EXHIBIT 10.22
TERMINATION AGREEMENT
This Termination Agreement (this "Agreement") is entered into as of this
_____ day of April, 2006, by and between Xxxxx, Xxxxxxx & Co., Inc., a Delaware
corporation, MCC Healthcare Group, Inc., a Delaware corporation (collectively
"MCC") and Bridgetech Holdings International, Inc., Delaware corporation
("Bridgetech"), collectively referred to hereinafter as the "Parties" or
individually as a "Party."
R E C I T A L S
WHEREAS, the Parties hereto desire to fully and finally terminate any and
all claims which may exist between them in connection with that certain
Subscription Agreement entered into by the Parties and accepted by Bridgetech on
or about October 19, 2005 in which MCC agreed to subscribe for 1.5 million
shares of Bridgetech common stock at a price of $1.00 per share (the
"Subscription Agreement", attached hereto as Exhibit A).
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereto agree as
follows:
1. Acknowledgement and Acceptance of Substitute. Bridgetech hereby
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acknowledges that MCC has sufficiently provided for substitute investors who
have subscribed in an amount equal to or greater than that required pursuant to
the Subscription Agreement, and accepts such subscriptions in aggregate as a
full and complete substitute for the MCC obligation under the Subscription
Agreement.
2. Acknowledgement of Receipt of Investment. Bridgetech hereby
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acknowledges that it has received funds from the substitute investors in an
amount equal to or greater than that required pursuant to the Subscription
Agreement.
3. Termination of Subscription Agreement. The Parties agree to
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terminate the Subscription Agreement and any obligations, rights, or any other
similar interest each may have with respect to the other arising from the
Subscription Agreement.
4. Release of Claims. In consideration of the mutual releases made
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pursuant to this Agreement, the Parties, on behalf of themselves and their
agents, personal representatives, and assigns, past, present, and future, hereby
releases and forever discharges the other Party, any parent organization of the
other Party, any organization that controls, is controlled by, or is under
common control with the other Party, and each of their respective partners,
affiliates, associates, officers, directors, shareholders, managers, members,
employees, attorneys, accountants, insurers, agents, representatives,
predecessors, successors, and assigns, past, present, and future (collectively,
"Affiliates"), from any and all legal claims, demands, liens, agreements,
contracts, covenants, actions, suits, causes of action, obligations,
controversies, debts, costs, expenses, damages, judgments, orders, and
liabilities of whatever kind or nature in law, equity, or otherwise, whether now
known or unknown, suspected or unsuspected, concealed or hidden, of any kind or
nature whatsoever, which have ever existed or may have existed, or which do
exist or which hereafter can, shall, or may exist arising out of the
Subscription Agreement, occurring or existing at any time. Nothing in this
section shall release parties from obligations arising from other agreements
between the parties, including without limitation any strategic alliance
agreements, joint venture agreements, or engagement agreements.
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5. Further Assurances. The Parties intend this Agreement to be a
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complete and final settlement of the matters between them related to the
Subscription Agreement. Accordingly , each Party agrees to execute such further
documents and to take such further actions as may be necessary or desirable to
finally and fully settle all such matters which have arisen or which may
subsequently arise between them.
6. Successors and Assigns. This Agreement shall be binding on and shall
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inure to the benefit of the parties and their respective heirs, personal
representatives, successors, and assigns.
7. Amendments and Waivers. No amendment or waiver of any provision of
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this Agreement shall be effective unless it is in writing and is signed by every
one of the parties hereto.
8. Notices. Any notice required hereunder to be given by either Party
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shall be in writing and shall be delivered personally or sent by certified or
registered mail, postage prepaid, or by private courier, with written
verification of delivery, or by facsimile transmission to the other Party to the
address or telephone number set forth below or to such other address or
telephone number as either Party may designate from time to time according to
this provision. A notice delivered personally shall be effective upon receipt. A
notice sent by facsimile transmission shall be effective twenty-four hours after
the dispatch thereof. A notice delivered by mail or by private courier shall be
effective on the third day after the day of mailing.
To Bridgetech at: To MCC at:
000 X. Xxxxxxx 000, Xxx. 000 10757 South River Front Parkway
Ste. 215 Ste. 125
Solana Beach, California 92075 Xxxxx Xxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxx III Attention: Xxxxxxx X. Xxxxx
Telefax: x0 (000) 000-0000 Telefax: x0(000) 000-0000
9. Equitable Remedies. Each Party acknowledges and agrees that the
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breach or threatened breach of certain provisions of this Agreement would cause
irreparable harm for which damages at law would be an inadequate remedy.
Accordingly, each Party hereby agrees that, in any such instance, the threatened
or injured Party shall be entitled to seek injunctive or other equitable relief
in addition to any other remedy to which he or it may be entitled, including
money damages.
10. Severability. If any provision of this Agreement is found to be
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unenforceable by a court of competent jurisdiction, the remaining provisions
shall nevertheless remain in full force and effect.
11. Entire Agreement. This Agreement constitutes the full and complete
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understanding of the Parties hereto with respect to the subject matter covered
herein and supersedes all prior oral or written understandings and agreements
with respect thereto. No modification or amendment to this Agreement shall be
effective unless it is contained in a written document that is signed by both
Parties.
12. Governing Law. This Agreement shall be governed and construed in
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accordance with the laws of the State of Delaware. The Parties further agree
that proper venue and
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jurisdiction for any dispute under this Agreement shall lie with the courts in
Los Angeles County, California.
IN WITNESS WHEREOF, the Parties hereto have signed this Agreement by their
duly authorized representative as of the date first given above. This Agreement
may be executed in counterparts, all of which together shall constitute one and
the same instrument.
XXXXX, XXXXXXX & CO., INC. BRIDGETECH HOLDINGS INTERNATIONAL, INC.
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Xxxxxxx Xxxxx, Executive VP Xxxxxx X. Xxxx III, SVP & CFO
MCC HEALTHCARE GROUP, INC.
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Xxxxxxx Xxxxx, Director
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EXHIBIT A
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SUBSCRIPTION AGREEMENT
FOR
SHARES OF COMMON STOCK
OF
BRIDGETECH HOLDINGS INTERNATIONAL, INC.
To: Bridgetech Holdings International, Inc.
From: XXXXX, XXXXXXX & CO INC.
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(Full name of Subscriber)
Number of shares of Common Stock subscribed: $1,500,000
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Price per share of Common Stock: $ 1.00
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Total purchase price for shares of Common Stock subscribed: $1,500,000
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SUBSCRIPTION AGREEMENT
The undersigned subscriber ("Subscriber") hereby irrevocably subscribes for
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the number of shares of Common Stock, par value $.001 per share (the "Stock"),
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of Bridgetech Holdings International, Inc., a corporation organized under the
laws of the State of Delaware (the "Company"), set forth in Section 1 below.
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Section I. Commitment.
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Subscriber hereby irrevocably subscribes for and agrees to purchase
1,500,000 shares of Stock (the "Subscribed Shares") at the purchase price of
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$1.00 per share for an aggregate purchase price of $1,500,000 (the "Purchase
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Price"). Subscriber understands that the Company is under no obligation to
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consummate the sale of the Stock and may reject this subscription in its sole
discretion.
Section 2. Payment of the Purchase Price and Delivery of the Subscribed
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Shares.
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On or before October 15, 2005 (the "Closing Date"), Subscriber shall pay
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the Purchase Price to the Company by check payable to "Bridgetech Holdings
International, Inc." or by wire transfer of immediately available funds to the
account identified on Schedule A hereto. If the Company accepts Subscriber's
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subscription, then, on the Closing Date or promptly thereafter, the Company
shall deliver to Subscriber a certificate for the Subscribed Shares.
Section 3. Representations, Warranties and Covenants of Subscriber.
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In order to induce the Company to accept this subscription and issue the
Subscribed Shares to Subscriber, Subscriber hereby warrants, represents,
covenants and agrees as follows:
(a) Subscriber acknowledges that the Company has provided
Subscriber with copies of certain documents, books and records of the
Company. Subscriber and its advisors have had a reasonable opportunity to
ask questions of and receive answers from the officers of the Company, or a
person or persons acting on their behalf, concerning the Company and the
terms and conditions of the offering of the Stock, and to obtain additional
information necessary to verify the accuracy of the information provided
by, or on behalf of, the Company. All such questions have been answered to
the full satisfaction of Subscriber. Subscriber represents and warrants
that, in making the decision to purchase the Stock, Subscriber has relied
and is relying solely on its review of the materials provided and its own
independent investigation of the Company.
(b) Subscriber has such knowledge and experience in financial and
business matters as to enable it (i) to utilize the information made
available to it in connection with the offering of the Stock, (ii) to
evaluate the merits and risks associated with a purchase of the Stock, and
(iii) to make an informed decision with respect thereto.
(c) Subscriber is a qualified purchaser of shares of Stock because
Subscriber is an "accredited investor" under Regulation D promulgated
under the Securities Act of 1933, as amended (the "Act").
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(d) Subscriber (i) has adequate means of providing for its current
liabilities and possible contingencies, (ii) has no need for liquidity
in connection with a purchase of the Stock, (iii) is able to bear the
economic risks associated with the purchase of the Stock for an indefinite
period and has the capacity to protect its own interests in connection with
a purchase of the Stock, and (iv) can afford the complete loss of its
entire investment in the Stock.
(e) Subscriber recognizes that a purchase of fee Stock involves
significant risks, including, without limitation, those described or
Schedule B hereto. Subscriber acknowledges that an investment in the
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Company is speculative and may result in the loss of Subscriber's entire
investment.
(f) Subscriber understands that (i) neither the offering nor the
sale of the Stock has been registered under the Act in reliance upon
exemptions from the registration provisions of the Act, (ii) the Subscribed
Shares must be held by Subscriber indefinitely unless the sale or transfer
thereof (A) is subsequently registered under the Act, or (B) an exemption
from such registration is available, (iii) the certificates representing
all shares of Stock will be legended to reflect such restrictions, (iv) the
Company is under no obligation to register any shares of Stock on
Subscriber's behalf or to assist Subscriber in complying with any exemption
from registration, and (v) the officers of the Company will rely upon the
representations and warranties made by Subscriber in this Subscription
Agreement in order to establish such exemption from the registration
provisions of the Act.
(g) Subscriber understands that neither the offer nor the
sale of the Stock has been registered under the securities laws of any
state due to exemptions from registration based upon the private or limited
nature of the offering and/or exemptions available for transactions
involving purchasers such as Subscriber, and that the officers of the
Company will rely upon the representations and warranties made by
Subscriber in this Subscription Agreement and in the Investor Questionnaire
in order to establish such exemptions from registration under state
securities laws.
(h) Subscriber acknowledges and agrees that it will not sell
assign, pledge, hypothecate, transfer, or otherwise dispose of the
Stock unless (i) such disposition is subsequently registered under the
Securities Act, which is not contemplated, and registered under all
applicable state laws and regulations, which is not contemplated or (ii)
Subscriber provides the Company with a legal opinion acceptable in form and
substance (as to both such opinion and the counsel providing such opinion)
to the Company and the Company's legal counsel stating that such
disposition may be made without registration under the Securities Act and
without registration under any applicable state laws and regulations.
Subscriber understands that transfer instructions have been or will be
placed on certificate(s) with respect to the Subscribed Shares so as to
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restrict any such disposition thereof. Further, Subscriber acknowledges
that the Company is under no obligation to register the Stock on its behalf
or to assist it in complying with any exemption from registration.
(i) The Subscribed Shares are being purchased with Subscriber's
own funds and not with the funds of any other person and are being
purchased solely for Subscriber's own account and not for the account of
any other person. The Subscribed Shares are being purchased for investment
purposes only, and not for distribution, assignment or resale to others.
(j) Subscriber realizes that it may not be able to sell or dispose
of its shares of Stock, even in the case of an emergency, as there is
no public market for such shares. Subscriber acknowledges that it will bear
the economic risk associated with the Stock for an indefinite period of
time.
(k) Subscriber understands that no federal or state agency or
securities exchange has recommended or endorsed the purchase of shares
of Stock.
(1) Subscriber acknowledges that neither the Company, nor any
person acting on the Company's behalf, has offered to sell shares of
Stock by means of any form of advertising. At no time was Subscriber
presented with or solicited by any leaflet, promotional meeting, newspaper,
magazine, radio or television program, article or advertisement, or any
other form of general advertising or general solicitation.
(m) The Subscriber has consulted with Subscriber's own legal,
accounting, tax, investment and other advisors with respect to the tax
treatment of an investment by Subscriber in the Stock and in the Company
and the merits and risks of an investment in the Stock and in the Company.
(n) The Subscribed Shares and any certificates issued in
replacement therefore shall bear the following legend, in addition to
any other legend required by law or otherwise deemed advisable by the
Company;
The sale of shares represented by this certificate has not been
registered under the Securities Act of 1933 (the "Act") or any
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applicable state securities laws (the "State Acts") and such shares
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may not be sold, transferred or otherwise disposed of unless a
registration statement under the Act and the State Acts with respect
to such shares is effective at such time or unless the Corporation is
in receipt of an opinion of counsel satisfactory to it to the effect
that such shares may be sold without registration under the Act and
the State Acts.
(o) Subscriber has kept and will continue to keep all information
disclosed in connection with the offering of the Stock in strict
confidence, and Subscriber agrees only to disclose such information to its
accountants, attorneys or other professional advisors to the extent
necessary to evaluate the investment in the Stock. The same standard of
confidentiality is expected from all such accountants, attorneys and other
professional advisors who have received such information.
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(p) Subscriber is either: (i) an individual over the age of 21 (or
the age of majority in the Subscriber's jurisdiction) and a resident
at the address set forth on the signature page to this Agreement, and has
no present intent of changing such residency, or (ii) an entity not formed
for the specific purpose of acquiring or holding the Stock, with its
principal place of business at the address set forth on the signature page
to this Agreement. In the event that Subscriber's residence or principal
place of business changes before Subscriber purchases said Stock and before
the Stock are delivered to Subscriber, Subscriber covenants and agrees to
promptly notify the Company.
(q) When executed by Subscriber, this Subscription Agreement
(including these representations and warranties) will constitute a valid
and binding obligation of Subscriber, enforceable in accordance with its
terms. Subscriber, if not an individual, is empowered and duly authorized
to enter into this Subscription Agreement under any governing documents,
partnership agreements, operating agreements, trust instruments, pension
plans, charter, certificate of incorporation, bylaw provisions or the like.
The person, if any, signing this Subscription Agreement on behalf of
Subscriber is empowered and duly authorized to do so by Subscriber's
governing document or trust instrument, charter, certificate of
incorporation, bylaw provision, board of directors or shareholder
resolution, or the like.
(r) Subscriber understands and agrees that the subscription set
forth herein will not be binding upon the Company until it is accepted
by the Company in writing, that acceptance of any or all subscriptions is
within the sole discretion, of the Company, and that the Company may choose
to accept or reject any or all subscriptions, in whole or in part,
including this subscription, for any reason or no reason, in its sole
discretion.
(s) The foregoing representations and warranties and all other
information which Subscriber has provided concerning Subscriber and
Subscriber's financial condition, are true and accurate as of the date
hereof. If in any respect such information, representations, warranties,
and covenants are not true and accurate as of the Closing Date. Subscriber
will give written, notice of such fact to the officers of Company
specifying which information, representations, warranties, or covenants are
not true and accurate and the reasons therefor.
Section 4. Representation and Warranty of Company.
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Company represents and warrants to Subscriber that (i) it is duly and
validly organized and in existence under the laws of the State of Delaware, (ii)
it is or will become qualified under the laws of all other jurisdictions in
which such qualification is necessary to enable it to engage in business, (iii)
it has full power and authority to own and manage the assets to be owned by it
and (iv) upon issuance, the Subscribed Shares shall be duly authorized, validly
issued, fully paid and nonassessable.
Section 5. Indemnification.
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Subscriber shall indemnify and hold harmless Company and any person,
partnership, corporation or entity affiliated in any manner with or employed by
Company (including the officers, directors and employees of Company and all
professional advisors thereto), from and
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against any and all loss, damage, liability or expense, including costs and
reasonable attorneys' fees, to which they may become subject or which they may
incur by reason of or in connection with any misrepresentation made by
Subscriber herein, any breach of any of Subscriber's representations or
warranties, or Subscriber's failure to fulfill any of its covenants or
agreements contained in this Subscription Agreement.
Section 6. Miscellaneous.
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(a) Subscriber agrees not to transfer or assign this Subscription
Agreement, or any of Subscriber's interest herein, to any other person
without the prior written consent of Company, and further agrees chat the
transfer or assignment of the shares of Stock acquired pursuant hereto
shall be made only in accordance with the provisions of this Agreement, the
Company's Certificate of Incorporation, the Act and all applicable stats
securities laws.
(b) Subscriber agrees that Subscriber may not cancel, terminate or
revoke this Subscription Agreement (except as otherwise specifically
permitted under applicable state securities laws), and that this
Subscription Agreement shall be binding upon Subscriber's permitted
successors and assigns.
(c) This Subscription Agreement and the Investor Questionnaire
constitute the entire agreement between the parties hereto with respect to
the subject matter hereof. This Subscription Agreement may be amended only
by a writing executed by both of the parties hereto.
(d) This Subscription Agreement shall be enforced, governed and
construed in all respects in accordance with the laws of the State of
Delaware.
(e) The representations and warranties of Subscriber set forth
herein shall survive the sale of the Subscribed Shares to Subscriber
pursuant to this Subscription Agreement.
(f) Within five days after the receipt of a written request from
an officer of the Company, Subscriber agrees to provide such information
and to execute and deliver such documents as reasonably may be necessary to
comply with any and all laws and regulations to which the Company is
subject.
(g) Words importing the singular number hereunder shall include
the plural number and vice versa, and any pronoun used herein shall be
deemed to cover all genders.
Section 7. Notice of Acceptance.
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The officers of Company, upon acceptance of this Subscription Agreement,
will forward to Subscriber a notice of acceptance, which may consist of a
counter-signed copy of this Subscription Agreement.
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IN WITNESS WHEREOF, the undersigned Subscriber has executed and
acknowledged this Subscription Agreement as of the date set forth "below.
ENTITY INVESTOR: INDIVIDUAL INVESTOR:
XXXXX, XXXXXXX & CO INC
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(Print Name of Entity) (Print Name)
By: /s/ A R Xxxxx
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(Signature) (Signature)
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(Print Name and Title) (Date)
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(Date)
NB. XXXXX, XXXXXXX & CO INC WILL WIRE FUNDS WITHIN 45 DAYS OF THE SIGNING
OF THIS AGREEMENT BY BOTH PARTIES.
ARM
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ACCEPTANCE OF SUBSCRIPTION
The foregoing subscription of 1,500,000 w/ XXXXX, XXXXXXX & CO., INC. is hereby
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accepted.
BRIDGETECH HOLDINGS INTERNATIONAL, INC.
Date: 10/19/05 By: /s/ Xxxxxx X. Xxxx III
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Name: XXXXXX X. XXXX III
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Title: EVP & CFO
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