EXHIBIT 10.61
SECOND AMENDED AND RESTATED NAME AND LIKENESS AGREEMENT
This SECOND AMENDED AND RESTATED NAME AND LIKENESS AGREEMENT (the
"Agreement") is made and entered as of June 22, 2000 by and among C. Xxxxxxx
Xxxx, M.D. ("Koop") and xxxxxx.xxx, Inc., a Delaware corporation ("DKC" or the
"Company"), formerly Empower Health Corporation.
RECITALS:
A. On January 5, 1999, Koop and DKC entered into a predecessor to this
Agreement for the purpose of conveying to DKC certain rights to use the name,
likeness and other attributes of Koop (the "January Agreement").
B. On August 30, 1999, Koop and DKC entered into an amendment and
restatement of the January Agreement which superceded such agreement in all
respects (the "August Agreement")
C. The parties, by entering into this Agreement, intend to supersede the
August Agreement in all respects and, from and after the date hereof, to have
this Agreement replace such August Agreement.
AGREEMENT:
NOW THEREFORE for and in consideration of the premises, and the mutual
covenants and promises herein set forth, the parties hereto hereby agree as
follows:
1. Term and Termination: The term of this Agreement (the "Term") will
begin effective on the date hereof and will extend for an initial term of seven
years. Unless otherwise terminated as provided for below, the Agreement will
automatically renew thereafter for consecutive five-year terms. The Agreement
may be terminated by either party upon written notice given not more than 270
and not less than 180 days before the expiration of any such five year period.
This Agreement may also be terminated by either party in the event of a material
breach or default by the other party as specified in Section 6. Provided
termination is not the result of (i) a material breach or default by DKC that is
not cured after written notice as provided in the immediately preceding
sentence, or (ii) a termination of this Agreement by operation of Section 16,
DKC shall have the right for five years following termination to use the Koop
Name (the "Rebranding Period"). During the Rebranding Period, the Company's
right to use the Koop Name shall be non-exclusive except that (i) such usage
shall be exclusive with respect to any products or services involving or related
to Internet-based health information, healthcare related software services and
products, or electronic commerce and (ii) the Koop Name may not be licensed or
otherwise conveyed to any Direct Competitor of DKC as identified on Attachment
B. In the event that termination occurs as a result of a material breach or
default by DKC that is not cured after written notice as provided herein, all
rights to use the Koop Name (as defined below) shall cease on the 90th day after
such termination and if the Agreement is terminated pursuant to Section 16 no
Rebranding Period shall exist.
2. Right To Use Services: During the Term and subject to all other
provisions of this Agreement, Koop agrees that DKC shall have the right to use
the Koop name, image or likeness (hereinafter the "Koop Name") in connection
with the Company's Internet-based health information network, healthcare related
software services and products or electronic commerce (collectively the
"Products") in accordance with Section 5 below.
3. Fees and Payment: For all rights and privileges and services rendered
or provided for hereunder by Koop, DKC has granted to Koop, pursuant to the
general terms of its current stock option plan, options to purchase 214,400
shares of the common stock of DKC for an exercise price of $17.88 per share (the
"August Options") and will make an additional one-time grant of options to
purchase 1,000 shares of the common stock of DKC for an exercise price of $1.50
per share (the "2000 Options"). The (a) August options will continue to vest on
the existing vesting schedule which commenced in August 1999 (i.e., become
exercisable) at a rate of 8,933.33 options per month (subject to adjust for
stock splits and similar matters) provided that at the end of each such month
this Agreement shall remain in full force and effect; provided, however, that
all such options shall vest and become exercisable at such time as this
Agreement shall be terminated due to the material breach of this Agreement by
DKC in accordance with the default provisions contained in Sections 1 and 6 and
(b) the 2000 Options shall be vested immediately upon execution hereof. The
foregoing options have been approved by a compensation committee consisting
solely of non-employee directors, or by the full board of directors of DKC (with
Koop abstaining), for purposes of Rule 16b-3 under the Securities Exchange Act.
The parties acknowledge that the January Agreement provided for a continuing
royalty on DKC revenue and expressly acknowledge that the obligation of DKC to
pay, and the right of Koop to receive, any such royalty was terminated effective
July 1, 1999.
4. Competitive Protection: Effective as of the date of this Agreement and
continuing throughout the Term, Koop agrees that Koop will not render services
in the form of advertising and/or publicizing of any items, products or services
which are directly competitive with DKC's Products including, without
limitation, products or services involving or related to any Internet-based
health information network, healthcare-related software services and products or
electronic commerce (hereinafter collectively the "Competitive Products") nor
will Koop permit or authorize the use of the Koop name and/or likeness
(photograph and/or drawing), voice, signature and/or endorsement directly or
indirectly, in connection with any such Competitive Products or by any Direct
Competitor as identified on Attachment B, except as may be used for the non-
profit, non-commercial activities of the Koop Institute provided such activities
are not related in any way to the promotion of any Competitive Products or any
Director Competitor.
Without limiting the generality of the foregoing, Xx. Xxxx shall not
directly or indirectly participate in the development, production or promotion
of any Competitive Products or the products or services of any Direct Competitor
during the Term of this Agreement or any renewal term or during the Rebranding
Period, if any.
5. Right of Review: The following elements of each Product shall be
subject to Koop's prior review and written approval, which approval shall not be
unreasonably withheld and shall be rendered within ten working days of receipt
of the element of the Product. Koop
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shall have the right to delegate his approval rights hereunder to a
Representative (as defined in Section 10 below) with the approval of DKC, such
approval not to be unreasonably withheld.
(i) Content and format, including manuscripts and other written
materials included with the Products, including drafts, and the final version.
(ii) Extent and content of all medical and technical information.
(iii) Professional medical consultants and advisors.
(iv) Title.
(v) Credit.
(vi) Means of advertising, promoting and selling the product,
including the Koop Name.
(vii) All advertising and promotional materials created, developed
or used in connection with the Products.
(viii) Any use of the Koop Name.
(ix) Any use not expressly contemplated by this Agreement.
DKC and Koop shall work together to establish systems and procedures for
updating the Products based on advances in the field of medicine.
6. Default Provisions:
(a) In the event that either party ("Defaulting Party")
(i) Materially defaults in the performance of any of its duties
or obligations set forth in this Agreement and such default is not substantially
cured within thirty (30) days after written notice is given by the other party
specifying the default; or
(ii) Defaults in the payment of any amount due to the other party
under this Agreement (if any) or in the case of DKC the performance of its
obligations under any stock option which default is not cured within thirty
(30) days after written notice is given by the other party specifying the
default; and
(iii) Provided, that upon a default under Section 6(i) and/or
(ii) by one party under this Agreement, the cure period for the next default by
such party shall be reduced (but not below ten days) by ten (10) days.
Then the other party may, by giving written notice to such effect to the
Defaulting Party, terminate this Agreement as of the date specified in such
notice of termination.
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(b) Notwithstanding anything to the contrary herein contained, the
termination of the Agreement shall not relieve the parties of their obligations
existing at or prior to termination.
7. Obligations Limited to Payments: The obligations to Koop hereunder
shall be fully performed and discharged as stipulated in Section 3, except for
those obligations that arise pursuant to the provisions for indemnifications
contained in Section 9. It is understood that Koop is not an employee of DKC
and shall not be entitled to any rights or benefits granted to employees of DKC
by reason of the rendering hereunder of services by Koop.
8. Covenants Regarding Public Image: DKC and Koop each covenants and
agrees that it will not knowingly permit, do or commit any act or thing that
would degrade, tarnish or deprecate or disparage the other party or the public
image of the other party in society or standing in the community, or prejudice
the other party, and that it will terminate such activities promptly upon
notice, it being understood that this Section 8 shall not apply to any dispute
involving this Agreement between Koop and DKC.
9. Indemnity: DKC agrees to indemnify and hold harmless Koop, his
employees, assignees, and heirs against any and all claims, damages, liabilities
(including, but not limited to, liability for personal injury and liability for
breach of confidentiality), costs and expenses, including without limitation,
reasonable legal fees and costs arising out of the use of any material furnished
by DKC in connection with the services performed, or resulting from any patient
or third party action of any kind, or resulting in any way from the sale of
Products pursuant to this Agreement, or incurred for or by reason of the breach
of DKC of any of the obligations, warranties, agreements, covenants or
representations herein contained. Koop shall provide prompt written notice of
any claim hereunder and DKC shall have the right to defend same.
10. Incapacity or Death of Xx. Xxxx. The rights granted to DKC herein are
intended to survive the incapacity or death of Xx. Xxxx. Upon the occurrence of
any such event, all actions with respect to Koop hereunder, including without
limitation the approval rights provided in Section 5, shall be exercisable on
behalf of Koop by another person (the "Representative"), who, at the execution
date of this agreement, is hereby designated by Koop to be his son: Xxxx Xxxx,
and, in the event of Xxxx Xxxx'x death, to be Koop's granddaughter:
Xx. Xxxxxxxx Xxxx.
If prior to the death of Xx. Xxxx, he is pronounced to be incapacitated
(i.e., as being incapable of managing or conducting his own business affairs due
to physical or mental infirmity) by his Representative and Koop's son-in-law:
Xxxxxx Xxxxxxxx (such determination to be made only in association with a
physician chosen by and mutually acceptable to DKC and the Representative), then
said Representative shall thereafter and for so long as Koop is incapacitated
have full right to take any and all acts on behalf of Koop hereunder.
Any Representative appointed in accordance with this Section 10 shall have
full right to take any and all acts on behalf of Koop hereunder and DKC may rely
on such acts as the lawful and duly authorized acts of Koop.
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11. Notices: Any notice or other communication (including payment
hereunder) required or permitted to be given hereunder shall be in writing and
shall be hand delivered or sent next-day delivery by a company where a receipt
is given to the address as follows:
To DKC: xxxxxx.xxx, Inc.
Attention: President
0000 Xxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
To Koop: C. Xxxxxxx Xxxx, M.D.
Koop Institute at Xxxxxxxxx
Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
and
C. Xxxxxxx Xxxx, M.D.
0 Xxx Xxxxxx Xxx
Xxxxxxx, XX 00000
Any such notice, direction or other instrument aforesaid, if delivered,
shall be deemed to have been given or made on the date on which it was delivered
or if sent next-day delivery shall be deemed to have been given or made on the
day following the day on which it was sent provided that any one of the parties
hereto may change its address by written notice to the other according to the
terms hereof and in such event this paragraph shall be deemed to be amended
accordingly.
12. Informed Consent, Confidentiality and Security: DKC represents and
warrants that when and if it introduces a program identified here as "Personal
Medical Records" that it will obtain appropriate and fully informed patient
consent to the receipt, retention, use and transfer of that patient's personal
or medical data and that such informed consent complies with all applicable
federal, state and local laws and regulations. DKC further represents and
warrants that it shall take reasonable precautions to assure accuracy of and to
protect against negligent disclosure of and unauthorized access to all patients'
personal and medical data.
13. Other Representations and Warranties:
By DKC: DKC represents and warrants that:
1. It has the right to enter into this Agreement and that it is free
to grant the rights granted herein.
2. The Products will not infringe the patent, copyright, trade
secret, or property rights of any third party.
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3. All aspects of the product, distribution and promotion of the
Products shall comply in all material respects with all
applicable laws and regulations.
4. It is not a party to any agreement that will be breached by or
that prohibits it entering into or performing this Agreement.
By Koop: Koop represents and warrants that:
1. He has the right to enter into this Agreement and that it is free
to grant the rights granted herein.
2. He is not a party to any agreement that will be breached by or
that prohibits it entering into or performing this Agreement.
3. DKC may apply for trademarks which incorporate the Xx. Xxxx name.
4. Koop has the right to enter into this Agreement and that he is
free to grant the rights granted herein.
14. Trademark Assignment and License: DKC represents and warrants that it
has filed applications based on actual use with the United States Trademark
Office to register various marks, the status of which are as follows:
(i) XX. XXXX'X COMMUNITY: application filed with no pending number
assigned as of the execution of this Agreement; and
(ii) xxxxxx.xxx: application filed with no pending number assigned as
of the execution of this Agreement.
All of the above, hereinafter the "Trademarks," are referenced for the good
and services described herein. Upon termination of the Agreement and Rebranding
Period (if any), DKC shall assign its right, title and interest in the
Trademarks including the goodwill contained therein to Koop and any other marks
registered by DKC pursuant to this Agreement which include the word Koop.
Except as set forth herein, DKC acknowledges that it has no rights in the
Trademarks and that nothing contained in this Agreement or in any other document
shall vest any ownership rights in the Koop name.
15. Miscellaneous:
(a) Ownership and Publicity: Except as granted herein, DKC does not
and may not claim any right, title or interest in or to Koop's name or likeness,
and acknowledges that all rights therein are and remain the property of Koop.
(b) Insurance: Prior to sale, promotion or distribution of any
Product other than reasonable, limited test marketing, DKC shall secure all
necessary and customary insurance, including a standard comprehensive general
liability insurance policy providing standard product liability protection,
directors and officers insurance and errors and omissions insurance listing
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Koop as a named insured. Such insurance shall be in a form reasonably acceptable
to counsel for Koop and shall require the insurer to give Koop at least thirty
(30) days' prior written notice of any material modifications or cancellations.
(c) Entire Agreement: This Agreement constitutes the complete and
exclusive statement of the agreement between Koop and DKC with respect to the
subject matter herein set forth and supersedes all prior agreements by and
between the parties including, specifically, the January Agreement.
(d) Amendments: This Agreement may not be amended, altered or
terminated except in writing executed by or on behalf of each party.
(e) Inurement: This Agreement shall be binding upon the parties
hereto and their respective heirs, executors, administrators, legal
representatives, successors and permitted assigns.
(f) Language: The language used in this agreement shall be deemed to
be language chosen by the parties thereto to express their mutual intent and no
rule of strict construction against any party shall apply to any term or
condition thereof
(g) Governing Law: THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
(h) Termination: Upon any termination and except as provided for
herein, all rights to use Xx. Xxxx'x name and likeness shall terminate.
(i) Arbitration: Any controversy or claim arising out of or relating
to this Agreement, or the breach thereof, shall be settled by binding
arbitration in accordance with the Commercial Rules of the American Arbitration
Association by a single arbitrator in a location to be agreed to by the parties,
and judgment upon the award rendered by the arbitrator may be entered in any
court having jurisdiction thereof and shall not be appealable.
(j) Gender: Wherever herein the singular number is used, the same
shall include the plural, and the masculine gender shall include the feminine
and neuter genders and vice versa, as the context may require.
(k) Specific Performance. The rights and obligations granted herein,
including without limitation the use of the name, likeness, personality and
other public attributes of Dr. C. Xxxxxxx Xxxx, are extremely unique and
therefore the parties acknowledge that money damages will generally not be a
suitable remedy and therefore each agree that the rights and obligations granted
herein may be specifically enforced.
(l) Counterparts: This Agreement may be executed in counterparts,
each of which shall constitute an original but all of which taken together shall
constitute but one agreement.
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(m) Prior Version Superceded. The prior version of the Second Amended
and Restated Name and Likeness Agreement, dated June 5, 2000, is expressly
superceded by this Agreement.
16. Assignment and Change of Control: Neither party may assign its rights
and obligations under this Agreement without the prior written consent of the
other. In the event of a Specified Change of Control of DKC as hereinafter
defined, this Agreement shall terminate and all rights in the Koop Name granted
hereunder immediately revert to Koop and no Rebranding Period shall exist. A
Specified Change of Control shall be defined as set forth in Attachment A.
(Signature Page Follows)
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IN WITNESS WHEREOF THIS AGREEMENT IS EXECUTED AS OF THE DATE FIRST WRITTEN
ABOVE.
xxxxxx.xxx, Inc.
/s/ C. Xxxxxxx Xxxx, M.D. /s/ Xxxxxx Xxxxxxx
--------------------------------- ---------------------------------
C. Xxxxxxx Xxxx, M.D. Xxxxxx X. Xxxxxxx, President
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ATTACHMENT A
For purposes of this Agreement "Change in Control" shall mean:
(1) the acquisition by any individual, entity or group (a "Person"),
including any "person" within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), of beneficial
ownership within the meaning of rule 13d-3 promulgated under the Exchange Act,
of more than 50% of either (i) the then outstanding shares of common stock of
the Company (the "Outstanding Company Common Stock") or (ii) the combined voting
power of the then outstanding securities of the Company entitled to vote
generally in the election of directors (the "Outstanding Company Voting
Securities"); provided, however, that the following acquisitions shall not
constitute a Change in Control: (A) any acquisition directly from the Company
(excluding any acquisition resulting from the exercise of a conversion or
exchange privilege in respect to outstanding convertible or exchangeable
securities), (B) any acquisition by the Company, (C) any acquisition by an
employee benefit plan (or related trust) sponsored or maintained by the Company
or any corporation controlled by the Company, (D) any acquisition by any
corporation pursuant to a reorganization, merger or consolidation involving the
Company, if, immediately after such reorganization, merger or consolidation,
each of the conditions described in clauses (i), (ii) and (iii) of section (3)
of this definition shall be satisfied;
(2) individuals who, as of the date hereof, constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least a majority of
such Board; provided, however, that any individual who becomes a director of the
Company subsequent to the date hereof whose election, or nomination for election
by the Company's stockholders, was approved by the vote of at least a majority
of the directors then comprising the Incumbent Board shall be deemed to have
been a member of the Incumbent Board;
(3) approval by the stockholders of the Company of a reorganization, merger
or consolidation unless, in any such case, immediately after such
reorganization, merger or consolidation, more than 50% of the then outstanding
shares of common stock of the corporation resulting from such reorganization,
merger or consolidation and more than 50% of the combined voting power of the
then outstanding securities of such corporation entitled to vote generally in
the election of directors is then beneficially owned, directly or indirectly, by
all or substantially all of the individuals or entities who were the beneficial
owners, respectively, of the Outstanding Company Common Stock and the
Outstanding Company Voting Securities immediately prior to such reorganization,
merger or consolidation and in substantially the same proportions relative to
each other as their ownership, immediately prior to such reorganization, merger
or consolidation, of the Outstanding Company Common Stock and the Outstanding
Company Voting Securities, as the case may be; or
(4) approval by the stockholders of the Company of (i) a plan of complete
liquidation or dissolution of the Company or (ii) the sale or the disposition of
all or substantially all of the assets of the Company other than to a
corporation with respect to which, immediately after such sale or other
disposition, more than 50% of the then outstanding shares of common stock
thereof
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and more than 50% of the combined voting power of the then outstanding
securities thereof entitled to vote generally in the election of directors is
then beneficially owned, directly or indirectly, by all or substantially all of
the individuals and entities who were the beneficial owners, respectively, of
the Outstanding Company Common Stock and the Outstanding Company Voting
Securities immediately prior to such sale or other disposition and in
substantially the same proportions relative to each other as their ownership,
immediately prior to such sale or other disposition, of the Outstanding Company
Common Stock and the Outstanding Company Voting Securities, as the case may be.
Notwithstanding anything to the contrary contained herein, a Specified
Change of Control shall only be deemed to have occurred if one of the
transactions in paragraphs (1) through (4) have occurred and:
(a) the acquiring party, directly or indirectly, is related to,
controlled by, a party with substantial interests in the alcohol, tobacco or
firearms industry;
(b) the acquiring party, directly or indirectly, is related to,
controlled by, or has a substantial interest in branches of the healing arts, in
the broadest sense, that would be deemed by organized, mainstream, orthodox
medicine as being unsafe, unethical or inappropriate; or
(c) an arrangement of the sort described in (a) or (b) occurs
subsequent to such a Change in Control.
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ATTACHMENT B
Direct Competitors shall include the following, which list shall be updated
from time to time upon delivery by DKC to Koop of parties that should be added
because they have become material competitors in the marketplace or deleted. Any
disagreement to such an update shall be resolved by arbitration in accordance
with Section 14(i).
1. Xxxxxxxxxxxx.xxx
2. Xxx.xxx
3. Xxxxxxxxxxxx.xxx
4. Xxxxxxxxxxxxx.xxx
5. Healtheon/WebMD
6. Xxxxxxxxxx.xxx
7. Xxxxxxxxxxxx.xxx
8. Xxxxxxxxxx.xxx
9. Xxxxxxxxxxx.xxx
10. Xxxxxxxx.xxx
11. Xxxxxxxxxxxx.xxx
12. American Online
13. Microsoft
14. Yahoo!
15. Excite@home
16. Lycos Corporation
17. Infoseek/The Xxxx Disney Company
18. PlantRx
19. Xxxxxxxxx.xxx
20. IMS Health, Inc.
21. McKesson/HBOC
22. Synoptics
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