EXHIBIT 10.22
AGREEMENT
This Agreement is made and entered into this 1st day of June, 1998, by
and among Xxxxx Xxxxxxxxx, MD (Xxxxxxxxx) and Empower Health Corporation, a
Texas Corporation (EHC).
WITNESSETH
Whereas, Xxxxxxxxx wishes to assist EHC in the development of a
consumercentric healthcare management information system on the Internet, which
is described in the EHC Business Plan.
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. Terms and Termination. The term of this Agreement will begin effective
on the date hereof and will extend for an initial term of three (3) years.
Unless otherwise terminated as provided for below, the Agreement will
automatically renew for consecutive three-year terms. The Agreement may be
terminated by either party upon written notice sixty (60) days before the
expiration of any Term. This Agreement may also be terminated by either party in
the event of a breach or default by the other party. Provided termination is not
the result of a breach or default by EHC, EHC shall have the right on a non-
exclusive basis for two (2) years following termination of the initial Term and
any subsequent Term thereafter to rebrand and promote Xxxxxxxxx'x Name. In the
event that termination occurs as a result of a breach or default by either party
all rights to use the Xxxxxxxxx Name shall cease immediately upon termination.
2. Right to Use Services. During the Term and subject to all other
provisions of this Agreement, Xxxxxxxxx agrees that EHC shall have the right to
use the Xxxxxxxxx name, image or likeness on the Internet in connection with the
Company's healthcare related software services and programs (collectively, the
"programs") in accordance with Clause 5 below.
3. Compensation. For all rights and privileges and services rendered or
provided for hereunder by Xxxxxxxxx, EHC shall grant to Xxxxxxxxx, an option to
acquire 24,000 shares of the common stock of Empower Health Corporation at a
strike price of $1.17 per share.
4. Competitive Protection. Effective as of the date of this Agreement and
continuing throughout the Term, Xxxxxxxxx agrees that, other than those
obligations which are so stated in an agreement(s) which she is a party to and
which was executed prior to the effective date of this Agreement, and, except as
provided for herein, Xxxxxxxxx will not render services in the form of
advertising and/or publicizing of any programs, products or services which are
directly competitive with EHC's Internet based programs nor will Xxxxxxxxx
permit or authorize the use of the Xxxxxxxxx name and/or likeness (photograph
and/or drawing), voice, signature and/or endorsement in connection with any such
competitive programs on the Internet.
(i) Xxxxxxxxx shall not participate in the development, production
or promotion of any competitive internet programs during the term of this
Agreement, or any subsequent terms of this Agreement, and for a period of one
(1) year thereafter except as provided for above.
5. Right of Review. Each program developed by EHC utilizing Xxxxxxxxx'x
name and/or likeness shall be subject to Xxxxxxxxx'x prior review and written
approval, which approval shall not be unreasonably withheld and shall be
rendered within ten (10) working days of receipt of the program. EHC and
Xxxxxxxxx agree herein that Xxxxxxxxx shall have the right to review all aspects
of those programs bearing her name and likeness, including:
(i) Content and format, including manuscripts and other written
materials including drafts and the final version.
(ii) Extent and content of all medical and technical information.
(iii) Program Title.
(iv) Credit.
(v) Means of advertising, promoting and selling programs,
including the Xxxxxxxxx name.
(vi) All advertising and promotional materials created, developed
or used in connection with the programs.
(vii) Any use of the Xxxxxxxxx Name.
(viii) Any use not expressly contemplated by this Agreement.
EHC and Xxxxxxxxx shall work together to establish systems and procedures for
updating the program based on advances in the field of medicine.
6. Development Costs. All costs related to the development of any
programs which utilize Xxxxxxxxx'x name and/or likeness, shall be at EHC's
expense; more specifically, air travel shall be first class; lodging shall be
selected by Xxxxxxxxx, and other expenses directly related to the promotion of
EHC's programs utilizing Xxxxxxxxx'x name and/or likeness, shall also be at
EHC's expense and shall be reimbursed within two (2) weeks of receipt by EHC of
expense reports related thereto.
7. Default Provisions. In the event that either party to this Agreement
defaults on any obligation contained herein, 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.
8. Obligations Limited to Grant of Options. The obligations to Xxxxxxxxx
hereunder shall be fully performed and discharged as stipulated in Sections 3
and 6 and those obligations that arise pursuant to the provisions for
indemnification contained in Section 9(a). It is understood that Xxxxxxxxx is
not an employee of EHC and shall not be entitled to any rights or benefits
granted to employees of EHC and by reason of the rendering hereunder of services
by Xxxxxxxxx.
9. Covenants and EHC. EHC covenants and agrees that it will not knowingly
permit,
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do or commit any act or thing that would degrade, tarnish or depreciate
Xxxxxxxxx or the Xxxxxxxxx public image in society or standing the in community,
or prejudice Xxxxxxxxx.
10. Indemnity. EHC agrees to indemnify and hold harmless Xxxxxxxxx, her
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 EHC and Xx. Xxxxxxxxx in connection with the services performed, or resulting
from any third party action of any kind, or resulting in any way from the
viewing of EHC program on the Internet pursuant to this Agreement, or incurred
for or by reason of the breach of EHC of any of the obligations, warranties,
agreements, covenants of representations herein contained. Xxxxxxxxx shall
provide prompt written notice of any claim hereunder and EHC shall have the
right to defend same.
11. Notices. Any notice or other communication 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: Empower Health Corporation
Attention: Xxxxxx Xxxxxxx, President
0000 Xxxxxxxx Xxxx Xxxxx
Xxxxxxxx Xxxxx #000
Xxxxxx, XX 00000
To: Xxxxx Xxxxxxxxx, MD
00 Xxxxxx Xxxxx
Xxxx, 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. Other Representatives and Warranties
By Xxxxxxxxx. Xxxxxxxxx represents and warrants that she has the
right to enter into this Agreement and that she is free to grant the rights
granted herein.
By Empower Health Corporation. EHC represents and warrants that:
1. It has the right to enter into this Agreement and that it has
the right to grant to Xxxxxxxxx the option to acquire 24,000 shares of EHC
common stock as is so stated in Clause 3 herein.
2. The programs will not infringe the copyright, trade secret, or
property rights of any third party.
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3. All aspects of the programs, distribution and promotion of the
programs shall, comply with all applicable laws and regulations.
4. It is not a party to any agreement that will be breached by or
that prohibits its entering into or performing this Agreement.
13. Trademark Assignment and License. EHC represents and warrants that it
has filed applications based on actual use with the United States Trademark
Office to register the marks of "Ask Xx. Xxxxx Xxxxxxxxx" and other programs
which will include the Xxxxxxxxx name and/or likeness (hereinafter the
"Trademarks") for the goods and services described herein. Upon execution of
this Agreement, EHC hereby assigns its right title and interest in the
Trademarks including the goodwill contained herein to Xxxxxxxxx. Xxxxxxxxx
hereby grants to EHC an exclusive license during the Term of the Agreement to
use the Trademarks and any other marks registered by Xxxxxxxxx pursuant to this
Agreement. EHC 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 Trademarks or any other marks owned by Xxxxxxxxx in EHC.
14. Miscellaneous
(a) Ownership and Publicity. EHC does not and may not claim any
right, title or interest in or to Xxxxxxxxx'x name or likeness and acknowledges
that all rights therein are and remain the property of Xxxxxxxxx.
(b) Insurance. Prior to the promotion or distribution of any
program other than reasonable, limited test marketing, EHC shall secure a
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
Xxxxxxxxx as a named insured. Such insurance, shall be in a form reasonably
acceptable to counsel for Xxxxxxxxx and shall require the insurer to give
Xxxxxxxxx at least thirty (30) days prior written notice of any cancellations.
(c) Entire Agreement. This Agreement constitutes the complete and
exclusive statement of the agreement between Xxxxxxxxx and EHC with respect to
the subject matter herein set forth and supersedes all prior agreements by and
between the parties.
(d) Amendments. This Agreement may not be amended, altered or
terminated except in writing.
(e) This Agreement shall be binding upon the parties hereto and
their respective heirs, executors, administrators 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.
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(h) Termination. Upon any termination and except as provided for
herein, all rights to use Xxxxxxxxx'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 upon 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. Whenever 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 content may require.
(k) Counterparts. This Agreement may be executed in counterparts,
each of which shall constitute an original but all of which taken together shall
constitute by one agreement.
15. 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 WITNESS WHEREOF THIS AGREEMENT IS EXECUTED AS OF THE DATE FIRST WRITTEN
ABOVE.
EMPOWER HEALTH CORPORATION
\s\ Xxxxx Xxxxxxxxx \s\ Xxxxxx X. Xxxxxxx
--------------------------------- ----------------------------------
Xxxxx Xxxxxxxxx, MD Xxxxxx X. Xxxxxxx
President
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