**Exhibit10.1**

 

 

ASSET PURCHASEAGREEMENT

 

by and between

 

FISCHER IMAGINGCORPORATION

 

as “Seller”

 

and

 

JN PROPERTIES, LLC

 

as “Buyer”

 

Dated as ofNovember 1, 2006

 

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TABLE OF CONTENTS
| **ARTICLE I DEFINITIONS**                                | 4                                             |
|----------------------------------------------------------|-----------------------------------------------|
| 1.1                                                      | **Defined Terms**                             | 4 |
| **ARTICLE II PURCHASE AND SALE AGREEMENT**               | 8                                             |
| 2.1                                                      | **Transfer of Assets**                        | 8 |
| 2.2                                                      | **Assumed Liabilities**                       | 9 |
| 2.3                                                      | **Purchase Price**                            | 9 |
| **ARTICLE III CLOSING**                                  | 10                                            |
| 3.1                                                      | **Closing**                                   | 10 |
| 3.2                                                      | **Conveyances at Closing**                    | 10 |
| 3.3                                                      | **Transaction Expenses**                      | 11 |
| 3.4                                                      | **Transfer Taxes**                            | 11 |
| 3.5                                                      | **Other Closing Matters**                     | 11 |
| **ARTICLE IV REPRESENTATIONS AND WARRANTIES OF  SELLER** | 11                                            |
| 4.1                                                      | **Organization and Authorization of Seller**  | 11 |
| 4.2                                                      | **No Violation**                              | 12 |
| 4.3                                                      | **Governmental Consents and Approvals**       | 12 |
| 4.4                                                      | **Intellectual Property**                     | 12 |
| **ARTICLE V REPRESENTATIONS AND WARRANTIES OF  BUYER**   | 13                                            |
| 5.1                                                      | **Organization of Buyer**                     | 13 |
| 5.2                                                      | **Authorization**                             | 13 |
| 5.3                                                      | **Governmental Consents and Approvals**       | 13 |
| 5.4                                                      | **No Violation**                              | 13 |
| 5.5                                                      | **Financial Capacity**                        | 14 |
| **ARTICLE VI ADDITIONAL COVENANTS OF SELLER**            | 14                                            |
| 6.1                                                      | **Maintenance of Business Prior to Closing**  | 14 |
| 6.2                                                      | **Investigation by Buyer**                    | 14 |
| 6.3                                                      | **Consents and Reasonable Efforts**           | 15 |
| **ARTICLE VII CONDITIONS TO SELLER’S OBLIGATIONS**  | 15                                            |
| 7.1                                                      | **Entry of Sale Approval Order**              | 15 |
| 7.2                                                      | **No Order Enjoining Sale**                   | 15 |
| 7.3                                                      | **Representations, Warranties and Covenants** | 16 |
| **ARTICLE VIII CONDITIONS TO BUYER’S OBLIGATIONS**  | 16                                            |
| 8.1                                                      | **Entry and Finality of Sale Approval Order** | 16 |
| 8.2                                                      | **Representations, Warranties and Covenants** | 16 |
| 8.3                                                      | **Consents**                                  | 16 |
| 8.4                                                      | **No Proceedings or Litigation**              | 16 |
| 8.5                                                      | **Instruments of Conveyance, Certificates**   | 17 |
| **ARTICLE IX OTHER AGREEMENTS**                          | 17                                            |
| 9.1                                                      | **Employee Matters**                          | 17 |
| 9.2                                                      | **Risk of Loss**                              | 17 |
| 9.3                                                      | **Consents to Assignment**                    | 17 |

 

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| **ARTICLE X MISCELLANEOUS** | 18                                                             |
|-----------------------------|----------------------------------------------------------------|
| 10.1                        | **Termination**                                                | 18 |
| 10.2                        | **In the Event of Termination; Remedies**                      | 18 |
| 10.3                        | **Assignment; Successors**                                     | 19 |
| 10.4                        | **Notices**                                                    | 19 |
| 10.5                        | **Choice of Law**                                              | 20 |
| 10.6                        | **Entire Agreement; Amendments and Waivers**                   | 20 |
| 10.7                        | **Construction**                                               | 21 |
| 10.8                        | **Third Party Beneficiaries**                                  | 21 |
| 10.9                        | **No Waiver**                                                  | 21 |
| 10.10                       | **Multiple Counterparts**                                      | 21 |
| 10.11                       | **Invalidity**                                                 | 21 |
| 10.12                       | **Publicity**                                                  | 22 |
| 10.13                       | **Further Assurances**                                         | 22 |
| 10.14                       | **Access to Books and Records**                                | 22 |
| 10.15                       | **Cumulative Remedies**                                        | 22 |
| 10.16                       | **Termination of Covenants, Representations, and  Warranties** | 22 |
| 10.17                       | **No Impediment to Liquidation**                               | 22 |
| 10.18                       | **Representation by Counsel; Mutual Negotiation**              | 23 |

** **

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**ASSET PURCHASE AGREEMENT**

ThisAsset Purchase Agreement (this “**Agreement**”),dated as of November 1, 2006, is  by andbetween JN Properties, LLC, a Colorado limited liability company (“**Buyer**”), and Fischer Imaging Corporation, a Delawarecorporation (“**Seller**”).

**R E C IT A L S**:

Sellerengages in the design, manufacture, sale, distribution, marketing, technicalsupport and warranty and post-warranty repair of the Product Lines definedbelow (the “**Business**”).

This Agreement contemplates a transaction in whichBuyer will purchase from Seller certain assets of the Business.  Specifically, Buyer will purchase the VersaRad-Aand VersaRad-D systems (the “**VersaRad  Line**”), EPX-60 Single Plane EPImaging System, the SPX Surgical Imaging System, EP602, and Tangent tables (the “**EPX/SPX Line**”) and Bloom Electrophysiology Stimulator (the “**Bloom  Line**”)(collectively the “**Product Line**”)subject to the terms and conditions of this Agreement, including its provisionsregarding the assignment of liabilities.

**AGREEMENT**

**NOW,THEREFORE**, in consideration of the foregoing and the mutualcovenants and promises contained herein and for other good and valuableconsideration, the receipt and adequacy of which are hereby acknowledged, theparties hereto agree as follows:

**ARTICLE I******DEFINITIONS

1.1           **Defined Terms.**

Asused herein, the terms below shall have the following meanings:

**Affiliate** has the same meaningas set forth in the Bankruptcy Code, 11 U.S.C. § 101(2).

**Agreement** has the meaning setforth in the preface above.

**Acquired Assets** means all ofSeller’s right, title and interest in and to the Data, the Deliverables, theAssumed Executory Contracts, the Equipment, the Intellectual Property and theInventory.

**Assumed Executory Contracts**means the Contracts and leases set forth on **Schedule 1.1(Assumed Executory Contracts)** attached hereto.

**Assumed Liabilities** means theliabilities and obligations of or relating to the Product Line (which may betrade payable liabilities and include the warranty obligations relating to thetwenty Bloom Units retained by Buyer) specifically set forth on **Schedule 1.1 (Assumed Liabilities)** attached hereto.

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**Bankruptcy Case** means the case,if necessary, filed by Debtor in the Bankruptcy Court for the District ofColorado.

**Bankruptcy Code** means the UnitedStates Bankruptcy Code, 11 U.S.C. § 101 *et seq.*

**Bankruptcy Court** means theUnited States Bankruptcy Court for the District of Colorado.

**Bankruptcy Schedules** means theSeller’s Schedules filed in the Bankruptcy Case.

**Bloom Line** has the meaning setforth in the recitals above.

**Business** has the meaning setforth in the recitals above.

**Business Day** means any dayexcluding Saturday, Sunday and any day which is a legal holiday under the lawsof the State of Colorado or is a day on which banking institutions located insuch state are authorized or required by law or other governmental action toclose.

**Buyer** has the meaning set forthin the preface above.

**Cash Purchase Price** has the meaning setforth in § 2.3 (a) below.

**Closing** has the meaning set forth in § 3.1below.

**Closing****Date**has the meaning set forth in § 3.1 below.

**Confidentiality Agreement** meansthe Confidentiality Agreement dated as of April 18, 2006 by and between theSeller and the Buyer.

**Data** means historical ProductLine information including sales history, inventory history, product approvedpart list matched to approved vendor list, bills of material, warranty andrepair history, price lists, end-user information, pricing and costinformation, and business and marketing plans and proposals to the extentavailable under Seller’s document retention program and such other informationas Buyer may reasonably request which relates to the Product Line but excluding(i) data so commingled with Seller’s other data such that it cannot beextracted without unreasonable expense or (ii) data obtained from third Personssubject to a confidentiality agreement or other applicable law restrictingBuyer’s access to such data and such Person has refused to consent to thetransfer of such data to Buyer.

**Deferred Purchase Price**has the meaning set forth in § 2.3 (b)below.

**Deliverables** means a copy (inaccessible electronic or hard copy form) of the following:

(a)           all issued patent certificates andfiles for all issued patents and patent applications for the patents identifiedon **Schedule 1.1 (IP-Transferred Patents)**togetherwith files for all reissuances, continuations-in-part, revisions, extensions,reexaminations and improvements thereof; all patent disclosure documentationfor the patents and patent applications on **Schedule1.1**

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**(IP-TransferredPatents)**and for all reissuances, continuations-in-part,revisions, extensions, reexaminations and improvements thereof;

(b)           all issued registration certificates(or to the extent accessible in Seller’s possession use or control, theoriginal certificates) for the trademarks and service marks set forth on **Schedule 1.1 (IP-Transferred Trademarks)**together with the application files and any trademark searches thereof;

(c)           all documents and/or files regardingthe design, development and improvement of the packaging trade dress for theProduct Line;

(d)           all copyrightable works of authorship(including web pages, computer software source and object code, manuals and enduser-documentation, and to the extent accessible and in Seller’s possession,use or control, a master copy thereof), and copyright application files,copyright registration and renewal certificates, if any, as set forth on **Schedule 1.1 (IP-Copyrights)**;

(e)           all mask works, if any, and allapplication files and registration certificates thereof, if any;

(f)            all documents and/or files, if any,of Seller’s trade secrets;

(g)           all documents and/or files containingthe proprietary confidential business information****as defined in subparagraph (b) of the definition of “IntellectualProperty” below;

(h)           all documents and/or files containingany other Intellectual Property;

(i)            all equipment warranties relating tothe Equipment and Product Line, if any; and

(j)            all manuals relating to IntellectualProperty.

**Deposits**shall mean the good faith deposits previously paid to Seller by Buyer in theaggregate amount of $59,000.00.

**Encumbrance** means any pledge,lien, charge, right of others, sublease, easement, title defect, mortgage,license, encumbrance, security interest and other adverse claim or interest ofany kind or nature whatsoever, other than the liens of taxing authorities thatare not properly due and payable.

**Environmental Laws** shall meanall applicable local, state and federal statutes and regulations relating tothe protection of human health or the environment, as the foregoing are enactedand in effect prior to the Closing Date.

**EPX/SPX Line** has the meaning setforth in the recitals above.

**Equipment** means the equipment,machinery, tools, jigs, dies, parts and other tangible property whereverlocated, set forth on **Schedule 1.1(Equipment)** attached hereto.

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**Excluded Liabilities** has the meaning setforth in § 2.2 below.

**Final Order** means an Order ofthe Bankruptcy Court that has not been reversed, stayed, modified or amendedand as to which the time to appeal or petition for certiorari has expired andas to which no appeal or petition for certiorari is pending.

**IntellectualProperty** means the following intangible items:

(a)           all patents and patent applicationson **Schedule 1.1 (IP-Transferred Patents)**andall reissuances, continuations-in-part, revisions, extensions, reexaminationsand improvements thereof;

(b)           all material know how, trade secrets,and proprietary confidential business information  relating to the Product Lines in Seller’spossession as of the Closing Date;

(c)           the trade names, trademarks andservice marks set forth on **Schedule 1.1(IP-Transferred Trademarks)** the goodwill of the business associatedwith and symbolized by the foregoing and all applications, registrations andrenewals thereof;

(d)           all material copyrights (includingweb pages, computer software, manuals and end user-documentation), and allcopyright applications, copyright registrations and copyright registrationrenewals, if any, in connection therewith, as set forth on **Schedule 1.1(IP-Copyrights)**; and

(e)           all mask works, if any, and allapplications, registrations and renewals, if any, in connection therewith; and

(f)            URL redirection/forwarding, at thecost of Buyer, enabling prospects or other individuals entering the URL domainwww.fischerimaging.com to be redirected to a URL to be established by Buyer fora period of 12 months after close of sale.

Notwithstanding the foregoing, the trade name FischerImaging or any derivative thereof, any registered trademark containing thetrade name Fischer Imaging or any derivative thereof, or any domain namecontaining the name Fischer Imaging or any derivative thereof is not includedin the definition of Intellectual Property.

**Intellectual Property Schedules**hasthe meaning set forth in § 4.4 below.

**Inventory** means those itemsdescribed on **Schedule 1.1****(Inventory)** attached hereto. Buyer specifically acknowledgesthat 20 Bloom finished goods units will be retained by Seller and are notincluded in Inventory.

**IRC** means the Internal RevenueCode of 1986, as amended.

**Maintenance Obligations** has themeaning set forth in § 2.3 below.

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**Person** means any individual,corporation, partnership, limited liability company, trust, association, jointventure or other entity or any kind whatsoever.

**Personnel** means all directors,officers and employees.

**Product Line** has the meaning setforth in the recitals above.

**Purchase****Price** means the Cash PurchasePrice plus the Deferred Purchase Price.

**Representative** means anyattorney, accountant, agent, consultant or other representative (but shall notinclude Personnel).

**Sale Approval Order** means, inthe event of a Bankruptcy Case, an order of the Bankruptcy Court, satisfactoryin form and substance to Buyer, Seller and their respective counsel, enteredafter a hearing conducted with adequate notice, approving the transactionscontemplated by this Agreement.

**Sale Procedures Order** means, inthe event of a Bankruptcy Case, an order of the Bankruptcy Court, satisfactoryin form and substance to Buyer, Seller and their respective counsel, enteredafter a hearing conducted with adequate notice, approving any specific salesprocedures in the Bankruptcy Court.

**Seller** has the meaning set forthin the preface above.

**Subsidiary** means any corporationwith respect to which a specified Person (or a Subsidiary thereof) owns amajority of the common stock or has the power to vote or direct the voting ofsufficient securities to elect a majority of the directors.

**Taxes** shall mean all taxes,estimated taxes, assessments and other charges, including any interest,penalties, additions to tax or additional amounts that may become payable inrespect thereof, imposed by any foreign, federal, state, county, local or othergovernment or taxing authority, which taxes shall include, without limitation, allincome taxes, payroll and employee withholding taxes, unemployment insurance,social security, sales and use taxes, value-added taxes, excise taxes,franchise taxes, gross receipts taxes, occupation taxes, real and personalproperty taxes, stamp taxes, transfer taxes, workers’ compensation and otherobligations of the same or of a similar nature.

** VersaRadLine** has the meaning set forth in the recitals above.

**ARTICLE II******PURCHASE AND SALE AGREEMENT

2.1           **Transfer of AcquiredAssets.**

Uponthe terms and subject to the conditions and provisions contained herein and inthe Sale Procedures Order, if any, at the Closing, Seller shall sell, convey,transfer, assign and deliver to Buyer, and Buyer shall purchase, acquire andaccept from Seller, the Acquired Assets free and clear 

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of any and allEncumbrances, “as is, where is” without representations or warranties of anykind, express or implied except as contained in this Agreement.

2.2           **Assumed Liabilities.**

Atthe Closing, Buyer shall assume and undertake to pay, perform and dischargewhen due or required to be performed the Assumed Liabilities and the AssumedExecutory Contracts.  Buyer will notassume nor have any responsibility, however, with respect to any otherobligation or liability of Seller not included within the definition of AssumedLiabilities (the “**Excluded Liabilities**”).

2.3           **Assumed ExecutoryContracts.**

Fromand after the Closing Date, Buyer shall assume all of Seller’s obligationsunder the Assumed Executory Contracts including, if set forth on **Schedule 1.1 (Assumed Executory Contracts)**, the obligationsto provide maintenance services pursuant to the existing service contractslisted thereon (“**Maintentance Obligations**”).

2.4           **Purchase Price.**

(a)           Uponthe terms and subject to the conditions set forth herein, Buyer shall pay toSeller for the sale, transfer, assignment, conveyance and delivery of theAcquired Assets, $590,000 (the “**Cash****Purchase Price”**), net of the Deposits (i.e., $531,000 =$590,000 — Deposits of $59,000), by delivery of cash payable by wire transferor other immediately available funds.

(b)           Buyershall pay to Seller as additional consideration $4,000.00 per individual BloomElectrophysiology Stimulator (“**Bloom Unit**”)sold by Buyer during the twelve (12) months following the Closing (the “**Deferred Purchase Price**”).  Buyer shall pay Seller under this Section2.4(b) by the 20th of each month for any Bloom Units sold duringthe previous month.  Notwithstanding thenumber of Bloom Units actually sold during the twelve (12) months following Closing,Buyer shall pay to Seller pursuant to this Section 2.4(b) a minimum of$160,000, but in no event more than $240,000. If at the end of the twelve (12) month period Buyer has not paid toSeller an aggregate minimum amount of $160,000 pursuant to this Section2.4(b), Buyer shall pay to Seller the shortfall to Seller within fifteen(15) days after the expiration of the twelve (12) month period.

(c)           ThePurchase Price shall be allocated for federal income tax purposes among theAcquired Assets in a manner reasonably agreeable to Seller and Buyer; *provided* that such allocation shall be made in a mannerconsistent with § 1060 of the IRC.

(d)           TheDeposits shall be held in a segregated account, and applied in accordance withthe terms of this Agreement.

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**ARTICLE III******CLOSING

3.1           **Closing.**

Upon the terms andconditions set forth herein and, in the event of a Bankruptcy Case, in the SaleProcedures Order or the Sale Approval Order, the closing of the transactionscontemplated herein (the “**Closing**”) shallbe held at 8:00 a.m. prevailing Mountain time at the offices of Jessop& Company, P.C., 303 E 17th Ave, Suite 930,Denver, Colorado, on the later of (i) a date within two (2) Business Daysafter the Sale Approval Order becomes a Final Order, (ii)  on or after October 31, 2006, but beforeNovember 6, 2006, or (iii) such other date (which date shall in no eventbe more than three business days after the date of satisfaction or waiver ofthe conditions (other than conditions intended to be satisfied at the Closing)to each Party’s obligations hereunder) as the Parties may mutuallydetermine.  The date on which the Closingoccurs in accordance with the previous sentence is referred to as the “**Closing Date**.”

3.2           **Conveyances at Closing.**

Atthe Closing, and in connection with effecting and consummating the Closing,including, without limitation, the sale and purchase of the Acquired Assets andthe delivery of the Purchase Price, Seller and Buyer shall, on the ClosingDate, deliver the following:

(a)           **Instrumentsand Possession**.  Seller shalldeliver to Buyer:

(i)            inthe event of a Bankruptcy Case, a certified copy of the Sale Approval Order;

(ii)           originalsof all Assumed Executory Contracts owned by or in the possession of Seller,otherwise copies thereof;

(iii)          assignmentsand transfers of Intellectual Property in the forms attached hereto as **Exhibit 3.2(a)(iii)**;

(iv)          oneor more bills of sale for the Equipment, Inventory and Deliverables in theforms attached hereto as **Exhibit 3.2(a)(iv)**;

(b)           **Deliverables**. Promptly following the Closing, Seller shall provide the Deliverablesand copies of the Data to Buyer and, from time to time thereafter, suchadditional Data as Buyer may reasonably request;

(c)           **Miscellaneous**.  Afterthe Closing Date, Seller shall deliver to Buyer such other instruments as shallbe reasonably requested by Buyer to vest in Buyer title in and to the AcquiredAssets in accordance with the provisions hereof.

(d)           **Form of Instruments**.  To the extent that a form of any document tobe delivered hereunder is not attached as an Exhibit hereto, suchdocuments shall be in form and substance, and shall be executed and deliveredin a manner, reasonably satisfactory to Buyer and 

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Seller.

(e)           **Purchase Price**.  Buyer shall deliver the Cash Purchase Price,net of the Deposits, to the Seller in accordance with Section 2.4 andsuch other instruments of assumption as Seller and its counsel reasonably mayrequest.

3.3           **Transaction Expenses.**

Exceptas expressly provided herein, each party shall bear its own costs and expenses,including attorney, accountant and other consultant fees, in connection withthe execution and negotiation of this Agreement and the consummation of thetransactions contemplated hereby.

3.4           **Transfer Taxes and Costs.**

Alltransfer, sales, use and other Taxes in connection with the transactionscontemplated by this Agreement shall be paid equally by both Seller andBuyer.  All costs to register or recordthe transfer of any intellectual property shall be paid by Buyer.

3.5           **Other Closing Matters.**

Eachof the parties shall use their reasonable efforts to take such other actionsrequired hereby to be performed by it prior to or on the Closing Date.

**ARTICLE IVREPRESENTATIONS AND WARRANTIES OF SELLER**

Seller hereby makes, asof the date hereof, the following representations and warranties to Buyerregarding only those Acquired Assets being transferred from Seller to Buyer,subject to an appropriate vote of Seller’s shareholders or, in the event of aBankruptcy Case, the entry of the Sale Approval Order by the Bankruptcy Court:

4.1           **Organization andAuthorization of Seller.**

Selleris duly organized, validly existing and in good standing under the laws of theState of Delaware.  Seller has allnecessary corporate power and authority to enter into this Agreement subject toSeller shareholder approval or the Sale Approval Order and has taken allcorporate action necessary, to execute and deliver this Agreement, toconsummate the transactions contemplated hereby and to perform its obligationshereunder, and no other corporate proceedings on the part of Seller arenecessary to authorize the execution, delivery and performance of thisAgreement and the consummation of the transactions contemplated hereby.  This Agreement has been duly executed anddelivered by Seller and, upon receipt of shareholder approval or the SaleApproval Order, is a valid and binding obligation of Seller, enforceableagainst it in accordance with its terms (except to the extent that enforcementmay be affected by applicable bankruptcy, reorganization, insolvency andsimilar laws affecting creditors’ rights and remedies and by general principlesof equity (regardless of whether enforcement is sought at law or inequity)).  Each agreement or instrumentwhich has been or shall be entered into or executed and delivered by Seller inconnection with the transactions contemplated hereby has been (or will be) dulyauthorized, executed and delivered by 

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Seller, and is (orwill be when authorized, executed and delivered) a valid and binding obligationof Seller, enforceable against it in accordance with its terms (except to theextent that enforcement may be affect by laws relating to bankruptcy,reorganization, insolvency and similar laws affecting creditors’ rights andremedies and by general principles of equity (regardless of whether enforcementis sought at law or in equity)).

4.2           **No Violation.**

Other than therequirement to obtain shareholder approval for the sale of all or substantiallyall of Seller’s assets, the execution and delivery of this Agreement and the otheragreements specified herein and the consummation of the transactionscontemplated hereby and thereby do not and will not (a) violate anyprovision of the certificate of incorporation or bylaws of Seller,(b) conflict with or violate any statute or law, or any judgment, decree,order, regulation or rule of any court or governmental authority, binding uponor applicable to Seller or by which the Acquired Assets, are bound or affectedor (c) result in the creation or imposition of any lien or encumbrance on anyof the Acquired Assets.

4.3           **Governmental Consents andApprovals.**

Exceptfor the Sale Approval Order or the requirement to obtain shareholder approval,as applicable, no consent, waiver, agreement, approval, Permit or authorizationof, or declaration, filing, notice or registration to or with, any UnitedStates federal or state, local or foreign governmental or regulatory authorityis required to be made or obtained by Seller in connection with the execution,delivery and performance of this Agreement and the consummation of thetransactions contemplated hereby or thereby.

4.4           **Intellectual Property.**

ThoseIntellectual Property assets designated as being registered on the attached **Schedule 1.1****(IP-TransferredPatents)**, and **Schedule 1.1****(IP-Transferred Trademarks)**, (collectively the “**Intellectual Property Schedules**”), are all of Seller’sregistered Intellectual Property assets relating to the Product Lines.  To Seller’s actual knowledge, Seller owns allthe Intellectual Property that is material to the Business as currentlyconducted by Seller.  To Seller’s actualknowledge, all patents, trademarks and trade names listed on the IntellectualProperty Schedules and designated as being registered have been duly issued andare subsisting.  Seller has not receivedany written notice of invalidity, infringement or misappropriation of anyrights of others with respect to such Intellectual Property.  To Seller’s actual knowledge, no other firm,corporation, association or person is infringing upon or misappropriating anysuch Intellectual Property.  To Seller’sactual knowledge, Seller’s use of the Intellectual Property is not infringingupon or otherwise violating the rights of any third party in or to suchIntellectual Property.   To Seller’sactual knowledge, there are no restrictions on Seller’s right to sell productsmanufactured by Seller in connection with the Product Line that result from,are caused by or are otherwise related to any of the Intellectual Property.

 

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4.5           **Good Title, Adequacy and Condition**.

Upon receipt of the Approval Order, Seller has goodand marketable title to all of the Acquired Assets, with full power to sell,assign, transfer and convey the same, free and clear of any liens orencumbrances.

**ARTICLE VREPRESENTATIONS AND WARRANTIES OF BUYER**

Buyer hereby makesthe following representations and warranties as of the date hereof to Seller:

5.1           **Organization of Buyer.**

Buyer is dulyorganized, validly existing and in good standing under the laws of the State ofColorado.

5.2           **Authorization.**

Buyer has allnecessary corporate power and authority to enter into this Agreement and hastaken all corporate action necessary, to execute and deliver this Agreement, toconsummate the transactions contemplated hereby and to perform its obligationshereunder, and no other corporate proceedings on the part of Buyer arenecessary to authorize the execution, delivery and performance of thisAgreement and the consummation of the transactions contemplated hereby.  This Agreement has been duly executed anddelivered by Buyer and is a valid and binding obligation of Buyer, enforceableagainst it in accordance with its terms (except to the extent that enforcementmay be affected by applicable bankruptcy, reorganization, insolvency andsimilar laws affecting creditors’ rights and remedies and by general principlesof equity (regardless of whether enforcement is sought at law or inequity)).  Each agreement or instrumentwhich has been or shall be entered into or executed and delivered by Buyer inconnection with the transactions contemplated hereby has been (or will be) dulyauthorized, executed and delivered by Buyer, and is (or will be whenauthorized, executed and delivered) a valid and binding obligation of Buyer,enforceable against it in accordance with its terms (except to the extent thatenforcement may be affect by laws relating to bankruptcy, reorganization,insolvency and similar laws affecting creditors’ rights and remedies and bygeneral principles of equity (regardless of whether enforcement is sought atlaw or in equity)).

5.3           **Governmental Consents and Approvals**.

Otherthan the Sale Approval Order, no consent, waiver, agreement, approval, permitor authorization of, or declaration, filing, notice or registration to or with,any United States federal or state governmental or regulatory authority isrequired to be made or obtained by Buyer in connection with the execution,delivery and performance of this Agreement and the consummation of thetransactions contemplated hereby or thereby.

5.4           **No Violation**.

Theexecution and delivery of this Agreement and the other agreements specifiedherein and the consummation of the transactions contemplated hereby and therebydo not and will not (a) violate any provision of the Articles ofOrganization or Operating Agreement of Buyer or 

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(b) conflictwith or violate any statute or law, or any judgment, decree, order, regulationor rule of any court or governmental authority, binding upon or applicable toBuyer or by which the property or assets of Buyer are bound or affected.

5.5           **Financial Capacity**.

Buyerhas access to sufficient financial resources to pay the Cash Purchase Price,consummate the transactions contemplated herein and perform its obligationsunder the Assumed Executory Contracts and under Section 9.1 of this Agreement.

5.6           **Due Diligence.**

Buyerhas had an opportunity to inspect and examine the Acquired Assets and toconduct any and all due diligence regarding the assets prior to making itsoffer.  Buyer has relied solely upon itsown independent review, investigation and/or inspection of any documents and/orthe assets in making its bid, except as expressly stated in thisAgreement.  Buyer did not rely upon anywritten or oral statements, representations, promises, warranties or guarantieswhatsoever, except as provided in this Agreement, whether express or implied,by operation of law or otherwise, regarding the Product Lines, or thecompleteness of any information provided in connection therewith or theauction.

**ARTICLE VIADDITIONAL COVENANTS**

Seller and Buyercovenant and agree with each other that from the date hereof through theClosing:

6.1           **Maintenance of BusinessPrior to Closing.**

Seller shall maintain the Acquired Assets in theircurrent state of repair, excepting normal wear and tear.

6.2           **Investigation by Buyer.**

Sellershall allow Buyer and its Representatives and the financial institutions (andtheir counsel and representatives) providing or proposed to provide financingin connection with this Agreement and the transactions contemplated hereby,during regular business hours upon reasonable notice, to make such inspectionof the Acquired Assets, business and operations of Seller and to inspect andmake copies of contracts and all other documents and information requested byBuyer and related to the Product Line, including, without limitation,historical financial information concerning the Product Line, and to meet withSeller’s designated personnel and/or their representatives.  Seller shall make available to Buyer promptlyupon reasonable request (a) all additional documents and information withrespect to the affairs of Seller relating to the Product Line and(b) access to the Personnel and to Seller’s Representatives as Buyer, orits Representatives, may from time to time reasonably request and shallinstruct such Personnel and Representatives to cooperate with Buyer and itsRepresentatives, and to make available such documents and information as Buyerand its Representatives may request. Buyer will treat and hold any information 

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it receives in thecourse of the reviews contemplated by this section in accordance with theConfidentiality Agreement.  

6.3           **Consents and ReasonableEfforts.**

(a)           Seller shall take all reasonable actions required(i) to obtain at the earliest practicable date all consents, waivers,approvals, authorizations and agreements required hereunder,  and promptly to give all notices to, effectall registrations pursuant to, and make all other filings with or submissionsto, any third parties, including, without limitation, governmental andregulatory authorities, necessary or advisable to authorize approve or permitthe consummation of the transactions contemplated hereby.

(b)           Each of the parties hereto covenants and agrees,upon the terms and subject to the conditions contained herein, to pursuediligently and in good faith and use all reasonable efforts to take, or causeto be taken, all actions and to do, or cause to be done, all things necessaryor advisable under applicable laws and regulations to put, consummate and makeeffective the transactions contemplated hereby, subject to Seller’s obligationsunder the Sale Procedures Order, if applicable.

**ARTICLE VII**CONDITIONS TO SELLER’S OBLIGATIONS

The obligations ofSeller to sell the Acquired Assets and to consummate the transactionscontemplated hereby are subject to the satisfaction, on or prior to the ClosingDate, of each of the following conditions, any of which may be waived (in wholeor in part) by Seller:

7.1           **Entry of Sale ApprovalOrder or Shareholder Approval.**

In the event of aBankruptcy Case, the Sale Approval Order shall have been entered by theBankruptcy Court and shall not have been stayed.  If an appeal of the Sale Approval Order isfiled and Buyer elects in its sole discretion to waive the condition to Closingthat the Sale Approval Order shall be a Final Order then Seller shall beobligated to proceed with Closing notwithstanding the pendency of any suchappeal, unless the Sale Approval Order is stayed.  Otherwise, Seller shall have obtainedshareholder approval.

7.2           **No Order Enjoining Sale;Proceedings or Litigation.**

No judgment, injunction,order or decree shall prohibit the consummation of the transactionscontemplated herein.  No actions by anygovernmental authority shall have been instituted for the purpose of enjoiningor preventing, or which question the validity or legality of, the transactionscontemplated hereby.  No judgment,injunction, order or decree shall prohibit the consummation of the transactionscontemplated herein.

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7.3           **Representations,Warranties and Covenants.**

All representations andwarranties of Buyer contained in this Agreement shall be true and correct inall material respects at and as of the Closing Date as if such representationsand warranties were made at and as of the Closing Date, and Buyer shall haveperformed all agreements and covenants required hereby to be performed by Buyerprior to or at the Closing Date.

7.4           **Consents.**

Allmaterial consents, approvals, and waivers from third parties and governmentaland regulatory authorities required to consummate the transactions set forthherein or contemplated hereby, if any, shall have been obtained.

**ARTICLE VIII******CONDITIONS TO BUYER’S OBLIGATIONS

The obligations of Buyerto purchase the Acquired Assets and to consummate the transactions contemplatedhereby are subject to the satisfaction, on or prior to the Closing Date, ofeach of the following conditions, any of which may be waived (in whole or inpart) by Buyer:

8.1           **Entry and Finality of SaleApproval Order or Shareholder Approval.**

Inthe event of a Bankruptcy Case, the Sale Approval Order shall have been enteredby the Bankruptcy Court and shall have become a Final Order.  Otherwise, shareholder approval shall havebeen obtained by Seller.

8.2           **Representations,Warranties and Covenants.**

Allrepresentations and warranties of Seller contained in this Agreement shall betrue and correct in all material respects at and as of the Closing Date as ifsuch representations and warranties were made at and as of the Closing Date,and Seller shall have performed in all material respects all agreements andcovenants required hereby to be performed by Seller prior to or at the ClosingDate.

8.3           **Consents.**

Allmaterial consents, approvals, and waivers from third parties and governmentaland regulatory authorities required to consummate the transactions set forthherein or contemplated hereby, if any, shall have been obtained.

8.4           **No Order Enjoining Sale;No Proceedings or Litigation.**

Noactions by any governmental authority shall have been instituted for thepurpose of enjoining or preventing, or which question the validity or legalityof, the transactions contemplated hereby. No judgment, injunction, order or decree shall prohibit the consummationof the transactions contemplated herein.

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8.5           **Instruments of Conveyance,Certificates.**

Sellershall have executed and delivered to Buyer all of the documents provided for inSection 3.2(a).

**ARTICLE IXOTHER AGREEMENTS**

9.1           **Service Provider.**

**(a)           Fromand after the Closing Date, Buyer agrees to the handle and fulfill all customerinquiries and requests for the Product Lines. In addition, from and after the Closing Date, Buyer shall perform allgovernmental regulatory functions associated with the maintenance of theProduct Lines, including, without limitation, handling of customer calls andcomplaints, performing any required corrections and removals, maintainingcomplaint logs and filing appropriate reports with the United States Food &Drug Administration (“FDA”), reviewing and analyzing customer complaints, andtaking corrective action (collectively, “**Customer Service and Corrective Action”) with regard to products manufactured by Buyer from and after the ClosingDate.  Notwithstanding anything herein tothe contrary, Buyer shall be responsible for Customer Service and CorrectiveAction for the Product Lines that were manufactured by Seller prior to theClosing Date solely to the extent required by applicable law.  In addition, Buyer assumes no responsibilityor obligation with respect to requests or governmental regulatory inquiries,investigations, or demands that would require the filing of a PremarketApproval Supplement with the FDA for any substantial redesign work associatedwith the Product Lines or its components.

**(b)           Indemnification.  Buyer shall indemnify, defend and hold Sellerand its affiliates harmless from and against any and all costs, losses,liabilities, claims, damages or expenses (“Losses”) suffered or incurred bySeller or any of its affiliates as a result of the activities of Buyerundertaken under this Section 9.1 other than in the case of any Losses arisingin whole or in part from the intentionally wrongful or grossly negligentactions of Seller from and after the Closing Date.**

9.2           **Risk of Loss.**

Seller acknowledgesand agrees that Buyer does not have any liability or obligation to Seller inrespect of any loss, theft or damage to property experienced by Seller at anytime, whether occurring prior to, on or after the date hereof.  If Closing occurs, Buyer shall be entitled tothe proceeds of any insurance or other proceeds payable with respect to thelosses on the Acquired Assets for loss or damage occurring prior to the ClosingDate, whether received prior to, at or after Closing.

9.3           **Consents to Assignment.**

Anythingin this Agreement to the contrary notwithstanding, this Agreement shall notconstitute an agreement to assign any Assumed Executory Contract or any claimor right or any benefit arising thereunder or resulting therefrom if anattempted assignment thereof, without the consent of a third party thereto,would constitute a breach thereof or in any way adversely affect the rights ofBuyer thereunder and, if applicable, after taking into account the operation ofthe Bankruptcy Code.  If such consent isnot obtained, or if an attempted assignment thereof would be 

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ineffective orwould affect the rights thereunder so that Buyer would not receive all suchrights, Seller will cooperate with Buyer, in all reasonable respects, toprovide to Buyer the benefits under any such Assumed Executory Contract, claimor right including, without limitation, enforcement for the benefit of Buyer ofany and all rights of Seller against a third party thereto arising out of thebreach or cancellation by such third party or otherwise.

**ARTICLE XMISCELLANEOUS**

10.1         **Termination.**

ThisAgreement may be terminated prior to the Closing:

(a)           bymutual written consent executed by both Buyer and Seller (and in the event of aBankruptcy Case, subject to the approval of the Bankruptcy Court) at anytime;

(b)           byBuyer if any event occurs which renders satisfaction of one or more of theconditions to Buyer’s obligations set forth in Article VIII impossible; and

(c)           bySeller if any event occurs which renders satisfaction of one or more of theconditions to Seller’s obligations set forth in Article VII impossible.

10.2         **In the Event of Termination; Remedies**.

Inthe event of termination of this Agreement pursuant to Section 10.1:

(a)           eachparty shall redeliver all documents, work papers and other material of anyother party relating to the transactions contemplated hereby, whether obtainedbefore or after the execution hereof, to the party furnishing the same;

(b)           noconfidential information received by any party with respect to the business ofany other party or its Affiliates shall be disclosed to any third party, unlessrequired by law;

(c)           allobligations of the parties hereto under this Agreement shall terminateand there shall be no liability of any party hereto to any other party andeach party hereto shall bear its own expenses incurred in connection with thenegotiation, preparation, execution and performance of this Agreement; *provided* that the foregoing shall not relieve any party ofliability for damages actually incurred by any other party as a result of anybreach of this Agreement resulting from the willful misconduct or reckless orgrossly negligent act or omission of the party permitting, causing orcommitting such breach; and *further provided*that the termination of this Agreement shall not affect the obligations of theBuyer and the Seller under the Confidentiality Agreement; and

(d)           Ifthis Agreement is terminated pursuant to Section10.1 (c) , then the Depositsshall be retained by Seller and (i) if such default occurs prior to the entryof the Sale Approval Order, such Deposits shall be Seller’s sole and exclusiveremedy against the Buyer which consideration the parties to this Agreementagree is reasonable and fair compensation for the foreseeable losses that mightresult from such breach considering all of the circumstances existing on thedate of this 

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Agreement,including the value of the Deposits in relation to the harm to Seller that canbe reasonably anticipated, and in recognition that proof of actual damageswould be difficult, costly or inconvenient or (ii) if such default occurs on orafter the entry of the Sale Approval Order, the retention of such Deposit shallnot be Seller’s exclusive remedy.  Ifthis Agreement is terminated pursuant to Section 10.1 (b), then the Depositsshall be returned to Buyer with interest, if applicable. In the event oftermination of this Agreement pursuant to Section 10.1 (a), then the Depositsshall be returned to Buyer with interest.

10.3         **Assignment; Successors.**

Neither this Agreement nor any of the rights orobligations hereunder may be assigned by any party without the prior writtenconsent of all other parties to this Agreement. Seller agrees to the assignment by Buyer of its rights pursuant to thisAgreement, to any Affiliate of Buyer; *provided* thatno such assignment by Buyer shall relieve Buyer of any of its obligationshereunder and any such assignee shall only have such rights (as limitedhereunder) and obligations as Buyer now has hereunder.  Subject to the foregoing, this Agreement shallbe binding upon and inure to the benefit of the parties hereto and theirrespective representatives, heirs, legatees, successors and permitted assigns,including without limitation any Chapter 11 or Chapter 7 trustee appointed inthe Bankruptcy Case, and no other person shall have any right, benefit orobligation hereunder.

10.4         **Notices.**

Allnotices, requests, demands and other communications which are required or maybe given under this Agreement shall be in writing and shall be deemed to havebeen duly given when received if personally delivered; when transmitted iftransmitted by telecopy, upon receipt of telephonic confirmation; the dateafter it is sent, if sent for next day delivery to a domestic address byrecognized overnight delivery service (e.g., Federal Express); and uponreceipt, if sent by certified or registered mail, return receiptrequested.  In each case notice shall be:
|   | If to Seller, addressed to: | Fischer Imaging Corp.             |
|--------|-----------------------------|-----------------------------------|
|   |                        | 370 Interlocken  Blvd., Suite 400 |
|   |                        | Broomfield,  Colorado 80021       |
|   |                        | Fax: (303)  327-1576              |
|   |                        | Attention: Paula  Rosson          |
|   |                        |                              |
|   | with a copy to              |                              |
|   | Attorneys for  Seller:      | Douglas W. Jessop                 |
|   |                        | Jessop &  Company, P.C.       |
|   |                        | 303 E 17th Avenue, Suite 930 |
|   |                        | Denver, Colorado  80203           |
|   |                        | Fax: (303)  860-7723              |
|   |                        |                              |
|   | and:                        | Ron Levine                        |
|   |                        | Davis Graham  & Stubbs LLP    |
|   |                        | Suite 500                         |
|   |                        | 1550 Seventeenth  Street          |
|   |                        | Denver, CO 80202                  |
|   |                        | Fax: (303)  893-1379              |

 

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|        | If to Buyer,  addressed to: | JN Properties, LLC             |
|--------|-----------------------------|--------------------------------|
|   |                        | 12300 North  Grant Street      |
|   |                        | Denver, CO 80241               |
|   |                        | Fax:                           |
|   |                        | Attention:  Morgan Nields      |
|   |                        |                           |
|   | with a copy to              |                           |
|   | Attorneys for  Buyer:       | Jon Taylor                     |
|   |                        | Kendall, Koenig  & Oelsner |
|   |                        | 1675 Broadway,  Suite 750      |
|   |                        | Denver, CO 80202               |
|   |                        | Fax: 303-672-0101              |

 

orto such other place and with such other copies as either party may designate asto itself by written notice to the others.

10.5         **Choice of Law.**

This Agreement shall be construed and interpreted, and the rights ofthe parties determined in accordance with, the laws of the State ofColorado.  Each party irrevocablyconsents to the service of any and all process in any action or proceedingarising out of or relating to this Agreement by the mailing of copies of suchprocess to each party at its address specified in Section 10.4.  The parties hereto irrevocably submit to theexclusive jurisdiction of (i) the courts of the State of Colorado, (ii) if ithas or can acquire jurisdiction, in the United State District Court for theDistrict of Colorado, or (iii) the United States Bankruptcy Court (or any courtexercising appellate jurisdiction over the Bankruptcy Court) over any disputearising out of or relating to this Agreement or any other agreement orinstrument contemplated hereby or entered into in connection herewith or any ofthe transactions contemplated hereby or thereby and any such dispute shall bedeemed to have arisen in the State of Colorado. Each party hereby irrevocably agrees that all claims in respect of suchdispute or proceedings may be heard and determined in such dispute or proceedingsmay be heard and determined in such courts. The parties hereby irrevocably waive, to the fullest extent permitted byapplicable law, any objection which they may now or hereafter have to thelaying of venue of any such dispute brought in such court or any defense ofinconvenient forum in connection therewith.

10.6         **Entire Agreement;Amendments and Waivers.**

This Agreement, together with all exhibits andschedules attached or to be attached hereto constitutes the entireagreement among the parties pertaining to the subject matter hereof andsupersedes all prior agreements, understandings, negotiations and discussions,whether oral or written, of the parties (except the Confidentiality Agreement);*provided* that the forms of agreementsattached hereto as Exhibits shall be superseded by the copies of suchagreements by the parties thereto to be conclusive evidence of such parties’approval of any change or modification or waiver of this Agreement shall bebinding unless executed in writing by or on behalf of the party to be 

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boundthereby.  No waiver of any of theprovisions of this Agreement shall be deemed or shall constitute a waiver ofany other provision hereof (whether or not similar), nor shall such waiverconstitute a continuing waiver unless otherwise expressly provided.

10.7         **Construction.**

The headings and captions of the various Articles andSections of this Agreement have been inserted solely for purposes ofconvenience, are not part of this Agreement, and shall not be deemed in anymanner to modify, explain, expand or restrict any of the provisions of thisAgreement.  Unless stated to thecontrary, all references to Articles, Sections paragraphs or clauses hereinshall be to the specified Article, Section, paragraph or clause of thisAgreement, and all references to Exhibits and Schedules shall be to thespecified Exhibits and Schedules attached hereto.  All Exhibits and Schedules attached aremade a part hereof.  All terms definedherein shall have the same meaning in the Exhibits and Schedules, except asotherwise provided therein.  Allreferences in this Agreement to “this Agreement” shall be deemed to include theExhibits and Schedules attached hereto. The terms “hereby”, “hereto”, “hereunder” and any similar terms as usedin this Agreement, refer to this Agreement in its entirety and not only to theparticular portion of this Agreement where the term is used.  Whenever in this Agreement provision is madefor the payment of attorneys’ fees, such provision shall be deemed to meanreasonable attorneys’ fees and paralegals’ fees.  The term “including” when used herein shallmean “including, without limitation.” Wherever in this Agreement the singular number is used, the same shallinclude the plural, and the masculine gender shall include the feminine andneuter genders, and vice versa, as the context shall require.

10.8         **Third Party Beneficiaries.**

No Person other than the parties hereto, shall haveany rights or claims under this Agreement.

10.9         **No Waiver.**

The failure of either party hereto to seek redress forany breach, or to insist upon the strict performance, of any covenant orcondition of the Agreement by the other shall not be, or be deemed to be, awaiver of the breach or failure to perform, nor prevent a subsequent act oromission in violation of, or not strictly complying with, the terms hereof fromconstituting a default hereunder.

10.10       **Multiple Counterparts.**

This Agreement may be executed in one or morecounterparts, each of which shall be deemed an original, but all of whichtogether shall constitute one and the same instrument.

10.11       **Invalidity.**

In the event that any one or more of the provisions,or any portion thereof, contained in this Agreement or in any other instrumentreferred to herein, shall, for any reason, be held to be invalid, illegal orunenforceable in any respect, then to the maximum extent permitted by law, suchinvalidity, illegality or unenforceability shall not affect any otherprovision, or any portion thereof, of this Agreement or any other suchinstrument.

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10.12       **Publicity.**

No party shall issue any press release or make anypublic statement regarding the transactions contemplated hereby, without theprior approval of the other party, and the parties hereto shall issue amutually acceptable press release as soon as practicable after the earlier ofthe Closing or the entry of the Sale Approval Order; *provided*that nothing herein shall be deemed to prohibit any party from making anydisclosure which its counsel deems necessary in order to fulfill such party’sdisclosure or notice obligations imposed by law or by the Sale ProceduresOrder.

10.13       **Further Assurances.**

Without limiting anyother rights or obligations of the parties contained in this Agreement,following the Closing, Seller agrees to execute such documents, instruments orconveyances and take such actions as may be reasonably requested by Buyer’scounsel and otherwise reasonably cooperate with Buyer, its Affiliates and theirrespective Representatives in connection with any action that may be necessaryor advisable to put Buyer in possession of the Assets.

10.14       **Access to Books andRecords.**

Seller will permit representatives of Buyer to haveaccess at reasonable times and with reasonable notice, and in a manner so asnot to interfere with the normal business operations of Seller, to thepremises, properties, personnel, books, records (excluding Tax records),contracts, and documents pertaining to the Acquired Assets.  Buyer will treat and hold any information itreceives in the course of the reviews contemplated by this section inaccordance with the Confidentiality Agreement.

10.15       **Cumulative Remedies.**

All rights and remedies of either party hereto arecumulative of each other and of every other right or remedy such party mayotherwise have at law or in equity, and the exercise of one or more rights orremedies shall not prejudice or impair the concurrent or subsequent exercise ofother rights or remedies; *provided, however*,that any Person pursuing any rights and remedies with respect to access tobooks and records shall first agree to reasonable confidentiality restrictionwith Buyer.

10.16       **Termination of Covenants,Representations, and Warranties.**

The covenants, representations, and warranties made bySeller and/or Buyer herein shall terminate as of the Closing.  Buyer shall have no right to seek indemnificationsubsequent to the Closing based on a breach of a representation and/or warrantymade by Seller herein or in any other document, certificate or instrumententered into by the Seller in connection herewith.

10.17       **No Impediment toLiquidation.**

Nothing herein shall be deemed or construed so as tolimit, restrict or impose any impediment to Seller’s right to liquidate,dissolve and wind-up its affairs and to cease all business activities andoperations at such time as it may determine following the Closing.

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10.18       **Representation by Counsel;Mutual Negotiation.**

Each party has been represented by counsel of itschoice in negotiating this Agreement. This Agreement shall therefore be deemed to have been negotiated andprepared at the joint request, direction and construction of the parties, atarm’s length, with the advice and participation of counsel, and will beinterpreted in accordance with its terms without favor to any party.

[*The remainder of this page is intentionally leftblank — signature page follows*]

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**IN WITNESS WHEREOF**,Fischer Imaging Corp. and JN Properties, LLC have caused this Asset PurchaseAgreement to be executed by their respective duly authorized officers, and havecaused their respective corporate seals to be hereunto affixed, all as of theday and year first above written.
| **FISCHER  IMAGING CORPORATION ** | ** **         |
|----------------------------------------|--------------------|
| ** **                             |               | ** ** |
| By:                                    | /s/ Paula Rosson   | ** ** |
| Name:                                  | Paula Rosson       | ** ** |
| Its:                                   | President and  CEO | ** ** |
|                                   |               | ** ** |
|                                   |               | ** ** |
| **JN  PROPERTIES, LLC**                | ** **         |
| ** **                             | ** **         | ** ** |
| By:                                    | /s/ Morgan  Nields | ** ** |
| Name:                                  | Morgan Nields      | ** ** |
| Its:                                   | Manager            | ** ** |

 

 

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