Exhibit 10.10
ASSET PURCHASE AGREEMENT
among
CAMDEN HOLDINGS, INC.,
GENESIS HEALTH TECH, INC.,
and
NUWAY ENERGY, INC.
June 28, 2002
This ASSET PURCHASE AGREEMENT, is made as of June 28, 2002 (this
"AGREEMENT"), among CAMDEN HOLDINGS INC, a Nevada corporation, ("CAMDEN"),
GENESIS HEALTH TECH, INC, a Nevada corporation and wholly owned subsidiary of
Camden ("GENESIS," and together with Camden, the "SELLERS"), and NUWAY ENERGY,
INC., a Delaware corporation (the "PURCHASER").
WHEREAS, the respective Boards of Directors of Sellers and Purchaser
and the sole shareholder of each of Camden and Genesis and the majority of
shareholders of Purchaser have approved the terms of this Agreement and of the
transactions contemplated hereby; and
WHEREAS, this Agreement provides for the sale by Sellers of certain
intangible assets to Purchaser;
WHEREAS, the Sellers and Purchaser desire to make certain
representations, warranties and agreements in connection with the transactions
provided for herein; and
WHEREAS, the Closing of the transactions contemplated by this Agreement
will take place upon the effectiveness of the Schedule 14C Information Statement
to be filed by Purchaser in compliance with the federal securities laws and
regulations (the "INFORMATION STATEMENT");
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements herein contained, the parties hereto
agree as follows:
ARTICLE 1 - DEFINITIONS
DEFINITIONS. As used herein, the following terms shall have the following
meanings:
"ACQUIRED ASSETS" has the meaning specified in Section 2.01 hereof.
"AGREEMENT" has the meaning specified in the introductory paragraph
above.
"ANCILLARY DOCUMENTS" as to any Person means all agreements, releases,
certificates and other documents contemplated by this Agreement to be entered
into or executed by such Person; and where a reference to a Person is made in
conjunction with a reference to "ANCILLARY DOCUMENTS," the term shall refer only
to such documents which such Person has entered into or executed.
"CLOSING" has the meaning specified in Section 3.01 hereof.
"CLOSING DATE" has the meaning specified in Section 3.01 hereof.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMON STOCK" means the common stock, par value $0.00067 per share, of
Purchaser.
"DAMAGES" has the meaning specified in Section 6.02(a) hereof.
"ENCUMBRANCE" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest, conditional sale agreement, financing
statement or encumbrance of any kind, or any other type of preferential
arrangement that has the practical effect of creating a security interest in
respect of such asset.
"GOVERNMENTAL ENTITY" has the meaning specified in Section 4.02
hereof.
"INFORMATION STATEMENT" has the meaning specified in the introductory
paragraph above.
"INTELLECTUAL PROPERTY" means all of the service marks, copyrights,
franchises, software (including source codes), patents, patent applications,
licenses, trademarks, trade names, know-how, slogans, logotypes and other
similar intangible assets maintained, owned, used, held for use or otherwise
held or licensed by Genesis and/or Camden in connection with the Acquired Assets
(including any and all applications, registrations, extensions and renewals
relating thereto), and all of the rights, benefits and privileges associated
therewith.
"KNOWLEDGE" means, with respect to any Person, (i) actual knowledge of
such Person (including the actual knowledge of the officers, directors and key
employees of such Person) and (ii) actual knowledge that could have been
acquired by such Person after making such due inquiry and exercising such due
diligence as a prudent businessperson would have made or exercised in the
management of his or her business affairs in light of the circumstances.
"LAWS" means all applicable common law and any statute, law, code,
ordinance, regulation, rule, resolution, order, determination, writ, injunction,
award (including, without limitation, any award of any arbitrator), judgments
and decrees applicable to the specified persons or entities and to the
businesses and assets thereof.
"LIABILITIES" means all debts, claims, agreements, liabilities and
obligations (contingent or otherwise), including, without limitation, all
salaries, severance payments, accounts payable, obligations incurred under
license agreements, client contracts, supply contracts, leases and employment
agreements, litigation claims or demands and any other obligations whether or
not incurred in the ordinary course of business.
"PERSON" means a natural person, corporation, partnership or other
business entity, or any Governmental Entity.
"PURCHASE PRICE" has the meaning specified in Section 3.02 hereof.
"PURCHASER" has the meaning specified in the introductory paragraph
above.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SELLERS" has the meaning specified in the introductory paragraph
above.
"TAX" and "TAXES" shall mean all federal, state, local and foreign
property, sales and use, payroll, withholding, franchise and income taxes and
all assessments, rates, levies, fees and other governmental charges, including
any interest and penalties in respect of such amounts.
ARTICLE 2 - PURCHASE AND SALE; NO ASSUMPTION OF LIABILITIES
PURCHASE AND SALE OF ASSETS. Subject to the terms and conditions of this
Agreement and in reliance upon Sellers' representations and warranties
contained herein, at the Closing Sellers will sell, convey, assign,
transfer and deliver, and Purchaser will acquire the following assets of
Genesis: software and medical database of physicians throughout the United
States in CD Rom format, which database (i) provides contact information
including, but not limited to, names, specialty, affiliations and medical
groups associations and (ii) can be customized to include any of several
fields of information including, but not limited to, geographic locations
and medical specialties. The assets of Genesis as described in this
Section 2.01 are hereinafter referred to collectively as the "ACQUIRED
ASSETS."
2.02. NO ASSUMPTION OF LIABILITIES. Purchaser shall not assume and
shall have no obligation with respect to any and all obligations or Liabilities
arising out of or in connection with the Acquired Assets, or any claims against
Genesis and/or Camden that result from, arise under or in connection with, or
are related to the Acquired Assets.
ARTICLE 3 - THE CLOSING; ACQUISITION PRICE
THE CLOSING. The closing of the transactions contemplated by this Agreement
(the "CLOSING") shall take place at the offices of Purchaser on the date
Purchaser's Information Statement is declared effective by the SEC (the
"CLOSING DATE").
3.02. THE PURCHASE PRICE. At the Closing, Purchaser shall pay to
Sellers the sum of Three Hundred Thousand Dollars ($300,000), one hundred
percent (100%) of which shall be paid by shares of Common Stock, based on a
share value of $0.45 per share, for an aggregate of Six Hundred Sixty-Six
Thousand Six Hundred Sixty-Seven (666,667) shares (the "PURCHASE PRICE").
3.03. REGISTRATION RIGHTS. Purchaser shall use its commercially
reasonable efforts to file a Form SB-2 registration statement (or such other
form that it is eligible to use) in order to register the Common Stock issued
pursuant to Section 3.02 for resale and distribution under the Securities Act
with the Securities and Exchange Commission within 180 days of the Closing Date,
and use its commercially reasonable efforts to cause such registration statement
to be declared effective as soon thereafter as commercially practicable.
ARTICLE 4 - REPRESENTATIONS AND WARRANTIES
OF SELLERS
Sellers hereby jointly and severally represent and warrant to Purchaser
as follows:
ORGANIZATION, GOOD STANDING AND FOREIGN QUALIFICATION. Each Seller is a
corporation duly incorporated and validly existing and in good standing
under the laws of the State of Nevada. Each Seller is duly licensed or
qualified to do business as a foreign corporation and is in good standing
under the laws of each other jurisdiction in which the character of the
properties owned or leased by it therein or in which the transaction of
business makes such qualification necessary, except where the failure to
so qualify would not have a material adverse effect on Sellers.
AUTHORITY RELATIVE TO AGREEMENTS. Sellers have the requisite corporate power and
authority to enter into this Agreement and all Ancillary Documents, and to
carry out their obligations hereunder and thereunder. The execution and
delivery of this Agreement and each Ancillary Document, and the
consummation of the transactions provided for herein and therein, have
been duly authorized by the unanimous consent of the respective Boards of
Directors of Sellers and do not violate any provision of the respective
Certificates of Incorporation or Bylaws of Sellers. The execution by
Sellers of this Agreement and each Ancillary Document, and the
consummation of the transactions provided for hereby and thereby, will not
conflict with or effect a breach, violation, default, or cause an event of
default, under any mortgage, lease, or other material agreement or
instrument, or any statute, regulation, order, judgment or decree to which
Sellers are a party or by which they are bound, or any law or governmental
regulation applicable to Sellers, or require the consent of any Person
(other than the parties to this Agreement). Without limiting the
generality of the foregoing, no notices, reports or other filings are
required to be made by Sellers with, nor are any consents, registrations,
approvals, permits or authorizations required to be obtained by Sellers
from, any government or governmental, regulatory or administrative
authority or agency, domestic or foreign (each, a "GOVERNMENTAL ENTITY"),
in connection with the execution and delivery of this Agreement by Sellers
and the consummation by Sellers of the transactions contemplated by this
Agreement and the Ancillary Documents. This Agreement and the Ancillary
Documents constitute legal, valid and binding obligations of Sellers,
enforceable in accordance with their terms, except as enforcement thereof
may be limited by applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting rights of creditors generally and
general principles of equity, whether applied at law or in equity.
4.03 TAX MATTERS. Sellers have duly and timely filed all Tax returns
and reports required to be filed by Sellers prior to the Closing Date, except to
the extent that any failure or alleged failure to file any Tax return or report
would not have a material adverse effect on Sellers or the Acquired Assets. All
of Sellers' Tax returns and reports are true and complete in all material
respects. Sellers have paid all Taxes shown to be due on the aforesaid Tax
returns and reports. Purchaser shall not become liable for any of Sellers'
liabilities for Taxes as a result of the transactions contemplated hereby, and
no unpaid Taxes of Sellers create any Encumbrance on the Acquired Assets.
4.04. LITIGATION. There is no prosecution, suit, action, arbitration
proceeding or governmental proceeding pending, or to the best Knowledge of
Sellers, threatened, against or affecting Sellers or the transactions
contemplated by this Agreement. There is not outstanding against Sellers any
decision, judgment, decree, injunction, rule or order of any court, arbitrator
or Governmental Entity.
4.05. BROKERS. Purchaser shall not have any obligation or liability to
pay any fee or other compensation to any Person engaged by Sellers in connection
with this Agreement and the transactions contemplated hereby.
4.06. TRUE COPIES. All copies of documents delivered or made available
to Purchaser in connection with this Agreement are true and correct copies of
the originals thereof.
4.07. COMPLIANCE WITH LAW. Sellers are in material compliance with all
federal, state and local laws, regulations and ordinances applicable to its
business and operations.
4.08. INTELLECTUAL PROPERTY. Genesis and/or Camden owns, or are
licensed or otherwise possess legally enforceable rights to use the Acquired
Assets and the Intellectual Property, free and clear of all Encumbrances.
Sellers do not have any Knowledge and Sellers have not received any notice to
the effect that (i) the use of the Acquired Assets or the Intellectual Property
may infringe on any intellectual property right or other legally protectable
right of another, or (ii) any Person is using any patents, copyrights,
trademarks, service marks, trade names, trade secrets or similar property that
are confusingly similar with the Acquired Assets or Intellectual Property.
Sellers have not granted any license or other right to any other Person with
respect to the Acquired Assets or Intellectual Property. To the best of Sellers'
Knowledge, the consummation of the transactions contemplated by this Agreement
will not result in the termination or impairment of any of the Acquired Assets
or Intellectual Property. Sellers are not aware of any reason that would prevent
any pending trademark, service ▇▇▇▇, copyright, patent or other intellectual
property applications required for the use of the Acquired Assets or
Intellectual Property from having registration granted.
4.09. CONFIDENTIALITY AGREEMENTS. Sellers have caused each person
currently or formerly employed by Sellers (including independent contractors, if
any) that has or had access to confidential information of Sellers relating
primarily or exclusively to the Acquired Assets or Intellectual Property to
execute and deliver to Sellers a confidentiality, non-disclosure and assignment
of inventions agreement in one of the standard forms of Sellers.
4.10. DISCLOSURE. No representation or warranty by Sellers in, and no
document, statement, certificate, schedule or exhibit to be furnished or
delivered to Purchaser pursuant to, this Agreement contains or will contain any
material untrue or misleading statement of fact or omits or will omit any fact
necessary to make the statements contained herein or therein not materially
misleading.
4.11. INVESTMENT INTENT. This Agreement is made with Sellers in
reliance upon each Seller's representations to Purchaser, evidenced by each
Seller's execution of this Agreement, that Sellers are acquiring the Common
Stock for investment for Sellers' own accounts, not as nominee or agent, and not
with a view to, or for resale in connection with, any distribution or public
offering thereof within the meaning of the Securities Act.
4.12. COMMON STOCK NOT REGISTERED. Each Seller understand and
acknowledge that the offering of Common Stock pursuant to this Agreement will
not be registered under the Securities Act on the grounds that the offering and
sale of securities contemplated by this Agreement are exempt from registration
under the Securities Act pursuant to Section 4(2) thereof, and that Purchaser's
reliance upon such exemption is predicated upon Sellers' representations set
forth in this Agreement. Sellers understand and acknowledge that the Common
Stock must be held indefinitely unless the Common Stock is subsequently
registered under the Securities Act or an exemption from such registration is
available.
4.13. KNOWLEDGE AND EXPERIENCE. Each Seller (i) has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of Sellers' prospective investment in the Common Stock; (ii)
has the ability to bear the economic risk of Sellers' prospective investment;
(iii) has been furnished with and has had access to such information as Sellers
have considered necessary to verify the accuracy of the information supplied;
(iv) has had all questions which have been asked by Sellers satisfactorily
answered by Purchaser; and (v) has not been offered the Common Stock by any form
of advertisement, article, notice or other communication published in any
newspaper, magazine, or similar media or broadcast over television or radio, or
any seminar or meeting whose attendees have been invited by any such media.
4.14. NOT ORGANIZED TO PURCHASE. Sellers have not been organized for
the purpose of purchasing the Common Stock. Each Seller is an accredited
investor as defined in Rule 501(a) of Regulation D promulgated under the
Securities Act.
4.15. HOLDING REQUIREMENTS. Sellers understand that if Purchaser does
not have a registration statement covering the Common Stock under the Securities
Act in effect when Sellers decides to sell the Common Stock, Sellers may be
required to hold the Common Stock for an indeterminate period. Sellers also
understands that any sale of the Common Stock that might be made by Sellers in
reliance upon Rule 144 under the Securities Act may be made only in limited
amounts in accordance with the terms and conditions of that rule.
4.16. LEGEND. Sellers understand that each certificate representing the
Common Stock shall be stamped or otherwise imprinted with a legend in the
following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
UNDER THE SECURITIES LAWS OF ANY STATE. SUCH SECURITIES MAY NOT BE SOLD
OR OFFERED FOR SALE OR OTHERWISE HYPOTHECATED OR DISTRIBUTED EXCEPT (A)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES
UNDER THE ACT, OR (B) PURSUANT TO A VALID EXEMPTION FROM SUCH
REGISTRATION UNDER THE ACT AND UNDER THE SECURITIES LAW OF ANY STATE
AND UPON RECEIPT BY PURCHASER OF AN OPINION OF COUNSEL SATISFACTORY IN
FORM AND SUBSTANCE TO IT THAT ANY SUCH SALE IS IN COMPLIANCE WITH, OR
NOT SUBJECT TO, THE ACT AND STATE SECURITIES LAWS."
Where applicable, Purchaser shall remove such legend so as to
facilitate the sale of such shares, if and to the extent applicable, pursuant to
Rule 144 under the Act, provided (in the case of Rule 144 sales) that if Sellers
requests such removal, Sellers shall have provided such documentation as
Purchaser and its transfer agent shall reasonably require in connection
therewith.
ARTICLE 5 - REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Sellers as follows:
5.01. ORGANIZATION AND GOOD STANDING. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and is duly qualified and in good standing as a foreign corporation in
each jurisdiction where the failure to be so qualified would have a material
adverse effect on Purchaser.
5.02. CAPITALIZATION. The authorized capital stock of Purchaser
consists of 15,000,000 shares of common stock, par value $0.00067 per share, of
which 7,761,353 are issued and outstanding, and no authorized shares of
preferred stock.
5.03. AUTHORITY RELATIVE TO THIS AGREEMENT. Purchaser has the requisite
corporate power and authority to enter into this Agreement and all Ancillary
Documents, and to carry out its obligations hereunder and thereunder. The
execution and delivery of this Agreement and each Ancillary Document, and the
consummation of the transactions contemplated hereby and thereby, have been duly
authorized by the Board of Directors of Purchaser, or an authorized Committee
thereof, and do not violate any provision of the Certificate of Incorporation or
Bylaws of Purchaser, and no other corporate proceedings on the part of Purchaser
are necessary to authorize this Agreement and the Ancillary Documents and the
transactions contemplated hereby and thereby. The execution and delivery of this
Agreement and each Ancillary Document and the consummation of the transactions
provided for hereby and thereby will not conflict with or effect a breach,
violation or default, or cause an event of default, under any mortgage, lease,
or other material agreement or instrument, or any statute, regulation, order,
judgment or decree to which it is a party or by which it is bound, or any law or
governmental regulation applicable to Purchaser, or require the consent of any
Person (other than the parties to this Agreement). This Agreement and the
Ancillary Documents constitute the legal, valid and binding obligations of
Purchaser, enforceable in accordance with their terms, except as enforcement
thereof may be limited by any applicable bankruptcy, reorganization, insolvency,
moratorium, or similar laws affecting rights of creditors generally and general
principles of equity, whether applied at law or in equity.
5.04. NO BROKER. Sellers shall not have any obligation or liability to
pay any fee or other compensation to any Person engaged by Purchaser in
connection with this Agreement and the transactions contemplated hereby.
5.05. GOVERNMENTAL FILINGS; NO VIOLATIONS. Purchaser shall use its
commercially reasonable good faith efforts to file with the SEC and have
declared effective the Information Statement. Except for the Information
Statement, no notices, reports or other filings are required to be made by
Purchaser with, nor are any consents, registrations, approvals, permits or
authorizations required to be obtained by Purchaser from, any Governmental
Entity in connection with the execution and delivery of this Agreement by
Purchaser and the consummation by Purchaser of the transactions contemplated by
this Agreement and the Ancillary Documents.
5.06. LITIGATION. There are no civil, criminal or administrative
actions, suits, claims, hearings, investigations, arbitrations, or proceedings
pending or threatened against Purchaser preventing, or which, if determined
adversely to Purchaser would prevent Purchaser from consummating the
transactions contemplated by this Agreement and the Ancillary Documents.
ARTICLE 6 - SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION
6.01. SURVIVAL OF REPRESENTATIONS AND WARRANTIES OF THE PARTIES. Except
as provided in the next sentence, all representations and warranties made by any
party hereto contained in this Agreement or in any Ancillary Document, and the
indemnification obligations of each party hereto with respect to representations
and warranties, shall survive for a period ending two years following the
Closing Date. Notwithstanding the foregoing, the representations and warranties
relating to Section 4.03 hereof, and the indemnity obligations with respect to
such representations and warranties, shall remain operative and in full force
and effect until the expiration of the applicable statute of limitations.
6.02. INDEMNIFICATION BY SELLERS. Sellers hereby agree, jointly and
severally, to indemnify and hold Purchaser harmless from and against any and all
damages, losses, Liabilities, deficiencies, costs and/or expenses (including all
reasonable legal fees, expenses and other out-of-pocket costs) (collectively,
"DAMAGES") resulting from, arising out of or in connection with or related to
(1) the Acquired Assets, (2) any misrepresentation or breach of warranty on the
part of Sellers or (3) non-fulfillment by Sellers of any covenant or agreement
under this Agreement or any Ancillary Document; in each instance whether or not
any such Damages are in connection with any action, suit, proceeding, demand or
judgment of a third party (including Governmental Entities).
6.03. INDEMNIFICATION BY PURCHASER. Purchaser hereby agrees to
indemnify and hold Sellers harmless from and against any and all Damages
resulting from, arising out of or in connection with or related to (1) any
misrepresentation or breach of warranty on the part of Purchaser or (2)
non-fulfillment by Purchaser of any covenant or agreement under this Agreement
or any Ancillary Document.
ARTICLE 7 - CONDITIONS TO THE CLOSING
7.01. EFFECTIVENESS OF INFORMATION STATEMENT. The Information Statement
to be filed by Purchaser shall have been declared effective by the SEC.
7.02. CONDITION TO OBLIGATIONS OF PURCHASER. The obligations of
Purchaser to close the transactions contemplated hereby are subject to the
satisfaction of the following condition: The representations and warranties made
by Sellers in Section 4 hereof shall be true and correct when made, and shall be
true and correct in all material respects on the Closing Date with the same
force and effect as if they had been made on and as of said date. The Acquired
Assets shall not have been adversely affected in any material way prior to the
Closing Date.
7.03. CONDITION TO OBLIGATIONS OF SELLERS. The obligations of Sellers
to close the transactions contemplated hereby are subject to the satisfaction of
the following condition: The representations and warranties made by Purchaser in
Section 5 hereof shall be true and correct when made, and shall be true and
correct in all material respects on the Closing Date with the same force and
effect as if they had been made on and as of said date.
ARTICLE 8 - THE CLOSING
At the Closing, the parties shall deliver the following documents and
instruments and take the following actions:
8.01. CLOSING PAYMENT. Purchaser shall deliver irrevocable instructions
to cause to be delivered to Sellers the Purchase Price as set forth in Section
3.02 hereof. It is understood that the share certificate(s) evidencing the
Common Stock will be delivered to Sellers at the Closing or as soon as
thereafter as commercially practicable.
8.02. TRANSFER OF TITLE. Each of Sellers will deliver such duly
executed bills of sale as shall be appropriate to convey, transfer and assign to
and to vest in Purchaser the rights, title and interest in and to the Acquired
Assets, in the form set forth in Annex A hereto.
8.03. CD ROM. Sellers will deliver to Purchaser the Acquired Assets in
CD Rom format.
ARTICLE 9 - ADDITIONAL AGREEMENTS
9.01. AGREEMENTS AS TO TAX MATTERS. The parties to this Agreement will
cooperate fully with each other, in connection with the preparation, signing and
filing of tax returns and in any administrative, judicial or other proceeding
involving taxes relating to the Acquired Assets.
9.02. POST-CLOSING DOCUMENTS. The parties hereto will cooperate with
one another after Closing and, without any further consideration, will execute
and deliver such other documents as shall be reasonably required after the
Closing to transfer title to the Acquired Assets to Purchaser and to take any
other action necessary to carry out the intent and purposes of this Agreement.
9.03. NOTICE. Each party shall notify the others of any claim, demand,
action, suit or proceeding relating to or arising in connection with, the
Acquired Assets as soon as practicable after learning of such claim, demand,
action, suit, or proceeding.
ARTICLE 10 - GENERAL PROVISIONS
10.01. EXPENSES. Each party shall pay its own expenses (including legal
and accounting costs and expenses) in connection with the negotiation,
preparation and consummation of this Agreement and the Ancillary Documents, and
the transactions contemplated hereby and thereby.
10.02. GOVERNING LAW; WAIVER OF JURY TRIAL. All questions concerning
the construction, interpretation and validity of this Agreement shall be
governed by and construed and enforced in accordance with the domestic laws of
the State of California without giving effect to any choice or conflict of law
provision or rule (whether in the State of California or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
State of California. In furtherance of the foregoing, the internal law of the
State of California will control the interpretation and construction of this
Agreement, even if under such jurisdiction's choice of law or conflict of law
analysis, the substantive law of some other jurisdiction would ordinarily or
necessarily apply.
BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND
EXPERT PERSON AND THE PARTIES WISH APPLICABLE LAWS TO APPLY (RATHER THAN
ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A
JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION
OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO
WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO
ENFORCE OR DEFEND ANY RIGHTS OR REMEDIES UNDER THIS AGREEMENT OR ANY DOCUMENTS
RELATED HERETO.
10.03. SUBMISSION TO JURISDICTION. Any legal action or proceeding with
respect to this Agreement or the other Ancillary Documents may be brought in the
courts of the State of California and the United States of America located in
the City of Los Angeles, California and, by execution and delivery of this
Agreement, the Purchaser hereby accepts for itself and in respect of its
property, generally and unconditionally, the jurisdiction of the aforesaid
courts. Each Seller hereby irrevocably waives, in connection with any such
action or proceeding, any objection, including, without limitation, any
objection to the venue or based on the grounds of forum non conveniens, which it
may now or hereafter have to the bringing of any such action or proceeding in
such respective jurisdictions. Each Seller hereby irrevocably consents to the
service of process of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to it at its address as set forth herein.
10.04. HEADINGS. Article and Section headings used in this Agreement
are for convenience only and shall not affect the meaning or construction of
this Agreement.
10.05. NOTICES. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally or mailed by
certified mail (return receipt requested) to the parties at the following
address (or at such other address for a party as shall be specified by like
notice), or if sent by telecopy to the parties at the following telecopy
numbers;
if to Camden or Genesis:
Camden Holdings Inc
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
if to Purchaser:
NuWay Energy, Inc.
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
10.06. PARTIES IN INTEREST. All the terms and provisions of this
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the successors of Sellers and Purchaser.
10.07. FINAL AGREEMENT; ENTIRE AGREEMENT. This Agreement, including any
agreements set forth as an annex to any this Agreement, is the final agreement
between the parties and constitutes the entire agreement between the parties
hereto and supersedes all prior agreements and understandings, both written and
oral, whether signed or unsigned, with respect to the subject matter hereof.
10.08. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be considered an original, but all of which
together shall constitute the same instrument.
10.09. AMENDMENT. This Agreement may be amended only by an instrument
in writing signed by or on behalf of each of the parties hereto.
10.10. PREPARATION OF Agreement. Purchaser prepared this Agreement and
the Ancillary Agreements solely on its behalf. Each party to this Agreement
acknowledges that: (i) the party had the advice of, or sufficient opportunity to
obtain the advice of, legal counsel separate and independent of legal counsel
for any other party hereto; (ii) the terms of the transactions contemplated by
this Agreement are fair and reasonable to such party; and (iii) such party has
voluntarily entered into the transactions contemplated by this Agreement without
duress or coercion. Each party further acknowledges that such party was not
represented by the legal counsel of any other party hereto in connection with
the transactions contemplated by this Agreement, nor was he or it under any
belief or understanding that such legal counsel was representing his or its
interests. Each party agrees that no conflict, omission or ambiguity in this
Agreement, or the interpretation thereof, shall be presumed, implied or
otherwise construed against any other party to this Agreement on the basis that
such party was responsible for drafting this Agreement.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have duly executed this Asset Purchase
Agreement as of the date first written above.
CAMDEN HOLDINGS INC
/s/
By: _________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President,
GENESIS HEALTH TECH, INC
/s/
By: _________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
NUWAY ENERGY, INC.
/s/
By: _________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
ANNEX A
Form of ▇▇▇▇ of Sale
GENERAL CONVEYANCE, ▇▇▇▇ OF SALE
AND ASSIGNMENT
THIS GENERAL CONVEYANCE, ▇▇▇▇ OF SALE AND ASSIGNMENT, dated as
of ____________, 2002 from CAMDEN HOLDINGS, INC., a Nevada corporation
("Camden"), and GENESIS HEALTH TECH, INC., a Nevada corporation ("Genesis" and,
together with Camden, the "Sellers"), with respect to the sale of certain of its
assets, to NUWAY ENERGY, INC., a Delaware corporation (together with its
successors and assigns, the "Purchaser"), is delivered pursuant to that certain
Asset Purchase Agreement, dated June 28, 2002 (the "Asset Purchase Agreement"),
by and among Camden, Genesis and the Purchaser. Defined terms used herein
without definition have the meanings assigned to such terms in the Asset
Purchase Agreement.
KNOW ALL PERSONS BY THESE PRESENTS that, pursuant to the terms
and conditions of the Asset Purchase Agreement and for the consideration set
forth therein, the receipt and sufficiency of which are hereby acknowledged by
the Sellers, the Sellers hereby sell, convey, transfer, assign, and deliver to
Purchaser forever all of the Sellers' rights, title and interest in and to the
Acquired Assets in accordance with Section 2.01 of the Asset Purchase Agreement.
TO HAVE AND TO HOLD the same unto Purchaser. Each Seller
hereby constitutes and appoints Purchaser the true and lawful attorney or
attorneys of such Seller, with full power of substitution, in the name of
Purchaser or in the name of such Seller, but by and on behalf of and for the
sole benefit of Purchaser, to demand and receive from time to time any and all
of the Acquired Assets and from time to time to institute and prosecute, in the
name of the Sellers or otherwise on behalf of the Sellers, any and all
proceedings at law, in equity or otherwise which Purchaser may deem necessary or
desirable in order to receive, collect, assert or enforce any right, title,
benefit or interest of any kind in or to the Acquired Assets and to defend and
compromise any and all actions, suits or proceedings in respect thereof and to
do all such acts and things and execute any instruments in relation thereto as
Purchaser shall deem advisable. Without limitation of any of the foregoing, the
Sellers hereby authorize any authorized representative of Purchaser to endorse
or assign any instrument, contract or chattel paper relating to the Acquired
Assets. The Sellers agree that the foregoing appointment made and the powers
hereby granted are coupled with an interest and shall be irrevocable by the
Sellers.
All of the terms and provisions of this General Conveyance,
▇▇▇▇ of Sale and Assignment will be binding upon the Sellers and their
successors and assigns and will inure to the benefit of Purchaser; provided,
that nothing in this General Conveyance, ▇▇▇▇ of Sale and Assignment, express or
implied, is intended or shall be construed to confer upon or give to any Person,
firm, partnership, corporation or other entity other than Purchaser any rights
or remedies under or by reason of this General Conveyance, ▇▇▇▇ of Sale and
Assignment.
IN WITNESS WHEREOF, each Seller has caused this instrument to
be signed in its name by its representative thereunto duly authorized on the
date first above written.
CAMDEN HOLDINGS, INC.
By: _________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
GENESIS HEALTH TECH, INC.
By: _________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
ACCEPTED AND AGREED:
NUWAY ENERGY, INC.
By: _________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President