (ii)
for those representations and warranties which address matters only as of a
particular date (which will be true and correct as of such particular
date).
3.1.2 Agreements and
Covenants. Contributing Party will have performed or complied
in all material respects with all agreements and covenants required by this
Agreement to be performed or complied with by it on or prior to the
Closing.
3.1.3 Certificate. Company
will have been provided with a certificate executed by Contributing Party to the
effect that, as of the Closing the conditions set forth in Sections 3.2.1
and 3.2.2 have
been duly satisfied.
3.1.4 Transfer Documents; Other
Agreements. At Closing, Company will have
received:
(a) A
bill of sale conveying the Assets to Company in form reasonably satisfactory to
Company.
(b) One
or more assignment and assumption agreements executed and delivered by
Contributing Party, in form reasonably satisfactory to Company, with respect to
the Assumed Contracts.
(c) A
fully executed Servicing Agreement;
(d) A
fully executed Contribution Agreement between Company and CarePayment, LLC in
the form attached as Exhibit B;
(e) A
fully executed Contribution Agreement between Company and microHelix, Inc. in
the form attached as Exhibit C;
(e) A
fully executed Sublease between Company and Contributing Party in the form
attached as Exhibit
D;
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(f) An
Administrative Services Agreement ("Administrative Services
Agreement") between Company and Contributing Party in the form attached
as Exhibit E
executed by Contributing Party; and
(g) A
fully executed Amendment to the Promissory Note between Company and MH Financial
in the form attached as Exhibit F.
3.1.5 Third-Party
Consents. Company will have received consents or other
assurances satisfactory to Company from such parties to the Assumed Contracts as
Company may require as a condition to Closing.
3.1.6 Suits, Actions or
Proceedings. No suit, action, arbitration or other proceeding
will be pending before any court, arbitrator or Governmental Body which may
result in the restraint or prohibition of the consummation of the transactions
contemplated by this Agreement.
3.1.7 No Material Adverse
Change. There will not have occurred since the date of this
Agreement any event, change, effect, occurrence or state of facts individually
or in the aggregate which has had or could have a material adverse effect on the
Business, or on the ability of Company following Closing to conduct the Business
as currently contemplated, taken as a whole, or on the ability of the parties to
effect the transactions under this Agreement.
3.1.8 Due Diligence
Review. Company will have been satisfied, in its sole
discretion, with its due diligence review of the Business and the Assets,
including Company's review of Exhibits and Schedules to be attached to this
Agreement at or prior to Closing.
3.1.9 Transaction
Fees. Contributing Party will have paid 50% of all fees and
expenses incurred by Company in connection with the preparation, negotiation,
and execution of this Agreement and the transactions contemplated by this
Agreement.
3.2 Contributing
Party's Conditions to Closing. The obligations of
Contributing Party to consummate the Closing and otherwise effect the
transactions contemplated by this Agreement are subject to the satisfaction at
or prior to the Closing of each of the following conditions, any of which may be
waived, in writing, exclusively by Contributing Party:
3.2.1 Representations and
Warranties. The representations and warranties of Company in
this Agreement will be true and correct as of the Closing as if made as of the
Closing, except (i) for changes contemplated by this Agreement, and
(ii) for those representations and warranties which address matters only as
of a particular date (which will be true and correct as of such particular
date).
3.2.2 Agreements and
Covenants. Company will have performed or complied in all
material respects with all agreements and covenants required by this Agreement
to be performed or complied with by it on or prior to the Closing.
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3.2.3 Certificate. Contributing
Party will have been provided with a certificate executed by Company to the
effect that, as of the Closing the conditions set forth in Sections 3.2.1 and 3.2.2 have been duly
satisfied.
3.2.4 Other
Agreements. At Closing, Contributing Party will have
received:
(a) the
Software License Agreement executed by Company;
(b) The
Sublease executed by Company; and
(c) The
Administrative Services Agreement executed by Company.
4. Other Agreements.
4.1 Further
Assurances. At any time or from time to time after the
Closing, at Company's request and without further consideration, Contributing
Party will execute and deliver to Company such other instruments of transfer,
conveyance, assignment, and confirmation, provide such materials and
information, and take such other actions as Company may reasonably deem
necessary in order more effectively to transfer, convey, and assign to Company,
and to confirm Company's title to, all of the Assets, and, to the fullest extent
permitted by law, to put Company in actual possession and operating control of
the Assets and to assist Company in exercising all rights with respect thereto,
and otherwise to cause Contributing Party to fulfill its obligations under this
Agreement.
4.2 Access and
Investigation. Company, through its employees, agents and
representatives, will prior to the Closing be involved in such investigation of
the Assets as it deems necessary or advisable. Contributing Party
agrees to permit Company and its employees, agents and representatives to have
full access, on reasonable notice during normal business hours, to the books and
records and premises of the Business and other information with respect to the
Business and properties of Contributing Party as Company from time to time
requests. Company will conduct its review in a manner which does not
unreasonably interfere with the operations of the Business.
4.3 Operations Pending
Closing. Contributing Party agrees that from the date of this
Agreement to the Closing:
4.3.1 Contributing
Party will:
(a) maintain
all of the Assets in customary repair, order and condition, reasonable wear,
tear and use and damage by fire or unavoidable casualty excepted;
(b) operate
the Assets and the Business in a manner designed to preserve and protect its
business, goodwill and relationships with its vendors, suppliers, customers and
others;
(c) maintain
insurance on the Assets in the same manner and to the same extent as such
insurance has been maintained with respect to the Assets prior to the date of
this Agreement; and
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(d) comply,
in all material respects, with all applicable laws.
4.3.2 Contributing
Party will not:
(a) grant
any new salary increase to any employee engaged in the Business unless such
increase has been previously approved by Company in writing, or such salary
increase occurs in the ordinary course and does not exceed 3%;
(b) enter
into or amend or alter any bonus, incentive compensation, deferred compensation,
retirement, pension, savings, group insurance, death benefit or other fringe
benefit plan, trust agreement or arrangement affecting its employees engaged in
the Business that do not represent existing commitments; provided, however, that
Contributing Party's handling of severance pay and related issues is not limited
by this Section;
(c) enter
into or assume any material contract, agreement, obligation, lease, license or
commitment relating to the Assets, except in the ordinary course of the Business
as contemplated by this Agreement or with Company's prior written
approval;
(d) do,
or omit to do, any act which will cause a material breach of any Material
Agreement, Permit, commitment or obligation related to the Assets or the
Business; or
(e) amend,
terminate or waive any material right of substantial value relating to the
Assets or the Business.
5. Taxes. Contributing
Party will be responsible for and will pay when due the entire amount of any
sales, use, transfer, excise, documentary and other like taxes or recording,
filing or notary fees imposed by any state or governmental subdivision within
such state in connection with the transfer of the Assets. Personal
property taxes, if any, and all other prorations relating to the Assets, if any,
will be made as of the Closing Date.
6. Risk of Loss. All
right, title and interest and risk of loss with respect to the Assets will be
deemed to have passed to Company at Closing.
7. Representations and Warranties of
Contributing Party. Except as is otherwise disclosed on Schedule 7 to this Agreement
(the "Disclosure
Schedule") Contributing Party represents and warrants to Company
that:
7.1 Authorization. Contributing
Party is a corporation duly organized and validly existing under the laws of the
state of Oregon. Contributing Party has all requisite organizational
power and authority to enter into this Agreement and to consummate the
transactions contemplated by this Agreement. Contributing Party's
execution and delivery of this Agreement and consummation of the transactions
contemplated by this Agreement have been duly authorized by all requisite
organizational action and Contributing Party has duly executed and delivered
this Agreement, which constitutes the valid and binding obligation of
Contributing Party, enforceable in accordance with its
terms. Contributing Party has made available to Company true, correct
and complete copies of Contributing Party's authorizing board and shareholder
resolutions relating to the transactions contemplated by this
Agreement.
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7.2 Investment. Contributing
Party is not acquiring the ownership interest issued to it under the Operating
Agreement with a view to or for sale in connection with any further distribution
thereof within the meaning of the Securities Act of 1933, as amended (the "Securities
Act").
7.3 Accredited
Investor. Contributing Party is an "accredited investor" as
defined in Regulation D promulgated under the Securities Act.
7.4 Title to
Assets. Contributing Party has good and marketable title to
all of the Assets, all of the Assets are free and clear of restrictions on or
conditions to transfer, and Contributing Party at Closing will transfer to
Company good title to all of the Assets, free and clear of any Encumbrances
(other than under any Assumed Liabilities). The Closing will convey
to and vest in Company good and marketable title to the Assets, free and clear
of any Encumbrances (other than under the Assumed Liabilities).
7.5 No Conflicts. The
execution and delivery by Contributing Party of this Agreement do not, and the
performance by Contributing Party of its obligations under this Agreement and
the consummation of the transactions contemplated hereby and thereby will
not:
7.5.1 conflict
with or result in a violation or breach of any of the terms, conditions, or
provisions of the Articles of Incorporation or Bylaws of Contributing
Party;
7.5.2 conflict
with or result in a violation or breach of any term or provision of any federal,
state, or local law, rule, regulation or order applicable to Contributing Party
or any of the Assets, or conflict with or result in a violation or breach of any
term or provision of any judgment, injunction, decree, ruling or other charge
applicable to Contributing Party or any of the Assets; or
7.5.3 with
respect to any contract to which Contributing Party is a party or by which any
of the Assets is bound: conflict with or result in a violation or
breach of such contract, constitute (with or without notice or lapse of time or
both) a default under such contract, require Contributing Party to obtain any
consent, or approval, or give any notice to or make any filing with any person
or entity, or result in the creation or imposition of any Encumbrance upon
Contributing Party or any of the Assets under such contract.
7.6 Tax Matters. All
Taxes which Contributing Party is required by law to pay, withhold or collect
relating to the Business or the Assets or Contributing Party's employees have
been duly paid, withheld or collected and have been paid over to the appropriate
governmental agency or authority or are properly recorded as a liability on the
books of Contributing Party. No Tax liens shall attach to any of the
Assets because of a deficiency or delinquency in payment of Taxes by
Contributing Party or because of a failure by Contributing Party to qualify in
any jurisdiction in which it owns or leases property or conducts
business. "Tax" shall mean any federal, state, local, or foreign
income, gross receipts, license, payroll, employment, excise, severance, stamp,
business and occupation, premium, windfall profits, environmental (including
taxes under Code section 59A), customs duties, capital stock, franchise,
profits, withholding, social security (or similar), unemployment, disability,
real property, personal property, sales, use, transfer, registration, value
added, alternative or add-on minimum, estimated, or other tax of any kind
whatsoever, including any interest, penalty, or addition thereto, whether
disputed or not.
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7.7 Litigation. There
are no pending or threatened, claims, litigation, investigation, tax audit or
proceedings of any nature against Contributing Party or to which Contributing
Party is a party which could result in any Encumbrance on the Assets or in any
way impair Contributing Party's ability to fully perform its obligations under
this Agreement.
7.8 Employee Matters.
7.8.1 A
complete list of Contributing Party's employees engaged in the Business, and the
current rate of compensation for such employees has been provided to
Company. On and as of the Closing Date, Contributing Party will take
all action necessary to terminate all of its employees engaged in the Business
and will pay such employees all accrued employment-related financial obligations
due to them through the close of business on the Closing Date. No notice is
required to be provided to any employee of Contributing Party under the Worker
Adjustment and Retraining Notification Act, as amended (the "WARN Act"), in connection
with the execution and delivery of this Agreement or the consummation of the
transactions contemplated by this Agreement.
7.8.2 From
and after the Closing, Contributing Party will remain solely responsible for all
claims, including without limitation workers' compensation claims and
liabilities arising under the WARN Act, of any Contributing Party employee that
relate to any accident, injury or other cause that occurred or arose prior to
the Closing, regardless of whether such claim is filed by such employee before
or after the Closing.
7.8.3 Benefit Plans and
ERISA. Contributing Party has delivered or made available to
Company all of Contributing Party's employment, consulting, retainer, employee
leasing or collective bargaining agreements covering or otherwise applicable
with respect to any officer, employee or other person related to the Business or
former employee engaged in the Business, and has made available to Company all
information related to any bonus or other incentive compensation plans or
arrangements, pension, deferred compensation, profit sharing or other retirement
plans, stock bonus, stock purchase, stock option or similar plans, excess
benefit plans, death benefit or life insurance plans, sickness or disability
plans, severance, vacation, holiday, educational assistance plans, medical,
dental, hospitalization or health maintenance organization plans, arrangements
for the payment of compensation other than in cash, or any other plan or
arrangement which constitutes an "employee benefit plan" within the meaning of
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), for the
benefit of the employees or former employees or their survivors, dependents or
beneficiaries (all of which are referred to as the "Benefit Plans") which
Contributing Party has maintained or contributed to during the past two
years. All of the employees or former employees engaged in the
Business will be paid by Contributing Party as of the Closing Date for services
rendered prior to the Closing Date, and all payments, contributions and benefits
required to be made or provided by Contributing Party under the Benefit Plans on
and after the Closing Date will be paid by Contributing Party, except that
Company will assume all accumulated paid time off ("PTO") as of the Closing Date,
for each employee hired by Company. Except for the PTO assumed by
Company, Contributing Party acknowledges and agrees that, on and after the
Closing Date, Company will have no liability to any employee or former employee
engaged in the Business, or any of their survivors, dependents or beneficiaries,
under any of the Benefit Plans. None of those employees or former
employees, or their survivors, dependents or beneficiaries, are covered by any
retiree health insurance plan maintained or contributed to by Contributing
Party. None of the Assets are subject to a lien under Section 4068 of
ERISA or Section 412 of the Internal Revenue Code of 1986, as amended (the "Code"), or any other
provision of ERISA or the Code and there is no basis for the assertion of any
such lien with respect to the Assets whether prior to or subsequent to the
consummation of the transactions contemplated by this Agreement. None
of the employees or former employees are covered by any Benefit Plan subject to
Title IV of ERISA or Section 412 of ERISA.
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7.8.4 Labor
Matters. There are no controversies pending between
Contributing Party and any of the employees of Contributing Party engaged in the
Business which have affected or would affect materially and adversely the Assets
or financial condition or the results of operations of the
Business. During the two-year period before the date of this
Agreement, Contributing Party has complied in all material respects with all
applicable laws, rules and regulations relating to the employment of labor with
respect to the Business. There are no unfair labor practice charges
or controversies pending or in process or, to Contributing Party's knowledge,
threatened between Contributing Party and any present or former employee nor
complaints received or to the knowledge of Contributing Party threatened or on
file with any federal, state or local governmental agency alleging employment
discrimination or other unfair labor practice.
7.8.5 Entitlements. Contributing
Party has delivered or made available to Company a complete listing of all
employees engaged in the Business currently on leave under the provisions of the
Family and Medical Leave Act of 1993 ("FMLA").
7.8.6 Collective Bargaining
Agreements. There are no collective bargaining agreements
applicable to the employees engaged in the Business.
7.8.7 Benefit Plan
Liabilities. Contributing Party has delivered or made
available to Company a complete listing of all employees engaged in the Business
(or related plan participants) currently receiving insurance continuation or
conversion benefits pursuant to the Consolidated Omnibus Budget Reconciliation
Act ("COBRA") or state
law. Contributing Party shall continue all such insurance
continuation benefits as required under applicable law, and shall additionally
provide insurance continuation benefits to those employees (or related plan
participants) who are terminated by Contributing Party at or prior to the
Closing and who are not hired by Company, all to the extent and for the duration
required by applicable federal and state law. All Benefit Plan
liabilities of every kind and nature for all periods prior to the Closing or
incurred as a result of the transaction contemplated by this Agreement are the
express responsibility of Contributing Party without limitation or
qualification.
7.8.8 Immigration
Matters.
(a) Current
Employees. With respect to all current employees (as defined
in Section 274a.1(f) of Title 8, Code of Federal Regulations) of Contributing
Party that are engaged in the Business, a true and complete list of, and true
and complete copies of, all Forms I-9 (Employment Eligibility Verification
Forms) completed pursuant to the Immigration Reform and Control Act of 1986, as
amended, and all regulations promulgated thereunder ("IRCA") and any and all copies
of documentation, records or other papers retained with Forms I-9 (Employment
Eligibility Verification Forms), have been previously delivered to
Company. Contributing Party has complied with IRCA with respect to
the completion of Forms I-9 for all current employees and the reverification of
the employment status of any and all current employees whose employment
authorization documents indicated a limited period of employment
authorization.
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(b) Former
Employees. With respect to all former employees who left the
employment of the Business within two years prior to Closing, Contributing Party
has complied with IRCA with respect to the maintenance of Forms I-9 for at least
three years after the date of hire or for one year beyond the date of
termination, whichever is later. A true and complete list of all
terminated employees engaged in the Business and hired by Contributing Party
less than two years prior to Closing or terminated less than one year prior to
Closing, true and complete copies of all Forms I-9 maintained for former
employees pursuant to IRCA, and any and all copies of documentation, records or
other papers retained with Forms I-9, have been previously delivered to
Company.
(c) Visa
Status. Contributing Party has not hired any individuals
working under INS authorization in E, F, H, J, L, M, N, O, P or TN Visa
Status.
(d) Authorization to Work in
U.S. Contributing Party has not knowingly (as defined in
Section 274a.1(l) of Title 8, Code of Federal Regulations) hired or continued to
employ an unauthorized alien in the United States. Within the 24
months preceding the execution of this Agreement, Contributing Party has not
received any written notice of any inspection or investigation relating to its
alleged noncompliance with or violation of IRCA, nor has it been warned, fined
or otherwise penalized by reason of any failure to comply with
IRCA.
(e) Effect of
Transaction. The consummation of the transactions contemplated
by this Agreement does not (i) give rise to any liability for failure to
complete and update Forms I-9, or (ii) give rise to any liability for the
employment of individuals not authorized to work in the United States or cause
any current employee to become unauthorized to work in the
United States.
7.9 Condition and Sufficiency of Tangible
Purchased Assets. The tangible Assets (a) are fit and
usable in all material respects for the purposes for which they are presently
being used; (b) are in good operating condition and repair, ordinary wear
and tear excepted; (c) will not require major overhaul or repair in the
immediate future, (d) conform with all applicable laws, rules and
regulations; (e) except for the Excluded Assets, constitute all of the
assets and properties used by Contributing Party in connection with the
operation of the Business; and (f) except for the Excluded Assets, are
sufficient in both quantity and quality to conduct the operations of the
Business as previously conducted.
7.10 Governmental
Consents. No consent, approval, order or authorization of, or
registration, qualification, designation, declaration or filing with, any
governmental or quasi-governmental agency, authority, commission, board or other
body (collectively, a "Governmental Body") is
required on the part of Contributing Party in connection with the transactions
contemplated by this Agreement.
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7.11 Financial
Information. Prior to the date of this Agreement, Contributing
Party has delivered to Company all financial information related to the Business
as conducted by Contributing Party for the two years preceding the Effective
Date (the "Financial
Information"). The Financial information presents fairly the
financial condition of Contributing Party at the dates specified and the results
of its operations for the periods specified. The Financial
Information does not contain any items of a special or nonrecurring nature,
except as expressly stated therein. The Financial Information
accurately and fairly reflects in all material respects all material
transactions of, acquisitions and dispositions of assets by, and incurrence of
liabilities by Contributing Party.
7.12 Absence of Undisclosed
Liabilities. At Closing, the Business as conducted by
Contributing Party will have no liabilities except for (a) liabilities
disclosed in this Agreement and its Exhibits and Schedules; (b) trade
payables and accrued expenses arising in the ordinary course of business
consistent with past practices; and (c) obligations to be performed in the
ordinary course of business consistent with past practice under Material
Agreements.
7.13 Absence of Material
Changes. Except for the
transactions contemplated by this Agreement, since January 1, 2009, there has
not been:
7.13.1 any
material adverse change in the Business;
7.13.2 any
damage, destruction or loss to any tangible Asset not adequately covered by
insurance, which uninsured damage, destruction or loss materially and adversely
affects the Business or Assets, nor has there been any damage, destruction or
loss to any tangible Asset (other than operating losses determined without
regard to insurance coverage), aggregating more than $5,000;
7.13.3 any
union organizational activities, strikes, work stoppages, or other material
labor trouble;
7.13.4 any
new Encumbrance (other than those arising by operation of law) created on any of
the Assets, or assumed by Contributing Party with respect to any of the
Assets;
7.13.5 any
sale, transfer, removal from the Business premises or other disposition of any
material tangible asset of Contributing Party (excluding any Excluded Asset)
except for (i) sales of inventories and (ii) assets consumed or
disposed of in the ordinary course of business;
7.13.6 any
action taken by Contributing Party to amend, terminate or waive any material
right relating to the Business other than in the ordinary course of
business;
7.13.7 any
transfer or grant of any material rights under any leases, licenses, agreements,
trademarks or trade names used in Contributing Party's business;
7.13.8 any
transaction, contract or commitment made or entered into other than in the
ordinary course of business;
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7.13.9 any
material change with respect to the operations of the Business, including the
method of accounting, or any loss of or material change with respect to any
supplier or distributor relationships;
7.13.10 any
change in accounting methods or principles used by Contributing Party with
respect to the Business;
7.13.11 any
other event or condition of any character subject to Contributing Party's
control or caused by Contributing Party and materially and adversely affecting
the results of the Business; or
7.13.12 any
agreement of Contributing Party to take any of the actions described in the
preceding clauses, except as contemplated by this Agreement.
7.14 Compliance With
Laws. Contributing Party's use, operation and maintenance of
the Assets during the past five years has been in material compliance with, and
has not violated or contravened in any material respect, all applicable
statutes, laws, ordinances, decrees, orders, rules or regulations of any
Governmental Body, including without limitation, federal, state and local laws
relating to employment and labor matters.
7.15 Permits. Contributing
Party owns or possesses from each appropriate Governmental Body all right, title
and interest in and to all permits, licenses, authorizations, approvals, quality
certifications, franchises or rights (collectively, "Permits") issued by any
Governmental Body required in connection with the conduct of the
Business. No loss or expiration of any such Permit is pending,
threatened or reasonably foreseeable, other than expiration in accordance with
the terms thereof.
7.16 Material
Agreements.
7.16.1 Contributing
Party has delivered or made available to Company each agreement and arrangement
relating to the Business, whether written or oral, (x) to which
Contributing Party is a party or by which Contributing Party or any of the
Assets is bound and (y) that is
material to the Business or the Assets (collectively, the "Material Agreements"),
including without limitation (i) any product development, supply or other
agreements or arrangements pursuant to which third parties are or will be
entitled or obligated to purchase or use any of the Assets; (ii) any leases
or licenses with a term of 30 days or more; (iii) any capital or operating
leases or conditional sales agreements relating to vehicles or equipment;
(iv) any employment, consulting, noncompetition, separation, collective
bargaining, union or labor agreements or arrangements; (v) any agreement
evidencing, securing or otherwise relating to any indebtedness in excess of
$1,000 for which Contributing Party has any liability, (vi) any agreement
with or for the benefit of any director, officer or employee of Contributing
Party, or any affiliate or family member thereof; and (vii) any other
agreement or arrangement pursuant to which Contributing Party could be required
to make or be entitled to receive aggregate payments in excess of $1,000 and
which is not cancelable without penalty upon 30 days' notice.
7.16.2 Contributing
Party has performed all of its obligations in all material respects under each
Material Agreement, and there exists no breach or default (or event that with
notice or lapse of time would constitute a breach or default) of any material
provision under any Material Agreement.
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7.16.3 Each
Material Agreement is valid, binding and in full force and effect and
enforceable in accordance with its respective terms, subject to the effects of
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally and to general principles of
equity. There has been no termination or threatened termination or
notice of default, under any Material Agreement. Contributing Party
has delivered to Company a copy of each written Material Agreement.
7.16.4 No
consent of any person or Governmental Body is required in connection with the
assignment to and assumption by Company of any Material Agreement in connection
with the transactions contemplated by this Agreement.
7.17 Intellectual Property
Rights. Contributing Party has delivered or made available to
Company a complete list of all patents, trademarks, service marks, trade names,
domain names and copyrights, and applications for and licenses (to or from
Contributing Party) with respect to any of the foregoing that is (a) owned
by Contributing Party and used by or useful to the Business, or (b) used by
Contributing Party with respect to the Business. Contributing Party
owns or has the unrestricted right to use all Intellectual Property and all
other computer software and software licenses, intellectual property,
proprietary information, trade secrets, material and manufacturing
specifications, drawings and designs included in the Assets or necessary in
connection with the operation of the Business without infringing on or otherwise
acting adversely to the rights or claimed rights of any
person. Contributing Party is not obligated to pay any royalty or
other consideration to any person in connection with the use of any such
Intellectual Property. No person is infringing on the rights of
Contributing Party in any of its Intellectual Property.
7.18 Software.
7.18.1 The
Software will perform in accordance with the Documentation; however,
Contributing Party does not warrant that the operation of the Software will be
uninterrupted or error-free;
7.18.2 The
Documentation contains an accurate and complete list of all third party software
and the minimum hardware requirements necessary to operate the
Software;
7.18.3 The
Software is compatible with and runs on the combination of the servers or other
computer hardware (regardless of location, type of number of processors),
operating system and other technical architecture elements with which the
Software is designed to operate, specified in, and in any operating environment
described in, the Documentation;
7.18.4 The
media on which the Software is delivered will be free from defects;
7.18.5 the
Software delivered by Licensor does not contain any computer code that is
designed to:
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(a) Disrupt,
disable, erase, alter, harm, or otherwise impair in any manner the operation of
the Software or any other software, firmware, files, data, hardware, computer
software or networks (sometimes referred to as "viruses" or "worms");
or
(b) Disrupt,
disable, erase, alter, harm, or otherwise impair in any manner the operation of
the Software based on the elapse of a period of time, exceeding an authorized
number of copies, users or Servers or the advancement to a particular date or
other numeral (sometimes referred to as "time bombs," "time locks," or "drop
dead" devices); or
(c) Permit
Contributing Party to access the Software to disable or impair in any way its
operations (sometimes referred to as "traps," "access codes" or "trap door"
devices) or any other similar harmful, malicious or hidden procedures, routines
or mechanisms that would cause the Software to cease functioning or to damage or
corrupt data, storage media, programs, equipment or communications, or otherwise
interfere with the users' operations, including Trojan horses; or
(d) Perform
any other functions other than those specified in the
Documentation.
7.19 Principal Customers and
Suppliers. Contributing Party has delivered or made available
to Company a list of the ten largest hospital customers of the Business by
dollar volume (with the amount of revenues attributable to each such hospital
customer) for the 11 months ended November 30, 2009 and for the year
2008. CarePayment, LLC is the sole supplier of hospital recourse
consumer credit accounts of the Business.
7.20 Trade Payables. The
trade payables constituting Assumed Liabilities represent bona fide and
undisputed obligations of Contributing Party relating only to the Business and
were incurred by Contributing Party in the ordinary course of
business.
7.21 Brokers. All
negotiations relative to this Agreement and the transactions contemplated hereby
have been carried out by Company directly with Contributing Party without the
intervention of any person or entity on behalf of Company in such manner as to
give rise to any valid claim by any person or entity against Contributing Party
for a finder's fee, brokerage commission, or similar payment.
7.22 Disclosures. No
representation or warranty or other statement made by Contributing Party in this
Agreement, the Disclosure Schedule and any other documents or certificates
delivered in connection with this Agreement contains any untrue statement or
omits to state a material fact necessary to make any of them, in light of the
circumstances in which it was made, not misleading.
8. Representations and Warranties of
Company. Company represents and warrants to Contributing Party
as follows:
8.1 Authorization. Company
is a limited liability company duly organized and validly existing under the
laws of the State of Oregon. Company has all requisite limited
liability company power and authority to enter into this Agreement and to
consummate the transactions contemplated in this Agreement. Company's
execution and delivery of this Agreement and consummation of the transactions
contemplated by this Agreement have been duly authorized by all requisite
organizational action. This Agreement has been duly executed and
delivered by Company and constitutes the valid and binding obligation of Company
enforceable in accordance with its terms.
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8.2 No Conflicts. The
execution and delivery by Company of this Agreement do not, and the performance
by Company of its obligations hereunder and thereunder and the consummation of
the transactions contemplated hereby and thereby will not:
8.2.1 conflict
with or result in a violation or breach of any of the terms, conditions, or
provisions of the Amended and Restated Articles of Incorporation, as amended, or
Bylaws of Company; or
8.2.2 conflict
with or result in a violation or breach of any term or provision of any federal,
state, or local law, rule, regulation, order, or judgment applicable to
Company.
8.3 Litigation. There
are no pending claims, litigation, investigation, tax audit or proceedings of
any nature against Company or to which Company is a party which could in any way
impair Company's ability to fully perform its obligations under this
Agreement.
8.4 Brokers. All
negotiations relative to this Agreement and the transactions contemplated hereby
have been carried out by Company directly with Contributing Party without the
intervention of any person or entity on behalf of Company in such manner as to
give rise to any valid claim by any person or entity against Contributing Party
for a finder's fee, brokerage commission, or similar payment.
9. Indemnification.
9.1 Contributing Party
Indemnification. Contributing Party will defend, indemnify and
hold Company and its directors, shareholders, employees, agents, successors and
assigns harmless from and against any and all claims, losses or liabilities
(including reasonable attorney fees, court costs and expenses of investigation
as determined by a court of competent jurisdiction) incurred by any such
indemnified party: (i) as a result of any breach of any of
Contributing Party's representations, warranties or covenants contained in this
Agreement or (ii) with respect to any liability of Contributing Party
arising out of Contributing Party's operation of the Business or use of the
Assets prior to the Closing Date.
9.2 Company
Indemnification. Company will defend, indemnify and hold
Contributing Party and its respective directors, shareholders, employees,
agents, successors and assigns harmless from and against any and all claims,
losses or liabilities (including reasonable attorney fees, court costs and
expenses of investigation as determined by a court of competent jurisdiction)
incurred by any indemnified party: (i) as a result of any breach
of any of Company's representations, warranties or covenants contained in this
Agreement, (ii) with respect to any of the Assumed Liabilities or
(iii) with respect to Company's use of the Assets following the Closing
Date.
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9.3 Notice and Defense of
Claims. If either party to this Agreement ("Indemnitee") receives notice
or otherwise obtains knowledge of any matter with respect to which the other
party to this Agreement ("Indemnitor") may become
obligated to hold harmless or indemnify Indemnitee under this Section 9, then Indemnitee
will promptly deliver to Indemnitor a written notice describing such matter,
provided that the failure to promptly deliver such notice will not affect the
indemnification obligation except to the extent the Indemnitor is prejudiced or
injured thereby. If such matter involves a third party, Indemnitor
will have the right, at its option, to assume the defense of such matter at its
own expense and with its own counsel, provided that such counsel does not have
an actual or potential conflict of interest. If Indemnitor elects to
and does assume the defense of such matter, (a) Indemnitee will fully
cooperate as reasonably requested by Indemnitor in the defense or settlement of
such matter, (b) Indemnitor will keep Indemnitee reasonably informed of
developments and events relating to such matter, and (c) Indemnitee will
have the right to participate without interfering with Indemnitor or its
counsel, at its own expense, in the defense of such matter. So long
as Indemnitor is in good faith defending Indemnitee in such matter, Indemnitee
will not settle or compromise or attempt to contact any other parties to the
dispute in such matter. Unless and until the Indemnitor assumes the
defense with respect to such matter, Indemnitee will have the right (but not the
obligation) to defend itself, or to enter into any reasonable settlement of such
matter, without prejudice to any right of recovery against
Indemnitor.
9.4 Payments to Indemnified
Parties. An Indemnitor with an indemnification obligation
under this Section
9 will
promptly reimburse each Indemnitee for all amounts owed under this Section 9 from time to time
at the Indemnitee's request.
9.5 Survival of
Representations. The representations and warranties set forth
in this Agreement will survive from and after the Closing Date through the
applicable statute of limitations (and thereafter, to the extent a claim or
action is made prior to such period, until such claim or action is finally
resolved). No claim for indemnification pursuant to this Section will
be made by any party based upon a breach or alleged breach of any representation
or warranty unless written notice of such claim or action is received by the
party against whom indemnification is sought prior to expiration of the survival
period.
9.6 Offset
Rights. Company will be entitled to offset, dollar for dollar,
claims for indemnity against Contributing Party under this Section 9 against all sums
owed to Contributing Party by Company under the Administrative Services
Agreement.
10. Termination.
10.1 Termination
Events. Except as provided in Section 10.2, this Agreement
may be terminated at any time prior to the Closing:
10.1.1 by
mutual written consent of Contributing Party and of Company;
10.1.2 by
Contributing Party or Company if the Closing has not occurred by
January 31, 2010;
10.1.3 by
Contributing Party or Company if: (a) there is a final
nonappealable order of a Governmental Body in effect permanently restraining,
enjoining or otherwise prohibiting consummation of the transactions contemplated
by this Agreement; or (b) there is any statute, rule, regulation or order
enacted, promulgated or issued or deemed applicable to the Agreement after the
date of this Agreement by any Governmental Body that would make consummation of
the transactions contemplated by this Agreement illegal;
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10.1.4 by
Company if it is not in material breach of any of its representations,
warranties, covenants or agreements contained in this Agreement and there has
been a breach of any representation, warranty, covenant or agreement contained
in this Agreement on the part of Contributing Party, or if any representation or
warranty of Contributing Party has become untrue, or in any case if any of the
conditions set forth in Section 3.1 or Section 3.2 would not be
satisfied; provided, that, if such inaccuracy in such representations and
warranties or breach by Contributing Party is curable through the exercise of
commercially reasonable efforts, then Company may terminate this Agreement under
this Section 10.1.4 only if the
breach is not cured within 30 days after the date of written notice from Company
of such breach (but no cure period will be required for a breach which by its
nature cannot be cured); or
10.1.5 by
Contributing Party if it is not in material breach of any of its
representations, warranties, covenants or agreements contained in this Agreement
and there has been a material breach of any representation, warranty, covenant
or agreement contained in this Agreement on the part of Company such that the
conditions set forth in Section 3.2.1 or Section 3.2.2 would not be
satisfied; provided, that, if such inaccuracy in Company's representations and
warranties or breach by Company is curable by Company through the exercise of
its commercially reasonable efforts, then Contributing Party may terminate this
Agreement under this Section 10.1.5 only if the
breach is not cured within 30 days after the date of written notice from
Contributing Party of such breach (but no cure period will be required for a
breach which by its nature cannot be cured).
10.2 Notice of Termination; Effect of
Termination. Except as set forth in Section 10.1.1 any
termination of this Agreement under Section 10.1 will be
effective immediately upon the delivery of a valid written notice of the
terminating party to the other party. Where action is taken to
terminate this Agreement pursuant to Section 10.1, the terminating
party must promptly deliver to the other party a notice setting forth the reason
for the termination and the specific Section and subsection (as applicable) of
this Agreement upon which the right of termination is based. In the
event of termination of this Agreement as provided in Section 10.1, this Agreement
will become void and there will be no liability on the part of any party to this
Agreement, or their respective officers, directors, managers, members or
shareholders; provided that each party will remain liable for any breaches of
this Agreement prior to its termination.
11. Miscellaneous
Provisions.
11.1 Successors and
Assigns. This Agreement will be binding upon and will inure to
the benefit of the parties and their respective successors and permitted
assigns. The foregoing notwithstanding, neither party will be
permitted to assign its rights or delegate its obligations under this Agreement
to another party without the prior written consent of the other party to this
Agreement.
11.2 Notices. Each
notice, consent, request, or other communication required or permitted under
this Agreement will be in writing, will be delivered personally or sent by
certified mail (postage prepaid, return receipt requested) or by a recognized US
overnight courier, and will be addressed as follows:
17
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If
to Company:
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WS
Technologies LLC
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Attn: President
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||
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5300
SW Meadows Road, Suite 400
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Lake
Oswego, OR 97035
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||
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If
to Contributing Party:
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Aequitas
Capital Management, Inc.
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Attn: Legal
Department
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||
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5300
SW Meadows Road, Suite 400
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||
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Lake
Oswego, OR 97035
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Each
notice, consent, request, or other communication will be deemed to have been
received by the party to whom it was addressed (a) when delivered if
delivered personally; (b) on the second business day after the date of
mailing if mailed; or (c) on the date officially recorded as delivered
according to the record of delivery if delivered by overnight
courier. Each party may change its address for purposes of this
Agreement by giving written notice to the other party in the manner set forth
above.
11.3 Alterations and
Waivers. The waiver, amendment or modification of any
provision of this Agreement or any right, power or remedy under this Agreement,
whether by agreement of the parties or by custom, course of dealing or trade
practice, will not be effective unless in writing and signed by the party
against whom enforcement of such waiver, amendment or modification is
sought. No failure or delay by either party in exercising any right,
power or remedy with respect to any of the provisions of this Agreement will
operate as a waiver of such provisions with respect to such
occurrences.
11.4 Governing Law. This
Agreement will be construed, governed and enforced in accordance with the laws
of the State of Oregon, without regard to its choice of law
provisions.
11.5 Exhibits and
Schedules. The exhibits and schedules attached to this
Agreement are incorporated into and are a part of this Agreement.
11.6 Integration and Entire
Agreement. This Agreement and the exhibits and schedules and
other documents referred to in this Agreement set forth the entire understanding
between the parties and supersede all previous and contemporaneous written or
oral negotiations, commitments, understandings, and agreements relating to the
subject matter of this Agreement and merge all prior and contemporaneous
discussions between the parties.
11.7 Counterparts and
Delivery. This Agreement may be executed in
counterparts. Each counterpart will be considered an original, and
all of them, taken together, will constitute a single Agreement. This
Agreement may be delivered by facsimile or electronically, and any such delivery
will have the same effect as physical delivery of a signed
original. At the request of any party, the other party will confirm
facsimile or electronic transmission signatures by signing an original
document.
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11.8 Definitions. Whenever
used in this Agreement, (a) the term "including" will be deemed to mean
"including without limitation", (b) the term "person" will be deemed to
mean any natural person, corporation, limited liability company, partnership or
other entity, and (c) the terms "will" and "shall" have the same
meaning.
11.9 Attorney Fees. In
the event suit or action is instituted to interpret or enforce this Agreement,
the prevailing party will be entitled to recover its attorney's fees, including
those incurred on appeal, as determined by the court or arbitrator.
11.10 Specific
Performance. The parties acknowledge they would be irreparably
damaged if any of the provisions of this Agreement are not performed in
accordance with their specific terms and that monetary damages would provide an
inadequate remedy. Accordingly, in addition to any other remedy at
law or in equity, the nonbreaching party will be entitled to injunctive relief
to prevent breaches of this Agreement and specifically to enforce this Agreement
without the need for posting any bond or other security.
11.11 Rules of
Construction. The parties have been represented by separate
counsel during the negotiation and execution of this Agreement and, therefore,
waive the application of any law regulation, holding or rule of construction
providing that ambiguities in an agreement or other document will be construed
against the parties drafting such agreement or document.
[Signature
Page Follows]
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IN WITNESS WHEREOF, the parties have
executed this Agreement on the date first above written.
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COMPANY:
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WS
Technologies LLC
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By
microHelix, Inc., its Manager
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By
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/s/ Brian A. Oliver
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Brian
A. Oliver
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Secretary
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CONTRIBUTING
PARTY:
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AEQUITAS
CAPITAL MANAGEMENT, INC.
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By
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/s/ Robert J. Jesenik
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Robert
J. Jesenik
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President
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Signature
Page to WS Technologies, LLC Contribution Agreement (ACM)