Asset Purchase Agreement - Comdisco Ventures Inc. and Medix Resources Inc.
EXECUTION COPY
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is made as of March 4,
2003, by and among Comdisco Ventures, Inc., a Delaware corporation, with a
mailing address at 1 Post Street, Suite 2600, San Francisco, CA 94104-5290
("Seller") and Medix Resources, Inc., a Colorado corporation, with a mailing
address at 420 Lexington Avenue, New York, New York 10170 ("Buyer") and T3
Group, LLC, a Delaware limited liability company, with a mailing address at 440
Locust Street, San Francisco, CA 94118 ("T3 Group").
W I T N E S S E T H:
WHEREAS, Seller desires to transfer or convey to Buyer, on the terms and
conditions set forth herein, certain of Seller's rights, property and assets
owned by Seller that were formerly owned by ePhysician, Inc. ("ePhysician") and
used by ePhysician prior to ePhysician's cessation of operations in its
web-enabled computing products and communications services business as then
conducted (the "Business");
WHEREAS, Seller has indicated that it acquired such assets pursuant to a
secured party sale under Article 9 of the Uniform Commercial Code upon the
enforcement of Seller's valid and duly perfected first priority security
interest thereon, which security interest secured a duly enforceable obligation
in favor of Seller that was in default; and
WHEREAS, Buyer wishes to purchase such assets from Seller, free and clear
of liens and encumbrances as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties represent, warrant,
covenant and agree as follows:
4. Transfer of Assets. Upon the terms and subject to the conditions of this
Agreement, and on the basis of the representations, warranties and agreements
contained herein, at the Closing (as defined below), Seller shall sell, assign,
transfer, convey and deliver to Buyer, and Buyer shall purchase from Seller, the
following ePhysician assets upon which Seller foreclosed and which are located
primarily at a warehouse at 261 East Harris Drive, South San Francisco,
California 94080 and/or are in the custody of Abovenet, 150 South First Street,
San Jose, CA 95113, all as more particularly described on Exhibit A annexed
hereto (collectively, the "Purchased Assets"):
4.1 Tangible Personal Property. Certain machinery, equipment, tools,
supplies, furniture and fixtures, vehicles, containers, computer equipment,
computer software (to the extent assignable) and any other fixed assets
formerly owned by ePhysician and used in the Business.
4.2 Proprietary Rights. Certain of the proprietary rights of
ePhysician, including without limitation patents, patent registrations,
patent applications, trademarks, service marks, trademark and service mark
registrations and pending applications therefor, copyrights, copyright
registrations, pending copyright registration applications, licenses
thereof, trade secrets, technology, know-how, formulae, designs and
drawings, computer software, slogans, copyrights, processes, operating
rights, other licenses and permits and other similar intangible property
and rights relating to the Business, and all goodwill developed through the
use of such property and rights.
4.3 Licenses and Permits. To the extent assignable, certain permits,
licenses, certificates of authority, franchises, accreditations,
registrations and other authorizations issued or used by ePhysician in
connection with the Business.
4.4 Agreements. Certain of ePhysician's agreements, contracts or
instruments relating to the Business, as more particularly described on
Schedule 1.4.
4.5 Books, Records and Other Assets. Certain operating data and
records of ePhysician, including without limitation, customer lists and
records, financial, accounting and credit records, correspondence, budgets
and other similar documents and records.
4.6 Goodwill. All goodwill of the Business.
5. Excluded Assets. Other than the Purchased Assets set forth in Section 1,
Buyer is not acquiring from Seller any assets or rights.
6. The Closing.
6.1 Time and Place. Upon the terms and subject to the conditions of
this Agreement, and on the basis of the representations, warranties and
agreements contained herein, the consummation of the transactions
contemplated hereby (the "Closing") shall take place at the offices of
Lowenstein Sandler PC, 65 Livingston Avenue, Roseland, New Jersey, or at
any other location designated by the parties hereto on the date hereof.
6.2 Deliveries at the Closing. At the Closing, the parties agree that
the following shall occur:
6.2.1 Seller shall execute and deliver (or cause to be executed
and delivered) (i) a Bill of Sale substantially in the form of Exhibit
B annexed hereto, (ii) an Assignment of Proprietary Rights
substantially in the form of Exhibit C annexed hereto, (iii) an
Assignment of Domain Name substantially in the form of Exhibit D
annexed hereto; and such other deeds, bills of sale, endorsements,
assignments, releases and other instruments, in such form as is
reasonably satisfactory to Buyer and as shall be sufficient to vest in
Buyer (or its assignee) good and clear title to the Purchased Assets
and shall deliver to Buyer (or its assignee) immediate possession of
the Purchased Assets.
6.2.2 Each of Buyer and T3 Group shall execute and deliver a copy
of the Registration Rights Agreement.
6.2.3 Buyer shall pay to Seller, by wire transfer of immediately
available funds, the Cash Consideration payable pursuant to Section 5
(not including the amount of the Advance Payment, which shall be
released from escrow by the Escrow Agent and applied to the Cash
Consideration as set forth below in Section 5) and shall issue to T3
Group the Stock Consideration issuable pursuant to Section 5.
6.2.4 Seller and T3 Group shall execute and deliver a receipt
acknowledging receipt of the Cash Consideration payable and the Stock
Consideration issuable, respectively, pursuant to Section 5.
6.2.5 Each of the parties shall execute and deliver such other
documents and instruments as the other party may reasonably request to
accomplish the transactions hereunder, including without limitation
any agreements required to effect the delivery to Buyer (or its
assignee) by Seller of the immediate possession of the Purchased
Assets.
7. No Assumption of Liabilities. Buyer shall not be responsible for and is
not assuming or agreeing to pay any debts, liabilities or obligations of Seller
or ePhysician, whether accrued now or hereafter and whether known, unknown,
contingent or otherwise including, without limitation, any storage and handling
fees relating to the Purchased Assets.
8. Purchase Price.
8.1 Consideration. In consideration for the Purchased Assets being
sold hereunder, Buyer will (i) pay to Seller Three Hundred Thousand Dollars
($300,000) in cash (the "Cash Consideration") and (ii) issue to T3 Group,
for the benefit and in lieu of, and at the request and pursuant to the
authorization of, Seller as payment for certain obligations of Seller to T3
Group, One Hundred Thousand (100,000) shares of Buyer's common stock
("Buyer Common Stock"), $0.001 par value per share (the "Stock
Consideration" and, together with the Cash Consideration, the "Purchase
Price").
8.2 Applications to Purchase Price. Buyer and Seller acknowledge that
Buyer has delivered to Seller's attorney (the "Escrow Agent"), the sum of
Fifty Thousand Dollars ($50,000) in cash (the "Advance Payment"), which
amount is being held in escrow subject to the terms and conditions set
forth in the Letter of Intent dated February 5, 2003, by and between Buyer
and Seller (the "Letter of Intent"). The Advance Payment shall be applied
to the Cash Consideration at the Closing such that the actual amount of
cash to be paid to Seller at the Closing is Two Hundred Fifty Thousand
Dollars ($250,000).
8.3 Private Offering. Seller and T3 Group acknowledge that the shares
of Buyer Common Stock to be issued and delivered to T3 Group for the
benefit of Seller hereunder as part of the Purchase Price (the "Buyer
Shares") will not be registered under the Securities Act of 1933, as
amended (the "Act"), but will be issued in reliance upon the exemption
afforded by Section 4(2) of the Act, and that Buyer is relying upon the
truth and accuracy of the representations set forth in Sections 6 and 7.
8.4 Registration Rights. Buyer agrees that it shall include the Buyer
Shares on Buyer's next registration statement on Form S-3 (or any successor
form thereto) (the "Registration Statement") pursuant to the Act to be
filed with the Securities and Exchange Commission (the "SEC") following the
Closing, subject to the terms and conditions set forth in that certain
Registration Rights Agreement dated as of even date hereof, by and between
Buyer and T3 Group (the "Registration Rights Agreement"), substantially in
the form of Exhibit E annexed hereto.
8.5 Allocation of the Purchase Price. The Purchase Price shall be
allocated among the Purchased Assets (as determined for Federal income tax
purposes) in the manner described on Schedule 5.5. The allocation of the
Purchase Price shall be made in compliance with Section 1060 of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder.
Buyer and Seller shall (a) timely file all forms (including Internal
Revenue Service Form 8594) and tax returns required to be filed in
connection with such allocation, (b) be bound by such allocation for
purposes of determining any taxes to be paid by such party, (c) prepare and
file, and Seller shall cause its affiliates to prepare and file, tax
returns on a basis consistent with such allocation, and (d) take no
position, and Seller shall cause its affiliates to take no position,
inconsistent with such allocation on any applicable tax return, in any
audit or proceeding before any governmental entity, in any report made for
tax, financial accounting or any other purposes, or otherwise. In the event
that the allocation of the Purchase Price is disputed by any governmental
entity, the party receiving notice of such dispute shall promptly notify
the other party concerning the existence of such dispute.
9. Representations of Seller. Seller represents and warrants to Buyer that:
9.1 Organization and Corporate Power. Seller is a corporation, duly
organized, validly existing and in good standing under the laws of the
State of Delaware, and has all requisite corporate power, franchises, and
licenses to own the Purchased Assets and its property and conduct the
business in which it is engaged. Seller is a wholly-owned subsidiary of
Comdisco, Inc., which is a wholly-owned subsidiary of Comdisco Holding
Company, Inc., the successor-in-interest to Comdisco, Inc. following the
effectiveness of the First Amended Joint Plan of Reorganization of
Comdisco, Inc. and its Affiliated Debtors and Debtors-In-Possession (with
respect to Case No. 01-24795), dated June 13, 2002, confirmed by the United
States Bankruptcy Court for the Northern District of Illinois, Eastern
Division, on July 30, 2002 and effective as of August 12, 2002 (the
"Plan"). Pursuant to the Plan, Comdisco, Inc. has assigned to Seller the
Loan and Security Agreement, dated as of May 15, 2000, by and between
ePhysician and Comdisco, Inc., and the Subordinated Loan and Security
Agreement, dated as of February 14, 2000, by and between ePhysician and
Comdisco, Inc., together with all related agreements and documents.
9.2 Authority. This Agreement has been duly and validly executed by
Seller and represents the valid and binding obligation of Seller
enforceable in accordance with its terms.
9.3 No Violation; No Consents. Neither the execution of this Agreement
nor the consummation of the transactions contemplated by this Agreement (i)
is prohibited by, nor will it result in, a breach of any term or provision
of Seller's certificate of incorporation or by-laws, or any indenture,
contract, agreement, note or other instrument to which Seller is a party or
by which Seller is bound or (ii) except as set forth on Schedule 6.3, will
require the consent, authorization or approval of any person or entity.
9.4 Clear Title; Liabilities. Seller owns all of the Purchased Assets
and Buyer shall obtain good title to the Purchased Assets (i) free and
clear of any liens, pledges, claims, liabilities, charges, security
interests, contractual obligations or other encumbrances, options, defects
in title, rights and interests of any nature whatsoever created by or
through Seller, (ii) free of any ownership or other right of ePhysician and
(iii) free of any other security interest, lien or encumbrance of any kind
of any third party. Seller rightfully and lawfully acquired the Purchased
Assets pursuant to a secured party sale in compliance with the requirements
of Article 9 of the Uniform Commercial Code and other applicable laws.
Seller has paid and discharged all liabilities of Seller relating to the
Purchased Assets including, without limitation, any storage and handling
fees relating to the Purchased Assets, prior to the Closing.
9.5 Litigation. There are no material investigations, claims,
disputes, or other governmental proceedings relating to the Purchased
Assets pending against Seller or, to Seller's knowledge, pending against
ePhysician or threatened against Seller nor to Seller's knowledge is Seller
subject to any judgment, order or decree or other governmental action or
proceeding in which relief is sought against Seller which would have an
adverse effect on the Purchased Assets or Seller's ability to consummate
the transactions contemplated by this Agreement.
9.6 Purchase Entirely for Own Account. The Buyer Shares will be
acquired for Seller's own account, not as nominee or agent, and not with a
view to the resale or other transfer or distribution of any portion thereof
or interest therein in violation of the Act, and Seller has no present
intention of selling, granting any participation in, or otherwise
transferring or distributing the Buyer Shares or any portion thereof or
interest therein in violation of the Act. Seller is not a registered
broker-dealer or an entity engaged in the business of being a
broker-dealer.
9.7 Investment Experience. Seller acknowledges that it can bear the
economic risk and complete loss of its investment in the Buyer Shares, and
has such knowledge and experience in financial or business matters that it
is capable of evaluating the merits and risks of the investment
contemplated hereby.
9.8 Disclosure of Information. Seller has had an opportunity to
receive all additional information related to Buyer requested by it and to
ask questions of and receive answers from Buyer regarding Buyer, its
business and the terms and conditions of the offering of the Buyer Shares.
9.9 Restricted Securities. Seller understands that the Buyer Shares
are characterized as "restricted securities" under the U.S. federal
securities laws inasmuch as they are being acquired from Seller in a
transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration
under the Act only in certain limited circumstances.
9.10 Legends.
9.10.1 It is understood that, until the earlier of: (a)
registration for resale pursuant to the Registration Rights Agreement
or (b) the time when any of the Buyer Shares may be sold pursuant to
Rule 144, certificates or agreements evidencing such Buyer Shares, as
the case may be, may bear the following or any substantially similar
legend:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY
STATE, AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR EXEMPTION
FROM REGISTRATION UNDER THE FOREGOING LAWS".
9.11 Accredited Investor. Seller is an accredited investor as defined
in Rule 501(a) of Regulation D promulgated under the Act.
9.12 No General Solicitation. Seller did not learn of the investment
in the Buyer Shares as a result of any public advertising or general
solicitation.
9.13 Brokers and Finders. Except for T3 Group, no person or entity
has, as a result of the transactions contemplated by this Agreement, any
valid right, interest or claim against or upon Buyer or Seller for any
commission, fee or other compensation pursuant to any agreement,
arrangement or understanding entered into by or on behalf of Seller.
10. Representations of T3 Group. T3 Group represents and warrants to Buyer
that:
10.1 Organization and Corporate Power. T3 Group is a limited liability
company, duly organized, validly existing and in good standing under the
laws of the State of Delaware, and has all requisite limited liability
company power, franchises, and licenses to own its property and conduct the
business in which it is engaged.
10.2 Authority. This Agreement has been duly and validly executed by
T3 Group and represents the valid and binding obligation of T3 Group
enforceable in accordance with its terms.
10.3 No Violation; No Consents. Neither the execution of this Agreement
nor the consummation of the transactions contemplated by this Agreement (i)
is prohibited by, nor will it result in, a breach of any term or provision
of T3 Group's organizational documents, or any indenture, contract,
agreement, note or other instrument to which T3 Group is a party or by
which T3 Group is bound or (ii) except as set forth on Schedule 7.3, will
require the consent, authorization or approval of any person or entity.
10.4 Litigation. There are no material investigations, claims,
disputes, or other governmental proceedings pending against T3 Group or, to
T3 Group's knowledge, threatened against T3 Group nor to T3 Group's
knowledge is T3 Group subject to any judgment, order or decree or other
governmental action or proceeding in which relief is sought against T3
Group which would have an adverse effect on T3 Group or T3 Group's ability
to consummate the transactions contemplated by this Agreement.
10.5 Purchase Entirely for Own Account. The Buyer Shares will be
acquired for T3 Group's own account, not as nominee or agent, and not with
a view to the resale or other transfer or distribution of any portion
thereof or interest therein in violation of the Act, and T3 Group has no
present intention of selling, granting any participation in, or otherwise
transferring or distributing the Buyer Shares or any portion thereof or
interest therein in violation of the Act. T3 Group is not a registered
broker-dealer or an entity engaged in the business of being a
broker-dealer.
10.6 Investment Experience. T3 Group acknowledges that it can bear the
economic risk and complete loss of its investment in the Buyer Shares, and
has such knowledge and experience in financial or business matters that it
is capable of evaluating the merits and risks of the investment
contemplated hereby.
10.7 Disclosure of Information. T3 Group has had an opportunity to
receive all additional information related to Buyer requested by it and to
ask questions of and receive answers from Buyer regarding Buyer, its
business and the terms and conditions of the offering of the Buyer Shares.
10.8 Restricted Securities. T3 Group understands that the Buyer Shares
are characterized as "restricted securities" under the U.S. federal
securities laws inasmuch as they are being acquired from T3 Group in a
transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration
under the Act only in certain limited circumstances.
10.9 Legends.
10.9.1 It is understood that, until the earlier of: (a)
registration for resale pursuant to the Registration Rights Agreement
or (b) the time when any of the Buyer Shares may be sold pursuant to
Rule 144, certificates or agreements evidencing such Buyer Shares, as
the case may be, may bear the following or any substantially similar
legend:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY
STATE, AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR EXEMPTION
FROM REGISTRATION UNDER THE FOREGOING LAWS".
10.10 Accredited Investor. T3 Group is an accredited investor as
defined in Rule 501(a) of Regulation D promulgated under the Act.
10.11 No General Solicitation. T3 Group did not learn of the
investment in the Buyer Shares as a result of any public advertising
or general solicitation.
11. Representations of Buyer. Buyer represents and warrants to Seller that:
11.1 Organization and Corporate Power. Buyer is a corporation, duly
organized, validly existing and in good standing under the laws of the
State of Colorado, and has all requisite corporate power, franchises, and
licenses to own the assets and its property and conduct the business in
which it is engaged.
11.2 Authority. This Agreement has been duly and validly executed by
Buyer and represents the valid and binding obligation of Buyer enforceable
in accordance with its terms.
11.3 No Violations. Neither the execution of this Agreement nor the
consummation of the transactions contemplated by this Agreement is
prohibited by, nor will it result in, a breach of any term or provision of
Buyer's certificate of incorporation or by-laws.
11.4 Capitalization. The authorized capital stock of Buyer on the date
hereof is 125,000,000 shares of common stock, par value $.001 per share,
and 2,500,000 shares of preferred stock, par value $.001 per share. As of
December 31, 2002, Buyer had outstanding 77,160,815 shares of common stock,
1 share of 1996 Preferred Stock and 75 shares of 1999 Series C Preferred
Stock. As of that date, approximately 33,153,728 shares were issuable upon
the exercise of outstanding options, warrants or other rights, and the
conversion of preferred stock and debt. Substantially all of these shares
and the shares obligated to be issued in the future are freely trading or
subject to registration rights agreements.
11.5 Valid Issuance. The Buyer Shares have been duly and validly
authorized and, when issued and paid for pursuant to this Agreement, will
be validly issued, fully paid and nonassessable, and shall be free and
clear of all encumbrances and restrictions, except for restrictions on
transfer set forth in this Agreement and the Registration Rights Agreement
or imposed by applicable securities laws.
11.6 SEC Filings. At the time of filing thereof, the Annual Report on
Form 10-K/A for the fiscal year ended December 31, 2001, and all other
reports filed by Buyer pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), since the filing of the Annual Report on Form
10-K/A and prior to the date hereof (the "SEC Filings"), complied as to
form in all material respects with the requirements of the Exchange Act and
did not contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements made therein,
in the light of the circumstances under which they were made, not
misleading.
11.7 Litigation. Except as set forth in the SEC Filings, there are no
material investigations, claims, disputes, or other governmental
proceedings pending against Buyer or, to Buyer's knowledge, threatened
against Buyer nor to Buyer's knowledge is Buyer subject to any judgment,
order or decree or other governmental action or proceeding in which relief
is sought against Buyer which would have an adverse effect on Buyer or
Buyer's ability to consummate the transactions contemplated by this
Agreement.
11.8 Brokers and Finders. No person or entity has, as a result of the
transactions contemplated by this Agreement, any valid right, interest or
claim against or upon Buyer or Seller for any commission, fee or other
compensation pursuant to any agreement, arrangement or understanding
entered into by or on behalf of Buyer.
12. Taxes. To the extent there are any taxes due and owing by Seller with
respect to the Business and/or the Purchased Assets after the date hereof but
relating to any period prior to the date hereof including, without limitation,
sales, transfer and use and/or similar taxes or fees which may become due and
owing as a result of the completion of the transactions contemplated hereby,
Seller agrees to pay such taxes when due.
13. Indemnification; Survival.
13.1 Seller Indemnification. Seller agrees to indemnify and hold
Buyer, and each of Buyer's owners, officers, directors, agents and
affiliates, harmless from and against any claims, losses, expenses,
obligations, deficiencies, liabilities and lawsuits (including but not
limited to reasonable attorney's fees) which arise or result from or are
related to: (a) any breach or failure of Seller to perform any of its
covenants or agreements set forth herein; (b) the inaccuracy of any
representation or warranty made by Seller herein; (c) any obligation or
liability of Seller, whether arising before or after the date hereof,
including without limitation taxes (including sales tax), obligations to
employees, and obligations and liabilities to suppliers or other creditors;
and (d) any claims of Seller's creditors asserted against Buyer or any of
Buyer's owners, officers, directors, agents or affiliates, or against the
Purchased Assets by reason of noncompliance with any applicable bulk sales
laws (the "Seller Indemnifiable Damages"). Without limiting the generality
of the foregoing with respect to the measurement of Seller Indemnifiable
Damages, Buyer shall have the right to be put in the same pre-tax financial
position as it would have been in had each of the representations,
warranties, and covenants of Seller hereunder been true and correct and had
the agreements and covenants of Seller been performed in full.
Notwithstanding the foregoing, the aggregate amount payable by Seller with
respect to Seller Indemnifiable Damages shall in no event exceed Three
Hundred Thousand Dollars ($300,000). The representations, warranties and
covenants of Seller in this Agreement, in any other document executed in
connection herewith, in any certificate or Schedule delivered pursuant
hereto or thereto and the liability of Seller for breaches thereof, and the
indemnities referred to in this Section 10.1 shall survive the consummation
of the transactions contemplated by this Agreement for a period of twelve
(12) months following the date of the Closing provided, however, that the
covenants, representations, and warranties described in Sections 6.4 (Clear
Title) and 6.5 (Litigation) shall survive the date of the Closing for the
duration of the applicable statutes of limitations.
13.2 Buyer Indemnification. Buyer agrees to indemnify and hold Seller,
and each of Seller's owners, officers, directors, agents and affiliates,
harmless from and against any claims, losses, expenses, obligations,
deficiencies, liabilities and lawsuits (including but not limited to
reasonable attorney's fees) which arise or result from or are related to
(a) any breach or failure of Buyer to perform any of its covenants or
agreements set forth herein; and (b) the inaccuracy of any representation
or warranty made by Buyer herein (the "Buyer Indemnifiable Damages").
Notwithstanding the foregoing, the aggregate amount payable by Buyer with
respect to Buyer Indemnifiable Damages shall in no event exceed Three
Hundred Thousand Dollars ($300,000). The representations, warranties and
covenants of Buyer in this Agreement, in any other document executed in
connection herewith, in any certificate or Schedule delivered pursuant
hereto or thereto and the liability of Seller for breaches thereof, and the
indemnities referred to in this Section 10.2 shall survive the consummation
of the transactions contemplated by this Agreement for a period of twelve
(12) months following the date of the Closing, provided however that the
covenants, representations, and warranties described in Section 8.7
(Litigation) shall survive the date of the Closing for the duration of the
applicable statutes of limitations.
13.3 Miscellaneous. All statements contained in any Exhibit, schedule
or other instrument delivered or to be delivered by or on behalf of the
parties hereto, or in connection with the transactions contemplated hereby,
shall be deemed representations and warranties hereunder. Notwithstanding
any knowledge of facts determined or determinable by any party by
investigation, each party shall have the right to fully rely on the
representations, warranties, covenants and agreements of the other party
contained in this Agreement or in any other documents or papers delivered
in connection herewith. Each representation, warranty, covenant and
agreement of the parties contained in this Agreement is independent of each
other representation, warranty, covenant and agreement.
14. Bulk Sales. Seller shall cooperate with Buyer in complying with all
provisions of the bulk sales statutes of all states having jurisdiction, in such
a way as to provide Buyer the greatest measure of protection against the
creditors of Seller allowable under all such statutes.
15. Notices. Any notice or other communication required by or permitted to
be given in connection with this Agreement shall be in writing, except as
expressly otherwise permitted herein, and shall be delivered in person
(including via overnight courier service) or sent by telecopy or certified or
registered mail, return receipt requested, postage prepaid, to the respective
parties at the addresses referenced below. Each of the parties may change the
address to which it desires notices to be sent if it notifies the other party of
such change in accordance with the provisions of this Section 11. Any such
notice will be deemed to be given when received, if personally delivered or sent
by telecopy and, if mailed, three (3) business days after deposit in the United
States mail, properly addressed, with proper postage affixed.
Seller: Comdisco Ventures, Inc.
Legal Department
6111 North River Road
Rosemont, IL 60018
Attention: General Counsel
Facsimile: (847) 518-5088
With a copy to: Comdisco Ventures, Inc.
1 Post Street
Suite 2600
San Francisco, CA 94104-5290
Attention: Victor Hanna
Facsimile: (415) 623-5218
Buyer: Medix Resources, Inc.
420 Lexington Avenue
New York, New York 10170
Attention: Darryl R. Cohen
Facsimile: (212) 681-9817
With a copy to: Lowenstein Sandler PC
65 Livingston Avenue
Roseland, New Jersey 07068
Facsimile: (973) 597-2400
Attention.: Peter H. Ehrenberg, Esq.
16. Entire Agreement. This Agreement constitutes the entire agreement among
the parties hereto pertaining to the subject matter hereof and, except for Part
I, Sections 2(b) and 2(c) and Part II, Section 2(j) of the Letter of Intent,
supersedes all prior and contemporaneous agreements, understandings,
negotiations, and discussions, whether oral or written, of the parties. No
supplement, modification, amendment, or waiver of this Agreement shall be
binding unless executed in writing by the party to be bound thereby. No waiver
of any of the provisions of this Agreement shall be deemed to or shall
constitute a waiver of any other provisions hereof (whether or not similar), nor
shall such waiver constitute a continuing waiver unless otherwise expressly
provided.
17. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of New York, without reference
to the choice of law principles thereof. Each of the parties hereto irrevocably
submits to the co-exclusive jurisdiction of the courts of the State of New York
and the United States District Courts for the Southern District of New York for
the purpose of any suit, action, proceeding or judgment relating to or arising
out of this Agreement and the transactions contemplated hereby. Each of the
parties hereto irrevocably consents to the jurisdiction of any such court in any
such suit, action or proceeding and to the laying of venue in such court. Each
party hereto irrevocably waives any objection to the laying of venue of any such
suit, action or proceeding brought in such courts and irrevocably waives any
claim that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum. In the event that litigation pursuant to
this Agreement is commenced or in the event that any other dispute resolution
method is commenced, the prevailing party's legal fees and court costs shall be
paid by the unsuccessful party.
18. Further Assurances. At any time after the date hereof, at the request
of Buyer, Seller will execute, acknowledge and deliver all such further and
other assurances and documents and will take such other action consistent with
the terms of this Agreement as may be requested by Buyer for the purpose of
assigning, transferring and conveying to Buyer, or reducing to its possession,
any or all of the assets and rights being conveyed hereunder.
19. Expenses. Except as otherwise provided herein, the parties shall pay
their own fees and expenses, including their own counsel fees, incurred in
connection with this Agreement or any transaction contemplated hereby.
20. Amendment; Waiver. This Agreement may not be modified, amended,
supplemented, canceled or discharged, except by written instrument executed by
all parties. No failure to exercise, and no delay in exercising, any right,
power or privilege under this Agreement shall operate as a waiver, nor shall any
single or partial exercise of any right, power or privilege hereunder preclude
the exercise of any other right, power or privilege. No waiver of any breach of
any provision shall be deemed to be a waiver of any preceding or succeeding
breach of the same or any other provision, nor shall any waiver be implied from
any course of dealing between the parties. No extension of time for performance
of any obligations or other acts hereunder or under any other agreement shall be
deemed to be an extension of the time for performance of any other obligations
or any other acts. The rights and remedies of the parties under this Agreement
are in addition to all other rights and remedies, at law or equity, that they
may have against each other. Consummation of the transactions contemplated
hereby shall not be deemed to be a waiver of any right or remedy possessed by
any party, notwithstanding that such party should have known that such right or
remedy existed; provided, however, that if any party had actual knowledge prior
to the Closing that such right or remedy existed and chose not to exercise such
right or remedy prior to the Closing, such right or remedy shall be deemed to be
waived.
21. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which together shall
constitute one and the same instrument. A telecopy signature of any party shall
be considered to have the same binding legal effect as an original signature.
22. Severability. Any provision of this Agreement that is prohibited 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 hereof but shall be interpreted as if it were written so as
to be enforceable to the maximum extent permitted by applicable law, 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 hereby waive any provision of law which
renders any provisions hereof prohibited or unenforceable in any respect.
23. Headings. Section headings are not to be considered part of this
Agreement, are included solely for convenience, and are not intended to be full
or accurate descriptions of the contents hereof.
24. Parties Bound. This Agreement shall be binding upon, and shall inure to
the benefit of, the parties hereto, their respective heirs, administrators,
personal representatives, successors and assigns.
SIGNATURE PAGE TO FOLLOW
IN WITNESS WHEREOF, the parties have executed this Asset Purchase Agreement
as of the date first written above.
COMDISCO VENTURES, INC.
By:__________________________
MEDIX RESOURCES, INC.
By:__________________________
T3 GROUP, LLC
By:__________________________
EXHIBIT A
PURCHASED ASSETS
EXHIBIT B
FORM OF
BILL OF SALE
EXHIBIT C
FORM OF
ASSIGNMENT OF PROPRIETARY RIGHTS
EXHIBIT D
FORM OF
ASSIGNMENT OF DOMAIN NAME
EXHIBIT E
FORM OF
REGISTRATION RIGHTS AGREEMENT