Attached files
| file | filename |
|---|---|
| 10-K/A - CarePayment Technologies, Inc. | v210025_10ka.htm |
| EX-10.1 - CarePayment Technologies, Inc. | v210025_ex10-1.htm |
| EX-31.1 - CarePayment Technologies, Inc. | v210025_ex31-1.htm |
| EX-10.8 - CarePayment Technologies, Inc. | v210025_ex10-8.htm |
| EX-10.9 - CarePayment Technologies, Inc. | v210025_ex10-9.htm |
| EX-10.7 - CarePayment Technologies, Inc. | v210025_ex10-7.htm |
| EX-10.4 - CarePayment Technologies, Inc. | v210025_ex10-4.htm |
| EX-31.2 - CarePayment Technologies, Inc. | v210025_ex31-2.htm |
| EX-32.2 - CarePayment Technologies, Inc. | v210025_ex32-2.htm |
| EX-10.6 - CarePayment Technologies, Inc. | v210025_ex10-6.htm |
| EX-10.5 - CarePayment Technologies, Inc. | v210025_ex10-5.htm |
| EX-32.1 - CarePayment Technologies, Inc. | v210025_ex32-1.htm |
| EX-10.3 - CarePayment Technologies, Inc. | v210025_ex10-3.htm |
| EX-10.10 - CarePayment Technologies, Inc. | v210025_ex10-10.htm |
| EX-10.11 - CarePayment Technologies, Inc. | v210025_ex10-11.htm |
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 CarePayment,
LLC, an Oregon limited liability company ("Contributing
Party").
Background
A. Contributing
Party owns the marks CarePayment® and CarePayment.com, including all stylized
versions and logos associated with such trademarks (the "Marks"), and the Internet
domain name "CarePayment.com", including all lower-level internet domain names
for which "CarePayment.com" is a root or parent, whether in the form of an
address for use in electronic mail transfer, a Uniform Resource Locator or other
form suitable for specifying the location of an electronic data file over a
distributed computer network (the "Domain Name").
B. Contributing
Party and certain other parties have entered into an Operating Agreement (the
"Operating Agreement")
pursuant to which Company will service and collect consumer receivables
generated by hospitals on a recourse basis with respect to the hospital 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.
Agreement
In consideration of the mutual promises
and covenants set forth in this Agreement, the parties agree as
follows:
1. Contribution of
Assets.
1.1 Contribution. Subject
to the terms and conditions set forth in this Agreement, Contributing Party
agrees to transfer the Marks, the Domain Name and all goodwill related to the
Marks and the Domain Name to Company at Closing (defined below) (collectively,
the "Assets"), 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").
1.2 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.
1.3 No Assumed
Liabilities. Other than the Assumed Contracts, 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 22% 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.
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
Trademark Assignment in the form of attached Exhibit
A;
(b) A
Domain Name Assignment in the form of attached Exhibit
B;
(b) A
Servicing Agreement in the form of attached Exhibit C executed by
Contributing Party;
(c) A
fully executed Contribution Agreement between Company and Aequitas Capital
Management, Inc. in the form attached as Exhibit D;
(d) A
fully executed Contribution Agreement between Company and microHelix, Inc. in
the form attached as Exhibit E;
and
(e) A
fully executed Operating Agreement.
2
3.1.5 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.
3.1.6 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
ability of the parties to effect the transactions under this
Agreement.
3.1.7 Due Diligence
Review. Company will have been satisfied, in its sole
discretion, with its due diligence review of the Assets, including Company's
review of Exhibits and Schedules to be attached to this Agreement at or prior to
Closing.
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.
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 Operating
Agreement. At Closing, Contributing Party will have received a
fully executed Operating Agreement.
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.
3
4.2 Operations Pending
Closing. Contributing
Party agrees that from the date of this Agreement to the Closing:
4.2.1 Contributing
Party will operate the Assets in a manner designed to preserve and protect its
business, goodwill and relationships with its vendors, suppliers, customers and
others; and comply, in all material respects, with all applicable
laws.
4.2.2 Contributing
Party will not do, or omit to do, any act which will cause a material breach of
any commitment or obligation related to the Assets or amend, terminate or waive
any material right of substantial value relating to the Assets.
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 limited liability company 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.
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). Immediately after the Closing Company will have the
right to use and exploit the Assets on substantially similar terms and
conditions as Contributing Party enjoyed immediately prior to the
Closing.
4
7.5 Intellectual
Property.
7.5.1 Marks. The Marks
(i) have not been abandoned and are not currently the subject of any active
opposition, invalidation or cancellation proceeding; and (ii) are not the
subject of any threatened opposition, invalidation or cancellation proceeding,
and there is no basis for any such opposition, invalidation or cancellation
proceeding in connection with the Marks. The Marks are currently in
compliance with formal legal requirements (including the timely
post-registration filing of affidavits of use and incontestability and renewal
applications). Other than for filing fees, renewal fees or similar
fees or charges arising in the ordinary course of business, none of the
Trademarks is subject to any maintenance fees or actions required by the
applicable trademark offices governing the Trademarks.
7.5.2 Domain Name. The
Domain Name (i) is not currently the subject of any active invalidation or
cancellation proceeding; and (ii) is not the subject of any threatened
invalidation or cancellation proceeding, and there is no basis for any such
invalidation or cancellation proceeding in connection with the Domain
name. The Domain Name is not subject to any maintenance fees or
actions required by the applicable registrars governing the Domain
name.
7.6 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:
7.6.1 conflict
with or result in a violation or breach of any of the terms, conditions, or
provisions of the Articles of Organization or Operating Agreement of
Contributing Party;
7.6.2 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
7.6.3 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 any
of the Assets under such contract.
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.
5
7.8 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.
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 Articles of Organization; 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.
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 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, or (ii) 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 Servicing
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;
7
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
(ii) 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;
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.
8
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:
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If
to Company:
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WS
Technologies LLC
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Attn: President
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5300
SW Meadows Road, Suite 400
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Lake
Oswego, OR 97035
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If
to Contributing Party:
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CarePayment,
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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|
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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.
9
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.
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]
10
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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|||
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Secretary
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CONTRIBUTING
PARTY:
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CAREPAYMENT,
LLC
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By
Aequitas Capital Management, its Manager
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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 (CarePayment)
ATTACHED
SCHEDULES AND EXHIBITS
Schedule 7
– Disclosure Schedule
Exhibit A
– Form of Trademark Assignment Agreement
Exhibit B
– Form of Domain Name Assignment
Exhibit C
– Form of Servicing Agreement
Exhibit D
– Form of Contribution Agreement with Aequitas
Exhibit E
– Form of Contribution Agreement with microHelix
Schedules
and Exhibits
Schedule
7
Disclosure
Schedule
None.
Disclosure
Schedule
Exhibit
A
Form of Trademark Assignment
Agreement
Exhibit
A
SERVICE
MARK ASSIGNMENT
CarePayment, LLC, an Oregon limited
liability company ("Assignor"), having its principal place of business at 5300
Meadows Road, Suite 400, Lake Oswego, Oregon 97035, is the owner of the
following (i) service mark registrations on the Principal and Supplemental
Registers in the United States Patent and Trademark Office; and (ii) service
mark application currently pending registration on the Principal Register in the
United States Patent and Trademark Office (the "Marks"):
|
Marks
|
U.S. Reg. No.
|
|
|
CARE
PAYMENT (stylized)
|
3390720
|
|
|
CAREPAYMENT
|
3238471
|
|
Mark
|
U.S. Ser. No.
|
|
|
CAREPAYMENT
|
77877941
|
WS Technologies LLC, an Oregon limited
liability company ("Assignee"), having its principal office at 5300 Meadows
Road, Suite 400, Lake Oswego, Oregon 97035, desires to acquire the
Marks.
NOW, THEREFORE, for good and valuable
consideration, receipt and sufficiency of which are hereby acknowledged,
Assignor hereby assigns to Assignee all of Assignor's right, title and interest
in and to the Marks, together with the goodwill of the business associated with
the Marks and the above identified registrations for the Marks.
DATED: December 30,
2009
|
ASSIGNOR:
|
||
|
CarePayment,
LLC
|
||
|
By: Aequitas
Capital Management, Inc.,
|
||
|
its
Manager
|
||
|
By:
|
||
| Robert J. Jesenik, President | ||
Exhibit
B
Form of Domain Name
Assignment
Exhibit
B
DOMAIN
NAME ASSIGNMENT
This Domain Name Assignment, effective
as of December 30, 2009 ("Effective Date"), is by CarePayment, LLC, an Oregon
limited liability company having its principal office at 5300 Meadows Road,
Suite 400, Lake Oswego, Oregon 97035 ("Assignor"), in favor of WS Technologies
LLC, an Oregon limited liability company ("Assignee"), having its principal
office at 5300 Meadows Road, Suite 400, Lake Oswego, Oregon 97035
("Assignee").
For good and valuable consideration,
receipt and sufficiency of which Assignor hereby acknowledges, Assignor hereby
irrevocably assigns, sells, quitclaims and transfers to Assignee all right,
title and interest in and to the Internet domain name "CarePayment.com" ("Domain
Name"), including all lower-level internet domain names for which the Domain
Name is a root or parent, whether in the form of an address for use in
electronic mail transfer, a Uniform Resource Locator or other form suitable for
specifying the location of an electronic data file over a distributed computer
network.
Within fifteen (15) days after the
Effective Date, Assignor will: (a) take whatever actions are necessary to
effectively transfer ownership of the Domain Name to Assignee, including,
without limitation, executing the agreements and documents required by the
Domain Name registrar, Tucows Inc.; and (b) provide Assignee or its authorized
agents with exclusive access to all accounts, user names and passwords issued by
Tucows Inc., that may be necessary to effectively manage the Domain
Name.
|
ASSIGNOR:
|
||
|
CarePayment,
LLC
|
||
|
By
Aequitas Capital Management, Inc., its Manager
|
||
|
By:
|
|
|
|
Robert
J. Jesenik,
President
|
||
Exhibit
C
Form of Servicing
Agreement
Exhibit
C
SERVICING
AGREEMENT
This
Servicing Agreement (this "Agreement") is made as of
December 31, 2009, by and between CarePayment, LLC, an Oregon limited liability
company ("Owner"), and
WS Technologies, LLC, an Oregon limited liability company ("Servicer"). Aequitas
Holdings, LLC, an Oregon limited liability company ("Aequitas") is a party to this
Agreement solely for purposes of agreeing to Section 8.1.
Recitals
A. Owner
is in the business of purchasing or obtaining the right to collect consumer
receivables generated by hospitals on a recourse basis with respect to the
hospital ("Receivables").
B. Servicer
provides Receivables origination, servicing, collection and administration
services.
C. Owner
desires to engage Servicer to originate, manage and service the collection of
Receivables purchased or controlled by Owner, and Servicer wishes to provide
such services, all on the terms and conditions provided for in this
Agreement.
Agreement
NOW,
THEREFORE, in consideration of the premises and the mutual covenants and
agreements hereinafter set forth, Owner and Servicer hereby agree as
follows:
1. Servicing.
1.1 Appointment of
Servicer. Owner hereby appoints Servicer as the sole and
exclusive servicer to collect, administer and service the Receivables purchased
or controlled by Owner, including negotiating with hospitals on behalf Owner
with respect to such services. Owner hereby appoints Servicer as the
non-exclusive originator of Receivables purchased or controlled by Owner,
including negotiating with hospitals on behalf Owner with respect to such
services. Servicer shall have the full power and authority to do or
cause to be done any and all things in connection with such servicing,
administration and collection as Servicer may deem to be necessary or desirable
to optimize the recoverable value from such Receivables, and in furtherance
thereof is authorized and shall have the sole authority to (a) collect and
post all payments on the Receivables, (b) communicate with the hospitals
and patients to whom the Receivables relate, (c) commence and pursue
collection actions with respect to any Receivable, and (d) perform such
other practices and procedures as Servicer may deem necessary or desirable in
connection with servicing, administering and collecting
Receivables. Upon request, Owner shall furnish Servicer with any
powers of attorney or other documents that Servicer may reasonably request in
order for Servicer to perform its obligations under this
Agreement. Servicer agrees to employ lawful means in its efforts to
collect Receivables. In providing its services, Servicer shall
conform to a standard of practice and care consistent with industry
standards.
Page 1 –
MICROHELIX/CAREPAYMENT
SERVICING AGREEMENT
1.2 Receivable
Files. Owner shall deliver or cause to be delivered to the
Servicer all files and records related to the Receivables, together with such
other documents as Servicer may reasonably require in order to perform its
duties under this Agreement. All documents described in this Section 1.2 are referred to
collectively herein as the "Receivable
Documents." Servicer will retain in its possession originals
of the Receivable Documents and will hold all such documents on behalf of
Owner. Such documents shall be accessible for inspection and copying
by Owner or its representative or agent upon reasonable advance notice during
normal business hours. For purposes of this Agreement, "original"
Receivable Documents may include documents received in electronic form (whether
by facsimile transmission, in "pdf" files or otherwise).
1.3 Subservicing.
1.3.1 Servicer
may appoint one or more sub-servicers from the list of Approved Sub-servicers
(defined below) to perform Servicer's duties under this Agreement (each, a
"Sub-servicer"). The
appointment of any Sub-servicer by the Servicer does not relieve Servicer of any
of its duties or responsibilities under this Agreement, and Servicer shall be
responsible for managing the activities of any Sub-servicer. The
amount of the subservicing fees payable to any Sub-servicer shall be payable by
Servicer from the Servicing Fee paid to Servicer by Owner.
1.3.2 Servicer's
list of approved Sub-servicers ("Approved Sub-servicers") and
sub-contractors is on the attached Exhibit A. Servicer
shall not add or remove Sub-servicers from the list of Approved Sub-servicers or
amend, modify or replace any agreement it may have with its Sub-servicers
without the prior written consent of Owner, which consent shall not be
unreasonably withheld, delayed or conditioned.
1.4 Payment
Collections. Servicer is responsible for collection of all
payments made with respect to Receivables. and for accounting to Owner for all
Collections. Servicer is responsible for instructing hospitals and
patients to remit payments and/or settlements to Servicer. Owner will
promptly report to Servicer any direct payments it receives from hospitals or
patients with respect to any Receivables.
1.5 Deposit to Collection
Account; Reports. Servicer shall cause all collections of Receivables
("Collections") received
by Servicer to be deposited daily into an account (the "Collection Account") within
two business days after receipt. Servicer shall provide Owner with a
daily and weekly (on Monday of each week unless such day is a legal holiday)
reconciliation report, in electronic form reasonably satisfactory to Owner, of
all Collections and deposits since the date of the last daily or weekly report,
as applicable (the "Reconciliation
Report").
1.6 Insurance. Servicer
shall maintain policies of insurance or other evidence of insurance coverage as
follows:
1.6.1 Comprehensive
general liability insurance with a combined single limit of not less than
$1 million.
Page 2 –
MICROHELIX/CAREPAYMENT
SERVICING AGREEMENT
1.6.2 Comprehensive
errors and omissions insurance providing coverage in the amount of not less than
$1 million covering any loss or damage for which Servicer may become liable
arising out of errors, omissions or other defects arising out of or relating to
collection and administration of the Receivables, including alleged violations
of federal or state laws relating to collection practices, including credit
protection laws.
1.6.3 Employee
dishonesty insurance (or similarly named and purposed insurance or bond)
providing coverage in the amount of not less than $2 million.
Owner
shall be designated as an additional insured on all such liability
policies. In addition, Servicer shall use commercially reasonable
efforts, to the extent possible, to extend coverage under Servicer's liability
and errors and omissions policies to include coverage for the liabilities,
errors and omissions of its Sub-servicers. Servicer shall maintain
all insurance required above and by applicable law with financially sound and
reputable independent insurers. Servicer shall provide to Owner, upon
Owner's request, copies of such policies or certificates of
insurance. The policies required above shall provide that Owner shall
receive 30 days' written notice prior to amendment or cancellation.
Servicer
shall adhere to Servicer's standard practices and policies in the selection of
all Sub-servicers and shall use Sub-servicers that are reputable and licensed
and shall use commercially reasonable efforts to ensure that all Sub-servicers
are bonded (where appropriate) and that they maintain commercially reasonable
forms and levels of insurance coverage.
1.7 Access By Financing
Sources. Upon reasonable advance notice, Servicer agrees to
make its representatives reasonably available from time to time to discuss with
Owner and/or its financing sources the status of Servicer's servicing activities
and the status of the Receivable portfolios.
2.
Compensation.
2.1 Servicing
Fee. Owner will pay Servicer the following fees:
2.1.1 a
monthly Servicing Fee (the "Servicing Fee") in an amount
equal to 0.4167% of total Eligible Receivables existing as of the last business
day of the preceding month;
2.1.2 an
origination fee ("Origination
Fee") equal to 6.0% of the original balance of all newly generated
Eligible Receivables, plus 6.0% of the
balance of all Transferred Billing Receivables, and
2.1.3 The
Back End Fee.
2.2 "Eligible Receivables" are
those Receivables owed by a debtor deemed credit worthy by mutual agreement of
Owner and Servicer that have been funded by Owner.
2.3 "Transferred Billing
Receivables" are those Receivables that are not initially Eligible
Receivables, but become Eligible Receivables following satisfaction of
performance metrics as developed from time to time by Owner and Servicer and are
funded by Owner.
Page 3 –
MICROHELIX/CAREPAYMENT
SERVICING AGREEMENT
2.4 "Back End Fee" means 25.0% of
the amount calculated as follows with respect to each calendar quarter during
the Term:
2.4.1 The
net income of Owner as determined on a quarterly basis in accordance with
generally accepted accounting principles,
2.4.2 plus actual interest
expense for the quarterly period,
2.4.3 minus an assumed cost
of funds of Owner of 18% per annum with respect to all funded
Receivables.
2.5 Payment of Servicing Fee,
Origination Fee and Back End Fee.
2.5.1 On
or after the first business day of each month, Servicer shall invoice Owner for
the Servicing Fee for the immediately preceding month. Such invoice
shall include Servicer's calculation of the unpaid balance of Eligible
Receivables and Transferred Billing Receivables serviced by Servicer during the
immediately preceding month in reasonable detail satisfactory to
Owner. The Servicing Fee shall be due on the 15th day of
the month immediately following the month in which Services were performed or,
if the 15th day of
the month is not a business day, then the first business day
thereafter.
2.5.2 Owner
shall pay Servicer all Origination Fees simultaneously with Owner's funding of
Eligible Receivables and Transferred Billing Receivables. Such
payments shall be accompanied by certificates, in reasonable detail satisfactory
to Servicer, identifying the Eligible Receivables and/or Transferred Billing
Receivables to which such payments apply.
2.5.3 Owner
shall pay Servicer all Back End Fees quarterly in arrears, with each payment due
by the 30th day following the end of each calendar quarter.
2.6 Additional
Compensation. Owner shall pay Servicer an amount equal to
Servicer's actual monthly losses incurred during the first three months of the
Term, and an amount equal to 50% of Servicer's actual monthly losses incurred
during months four through six of the Term (each such payment being a "Shortfall Fee"). If
Servicer incurs actual monthly losses in months four through six of the Term,
the parties will negotiate in good faith as to whether the Shortfall Fee will
continue after month six of the Term. Beginning on February 15, 2010,
such payments shall be made within 15 days after the end of each month,
following Owner's receipt from Servicer of information detailing the amount of
the loss for each month, in such form as is reasonably acceptable to
Owner. Owner may, in its discretion, make an advance payment under
this Section 2.6 in January 2010, which payment would be credited toward any
future payments due under this Section 2.6.
2.7 Owner's
Offset. Owner may offset any amounts due from Owner under this
Agreement against amounts owed by Servicer to Owner under the Administrative
Services Agreement dated December 31, 2009 between Owner and Servicer and the
Sublease dated December 31, 2009 between Owner and Servicer.
Page 4 –
MICROHELIX/CAREPAYMENT
SERVICING AGREEMENT
2.8 Taxes. All
taxes, duties or charges in the nature of sales, use or excise taxes resulting
from Servicer's performance under this Agreement will be treated as operating
costs of, and will be paid by, Owner. Notwithstanding the prior
sentence, Owner shall have no responsibility for any taxes based on Servicer's
income, which taxes will be Servicer's sole responsibility.
3. Books and Records; Reports;
Inspection Rights.
3.1 Books and
Records. Servicer shall keep books and records pertaining to
the Receivables. Owner shall keep books and records pertaining to the
Back End Fee. Upon reasonable prior notice, each party shall grant
the other reasonable access to such books and records. All such books
and records and all Receivable Documents, whether or not developed or originated
by Servicer, shall remain at all times the property of Owner;
provided, however, that Servicer shall have the right to maintain a copy of such
books, records and Receivable Documents and shall retain the right to use such
books, records and Receivable Documents to develop data, databases, information
and reports (collectively, the "Data"). All right,
title and interest in and to the Data shall remain at all times the sole
property of Servicer, and Owner shall not have any rights to the Data, except
that Owner shall have a nonexclusive, royalty-free perpetual license to use the
Data developed by Servicer in connection with this Agreement.
3.2 Reporting. In
addition to the Reconciliation Reports, Servicer shall provide Owner mutually
agreed upon reports and information on a weekly or as needed basis.
3.3 Inspection and Audit
Rights.
3.3.1 Servicer
will be responsible to make such examinations of the books and records of each
Sub-servicer that is servicing Receivables owned or controlled by Owner as
Servicer deems reasonably necessary in order to verify the accuracy of cash
receipts and disbursements reported by each Sub-servicer.
3.3.2 Subject
to Section 3.3.3 below, on not
less than five business days prior written notice, each party shall permit the
other party or its respective agents, representatives or designees, at the sole
cost and expense of the examining party, during normal business hours, to
examine or make copies of abstracts from all books, records and documents,
including computer tapes and disks and constituting Receivable Documents or
otherwise relating to the Receivables or Servicer's or any Sub-servicer's
collection activities with respect to the Receivables, or the Back End
Fee. Subject to Section 3.3.3 below, the
examining party shall reimburse all costs and expenses of the party whose books
and records are being examined, or its respective agents, representatives or
designees incurred under this Section at prevailing
rates. Examinations may be performed either on-site or remotely at
Owner's discretion. Upon request, the party whose books and records
are being examined shall provide to the examiner(s) a reasonable workspace and
the use of on-site photocopying equipment. The party whose books and
records are being examined shall allow full and free access to records relating
to the Receivable Documents or the Back End Fee and shall provide necessary
technical assistance as required to access such records. The party
whose books and records are being examined shall deliver any document or
instrument necessary for the examining party, as it may from time to time
reasonably request, to obtain records from any service bureau or other person
that maintains records for the party whose books and records are being examined,
and shall maintain duplicate records or supporting documentation on media,
including computer tapes and discs owned by the party whose books and records
are being examined. The examining party agrees to advise the party
whose books and records are being examined of the exceptions/discrepancies
identified in any examination and agrees to allow the party whose books and
records are being examined a reasonable period of time to respond to
them.
Page 5 –
MICROHELIX/CAREPAYMENT
SERVICING AGREEMENT
3.3.3 If,
after examination, there is a discrepancy as to the amount of any fees paid or
payable under this Agreement with respect to the period examined (which period
shall not be less than 90 days), the parties will use commercially reasonable
efforts to resolve the discrepancy. If the parties cannot resolve the
discrepancy within 30 days after the last date on which the examination of the
records giving rise to the discrepancy occurred, the parties will submit the
discrepancy to an independent accounting firm to be agreed to by the parties for
resolution. If the discrepancy, as agreed by the parties or as
determined by the independent accountants, is 10% or greater, the fees and
expenses of the examination and of the independent accountants will be borne by
the losing party.
3.3.4 So
long as the party whose books and records are being examined is not in default
of its obligations under this Agreement, examination of that party's books and
records shall occur no more often than once per calendar quarter.
3.4 Record
Retention. Each party agrees to maintain all records relating
to this Agreement for a period of not less than seven years from the date of
origination of such records or such longer time as may be required by law or
regulation. Such records may be retained in electronic format unless
otherwise required by specific law or regulation in which case the records will
be retained in the required format.
4. Term and
Termination.
4.1 Term. This
Agreement will be for term ending on December 31, 2034 (the "Term").
4.2 Termination by
Owner. Notwithstanding anything herein to the contrary, Owner
may terminate Servicer's services under this Agreement, by giving at least 30
days' prior written notice to Servicer upon the occurrence of any of the
following (each a "Termination
Event"):
4.2.1 Servicer's
failure to observe or perform in any material respect any obligation, covenant
or agreement required to be performed by Servicer under this Agreement or
Servicer's material breach of any agreement with a third party that would
materially affect Servicer's ability to observe or perform in any material
respect any obligation, covenant or agreement required to be performed by
Servicer under this Agreement, which failure or material breach is not cured (if
capable of being cured) within 90 days after receipt of notice from Owner or the
third party specifying such failure or material breach or, if the cure requires
more than 90 days, the failure of Servicer to promptly initiate steps to cure
such failure or material breach and thereafter to diligently continue and
complete all commercially reasonable and necessary steps sufficient to cure such
material breach.
Page 6 –
MICROHELIX/CAREPAYMENT
SERVICING AGREEMENT
4.2.2 Any
gross negligence or willful misconduct by Servicer directly resulting in
material damage to Owner's reputation in the industry and an actual monetary
loss to Owner, regardless of whether Owner has been reimbursed by Servicer or
its insurer.
4.2.3 Servicer
closes for business, dissolves, becomes insolvent, admits in writing its
inability to pay its debts generally, applies for the appointment of a receiver
or custodian, makes an assignment for the benefit of creditors, or a voluntary
or involuntary petition under any state or federal bankruptcy laws is filed by
or against Servicer and, in the case of any involuntary filing, the petition is
not dismissed within 30 days after the filing thereof.
4.2.4 Servicer
fails to meet the Benchmark during any 12 month period during the Term on a
rolling basis, beginning with the twelve month period ending December 31, 2010,
which failure remains uncured for more than 90 days following Servicer's receipt
of written notice identifying with specificity any failure to meet the
Benchmark. For purposes of this Agreement, the "Benchmark" means, with respect
to Receivables and Transferred Billing Receivables for a calendar year, the
finance charge income of Owner from such Receivables for such calendar year
represents at least an 18% annual internal rate of return on Owner's funding of
such Receivables, after deduction of Servicing Fees and Origination Fees paid to
Servicer during such calendar year.
4.3 Termination by
Servicer. Notwithstanding anything herein to the contrary,
Servicer may terminate this Agreement by giving at least 30 days' prior written
notice to Owner and Lender upon the occurrence of any of the following
events:
4.3.1 Owner
fails to pay to Servicer any undisputed Servicing Fee, Origination Fee, Back End
Fee or Shortfall Fee payment when due and such failure is not cured within 30
days after receipt of notice from Servicer specifying such failure.
4.3.2 Any
gross negligence or willful misconduct by Owner or any member, employee, agent
or Affiliate of Owner resulting in damage to Servicer's reputation and a
material loss or damage to Servicer, regardless of whether Servicer has been
reimbursed by Owner or its insurer.
4.3.3 Owner
closes for business, dissolves, becomes insolvent, admits in writing its
inability to pay its debts generally, applies for the appointment of a receiver
or custodian, makes an assignment for the benefit of creditors, or a voluntary
or involuntary petition under any state or federal bankruptcy laws is filed by
or against Owner and, in the case of any involuntary filing, the petition is not
dismissed within 30 days after the filing thereof.
4.4 Effect of
Termination. Upon termination of this Agreement, Servicer
shall:
4.4.1 within
10 business days, deliver or cause to be delivered to Owner all Receivable
Documents then in the possession of Servicer or any Sub-servicer, together with
all Data and all other information and documentation relating to the servicing
and collection of the Receivables (with Servicer having the right to retain
copies thereof), in an orderly form as reasonably requested by
Owner;
Page 7 –
MICROHELIX/CAREPAYMENT
SERVICING AGREEMENT
4.4.2 within
five business days after termination and thereafter within five business days
after receipt by Servicer, remit all Collections to Owner;
4.4.3 within
two business days after receipt, forward to Owner or other person designated by
Owner all correspondence received by Servicer or, to Servicer's knowledge, any
Sub-servicer with respect to any Receivable; and
4.4.4 upon
written request from Owner, Servicer shall (i) prepare, execute and deliver
any and all documents and other instruments reasonably required by Owner in
connection with the succession by Owner, (ii) place in Owner's possession
all records related to the Receivables and all other servicing files,
(iii) transfer to Owner for administration by it all cash amounts, if any,
which as of such time have been deposited by Servicer, or Sub-servicer in the
Collection Account or thereafter be received by Servicer or Sub-servicer with
respect to the Receivables, and (iv) use commercially reasonable efforts to
do or accomplish all other acts or things reasonably necessary or appropriate to
enable Owner to assume and discharge the servicing obligations. In
addition, Servicer agrees to cooperate and use commercially reasonable efforts
in providing at the Servicer's expense Owner with reasonable access (including
at the premises of the Servicer or Sub-servicer) to Servicer's employees, and to
use commercially reasonable efforts to cause its Sub-servicers to provide Owner
with access to the employees of any Sub-servicer, and reasonable access to any
and all of the books, records (in electronic or other form) or other information
reasonably requested by it to enable Owner to assume the servicing
functions.
5. Representations and
Warranties.
5.1 By
Servicer. Servicer represents and warrants to Owner as
follows:
5.1.1 Servicer
is a corporation duly organized and validly existing under the laws of the State
of Oregon, and is authorized to conduct business in all states in which a
failure to qualify would materially and adversely affect its ability to perform
its services, including origination services, pursuant to this
Agreement.
5.1.2 The
execution, delivery and performance of this Agreement have been duly authorized
by all necessary corporate action by Servicer. This Agreement has
been duly and validly executed and delivered on behalf of Servicer and is
binding upon and enforceable against Servicer in accordance with its terms,
except as enforceability may be limited or affected by applicable bankruptcy,
insolvency, reorganization or other laws of general application relating to or
affecting the rights of creditors, and except as enforceability may be limited
by rules of law governing specific performance, injunctive relief or other
applicable remedies.
5.1.3 Servicer
has operated and will continue to operate its business in accordance with all
federal, state and local laws, statutes and regulations, including credit
protection laws and the Health Insurance Portability and Accountability Act of
1996 ("HIPAA"), and
Servicer is not in violation of any such laws or regulations other than such
violations which singly or in the aggregate do not, and, with the passage of
time will not, have a material adverse effect on its business or assets, or its
ability to perform its obligations under this Agreement.
Page 8 –
MICROHELIX/CAREPAYMENT
SERVICING AGREEMENT
5.2 By
Owner. Owner represents and warrants to Servicer as
follows:
5.2.1 Owner
is a limited liability company duly organized and validly existing under the
laws of the State of Oregon.
5.2.2 The
execution, delivery and performance of this Agreement have been duly authorized
by all necessary limited liability company action by Owner. This
Agreement has been duly and validly executed and delivered on behalf of Owner
and is binding upon and enforceable against Owner in accordance with its terms,
except as enforceability may be limited or affected by applicable bankruptcy,
insolvency, reorganization or other laws of general application relating to or
affecting the rights of creditors, and except as enforceability may be limited
by rules of law governing specific performance, injunctive relief or other
applicable remedies.
5.2.3 Neither
the execution and delivery of this Agreement by Servicer nor the consummation of
the transactions contemplated by this Agreement will (i) violate any
applicable law, judgment, order, decree, regulation or ruling of any
governmental authority, or (ii) either alone or with the giving of notice
or the passage of time or both, conflict with, constitute grounds for
termination of, or result in the breach of the terms, conditions or provisions
of or constitute a default under any agreement, instrument, license or permit to
which Servicer is a party or by which Servicer is bound.
6. Indemnification; Limitation of
Liability.
6.1 Indemnity by
Servicer. Servicer agrees to indemnify, defend and hold
harmless Owner and its respective officers, directors, managers, employees,
agents and affiliates (each an "Owner Indemnified Party"),
from and against any and all claims, losses, liabilities, damages, penalties,
fines, forfeitures, legal and accounting fees and all other fees or costs of any
kind, judgments or expenses (collectively, "Losses") resulting from or
arising out of (a) any breach by Servicer of any of the representations and
warranties made by it in this Agreement; (b) any failure of Servicer to comply
with and perform all of its duties and agreements under this Agreement; and (c)
any and all claims, actions or proceedings brought against Owner by any third
party as a result of or based upon the actions or omissions by Servicer in the
performance of its obligations under this Agreement (provided that such action
or inaction was not undertaken at the direction of Owner Indemnified Party),
including any failure by Servicer, any Sub-servicer or any of their agents,
representatives or employees to comply with all applicable laws, rules and
regulations, including credit protection laws and HIPAA, and any other action
taken in collection of the Receivables. Servicer shall have no
obligation to indemnify, defend or hold any Owner Indemnified Party harmless in
the event that any Losses result from the negligent or wrongful acts or
omissions of such person or its respective agents or employees.
6.2 Indemnity by Owner.
Owner agrees to indemnify, defend and hold harmless Servicer and its officers,
directors, employees, agents and affiliates (each a "Servicer Indemnified Party")
from and against any and all Losses resulting from or arising out of (a) any
breach by Owner of any of the representations and warranties made by it in this
Agreement; (b) any failure of Owner to comply with and perform all of its duties
and agreements under this Agreement; (c) and any and all claims, actions or
proceedings brought against Servicer by any third party as a result of or based
upon the actions or omissions of Owner in the performance of its obligations
under this Agreement (provided that such action or inaction was not undertaken
at the direction of the Servicer Indemnified Party). Owner shall have
no obligation to indemnify, defend or hold any Servicer Indemnified Party
harmless in the event that any Losses result from the negligent or wrongful acts
or omissions of such person or its agents or employees.
Page 9 –
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SERVICING AGREEMENT
6.3 Limitation of
Liability. Except as set forth above, in no event will any
party be liable to another party for any punitive or exemplary damages, even if
a party has been advised of the possibility of such damages, arising out of this
Agreement. In no event will Servicer be liable for the
uncollectibility of any Receivables or the timing of actual collections on any
Receivables under any circumstances.
7. Confidential
Information.
7.1 Confidentiality. Each
party hereto agrees that it shall not disclose or transfer to any third party
any information concerning the customers, trade secrets, methods, processes or
procedures or any other confidential, financial or business information
(collectively, "Confidential
Information") of the other party which it learns during the course of
this Agreement, without the prior written consent of such other
party. Notwithstanding the foregoing, the parties may disclose each
other's Confidential Information without obtaining prior written consent in the
following circumstances only: (i) to employees of the disclosing party or
the disclosing party's consultants or agents or attorneys, on a "need to know
basis," who require such information in order to assist the disclosing party in
performing this Agreement (so long as the disclosing party takes such
precautions or obtains such agreements as it would take or obtain in the
ordinary course of its business to protect its own confidential and proprietary
information); and (ii) as required in order to comply with any subpoena,
court order or applicable law, rule or regulation, provided that the disclosing
party gives the other party prior written notice of such disclosure (unless
prohibited by applicable law) and reasonably cooperates with the other party in
protecting the confidential or proprietary nature of the information which must
be so disclosed, at the other party's expense. Notwithstanding
anything to the contrary in this Agreement, no party shall have an obligation to
keep secret any Confidential Information which is in or becomes part of the
public domain not due to the fault of any such party or is known to such party
prior to entry into this Agreement.
7.2 Protection of Confidential
Information. Each party agrees that it will take all
commercially reasonable steps to protect the secrecy of and avoid disclosure of
Confidential Information of the other party in order to prevent it from falling
into the public domain or the possession of unauthorized
persons. Each party agrees to promptly notify the other party in
writing of any misuse or misappropriation of Confidential Information of the
other party that may come to its attention.
7.3 Relief. In
the event of a breach or threatened breach by any party of the foregoing
provisions, because of the uncertainty of damages resulting there from, each
party shall be entitled to an injunction restraining another party from any such
breach or threatened breach. Nothing herein shall be construed as
prohibiting a party from pursuing any other remedies available to it for such
breach or threatened breach, including the recovery of damages from the
breaching party.
Page 10 –
MICROHELIX/CAREPAYMENT
SERVICING AGREEMENT
7.4 Continuing
Obligations. The obligations of the parties under this Section 7 shall
survive the expiration, cancellation or other termination of this
Agreement.
8. Exclusivity.
8.1 Owner and Aequitas
Exclusivity. Each of Owner and Aequitas agrees
that:
8.1.1 During
the Term, Servicer will be entitled, at Servicer’s option, to service any
Receivables purchased by Owner or Aequitas or any affiliate of Owner or Aequitas
on terms substantially identical to those included herein, whether or not such
Receivables were identified for purchase by Servicer, Owner, Aequitas, any
affiliate of Servicer, Owner or Aequitas or any third party. This subsection shall
terminate upon the occurrence of Servicer’s material breach of this Agreement,
which material breach is not cured by Servicer within any applicable cure period
(which shall not be less than thirty (30) days) following Servicer’s receipt of
a reasonably detailed written notice from Owner describing the alleged
breach.
8.1.2 During
the Term, neither Owner, Aequitas, nor any affiliate of Owner or Aequitas will,
acting alone or in conjunction with others, directly or indirectly, engage
(either as sole proprietor, owner, partner, manager, member, shareholder,
employer, employee, officer, director, consultant or agent) in the United States
in the creation, management or ownership of or in any sole proprietorship,
corporation, partnership, limited liability company or other entity that has or
obtains the right to collect or service Receivables in any manner that would
circumvent Servicer's rights under Section
8.1.1. Ownership of not more than 1% of the equity securities
of any company having securities listed on an exchange or regularly traded in
the over-the-counter market will not, of itself, be deemed inconsistent with
this Section 8.1.2.
8.2 Servicer
Exclusivity. Servicer agrees that:
8.2.1 During
the Term, Owner will have the exclusive right to purchase any receivables
identified for purchase by Servicer and its affiliates.
8.2.2 During
the Term, Servicer will not (and will cause its affiliates to not) participate
in the purchase, sale or funding of any receivables unless and until Owner or
any of its affiliates has waived in writing its rights to purchase such
receivables.
9. Miscellaneous.
9.1 Severability. Any
part, provision, representation or warranty of this Agreement which is
prohibited or which is held to be void or unenforceable shall be ineffective to
the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof. Any part, provision, representation or
warranty of this Agreement which is prohibited or unenforceable or is held to be
void or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Agreement, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. To the
extent permitted by applicable law, the parties to this Agreement waive any
provision of law which prohibits or renders void or unenforceable any provision
of this Agreement. If the invalidity of any part, provision,
representation or warranty of this Agreement shall deprive any party of the
economic benefit intended to be conferred by this Agreement, the parties shall
negotiate in good faith to develop a structure the economic effect of which is
as nearly as possible the same as the economic effect of this Agreement without
regard to such invalidity.
Page 11 –
MICROHELIX/CAREPAYMENT
SERVICING AGREEMENT
9.2 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:
|
If
to Servicer:
|
WS
Technologies LLC
|
|
Attn: President
|
|
|
5300
SW Meadows Road, Suite 400
|
|
|
Lake
Oswego, OR 97035
|
|
|
If
to Owner:
|
CarePayment,
LLC
|
|
Attn: Legal
Department
|
|
|
5300
SW Meadows Road, Suite 400
|
|
|
Lake
Oswego, OR 97035
|
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.
9.3 Counterparts. 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.
9.4 Governing
Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Oregon, without giving effect to
conflicts of laws principles thereunder.
Page 12 –
MICROHELIX/CAREPAYMENT
SERVICING AGREEMENT
9.5 Venue/Jurisdiction. Each
of the parties hereby irrevocably agrees that any dispute arising under or in
any way relating to this Agreement shall be litigated solely and exclusively in
a federal or state court sitting in Multnomah County, Oregon. Each
party hereby agrees that if it attempts to commence any action regarding a
dispute arising under or in any way relating to this Agreement in any court
other than a federal or state court sitting in Multnomah County, Oregon, the
other party may obtain an immediate order dismissing such action for improper
venue or an order transferring venue to a federal or state court sitting in
Multnomah County, Oregon. Each of the parties hereby irrevocably
submits to the personal jurisdiction of any federal or state court sitting in
Multnomah County, Oregon, in any action or proceeding arising out of or in any
way relating to this Agreement. Each of the parties agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Each party also irrevocably waives the right to a
trial by jury in connection with any action brought to construe or enforce this
Agreement.
9.6 Amendments. This
Agreement may be amended from time to time by a written instrument signed by
Servicer and Owner and no waiver of any of the terms hereof by any party shall
be effective unless it is in writing and signed by the other
parties.
9.7 Integration. This
Agreement comprises the final and complete integration of all prior expressions
by the parties hereto with respect to the subject matter hereof and shall
constitute the entire agreement among the parties hereto with respect to such
subject matter, superseding all prior oral or written
understandings.
9.8 Agreement
Effectiveness. This Agreement shall become effective upon
delivery of fully executed counterparts hereof to each of the parties
hereto.
9.9 Headings Descriptive;
Interpretation. The headings of the sections and subsections
of this Agreement are inserted for convenience only and shall not in any way
affect the meaning or construction of any provision of this
Agreement. All references in this Agreement to "Section" or
"Sections" without additional identification refer to the Section or Sections of
this Agreement. The words "will" and "shall" have the same
meaning. The words "include," "includes" and "including" shall not be
deemed to be terms of limitation, but rather shall be deemed to be followed by
the words "without limitation."
9.10 Advice from Independent
Counsel. The parties hereto understand that this Agreement is
a legally binding agreement that may affect such party's rights. Each
party hereto represents to the other that it has received legal advice from
counsel of its choice regarding the meaning and legal significance of this
Agreement and that it is satisfied with its legal counsel and the advice
received from it.
9.11 Assignment. Except
as may otherwise be provided herein, Servicer may not assign, delegate and/or
subcontract all or substantially all of this Agreement or its rights hereunder,
or delegate its obligations hereunder without the prior written consent of
Owner. Any attempted assignment, delegation, and/or subcontracting
without the requisite consent of Owner shall be null and
void. Subject to the foregoing, this Agreement shall be binding upon
and shall inure to the benefit of the parties and their respective successors
and assigns.
9.12 Judicial
Interpretation. Should any provision of this Agreement require
judicial interpretation, it is agreed that a court interpreting or construing
the same shall not apply a presumption that the terms hereof shall be more
strictly construed against any person by reason of the rule of construction that
a document is to be construed more strictly against the person who itself or
through its agent prepared the same, it being agreed that all parties hereto
have participated in the preparation of this Agreement.
Page 13 –
MICROHELIX/CAREPAYMENT
SERVICING AGREEMENT
9.13 Further
Assurances. The parties agree to execute such other documents
as may be necessary to implement this Agreement and carry out the intent of the
parties to this Agreement.
9.14 Survival. Sections 2, 3, 6, 7, 8 and 9 and each other
provision of this Agreement that expressly or by its nature provides for rights,
obligations or remedies that extend beyond the expiration or earlier termination
of this agreement, will survive and continue in full force and effect after this
Agreement expires or is earlier terminated.
9.15 Independent Contractor
Status. Servicer's relationship to Owner with respect to the
services to be performed under this Agreement shall be that of an independent
contractor. Servicer assumes full responsibility for the actions of
its personnel in the performance of the services under this Agreement and will
be solely responsible for their supervision, daily direction and control and
will be responsible for their acts or omissions in performing Servicer's
obligations hereunder. Servicer shall have sole responsibility for
the payment of salary (including withholding of income taxes and social
security), worker's compensation and all other forms of compensation for its
personnel.
9.16 Attorney
Fees. In the event arbitration, suit or action is instituted
to enforce or determine the parties' rights or duties in connection with this
Agreement, the prevailing party shall recover from the losing party all costs
and expenses, including reasonable attorney fees, incurred in such proceedings,
including any appellate or bankruptcy proceedings.
9.17 Public
Announcements. Except as required by applicable law or
regulations, no party to this Agreement will make any public announcement or any
press release regarding this Agreement, or the transactions contemplated herein,
without the prior written consent of the other parties. In addition,
prior to making any public announcement or press release, each party will afford
the other parties the opportunity to review and reasonably comment on the
contents of such release.
[Signature
page follows]
Page 14 –
MICROHELIX/CAREPAYMENT
SERVICING AGREEMENT
IN WITNESS WHEREOF, the undersigned
have caused this Agreement to be executed by their authorized officer as of the
day and year first above written.
|
MICROHELIX, INC., as
Servicer
|
||
|
By
|
||
|
Name
|
||
|
Its
|
President
|
|
|
CAREPAYMENT,
LLC
|
||
|
By
Aequitas Capital Management, Inc., its Manager
|
||
|
By
|
||
|
Robert
J. Jesenik,
President
|
||
For
purposes of agreeing to Section 8.1 only:
|
AEQUITAS
HOLDINGS, LLC
|
||
|
By
Aequitas Capital Management, Inc., its Manager
|
||
|
By
|
||
|
Robert
J. Jesenik, President
|
||
Signature
page to Servicing Agreement
EXHIBIT
A
APPROVED
SUB-SERVICERS/SUBCONTRACTORS
I.C.
System, Inc.
Revenue
Cycle Partners, LLC
CareMedic
Systems, Inc.
Capio
Partners, LLC
Ivey
Performance Marketing LLC
TransUnion
Evolute
Consolidated Holdings LLC
NW
Plastic Cards
Wright
Business Graphics
Page 1 –
EXHIBIT A
Exhibit
D
Form of Contribution
Agreement with Aequitas
Exhibit
D
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;
1
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.
2
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;
3
(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.
4
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
5
(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.
6
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.
7
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.
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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.
(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.
10
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;
11
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.
12
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:
13
(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:
14
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.
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.
17
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:
|
If
to Company:
|
WS
Technologies LLC
|
|
Attn: President
|
|
|
5300
SW Meadows Road, Suite 400
|
|
|
Lake
Oswego, OR 97035
|
|
|
If
to Contributing Party:
|
Aequitas
Capital Management, Inc.
|
|
Attn: Legal
Department
|
|
|
5300
SW Meadows Road, Suite 400
|
|
|
Lake
Oswego, OR 97035
|
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.
18
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]
19
IN WITNESS WHEREOF, the parties have
executed this Agreement on the date first above written.
|
COMPANY:
|
WS
Technologies LLC
|
||
|
By
microHelix, Inc., its Manager
|
|||
|
By
|
/s/ Brian A. Oliver
|
||
|
Brian
A. Oliver
|
|||
|
Secretary
|
|||
|
CONTRIBUTING
PARTY:
|
AEQUITAS
CAPITAL MANAGEMENT, INC.
|
||
|
By
|
/s/ Robert J. Jesenik
|
||
|
Robert
J. Jesenik
|
|||
|
President
|
|||
Signature
Page to WS Technologies, LLC Contribution Agreement (ACM
20
Exhibit
E
Form of Contribution
Agreement with microHelix
Exhibit
E
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 microHelix,
Inc., an Oregon corporation ("Contributing
Party").
Background
A. Contributing
Party and certain other parties have entered into an Operating Agreement (the
"Operating Agreement")
pursuant to which Company will service and collect consumer receivables
generated by hospitals on a recourse basis with respect to the hospital as a
result of the contribution by Contributing Party of 1,000,000 shares of Series D
Preferred Stock (the "Series D
Preferred Stock") of Contributing Party and warrants to purchase up to
65,100,917 shares of Class B Common Stock of Contributing Party at an
exercise price of $0.001 per share (the "Warrants") 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 the Series D Preferred Stock and the
Warrants in return for the receipt of ownership interests of
Company.
Agreement
In consideration of the mutual promises
and covenants set forth in this Agreement, the parties agree as
follows:
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 Series D Preferred
Stock and the Warrants.
2. Ownership
Interests. Concurrently with Contributing Party's contribution
of the Series D Preferred Stock and the Warrants to Company at Closing, and in
exchange for the Series D Preferred Stock and the Warrants, Company will issue
to Contributing Party a 50% 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.
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
Subscription Agreement for the Series D Preferred Stock in the form of attached
Exhibit A
executed by Contributing Party;
(b) A Warrant
Agreement in the form of attached Exhibit B executed by
Contributing Party;
(c) A
fully executed Contribution Agreement between Company and Aequitas Capital
Management, Inc. in the form attached as Exhibit C;
(d) A fully
executed Contribution Agreement between Company and CarePayment, LLC in the form
attached as Exhibit D;
and
(e) A fully
executed Operating Agreement.
3.1.5 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.
3.1.6 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
ability of the parties to effect the transactions under 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:
2
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.
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 Operating
Agreement. At Closing, Contributing Party will have received a
fully executed Operating Agreement.
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, the Series D Preferred Stock and the
Warrants, and to assist Company in exercising all rights with respect thereto,
and otherwise to cause Contributing Party to fulfill its obligations under this
Agreement.
5. Representations and Warranties of
Contributing Party. Except as is otherwise disclosed on Schedule 5 to
this Agreement (the "Disclosure
Schedule") Contributing Party represents and warrants to Company
that:
5.1 Authorization. Contributing
Party is a limited liability company 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.
5.2 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").
3
5.3 Valid Issuance of
Securities. The shares of Series D Preferred Stock and the
Warrants, upon issuance to Company in accordance with the terms of this
Agreement, will be duly authorized, fully paid and nonassessable.
5.4 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:
5.4.1 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
Contributing Party; provided, however, that Company expressly acknowledges that
Contributing Party does not currently have sufficient authorized shares of
common stock to allow for the exercise of all of the Warrants;
5.4.2 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 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
5.4.3 with respect to any
contract to which Contributing Party is a party: 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.
5.5 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 in any way impair Contributing Party's ability to
fully perform its obligations under this Agreement.
5.6 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.
6. Representations and Warranties of
Company. Company represents and warrants to Contributing Party
as follows:
6.1 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.
4
6.2 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:
6.2.1 conflict with or result in
a violation or breach of any of the terms, conditions, or provisions of the
Articles of Organization; or
6.2.2 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.
6.3 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.
7. Indemnification.
7.1 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 as a result of any breach of any of Contributing Party's
representations, warranties or covenants contained in this
Agreement.
7.2 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 as a result of any breach of any of Company's
representations, warranties or covenants contained in this
Agreement.
7.3 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 7, 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.
5
7.4 Payments to Indemnified
Parties. An Indemnitor with an indemnification obligation
under this Section
7 will promptly reimburse each Indemnitee for all amounts owed under this
Section 7
from time to time at the Indemnitee's request.
7.5 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.
8. Termination.
8.1 Termination Events. Except as
provided in Section
8.2, this Agreement may be terminated at any time prior to the
Closing:
8.1.1 by mutual written consent
of Contributing Party and of Company;
8.1.2 by Contributing Party or
Company if the Closing has not occurred by January 31, 2010;
8.1.3 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
(ii) 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;
8.1.4 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 8.1.4
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
8.1.5 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 8.1.5
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).
6
8.2
Notice of Termination; Effect
of Termination. Except as set forth in Section 8.1.1
any termination of this Agreement under Section 8.1 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 8.1, 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 8.1,
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.
9. Miscellaneous
Provisions.
9.1
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.
9.2
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:
|
If
to Company:
|
WS
Technologies LLC
|
|
Attn: President
|
|
|
5300
SW Meadows Road, Suite 400
|
|
|
Lake
Oswego, OR 97035
|
|
If
to Contributing Party:
|
microHelix,
Inc.
|
|
Attn: President
|
|
|
5300
SW Meadows Road, Suite 400
|
|
|
Lake
Oswego, OR 97035
|
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.
7
9.3 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.
9.4 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.
9.5 Exhibits and
Schedules. The exhibits and schedules attached to this
Agreement are incorporated into and are a part of this Agreement.
9.6 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.
9.7 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.
9.8 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.
9.9 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.
9.10 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.
8
9.11 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]
9
IN WITNESS WHEREOF, the parties have
executed this Agreement on the date first above written.
|
COMPANY:
|
WS
TECHNOLOGIES LLC
|
||
|
By
microHelix, Inc., its Manager
|
|||
|
By
|
|||
|
Name
|
|||
|
Its
|
|||
|
CONTRIBUTING
PARTY:
|
MICROHELIX,
INC.
|
||
|
By
|
|||
|
Name
|
|||
|
Its
|
|||
Signature
page to WS Technologies, LLC Contribution Agreement (microHelix)