THIS LICENSE AGREEMENT is made as of the 15th day of February, 2002 between
The KRC Group, Inc., a corporation organized and existing under the laws of the
State of Delaware ("Licensor"), and InnerSpace Corporation, a corporation
organized and existing under the laws of the State of Delaware ("Licensee").
The Effective Date is February 15, 2002.
WHEREAS Licensor owns the Licensed Program and Licensed Technical
Information (each as defined below) and copyrights and other proprietary rights
relating thereto; and
WHEREAS Licensee desires to obtain from Licensor, and Licensor desires to
grant to Licensee (i) an exclusive license to use the Licensed Program and
Licensed Technical Information in the State of Hawaii, subject to the terms,
conditions and provisions hereinafter set forth, and a (ii) nonexclusive license
to use the Licensed Program and Licensed Technical Information elsewhere,
subject to the terms, conditions and provisions hereinafter set forth;
NOW, THERFORE in consideration of the premises and of the promises and
mutual covenants contained herein and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, and intending to be
legally bound hereby, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
The following terms, as used herein, shall have the following meanings:
"AFFILIATE" means, when used with references to Licensee, any Person
directly or indirectly controlling, controlled by or under common control with
Licensee. For purposes of this Agreement, 'control' means the direct or indirect
ownership of over 50% of the outstanding voting securities of a Person, or the
right to receive over 50% of the profits or earnings of a Person, or the right
to control the policy decisions of a Person.
"CONFIDENTIAL INFORMATION" means and includes (i) the source code and
object code of the Licensed Program and the related Documentation, (ii) the
Licensed Technical Information; and (iii) any other written or oral information
from which the furnishing party derives economic value, actual or potential,
from such information not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain economic value
from its disclosure or use, and which is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy.
"COPYRIGHT" means the copyrights related to the Licensed Work, including
the copyright applications and registration(s), if any, listed on Exhibit A
attached hereto and made part hereof, authorized under Title 17 of the United
States Code or under the laws of any other jurisdiction.
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"CUSTOMER" means any Person who has executed a valid End User Agreement or
any other form of sublicense agreement relating to the license set forth herein.
"DOCUMENTATION" means the explanatory and instructive materials in
hardcopy, including manuals and other printed or visually perceptible materials
that describe the use, function or operation of a computer software program.
"END USER AGREEMENT" means an agreement between Licensee and a Person
granting the right to use or benefit from any of the rights granted hereinunder.
"LICENSE FEES" shall mean gross consideration actually received by Licensee
as a fee for use of the Licensed Work under the terms of any sublicense
agreement or for royalties. Licensor hereby acknowledges that Licensee has in
the past and will continue to provide consulting and other product related
services to third parties which do not employ the use of the Licensed Work, and
Licensor further acknowledges that such revenues are expressly not a part of
Licensee Fees as defined herein.
"LICENSED PROGRAM" means the software program in source code, object code,
or any other form having the copyright registrations and applications for
copyright registration set forth in Exhibit A hereto and the specifications and
functionality described in Exhibit B hereto, together with (i) Modifications
thereto, (ii) all Documentation, and (iii) all derivative works based on the
foregoing.
"LICENSED TECHNICAL INFORMATION" means data furnished by Licensor that is
used to populate the database component of the Licensed Program.
"LICENSED WORK" means the Licensed Program, the Licensed Technical
Information and any derivative works, as well as all United States and foreign
Copyrights.
"MODIFICATION" of work means any and all changes including improvements,
enhancements, corrections, revisions to the work or any portion thereof, and any
derivative of or work substantially similar to any of the foregoing, made by
Licensor or the Licensee.
"PERSON" or "PERSONS" means any corporation, partnership, joint venture or
natural person.
"PROVIDER" means a natural person, licensed as a physician, a nurse
practitioner or other medical professional, that provides healthcare services to
patients on a regularly scheduled basis and bills those patients for his or her
professional services. For purposes hereof, the term, "Provider" does not mean a
nurse or other allied health professional who assists the Provider in the
delivery of healthcare services to patients but who does not xxxx those patients
for his or her professional services.
"SALE" as applied to the Licensed Work means a genuine bonafide transaction
for which consideration is received or expected for the use, lease, transfer or
any other disposition of the Licensed Work. A Sale of the Licensed Work shall be
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deemed completed at the time Licensee or its sublicensee receives payment for
such Licensed Work.
ARTICLE 2
GRANT OF LICENSE
2.1 GRANT OF LICENSE. Subject to the terms and conditions contained in this
Agreement, Licensor hereby grants to Licensee for the term of this
Agreement a royalty-bearing, worldwide, nonexclusive license and a
royalty-bearing, exclusive license for the State of Hawaii, with a right to
sublicense to:
(a) Host and use the Licensed Work;
(b) make copies of, and make derivative works of, the Licensed Work, for
the use of Licensee in accordance with the terms of this Agreement
including, without limitation, the confidentiality provisions
contained herein;
(c) distribute the Licensed Work in object code only;
(d) sublicense the Licensed Work in object code only to customers of
Licensee who have first executed an End User Agreement in a form that
is reasonably acceptable to Licensor;
(e) market the Licensed Work on a private label basis.
2.2 RESERVATION OF RIGHTS. Licensor reserves the right to make copies of, to
make derivative works of and to use the Licensed Work for commercial
purposes and to license the Licensed Work to third parties subject to the
terms of this Agreement.
2.3 NO RIGHTS BY IMPLICATION. No rights or licenses with respect to the
Licensee Work are granted or deemed granted hereunder or in connection
herewith, other than those rights or licenses expressly granted in this
Agreement.
ARTICLE 3
ROYALTIES
3.1 ROYALTIES. In consideration for the license granted by this Agreement,
royalties shall be payable as follows:
(a) When Licensee has entered into End User Agreements with fewer than
1,000 licensed Providers, Licensee shall pay Licensor:
(i) $66.38 per month per Provider for the first twelve (12) months
during which the Provider has access to the Licensed Work, and
(ii) $33.19 per month per Provider for each succeeding month (after
expiration of the first twelve (12) months) during which the
Provider has access to the Licensed Work until the Provider
ceases to have access to the Licensed Work.
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(b) When Licensee has entered into End User Agreements with more than 1,000 but
less than 1,500 licensed Providers, Licensee shall pay Licensor:
(i) $51.63 per month per Provider for the first twelve (12) months during
which the Provider has access to the Licensed Work, and
(ii)$25.81 per month per Provider for each succeeding month (after
expiration of the first twelve (12) months) during which the
Provider has access to the Licensed Work until the Provider
ceases to have access to the Licensed Work.
(c) When Licensee has entered into End User Agreements with more than 1,500
licensed Providers, Licensee shall pay Licensor:
(i) $36.88 per month per Provider for the first twelve (12) months during
which the Provider has access to the Licensed Work, and
(ii) $18.44 per month per Provider for each succeeding month (after
expiration of the first twelve (12) months) during which the Provider
has access to the Licensed Work until the Provider ceases to have
access to the Licensed Work.
3.2 PAYMENTS. Royalties payable under Section 3.1 hereof shall be paid within
thirty (30) days following the last day of the calendar month in which the
royalties accrue. The final payment shall be made within thirty (30) days after
termination of this Agreement. Royalties shall be deemed paid as of the day on
which they are received at the account designated pursuant to Section 3.4. Fees
for custom programming and professional services shall be paid within thirty
(30) days following the receipt of invoice.
3.3 REPORTS. Licensee shall deliver to Licensor within forty-five (45) days
after the end of each calendar month a report, certified by the chief financial
officer of Licensee, setting forth in reasonable detail the calculation of the
earned royalties available for credit payable to Licensor for such calendar
month.
3.4 CURRENCY, PLACE OF PAYMENT. All dollar amounts referred to in this Agreement
are expressed in United States dollars. All payments of Royalties and other
amounts to Licensor under this Agreement shall be made in United States dollars
by check payable to Licensor.
3.5 RECORDS. Licensee will maintain complete and accurate books and records
which enable the royalties payable hereunder to be verified. The records for
each calendar month shall be maintained for two (2) years after the submission
of each report under Section 3.3 hereof. Upon reasonable prior notice to
Licensee, Licensor and its accountant shall have access to the relevant books
and records of Licensee necessary to conduct a review or audit thereof. Such
limited access shall be available not more than twice each calendar year, during
normal business hours, and for three years after the expiration or termination
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of this Agreement. If Licensor determines that Licensee has under paid royalties
by ten percent (10%) or more, Licensee will immediately pay to Licensor such
amount plus interest at the rate of eighteen percent (18%) per annum in addition
to the documented costs and expenses of Licensor's accountant in connection with
its review or audit. If an overpayment is determined to exist, Licensor shall
refund any monies overpaid by Licensee back to Licensee.
ARTICLE 4
WARRANTS
4.1 ISSUANCE. Licensee shall issue warrants in the form attached hereto as
Exhibit "C" to the persons and in the amounts specified on Exhibit "C."
4.2 VESTING. Vesting of the warrants shall be subject to Licensor's completion
of the tasks described in the vesting conditions attached hereto as Exhibit "D."
ARTICLE 5
SOURCE CODE ESCROW
5.1 SOURCE CODE ESCROW. The parties shall enter into the Source Code Escrow
Agreement attached hereto as Exhibit "E."
ARTICLE 6
HOSTING, TRAINING, SUPPORT AND MAINTENANCE SERVICES
6.1 HOSTING. Licensee and its agents will assume all responsibility for hosting
the Licensed Work for the benefit of its Customers. Licensor will be under no
obligation to host the Licensed Work for the benefit of Licensee or Licensee's
Customers.
6.2 TRAINING AND IMPLEMENTATION. Licensor will provide remote technical
assistance and consultation to Licensee with respect to use of the Licensed Work
at a rate of the lesser of $800 per day or $150 per hour (billed in increments
of 15 minutes).
6.3 MAINTENANCE. Licensor will correct defects and provide Licensee with fixes
to the Licensed Work.. Any assistance required to fulfill Licensor's obligations
under this Section will be provided at no additional charge unless such
assistance is found to be the result of hardware failure, user error, neglect or
negligence. Assistance required as a result of such failure, user error, neglect
or negligence will be compensated by the Licensee at the rate of $150 per hour
(billed in increments of 15 minutes).
6.4 UPGRADES. Licensor will support the Licensed Work to assure that it remains
commercially viable and satisfies applicable regulatory and health industry
standards. Licensor will provide Licensee with any and all upgrades it makes to
the Licensed Work at no additional charge.
6.5 ACCESS TO LICENSED WORK. Licensee shall provide Licensor with remote access
to the installed Licensed Work and its affiliated hardware during regular
business hours, and for reasonable periods of time, for the purpose of testing,
5
identification of defects, and installation of any changes, fix or upgrade.
Licensor will exercise best efforts to coordinate with Licensee an appropriate
schedule to perform service and support so as to minimize the operational impact
to Licensee's operations. In appropriate circumstances, at the sole discretion
of Licensor, changes, fixes or upgrades may be delivered through appropriate
magnetic media, electronically transmitted or delivered through a representative
of Licensor.
6.6 TRAVEL. Should it be necessary to perform services described in this
Agreement at HUI's site, Licensee shall be responsible for actual out-of-pocket
expenses incurred for travel, meals and lodging that are preapproved by
Licensee, and a per diem for those days during which services are actually
performed. Service is defined as any act or attempt to install, deliver, change,
repair, adjust, update, train or any other act requiring a credentialed
technician. All administrative access, adjustments and setups are part of the
unique features of the Licensed Work and are within the allowable functions of
the Licensee's system administrator. It is expected that Licensee's system
administrator will receive all Licensor provided application training. Support
services will only be provided to designated individuals that have received
application training from Licensor.
6.7 RESPONSE TIME. Licensor guarantees a best efforts attempt regarding the
response time to a service call from the Licensee. Licensor will respond to
service calls in the order received and will make every effort to respond within
the timeframes specified in Exhibit "F" -- Software Maintenance Support Policy.
6.8 EXCUSED PERFORMANCE. Licensor shall not be liable for any failure to perform
or delayed performance of any obligation under the Agreement if such performance
is prevented, hindered or delayed by reason of any cause beyond the reasonable
control of Licensor, including, without limitation, any labor dispute, strike or
other industrial disturbance, act of God, flood, shortage of materials from
various manufacturers, earthquakes, hurricanes, casualty, war, act of public
enemy, riot, insurrection, embargo law, blockage, action, restriction and
regulation or order of any government, government agency or subdivision thereof.
6.9 WARRANTY. Licensor warrants that the Licensed Work will operate in
accordance with the performance specifications delineated at Exhibit B. Licensor
will provide the services described in Article 6 and replace any defective
Licensed Work in a prompt and professional manner, THIS WARRANTY IS IN LIEU OF
ANY OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING WITHOUT
LIMITATION, IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. IN THE EVENT OF ANY BREACH OF THE WARRANTY CONTAINED IN THIS SECTION,
LICENSOR'S SOLE RESPONSIBILITY SHALL BE TO PERFORM WHATEVER SERVICES ARE
NECESSARY TO CORRECT PROBLEMS WITH ANY LICENSED PROGRAM SO THAT IT CONFORMS IN
ACCORDANCE WITH ITS PUBLISHED SPECIFICATIONS.
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ARTICLE 7
MODIFICATION OF LICENSED WORK.
7.1 MODIFICATIONS.
(a) Based upon feedback from customers and other factors, Licensor shall
(i) add new features and functions to the Licensed Program through new
releases to the Licensed Program that Licensor issues to Licensee not
less than biannually, and (ii) provide License will reasonable advance
notice of pending releases and proposed release dates. Licensor will
provide one copy of such new releases to Licensee without charge.
(b) Licensee shall not have the right to make Modifications to the source
code of the Licensed Program, unless Licensor fails to provide new
releases to the Licensed Program as provided in Section 7.1(a) above.
(c) Licensor shall be obligated to make Modifications requested by
Licensee on a custom basis at the rate of $150 per hour (billed in 15
minute increments) and on such other terms and conditions as the
parties agree upon; provided, however, that Licensor shall not charge
Licensee for Modifications it undertakes as a result of a request by
Licensee if Licensor includes those Modifications in a new release
Licensor issues in accordance with Section 7.1(a).
ARTICLE 8
CONFIDENTIALITY
8.1 NONDISCLOSURE.
(a) Licensee shall maintain in confidence and shall not disclose to any
third Party (except an authorized sublicensee) the Confidential
Information received pursuant to this Agreement, without the prior
written consent of Licensor. The foregoing obligation shall not apply
to: (i) information that is known to Licensee or independently
developed by Licensee prior to the time of disclosure; (ii)
information disclosed to Licensee by a third party that has a right to
make such disclosure; (iii) information that becomes patented,
published or otherwise part of the public domain as a result of acts
by Licensor or by a third person who has the right to make such
disclosure; or (iv) information that is required to be disclosed by
order of any governmental authority or a court of competent
jurisdiction; provided that Licensee shall notify Licensor if it
believes such disclosure is required and shall use its best efforts to
obtain confidential treatment of such information by the agency or
court.
(b) Licensor shall maintain in confidence and shall not disclose to any
third Party (except an authorized sublicensee) the Confidential
Information received pursuant to this Agreement, without the prior
written consent of Licensee. The foregoing obligation shall not apply
to: (i) information that is known to Licensor or independently
developed by Licensor prior to the time of disclosure; (ii)
7
information disclosed to Licensor by a third party that has a right to
make such disclosure; (iii) information that becomes patented,
published or otherwise part of the public domain as a result of acts
by Licensee or by a third person who has the right to make such
disclosure; or (iv) information that is required to be disclosed by
order of any governmental authority or a court of competent
jurisdiction; provided that Licensor shall notify Licensee if it
believes such disclosure is required and shall use its best efforts to
obtain confidential treatment of such information by the agency or
court.
(c) The receiving party's obligations of confidentiality with respect to
Confidential Information that constitute trade secrets under the
Uniform Trade Secrets Act as adopted in the State of Georgia (or other
similar applicable law) shall run for as long as such information
remains a trade secret. The receiving party's obligations of
confidentiality with respect to Confidential Information that is not
covered under the Uniform Trade Secrets Act as adopted in the State of
Georgia (or other similar applicable law), shall run for three (3)
years from the date of termination of this Agreement.
8.2 USE OF CONFIDENTIAL INFORMATION.
(a) Licensee shall ensure that all of its employees, agents and
contractors having access to the Confidential Information of Licensor
are obligated in writing to abide by Licensee's obligations hereunder.
Licensee shall use the Confidential Information only for the purposes
contemplated under this Agreement.
(b) Licensor shall ensure that all of its employees, agents and
contractors having access to the Confidential Information of Licensee
are obligated in writing to abide by Licensor's obligations hereunder.
Licensor shall use the Confidential Information only for the purposes
contemplated under this Agreement.
8.3 INJUNCTIVE RELIEF. Because damages at law will be an inadequate remedy for
breach of any of the covenants, promises and agreements contained in this
Article 6 hereof, the aggrieved party shall be entitled to injunctive
relief in any state or federal court located within the City of Atlanta,
Georgia, including specific performance or an order enjoining the breaching
party from any threatened or actual breach of such covenants, promises or
agreements. The rights set forth in this Section shall be in addition to
any other rights which the aggrieved party may have at law or in equity.
ARTICLE 9
WARRANTIES AND REPRESENTATIONS
9.1 REPRESENTATIONS AND WARRANTIES OF LICENSOR. Licensor represents and warrants
to Licensee that
(a) Licensor is a corporation duly organized, validly existing and in good
standing under the laws of Delaware, and has all requisite corporate
power and authority to execute, deliver and perform this Agreement.
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(b) This Agreement, when executed and delivered by Licensor, will be the
legal, valid and binding obligation of Licensor, enforceable against
Licensor in accordance with its terms.
(c) The execution, delivery and performance of this Agreement by Licensor
does not conflict with, or constitute a breach or default under, (i)
the charter documents of Licensor, (ii) any law, order, judgment or
governmental rule or regulation applicable to Licensor, or (iii) any
provision of any agreement, contract, commitment or instrument to
which Licensor is a party; and the execution, delivery and performance
of this Agreement by Licensor does not require the consent, approval
or authorization of, or notice or declaration to or filing or
registration with, any governmental or regulatory authority.
(d) Licensor holds full right, title and interest in and to the Licensed
Work. To its knowledge, the Licensed Work does not infringe the
proprietary rights of any third party. Licensor has not received any
written notice that the Licensed Work infringes the proprietary rights
of any third party.
9.2 REPRESENTATIONS AND WARRANTIES OF LICENSEE. Licensee represents and warrants
to Licensor that
(a) Licensee is a corporation duly organized, validly existing and in
good standing under the laws of Delaware, and has all requisite
corporate power and authority to execute, deliver and perform
this Agreement.
(b) This Agreement, when executed and delivered by Licensee, will be
the legal, valid and binding obligation of Licensee, enforceable
against Licensee in accordance with its terms.
(c) The execution, delivery and performance of this Agreement by
Licensee does not conflict with, or constitute a breach or
default under, (i) the charter documents of Licensee, (ii) any
law, order, judgment or governmental rule or regulation
applicable to Licensee, or (iii) any provision of any agreement,
contract, commitment or instrument to which Licensee is a party;
and the execution, delivery and performance of this Agreement by
Licensee does not require the consent, approval or authorization
of, or notice or declaration to or filing or registration with,
any governmental or regulatory authority.
ARTICLE 10
PROPRIERARY RIGHTS AND INFRINGEMENT
10.1 RIGHTS PROTECTION.
(a) LICENSOR CONTROL. Licensor shall be responsible for and shall
control the preparation, prosecution and maintenance of all
copyrights and patent rights pertaining to the Licensed Work.
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(b) LICENSEE PROSECUTION. If Licensor elects not file, prosecute or
maintain any copyright or patent to the Licensed Work, it shall
notify Licensee at least sixty (60) days prior to taking, or not
taking, any action which would result in abandonment, withdrawal,
or lapse of such right. Licensee shall then have the right to
file, prosecute or maintain the right at its own expense and set
off such expense from the royalty payments due Licensor
hereinunder.
(c) COOPERATION. Each party shall cooperate with the other party to
execute all lawful papers and instruments and to make all
rightful oaths and declarations as may be necessary in the
preparation and prosecution of all rights referred to in this
Section.
10.2 OWNERSHIP. Licensee acknowledges that all right, title an interest in and
to the Licensed Work and any copyrights, patents, and other protection
related thereto is and shall remain in Licensor, regardless of which party
prepares prosecutes or maintains the foregoing, subject to the express
license granted to Licensee under Article 2 hereof.
10.3 INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS; INFRINGEMENT BY THIRD PARTY.
(a) INFRINGEMENT CLAIMS. Licensor shall hold and save Licensee harmless
from, and shall pay, when due, any loss, damage or liability,
including reasonable attorneys' fees and expenses, awarded against or
incurred by Licensee for or account of any charge, claim, suit or
proceeding that alleges or is based upon a claim that the License
Program, or any portion thereof, infringes any intellectual property
rights of any third party. If any part of the Licensed Program becomes
the subject of a claim of infringement hereunder, Licensee, at its
option, may either (1) secure the right to continue using that part of
the License Program, or (ii) replace or modify that part of the
Licensed Program to make the Licensed Program noninfringing. In this
event, Licensee shall have the right to set off the costs thereof
against the royalty payments due Licensor hereinunder.
(b) THIRD PARTY INFRINGEMENT.
(i) LICENSEE'S OBLIGATIONS. Each party will promptly notify the other
party of any infringement or possible infringement of rights
relating to the Licensed Work by a third-party. Licensee shall
have the right, but not the obligation, to prosecute such
infringement at its own expense. In such event, Licensor shall
cooperate with Licensee, at Licensee's expense. Licensee shall
not settle or compromise any such suit in a manner that imposes
any obligations or restrictions on Licensor or grants any rights
to the Licensed Work, without Licensor's written consent.
(ii)LICENSOR'S RIGHTS. If Licensee fails to prosecute such
infringement within ninety (90) days after receiving notice
thereof, Licensor shall have the right, but not the obligation,
to prosecute such infringement at its own expense. In such event,
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Licensee shall cooperate with Licensor, at Licensor's expense.
(iii)RECOVERY DISTRIBUTION. Any recovery obtained by the prosecuting
party as a result of such proceeding, by settlement or otherwise,
shall be applied first to the prosecuting party, in an amount
equal to its costs and expenses of the litigation, with the
remainder to be paid to the Licensee, subject to the earned
royalties due to Licensor under Article 3 hereof.
ARTICLE 11
TERM AND TERMINATION
11.1 TERM. This Agreement and the licenses granted herein shall commence on the
Effective Date and shall continue, subject to earlier termination under
Sections 11.2 or 11.3 hereof, in perpetuity or, if a specified term is
required by law, for a period of thirty (30) years thereafter.
11.2 TERMINATION BY LICENSOR.
(a) EVENTS OF DEFAULT. Upon the occurrence of any of the events set forth
below ("Events of Default"), Licensor shall have the right to
terminate this Agreement by giving written notice of termination, such
termination being effective with the giving of such notice:
(i) Nonpayment of any amount payable to Licensor that is continuing
then (10) calendar days after Licensor gives Licensee written
notice of such nonpayment;
(ii) breach by Licensee of any covenant (other than a payment breach
referred to in clause (i) above) or any representation or
warranty contained in this Agreement that is continuing sixty
(60) calendar days after Licensor gives Licensee written notice
of such breach; provided that if Licensee, using its best
efforts, cannot cure such breach within the flat sixty (60) days,
the cure period shall be extended by an additional sixty (60)
calendar days, the total cure period not to exceed one hundred
twenty (120) days; or
(iii)Licensee fails to comply with the terms of the license granted
under Article 2 hereof and such noncompliance is continuing
thirty (30) calendar days after Licensor gives Licensee notice of
such noncompliance;
11.3 NO WAIVER. No exercise by Licensor of any right of termination shall
constitute a waiver of any right of Licensor for recovery of any monies
then due to it hereunder or any other right or remedy Licensor may have at
law or under this Agreement.
11.4 RIGHTS AND DUTIES UPON TERMINATION. Within thirty (30) days after
termination of this Agreement, each party shall return to the other party
any Confidential Information of the other Party. Licensee also shall return
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all copies of the Licensed Program in its possession that are embodied in
physical form to Licensor promptly upon the termination of this Agreement.
11.5 SUBLICENSES. Any sublicenses granted by Licensee under this Agreement and
conforming substantially to the form of End User License Agreement agreed
to by the parties shall survive termination of this Agreement in accordance
with the terms of such sublicense.
11.6 PROVISIONS SURVIVING TERMINATION. Licensee's obligation to pay Royalties
accrued but unpaid prior to termination of this Agreement shall survive
such termination. In addition, any other provisions required to interpret
the rights and obligations of the parties arising prior to the termination
date shall survive expiration or termination of this Agreement.
ARTICLE 12
ADDITIONAL PROVISIONS
12.1 ASSIGNMENT. This Agreement may be assigned by either party upon written
notice to the nonassigning party. Any such purported assignment, without
the written consent of Licensor, shall be null and of no effect. No
assignment shall relieve Licensee of responsibility for the performance of
any obligations which have accrued prior to such assignment.
12.2 NO WAIVER. A waiver by either party of a breach or violation of any
provision of this Agreement must be in writing in order to be effective. No
waiver will constitute or be construed as a waiver of any subsequent breach
or violation of that provision or as a waiver of any breach or violation of
any other provision of this Agreement.
12.3 INDEPENDENT CONTRACTOR. Nothing herein shall be deemed to establish a
relationship of principal and agent between Licensor and Licensee, nor any
of their agents or employees for any purpose whatsoever. This Agreement
shall not be construed as constituting Licensor and Licensee as partners,
or as creating any other form of legal association or arrangement that
could impose liability upon one party for the act or failure to act of the
other party.
12.4 NOTICES. Any notice under this Agreement shall be sufficiently given if
sent in writing by prepaid, first class, certified or registered mail,
return receipt requested, addressed as follows:
(a) If to Licensor, to
The KRC Group, Inc.
0000 Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxx, XX 00000-0000
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(b) If to Licensee, to:
InnerSpace Corporation
000 Xxxxx Xxxx XX
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
or to such other addresses as may be designated from time to time
by notice given in accordance with the terms of this Section.
12.5 ENTIRE AGREEMENT. This Agreement embodies the entire understanding between
the parties relating to the subject matter hereof and supersedes all prior
understandings and agreements, whether written or oral. This Agreement may
not be varied except by a written document signed by duly authorized
representatives of both parties.
12.6 SEVERABILITY. Any of the provisions of this Agreement which are determined
to be invalid or unenforceable in any jurisdiction shall be ineffective to
the extent of such invalidity or unenforceability in such jurisdiction,
without rendering invalid or unenforceable the remaining provisions hereof
or affecting the validity or unenforceability of any of the terms of this
Agreement in any other jurisdiction.
12.7 HEADINGS. Any headings and captions used in this Agreement are for
convenience of reference only and shall not affect its construction or
interpretation.
12.8 NO THIRD PARTY BENEFITS. Nothing in this Agreement, express or implied, is
intended to confer on any person other than the parties hereto or their
permitted assigns, any benefits, rights or remedies.
12.9 GOVERNING LAW. This Agreement shall be construed, governed, interpreted and
applied in accordance with the laws of the State of Georgia, without giving
effect to conflict of law provisions.
12.10 COUNTERPARTS. This Agreement shall become binding when any one or more
counterparts hereof, individually or taken together, shall bear the
signatures of each of the parties hereto. This Agreement may be executed in
any number of counterparts, each of which shall be deemed an original as
against the party whose signature appears thereon, but all of which
together shall constitute but one and the same instrument.
12.11 FURTHER ASSURANCES. The parties shall sign such other instruments, cause
such meetings to be held and resolutions passed, exercise their vote and
influence, do and perform and cause to be done and performed such further
and other acts as things as may be reasonably necessary or desirable to
give full effect to the intent and purposes of this Agreement.
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IN WITNESS WHEREOF AND INTENDING TO BE BOUND, the parties hereto execute this
Agreement through their authorized representatives as of the date first above
written.
INNERSPACE CORPORATION
By:/s/Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Chief Executive Officer
THE KRC GROUP, INC.
By:/s/Xxxxxx Xxxxx
Xxxxxx Xxxxx
Chief Executive Officer
14
EXHIBIT A
COPYRIGHT REGISTRATIONS
None.
15
EXHIBIT B
LICENSED PROGRAM PRODUCT SPECIFICATIONS
MAXeMD(TM)is a web based clinical application. Its intent is to provide
physicians and their clinical staff and office staff with a documentation tool
that will replace the hand written chart and encounter notes. MAXeMD(TM)
includes all aspects of the current paper chart and has all the benefits of
online accessibility of patient data. Features and functionality are as follows:
Chart Description Data
Demographic Information This is the demographic profile for the First Middle and Last Name
patient chart. Address, City State Zip
4 phone number w/phone type
Alert-Comments
Employer Information
Worker's Compensation check box
Emergency contacts
Physician List
Insurance List
Patient Search The ability to search the database for the By Name (First or Last)
correct patient chart. Social Security
Account Number
Medical History Record This is the documentation of historical Medical History
medical data. Surgical History
Family History
Social History
Advance Directives
Worklist This is a dynamic worklist that changes Patient name appears on nurse/tech worklist based on check in
based on workflow of the office. Patient name appears on physician worklist based on completed
initial workup
Patient name appears on nurse/tech worklist based on diagnostic
work
Patient name appears on physician worklist based on diagnostic
work up completed
Patient name appears on front office staff worklist based on
encounter E&M Coding completed
Medication Record This is a list of medications that can be Medication List
viewed by ALL, Current, and Discontinued Medication Name
meds. There is the ability to add, edit, Dose / Route/ Freq
and print a prescription. There is the Start & Stop Date
ability to document each Rx refill by date Rx Printing
and user authorizing the refill. Rx Renewal
16
Problem List This is the list of all patient's Date
problems. The user has the ability to add Problem Description
a problem, resolve a problem and update Diagnosis code associated with the problem
the status of the problem. Problem Status (Acute, Chronic, Stable etc.)
Office Notes This is a chronological list of office Date
notes. These notes can be anything from Patient Specific Problem Associated
interoffice communications; Rx refill Contact Type
request; request to diagnostic result Note text
reporting to patient; external office Next contact date for follow-up
letters regarding patient care. There is Next contact type
also the ability to add a contact to the Next Contact subject
worklist as to streamline follow up
issues.
Diagnostic Studies This is a chronological list of diagnostic Date
studies ordered during an encounter. Description
Results (if entered or available via interface - interface is not
part of basic product)
Immunization Record This is a chronological list of Date
immunizations ordered during an encounter Consent signed verification
or added based on historical patient's Immunization description
statements or referral data. Immunization administration information (manufacture, lot #,
serial #, expiration date, dose, route, serology information)
# of doses for serial immunization
Patient Education Record This is the documentation of all patient Education Record- documents the instruction given to patient
education instructions and material given Education Material- documents distribution of education material
to the patient during the encounter.
Procedure List with This is a chronological list of procedures Date
Documentation ordered and performed during an encounter Description of Procedure (CPT coded)
or added based on historical patient's Default statements for each procedure for patient specific
statements or referral data. editing.
Referral List This is a chronological list of referrals Date
ordered during an encounter or added based Referral description
on historical patient's statements or Referral information (to whom, contact information, comment text)
referral data. Referral completion
17
ER/Hospital Encounter This is a chronological list of encounters Admission/Visit Date
Tracking that the patient has experienced. Discharge Date
Encounter description
Admission/Visit reason
Admission/Visit physician
Order Profile This is a summary screen of all orders Date
that have been placed during all Order by category
encounters. The orders can be viewed by Order Status
ALL, Active orders, Completed Orders Order results or documentation
Super Xxxx Tracking This is a summary screen of all encounters List of encounters
with specific links to the date specific Dates (link to encounter details)
super xxxx. Encounter Description
Encounter E&M Code
Encounter Documentation Description Data
Patient Check in This is the screen that the front office Front office check in
staff uses to notify the clinical office Encounter Date
staff that the patient is ready to be seen Clinic Site
by the clinical staff. Clinic Account #
Clinic Chart #
Encounter Physician
Patient account status
Chief Complaint This is the screen where the clinical Practice Specific Chief Complaints
staff documents the reason for visit. The Patient Comment text for patient quotes
description checked here drives the data Description check boxes
presented in the HPI and the list of
diagnosis presented in the Clinical
Impression screen and the Final Diagnosis
screen.
Initial Workup This is the screen where the initial Date
clinical data that is collected on intake Display of chief complaint (s)
is documented. Height
Weight
Temperature
Xxxxx
00
Xxxxxxxxxxx
XX (2)
BP location
BP body position
LMP for female patients
Vision Screening (w or w/o glasses check boxes)
History of Present Illness This is the screen that allows detailed Detail description check boxes based on the checked chief
documentation of adjective and supportive complaints as to:
data in regards to the chief complaint. Context
Quality
Severity
Location
Duration
Timing
Modifying Factors
Signs and Symptoms
Free texts field for each of the above
Pertinent Medical History This is the screen where the clinician Display of documented history by category
checks any pertinent medical history that Links to the documentation screens to add history if needed.
applies to the current encounter and
should be considered in making a diagnosis
for he current encounter.
Review of System This is a list of categories that the Documentation options: Not reviewed, Negative, or Positive.
clinician reviews with the patient that Categories are configurable - but current ones in system are as
may be pertinent to making a diagnosis follows:
General
Eyes
ENT
Cardiovascular
Respiratory
GI
GU
Musculoskeletal
Skin
Breast
Neurological
Psychiatric
Endocrine
Hematologic/Lymphatic
Allergic/Immunologic
Positive findings by category with comment field
Ability to order category display
Ability to add, edit and delete the category description
19
Physical Exam This is a list of categories that the Documentation options: Not Examined, Normal Statements, Abnormal
clinician examines on the patient that may Statements by category specific statements. Categories are
be pertinent to making a diagnosis. configurable - but current ones in system are as follows:
General
Eyes
ENT
Face & Head
Cardiovascular
Lungs
Abdomen
Back
Neck
GU-Female
GU-Male
Musculoskeletal
Skin
Breast
Neurological
Psychological
Abnormal findings by category with comment field
Ability to order category display
Ability to add, edit and delete the category description
Clinical Impression This a list of potential diagnosis that is List of ICD code and description based on chief complaint chosen.
displayed based on the chief complaint. Add diagnosis) list of practice specific diagnosis by description
The diagnosis chosen here drives the and code should the system not list the needed diagnosis
treatment plan displayed.
Final Diagnosis This is a list of potential diagnosis that List of ICD code and description based on chief complaint chosen.
is displayed based on the chief complaint- Add diagnosis) list of practice specific diagnosis by description
and confirmed with diagnostics workup and code should the system not list the needed diagnosis
performed in the clinic. There is the Selection of primary diagnosis
ability to select a primary diagnosis and Add to problem list check box
to add the problem to the Problem List.
The diagnosis chosen here drives the
treatment plan displayed.
20
Treatment Plan This a treatment plan by category of plan List of treatment plan by category based on Diagnosis selected.
based on the diagnosis selected in the Category as follows:
clinical impression screen and/or the Medication- Rx
final diagnosis screen. In Office Medication
Diagnostic Test
Procedures
Immunizations
Referral
Patient Education
Follow-up
Order Profile This is a summary screen of all orders Ability to update and document completion of orders
that have been placed during this Medication- Rx (Rx printed and given to patient)
encounter. The orders can be viewed by In Office Medication (Medication Administration Record -
ALL, Active orders, Completed Orders. MAR)
Each category of the order can be updated Diagnostic Test- (In office lab result reporting)
and documented against based on category Procedures- (defaulted documentation specific to the
specific data. procedure - to be edited base on patient specifics)
Immunizations- (Immunization Administration Record)
Referral- (List of specific as to the referral)
Patient Education- (Instruction and Patient Education
Material)
Follow-up- (date and time- return to work / school
information)
E& M Coding This is the screen that displays The ability to document E&M code for the encounter
information pertinent to making a Based on
selection as to the encounter E&M Criteria. New or Established
Level I, II, III, or IV visit
Super Xxxx This is a summary screen of all orders, Date
diagnosis, and the E&M Code for the List of ordered items
encounter. E&M code
Diagnosis list with primary diagnosis identified.
Encounter Note This is an encounter summary note that is Encounter summary documentation includes:
chart ready if print is needed. Encounter date & location
Patient Header information
21
Vitals sign data
Chief complaint statement with HPI narrative
Pertinent Medical History
ROS
EXAM
Final Diagnosis
Current Medication list
Orders by category with order status
Encounter physician
22
INNERSPACE CORPORATION
COMMON STOCK PURCHASE WARRANT
DATED AS OF FEBRUARY 15, 2002
XXXXX X. XXXXXXXXX AND XXXX XXX XXXXXXXXX, JOINT TENANTS
23
THIS WARRANT AND THE SHARES OF COMMON STOCK COVERED HEREBY (COLLECTIVELY, THE
"SECURITIES") HAVE NOT BEEN REGISTERED UNDER THE GEORGIA SECURITIES ACT OF 1973,
AS AMENDED ("GEORGIA ACT"), IN RELIANCE UPON THE EXEMPTION PROVIDED BY SECTION
9(m) (NOW CODIFIED AS O.C.G.A. SECTION 10-5-9(13)) THEREOF, AND HAVE NOT BEEN
REGISTERED UNDER ANY OTHER STATE SECURITIES LAW OR THE SECURITIES ACT OF 1933,
AS AMENDED ("FEDERAL ACT"). THE SECURITIES WILL BE ACQUIRED FOR INVESTMENT AND
MAY NOT BE OFFERED FOR SALE, HYPOTHECATED, SOLD OR TRANSFERRED, NOR WILL ANY
ASSIGNEE OR TRANSFEREE THEREOF BE RECOGNIZED BY INNERSPACE CORPORATION (THE
"COMPANY") AS HAVING ANY INTEREST IN SUCH SECURITIES, IN THE ABSENCE OF (i) AN
EFFECTIVE REGISTRATION STATEMENT WITH RESPECT TO THE SECURITIES UNDER THE
GEORGIA ACT, OR AN OPINION OF COUNSEL, WHICH OPINION AND COUNSEL SHALL BE
SATISFACTORY TO THE COMPANY, THAT THE TRANSACTION BY WHICH SUCH SECURITIES WILL
BE OFFERED FOR SALE, HYPOTHECATED, SOLD OR TRANSFERRED IS EXEMPT UNDER THE
GEORGIA ACT OR IS OTHERWISE IN COMPLIANCE WITH THE GEORGIA ACT; AND (ii) AN
EFFECTIVE REGISTRATION STATEMENT WITH RESPECT TO THE SECURITIES UNDER THE
FEDERAL ACT, AND ANY OTHER APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF
COUNSEL, WHICH OPINION AND COUNSEL SHALL BE SATISFACTORY TO THE COMPANY, THAT
SUCH REGISTRATION IS NOT REQUIRED.
INNERSPACE CORPORATION
COMMON STOCK PURCHASE WARRANT
Warrant No. 1 No. of Shares - 20,000
This certifies that, for value received, Xxxxx X. Xxxxxxxxx and Xxxx Xxx
Xxxxxxxxx, joint tenants with right of survivorship, hereinafter referred to
collectively as the registered holder, or its successors and assigns, is
entitled, subject to the terms and conditions hereinafter set forth, at or
before 5:00 o'clock P.M., Eastern time, on February 15, 2006, but not
thereafter, to purchase 20,000 shares of $.001 par value Common Stock (the
"Common Stock") of INNERSPACE CORPORATION, a Delaware corporation (the
"Company"), such number of shares being subject to adjustment upon the
occurrence of the contingencies set forth in this Warrant. The purchase price
payable upon the exercise of this Warrant shall be $1.00 per share, said amount
being hereinafter referred to as the "Warrant Price" and being subject to
adjustments upon the occurrence of the contingencies set forth in this Warrant.
Upon delivery of this Warrant with the subscription form annexed hereto,
duly executed, together with payment of the Warrant Price for the shares of
Common Stock thereby purchased, at the principal office of the Company, 000
Xxxxx Xxxx XX, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000-0000, or at such other address
as the Company may designate by notice in writing to the registered holder
hereof, the registered holder of this Warrant shall be entitled to receive a
certificate or certificates for the shares of Common Stock so purchased. All
shares of Common Stock which may be issued upon the exercise of this Warrant
will, upon issuance, be fully-paid and non-assessable and free from all taxes,
liens and charges with respect thereto.
This Warrant is subject to the following terms and conditions:
24
1. Optional Exercise of Warrant. This Warrant may be exercised in whole at any
time, or in any part from time to time, at or prior to 5:00 o'clock P.M.,
Eastern time, on February 15, 2006, but not thereafter, as to all or any
part of the number of whole shares of Common Stock then subject hereto.
Payment of the Warrant Price shall be made in cash. In case of any partial
exercise of this Warrant, the Company shall execute and deliver a new
Warrant of like tenor and date for the balance of the shares of Common
Stock purchasable hereunder. Upon any exercise of this Warrant, Optionee
may, in lieu of payment of the Warrant Price in cash, surrender this
Warrant (or any successor hereto or fraction hereof) (valued for such
purpose at the Fair Market Value of the underlying Common Stock for which
such Warrant is exercisable on the date of such exercise less the Warrant
Price then in effect) and apply all or a portion of the amount so
determined to the payment of the Warrant Price for the number of shares of
Common Stock being purchased.
2. Adjustment of Warrant Price and Number of Shares Purchasable Hereunder. In
case the Company shall at any time subdivide the outstanding shares of its
Common Stock, the Warrant Price in effect immediately prior to such
subdivision shall be proportionately decreased, and in case the Company
shall at any time combine the outstanding shares of its Common Stock, the
Warrant Price in effect shall immediately prior to such combination be
proportionately increased, effective from and after the record date of such
subdivision or combination, as the case may be.
3. Notice of Adjustments. Upon any adjustment of the Warrant Price and any
increase or decrease in the number of shares of Common Stock purchasable
upon the exercise of this Warrant, then and in each such case, the Company,
within thirty (30) days thereafter, shall give written notice thereof to
the registered holder of this Warrant at the address of such holder as
shown on the books of the Company, which notice shall state the Warrant
Price as adjusted and the increased or decreased number of shares
purchasable upon the exercise of this Warrant, setting forth in reasonable
detail the method of calculation of each. The holder of the Warrant shall
have 10 days in which to review the proposed adjustment and to object to
the proposed adjustment by notifying the Company in writing of such
objection, setting forth in reasonable detail the reasons for such
objection. If the holder fails to object to the proposed adjustment during
such 10-day period the proposed adjustment shall become final. If the
holder objects to the proposed adjustment then the Company and the holder
shall attempt to reconcile their differences and if unable to do so such
adjustment shall be determined by the Company's independent accountants
whose determination shall be final.
4. Notice of Exercise of Option. This Option may be exercised by the Optionee
by a written notice signed by the Optionee, and delivered or mailed to the
Company to the attention of the President. The notice shall specify the
number of shares of Stock which the Optionee elects to purchase hereunder,
and be accompanied by (i) a certified or cashier's check payable to the
Company in payment of the total Exercise Price applicable to such shares as
provided herein, (ii) shares of Stock owned by Optionee and duly endorsed
or accompanied by stock transfer powers having a Fair Market Value equal to
the total Exercise Price applicable to such shares purchased hereunder, or
(iii) a certified or cashier's check accompanied by a certificate or
25
certificates representing the number of shares of Stock whose Fair Market
Value when added to the amount of the check equals the total Exercise Price
applicable to such shares purchased hereunder. Upon receipt of an such
notice and accompanying payment, the Company agrees to issue to the
Optionee stock certificates for the number of shares specified in such
notice registered in the name of the Optionee.
5. Charges, Taxes and Expenses. The issuance of certificates for shares of
Common Stock upon any exercise of this Warrant shall be made without charge
to the holder hereof for any tax or other expense in respect to the
issuance of such certificates, all of which taxes and expenses shall be
paid by the Company, and such certificates shall be issued in the name of,
or in such name or names as may be directed by, the holder of this Warrant;
provided, however, that in the event that certificates for shares of Common
Stock are to be issued in a name other than the name of the holder of this
Warrant, this Warrant when surrendered for exercise shall be accompanied by
an instrument of transfer in form satisfactory to the Company, duly
executed by the holder hereof in person or by an attorney duly authorized
in writing.
6. Certain Obligations of the Company. The Company will not, by amendment of
its Certificate of Incorporation or through reorganization, consolidation,
merger, dissolution or sale of assets, or by any other voluntary act or
deed, avoid or seek to avoid the performance or observance of any of the
covenants, stipulations or conditions to be performed or observed by the
Company, but will at all times in good faith assist, insofar as it is able,
in the carrying out of all provisions of this Warrant and in the taking of
all other action which may be necessary in order to protect the rights of
the holder of this Warrant against dilution. Without limiting the
generality of the foregoing, the Company agrees that it will not establish
or increase the par value of the shares of any Common Stock which are at
the time issuable upon exercise of this Warrant above the then prevailing
Warrant Price hereunder and that, before taking any action which would
cause an adjustment reducing the Warrant Price hereunder below the then par
value, if any, of the shares of any Common Stock issuable upon exercise
hereof, the Company will take any corporate action which may, in the
opinion of its counsel, be necessary in order that the Company may validly
and legally issue fully-paid and non-assessable shares of such Common Stock
at the Warrant Price as so adjusted.
7. Miscellaneous.
a. The Company covenants that it will at all times reserve and keep
available, solely for the purpose of issue upon the exercise hereof, a
sufficient number of shares of Common Stock to permit the exercise
hereof in full and a sufficient number of shares of Common Stock to
permit the conversion of all such shares of Common Stock.
b. The terms of this Warrant shall be binding upon and shall inure to the
benefit of any successors or assigns of the Company and of the holder
or holders hereof and of the Common Stock issued or issuable on the
exercise hereof.
26
c. No holder of this Warrant, as such, shall be entitled under this
Warrant to vote or receive dividends (except as provided in paragraph
2 hereof) or be deemed to be a shareholder of the Company for any
purpose.
d. This Warrant may be divided into separate Warrants covering one share
of the Common Stock or any whole multiple thereof, for the total
number of shares of Common Stock then subject to this Warrant at any
time, or from time to time, upon the request of the registered holder
of this Warrant and the surrender of the same to the Company for such
purpose. Such subdivided Warrants shall be issued promptly by the
Company following any such request and shall be of the same form and
tenor as this Warrant, except for any requested change in the name of
the registered holder stated herein.
e. Except as otherwise provided herein, this Warrant and all rights
hereunder are transferable by the registered holder hereof in person
or by duly authorized attorney on the books of the Company upon
surrender of this Warrant, properly endorsed, to the Company. The
Company may deem and treat the registered holder of this Warrant at
any time as the absolute owner hereof for all purposes and shall not
be affected by any notice to the contrary.
f. By acceptance of this Warrant the registered holder represents and
warrants to the Company that such holder is acquiring this Warrant and
will acquire any shares of Common Stock issued upon the exercise of
this Warrant for the holder's own account with the intent of holding
such warrant or shares for investment and without the intent of
participating directly or indirectly in a distribution of the same.
Any certificates for Common Stock issued upon the exercise of this
Warrant shall bear a legend similar to the legend appearing on the
first page of this Warrant.
g. The term "Fair Market Value" shall mean the average Closing Sales
Price of the Company's Common Stock for the five (5) trading days
immediately preceding the date of notice or exercise which relates to
said determination of Fair Market Value.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its
duly authorized officers and its corporation seal to be affixed hereto.
Dated: February 15, 2002
INNERSPACE CORPORATION
By:/s/Xxxxxx Xxxxx
Chief Executive Officer
27
ASSIGNMENT
(To be Executed by the Registered Holder to effect a Transfer of the foregoing Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, and assigns and transfers
unto the foregoing Warrant and the rights represented thereto to purchase shares
of Common Stock of INNERSPACE CORPORATION, in accordance with the terms and
conditions thereof, and does hereby irrevocably constitute and appoint
__________________________________________ Attorney to transfer the said Warrant
on the books of the Company, with full power of substitution.
___________________________________ By __________________________
Signature
___________________________________
___________________________________
___________________________________
Address
Dated:_____________________________
In the presence of:
___________________________________
28
SUBSCRIPTION FORM
(To be Executed by the Registered Holder to Exercise the Rights to Purchase
Stock evidenced by the foregoing Warrant)
TO: INNERSPACE CORPORATION
The undersigned hereby exercises the right to purchase _______ shares of
Common Stock covered by the attached Warrant in accordance with the terms and
conditions thereof, and herewith makes payment of the Warrant Price of such
shares in full.
The undersigned represents and warrants to you that the undersigned is
acquiring such shares for the undersigned's own account with the intent of
holding such shares for investment and without the intent of participating
directly or indirectly in a distribution of such shares.
________________________________
By: ________________________________
Signature
________________________________
________________________________
Address
Dated: _________________.
29
INNERSPACE CORPORATION
COMMON STOCK PURCHASE WARRANT
DATED AS OF FEBRUARY 15, 2002
XXXXXX X. XXXXXX
30
THIS WARRANT AND THE SHARES OF COMMON STOCK COVERED HEREBY (COLLECTIVELY, THE
"SECURITIES") HAVE NOT BEEN REGISTERED UNDER THE GEORGIA SECURITIES ACT OF 1973,
AS AMENDED ("GEORGIA ACT"), IN RELIANCE UPON THE EXEMPTION PROVIDED BY SECTION
9(m) (NOW CODIFIED AS O.C.G.A. SECTION 10-5-9(13)) THEREOF, AND HAVE NOT BEEN
REGISTERED UNDER ANY OTHER STATE SECURITIES LAW OR THE SECURITIES ACT OF 1933,
AS AMENDED ("FEDERAL ACT"). THE SECURITIES WILL BE ACQUIRED FOR INVESTMENT AND
MAY NOT BE OFFERED FOR SALE, HYPOTHECATED, SOLD OR TRANSFERRED, NOR WILL ANY
ASSIGNEE OR TRANSFEREE THEREOF BE RECOGNIZED BY INNERSPACE CORPORATION (THE
"COMPANY") AS HAVING ANY INTEREST IN SUCH SECURITIES, IN THE ABSENCE OF (i) AN
EFFECTIVE REGISTRATION STATEMENT WITH RESPECT TO THE SECURITIES UNDER THE
GEORGIA ACT, OR AN OPINION OF COUNSEL, WHICH OPINION AND COUNSEL SHALL BE
SATISFACTORY TO THE COMPANY, THAT THE TRANSACTION BY WHICH SUCH SECURITIES WILL
BE OFFERED FOR SALE, HYPOTHECATED, SOLD OR TRANSFERRED IS EXEMPT UNDER THE
GEORGIA ACT OR IS OTHERWISE IN COMPLIANCE WITH THE GEORGIA ACT; AND (ii) AN
EFFECTIVE REGISTRATION STATEMENT WITH RESPECT TO THE SECURITIES UNDER THE
FEDERAL ACT, AND ANY OTHER APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF
COUNSEL, WHICH OPINION AND COUNSEL SHALL BE SATISFACTORY TO THE COMPANY, THAT
SUCH REGISTRATION IS NOT REQUIRED.
INNERSPACE CORPORATION
COMMON STOCK PURCHASE WARRANT
Warrant No. 2 No. of Shares - 29,600
This certifies that, for value received, Xxxxxx X. Xxxxxx, hereinafter
referred to as the registered holder or the "Optionee," or her successors and
assigns, is entitled, subject to the terms and conditions hereinafter set forth,
at or before 5:00 o'clock P.M., Eastern time, on February 15, 2006, but not
thereafter, to purchase 29,600 shares of $.001 par value Common Stock (the
"Common Stock") of INNERSPACE CORPORATION, a Delaware corporation (the
"Company"), such number of shares being subject to adjustment upon the
occurrence of the contingencies set forth in this Warrant. The purchase price
payable upon the exercise of this Warrant shall be $1.00 per share, said amount
being hereinafter referred to as the "Warrant Price" and being subject to
adjustments upon the occurrence of the contingencies set forth in this Warrant.
Upon delivery of this Warrant with the subscription form annexed hereto,
duly executed, together with payment of the Warrant Price for the shares of
Common Stock thereby purchased, at the principal office of the Company, 000
Xxxxx Xxxx XX, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000-0000, or at such other address
as the Company may designate by notice in writing to the registered holder
hereof, the registered holder of this Warrant shall be entitled to receive a
certificate or certificates for the shares of Common Stock so purchased. All
shares of Common Stock which may be issued upon the exercise of this Warrant
will, upon issuance, be fully-paid and non-assessable and free from all taxes,
liens and charges with respect thereto.
This Warrant is subject to the following terms and conditions:
31
1. Optional Exercise of Warrant. This Warrant may be exercised in whole at any
time, or in any part from time to time, at or prior to 5:00 o'clock P.M.,
Eastern time, on February 15, 2006, but not thereafter, as to all or any
part of the number of whole shares of Common Stock then subject hereto.
Payment of the Warrant Price shall be made in cash. In case of any partial
exercise of this Warrant, the Company shall execute and deliver a new
Warrant of like tenor and date for the balance of the shares of Common
Stock purchasable hereunder. Upon any exercise of this Warrant, Optionee
may, in lieu of payment of the Warrant Price in cash, surrender this
Warrant (or any successor hereto or fraction hereof) (valued for such
purpose at the Fair Market Value of the underlying Common Stock for which
such Warrant is exercisable on the date of such exercise less the Warrant
Price then in effect) and apply all or a portion of the amount so
determined to the payment of the Warrant Price for the number of shares of
Common Stock being purchased.
2. Adjustment of Warrant Price and Number of Shares Purchasable Hereunder. In
case the Company shall at any time subdivide the outstanding shares of its
Common Stock, the Warrant Price in effect immediately prior to such
subdivision shall be proportionately decreased, and in case the Company
shall at any time combine the outstanding shares of its Common Stock, the
Warrant Price in effect shall immediately prior to such combination be
proportionately increased, effective from and after the record date of such
subdivision or combination, as the case may be.
3. Notice of Adjustments. Upon any adjustment of the Warrant Price and any
increase or decrease in the number of shares of Common Stock purchasable
upon the exercise of this Warrant, then and in each such case, the Company,
within thirty (30) days thereafter, shall give written notice thereof to
the registered holder of this Warrant at the address of such holder as
shown on the books of the Company, which notice shall state the Warrant
Price as adjusted and the increased or decreased number of shares
purchasable upon the exercise of this Warrant, setting forth in reasonable
detail the method of calculation of each. The holder of the Warrant shall
have 10 days in which to review the proposed adjustment and to object to
the proposed adjustment by notifying the Company in writing of such
objection, setting forth in reasonable detail the reasons for such
objection. If the holder fails to object to the proposed adjustment during
such 10-day period the proposed adjustment shall become final. If the
holder objects to the proposed adjustment then the Company and the holder
shall attempt to reconcile their differences and if unable to do so such
adjustment shall be determined by the Company's independent accountants
whose determination shall be final.
4. Notice of Exercise of Option. This Option may be exercised by the Optionee
by a written notice signed by the Optionee, and delivered or mailed to the
Company to the attention of the President. The notice shall specify the
number of shares of Stock which the Optionee elects to purchase hereunder,
and be accompanied by (i) a certified or cashier's check payable to the
Company in payment of the total Exercise Price applicable to such shares as
provided herein, (ii) shares of Stock owned by Optionee and duly endorsed
or accompanied by stock transfer powers having a Fair Market Value equal to
the total Exercise Price applicable to such shares purchased hereunder, or
(iii) a certified or cashier's check accompanied by a certificate or
32
certificates representing the number of shares of Stock whose Fair Market
Value when added to the amount of the check equals the total Exercise Price
applicable to such shares purchased hereunder. Upon receipt of an such
notice and accompanying payment, the Company agrees to issue to the
Optionee stock certificates for the number of shares specified in such
notice registered in the name of the Optionee.
5. Charges, Taxes and Expenses. The issuance of certificates for shares of
Common Stock upon any exercise of this Warrant shall be made without charge
to the holder hereof for any tax or other expense in respect to the
issuance of such certificates, all of which taxes and expenses shall be
paid by the Company, and such certificates shall be issued in the name of,
or in such name or names as may be directed by, the holder of this Warrant;
provided, however, that in the event that certificates for shares of Common
Stock are to be issued in a name other than the name of the holder of this
Warrant, this Warrant when surrendered for exercise shall be accompanied by
an instrument of transfer in form satisfactory to the Company, duly
executed by the holder hereof in person or by an attorney duly authorized
in writing.
6. Certain Obligations of the Company. The Company will not, by amendment of
its Certificate of Incorporation or through reorganization, consolidation,
merger, dissolution or sale of assets, or by any other voluntary act or
deed, avoid or seek to avoid the performance or observance of any of the
covenants, stipulations or conditions to be performed or observed by the
Company, but will at all times in good faith assist, insofar as it is able,
in the carrying out of all provisions of this Warrant and in the taking of
all other action which may be necessary in order to protect the rights of
the holder of this Warrant against dilution. Without limiting the
generality of the foregoing, the Company agrees that it will not establish
or increase the par value of the shares of any Common Stock which are at
the time issuable upon exercise of this Warrant above the then prevailing
Warrant Price hereunder and that, before taking any action which would
cause an adjustment reducing the Warrant Price hereunder below the then par
value, if any, of the shares of any Common Stock issuable upon exercise
hereof, the Company will take any corporate action which may, in the
opinion of its counsel, be necessary in order that the Company may validly
and legally issue fully-paid and non-assessable shares of such Common Stock
at the Warrant Price as so adjusted.
7. Miscellaneous.
a. The Company covenants that it will at all times reserve and keep
available, solely for the purpose of issue upon the exercise hereof, a
sufficient number of shares of Common Stock to permit the exercise
hereof in full and a sufficient number of shares of Common Stock to
permit the conversion of all such shares of Common Stock.
b. The terms of this Warrant shall be binding upon and shall inure to the
benefit of any successors or assigns of the Company and of the holder
or holders hereof and of the Common Stock issued or issuable on the
exercise hereof.
33
c. No holder of this Warrant, as such, shall be entitled under this
Warrant to vote or receive dividends (except as provided in paragraph
2 hereof) or be deemed to be a shareholder of the Company for any
purpose.
d. This Warrant may be divided into separate Warrants covering one share
of the Common Stock or any whole multiple thereof, for the total
number of shares of Common Stock then subject to this Warrant at any
time, or from time to time, upon the request of the registered holder
of this Warrant and the surrender of the same to the Company for such
purpose. Such subdivided Warrants shall be issued promptly by the
Company following any such request and shall be of the same form and
tenor as this Warrant, except for any requested change in the name of
the registered holder stated herein.
e. Except as otherwise provided herein, this Warrant and all rights
hereunder are transferable by the registered holder hereof in person
or by duly authorized attorney on the books of the Company upon
surrender of this Warrant, properly endorsed, to the Company. The
Company may deem and treat the registered holder of this Warrant at
any time as the absolute owner hereof for all purposes and shall not
be affected by any notice to the contrary.
f. By acceptance of this Warrant the registered holder represents and
warrants to the Company that such holder is acquiring this Warrant and
will acquire any shares of Common Stock issued upon the exercise of
this Warrant for the holder's own account with the intent of holding
such warrant or shares for investment and without the intent of
participating directly or indirectly in a distribution of the same.
Any certificates for Common Stock issued upon the exercise of this
Warrant shall bear a legend similar to the legend appearing on the
first page of this Warrant.
g. The term "Fair Market Value" shall mean the average Closing Sales
Price of the Company's Common Stock for the five (5) trading days
immediately preceding the date of notice or exercise which relates to
said determination of Fair Market Value.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its
duly authorized officers and its corporation seal to be affixed hereto.
Dated: February 15, 2002
INNERSPACE CORPORATION
By:/s/ Xxxxxx X. Xxxxx
Chief Executive Officer
34
ASSIGNMENT
(To be Executed by the Registered Holder to effect a Transfer of the foregoing Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, and assigns and transfers
unto the foregoing Warrant and the rights represented thereto to purchase shares
of Common Stock of INNERSPACE CORPORATION, in accordance with the terms and
conditions thereof, and does hereby irrevocably constitute and appoint
__________________________________________ Attorney to transfer the said Warrant
on the books of the Company, with full power of substitution.
___________________________________ By __________________________
Signature
___________________________________
___________________________________
___________________________________
Address
Dated:_____________________________
In the presence of:
___________________________________
35
SUBSCRIPTION FORM
(To be Executed by the Registered Holder to Exercise the Rights to Purchase
Stock evidenced by the foregoing Warrant)
TO: INNERSPACE CORPORATION
The undersigned hereby exercises the right to purchase _______ shares of
Common Stock covered by the attached Warrant in accordance with the terms and
conditions thereof, and herewith makes payment of the Warrant Price of such
shares in full.
The undersigned represents and warrants to you that the undersigned is
acquiring such shares for the undersigned's own account with the intent of
holding such shares for investment and without the intent of participating
directly or indirectly in a distribution of such shares.
________________________________
By: ________________________________
Signature
________________________________
________________________________
Address
Dated: _________________.
36
INNERSPACE CORPORATION
COMMON STOCK PURCHASE WARRANT
DATED AS OF FEBRUARY 15, 0000
XXXXXXX X. XXXXXX XX. AND XXXXXXXXX X. XXXXXX, JOINT TENANTS
37
THIS WARRANT AND THE SHARES OF COMMON STOCK COVERED HEREBY (COLLECTIVELY, THE
"SECURITIES") HAVE NOT BEEN REGISTERED UNDER THE GEORGIA SECURITIES ACT OF 1973,
AS AMENDED ("GEORGIA ACT"), IN RELIANCE UPON THE EXEMPTION PROVIDED BY SECTION
9(m) (NOW CODIFIED AS O.C.G.A. SECTION 10-5-9(13)) THEREOF, AND HAVE NOT BEEN
REGISTERED UNDER ANY OTHER STATE SECURITIES LAW OR THE SECURITIES ACT OF 1933,
AS AMENDED ("FEDERAL ACT"). THE SECURITIES WILL BE ACQUIRED FOR INVESTMENT AND
MAY NOT BE OFFERED FOR SALE, HYPOTHECATED, SOLD OR TRANSFERRED, NOR WILL ANY
ASSIGNEE OR TRANSFEREE THEREOF BE RECOGNIZED BY INNERSPACE CORPORATION (THE
"COMPANY") AS HAVING ANY INTEREST IN SUCH SECURITIES, IN THE ABSENCE OF (i) AN
EFFECTIVE REGISTRATION STATEMENT WITH RESPECT TO THE SECURITIES UNDER THE
GEORGIA ACT, OR AN OPINION OF COUNSEL, WHICH OPINION AND COUNSEL SHALL BE
SATISFACTORY TO THE COMPANY, THAT THE TRANSACTION BY WHICH SUCH SECURITIES WILL
BE OFFERED FOR SALE, HYPOTHECATED, SOLD OR TRANSFERRED IS EXEMPT UNDER THE
GEORGIA ACT OR IS OTHERWISE IN COMPLIANCE WITH THE GEORGIA ACT; AND (ii) AN
EFFECTIVE REGISTRATION STATEMENT WITH RESPECT TO THE SECURITIES UNDER THE
FEDERAL ACT, AND ANY OTHER APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF
COUNSEL, WHICH OPINION AND COUNSEL SHALL BE SATISFACTORY TO THE COMPANY, THAT
SUCH REGISTRATION IS NOT REQUIRED.
INNERSPACE CORPORATION
COMMON STOCK PURCHASE WARRANT
Warrant No. 3 No. of Shares - 29,600
This certifies that, for value received, Xxxxxxx X. Xxxxxx Xx. and
Xxxxxxxxx X. Xxxxxx, joint tenants with right of survivorship, hereinafter
referred to collectively as the registered holder or the "Optionee," or their
successors and assigns, is entitled, subject to the terms and conditions
hereinafter set forth, at or before 5:00 o'clock P.M., Eastern time, on February
15, 2006, but not thereafter, to purchase 29,600 shares of $.001 par value
Common Stock (the "Common Stock") of INNERSPACE CORPORATION, a Delaware
corporation (the "Company"), such number of shares being subject to adjustment
upon the occurrence of the contingencies set forth in this Warrant. The purchase
price payable upon the exercise of this Warrant shall be $1.00 per share, said
amount being hereinafter referred to as the "Warrant Price" and being subject to
adjustments upon the occurrence of the contingencies set forth in this Warrant.
Upon delivery of this Warrant with the subscription form annexed hereto,
duly executed, together with payment of the Warrant Price for the shares of
Common Stock thereby purchased, at the principal office of the Company, 000
Xxxxx Xxxx XX, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000-0000, or at such other address
as the Company may designate by notice in writing to the registered holder
hereof, the registered holder of this Warrant shall be entitled to receive a
certificate or certificates for the shares of Common Stock so purchased. All
shares of Common Stock which may be issued upon the exercise of this Warrant
will, upon issuance, be fully-paid and non-assessable and free from all taxes,
liens and charges with respect thereto.
38
This Warrant is subject to the following terms and conditions:
1. Optional Exercise of Warrant. This Warrant may be exercised in whole at any
time, or in any part from time to time, at or prior to 5:00 o'clock P.M.,
Eastern time, on February 15, 2006, but not thereafter, as to all or any
part of the number of whole shares of Common Stock then subject hereto.
Payment of the Warrant Price shall be made in cash. In case of any partial
exercise of this Warrant, the Company shall execute and deliver a new
Warrant of like tenor and date for the balance of the shares of Common
Stock purchasable hereunder. Upon any exercise of this Warrant, Optionee
may, in lieu of payment of the Warrant Price in cash, surrender this
Warrant (or any successor hereto or fraction hereof) (valued for such
purpose at the Fair Market Value of the underlying Common Stock for which
such Warrant is exercisable on the date of such exercise less the Warrant
Price then in effect) and apply all or a portion of the amount so
determined to the payment of the Warrant Price for the number of shares of
Common Stock being purchased.
2. Adjustment of Warrant Price and Number of Shares Purchasable Hereunder. In
case the Company shall at any time subdivide the outstanding shares of its
Common Stock, the Warrant Price in effect immediately prior to such
subdivision shall be proportionately decreased, and in case the Company
shall at any time combine the outstanding shares of its Common Stock, the
Warrant Price in effect shall immediately prior to such combination be
proportionately increased, effective from and after the record date of such
subdivision or combination, as the case may be.
3. Notice of Adjustments. Upon any adjustment of the Warrant Price and any
increase or decrease in the number of shares of Common Stock purchasable
upon the exercise of this Warrant, then and in each such case, the Company,
within thirty (30) days thereafter, shall give written notice thereof to
the registered holder of this Warrant at the address of such holder as
shown on the books of the Company, which notice shall state the Warrant
Price as adjusted and the increased or decreased number of shares
purchasable upon the exercise of this Warrant, setting forth in reasonable
detail the method of calculation of each. The holder of the Warrant shall
have 10 days in which to review the proposed adjustment and to object to
the proposed adjustment by notifying the Company in writing of such
objection, setting forth in reasonable detail the reasons for such
objection. If the holder fails to object to the proposed adjustment during
such 10-day period the proposed adjustment shall become final. If the
holder objects to the proposed adjustment then the Company and the holder
shall attempt to reconcile their differences and if unable to do so such
adjustment shall be determined by the Company's independent accountants
whose determination shall be final.
4. Notice of Exercise of Option. This Option may be exercised by the Optionee
by a written notice signed by the Optionee, and delivered or mailed to the
Company to the attention of the President. The notice shall specify the
number of shares of Stock which the Optionee elects to purchase hereunder,
and be accompanied by (i) a certified or cashier's check payable to the
Company in payment of the total Exercise Price applicable to such shares as
provided herein, (ii) shares of Stock owned by Optionee and duly endorsed
or accompanied by stock transfer powers having a Fair Market Value equal to
the total Exercise Price applicable to such shares purchased hereunder, or
39
(iii) a certified or cashier's check accompanied by a certificate or
certificates representing the number of shares of Stock whose Fair Market
Value when added to the amount of the check equals the total Exercise Price
applicable to such shares purchased hereunder. Upon receipt of an such
notice and accompanying payment, the Company agrees to issue to the
Optionee stock certificates for the number of shares specified in such
notice registered in the name of the Optionee.
5. Charges, Taxes and Expenses. The issuance of certificates for shares of
Common Stock upon any exercise of this Warrant shall be made without charge
to the holder hereof for any tax or other expense in respect to the
issuance of such certificates, all of which taxes and expenses shall be
paid by the Company, and such certificates shall be issued in the name of,
or in such name or names as may be directed by, the holder of this Warrant;
provided, however, that in the event that certificates for shares of Common
Stock are to be issued in a name other than the name of the holder of this
Warrant, this Warrant when surrendered for exercise shall be accompanied by
an instrument of transfer in form satisfactory to the Company, duly
executed by the holder hereof in person or by an attorney duly authorized
in writing.
6. Certain Obligations of the Company. The Company will not, by amendment of
its Certificate of Incorporation or through reorganization, consolidation,
merger, dissolution or sale of assets, or by any other voluntary act or
deed, avoid or seek to avoid the performance or observance of any of the
covenants, stipulations or conditions to be performed or observed by the
Company, but will at all times in good faith assist, insofar as it is able,
in the carrying out of all provisions of this Warrant and in the taking of
all other action which may be necessary in order to protect the rights of
the holder of this Warrant against dilution. Without limiting the
generality of the foregoing, the Company agrees that it will not establish
or increase the par value of the shares of any Common Stock which are at
the time issuable upon exercise of this Warrant above the then prevailing
Warrant Price hereunder and that, before taking any action which would
cause an adjustment reducing the Warrant Price hereunder below the then par
value, if any, of the shares of any Common Stock issuable upon exercise
hereof, the Company will take any corporate action which may, in the
opinion of its counsel, be necessary in order that the Company may validly
and legally issue fully-paid and non-assessable shares of such Common Stock
at the Warrant Price as so adjusted.
7. Miscellaneous.
a. The Company covenants that it will at all times reserve and keep
available, solely for the purpose of issue upon the exercise hereof, a
sufficient number of shares of Common Stock to permit the exercise
hereof in full and a sufficient number of shares of Common Stock to
permit the conversion of all such shares of Common Stock.
b. The terms of this Warrant shall be binding upon and shall inure to the
benefit of any successors or assigns of the Company and of the holder
or holders hereof and of the Common Stock issued or issuable on the
exercise hereof.
40
c. No holder of this Warrant, as such, shall be entitled under this
Warrant to vote or receive dividends (except as provided in paragraph
2 hereof) or be deemed to be a shareholder of the Company for any
purpose.
d. This Warrant may be divided into separate Warrants covering one share
of the Common Stock or any whole multiple thereof, for the total
number of shares of Common Stock then subject to this Warrant at any
time, or from time to time, upon the request of the registered holder
of this Warrant and the surrender of the same to the Company for such
purpose. Such subdivided Warrants shall be issued promptly by the
Company following any such request and shall be of the same form and
tenor as this Warrant, except for any requested change in the name of
the registered holder stated herein.
e. Except as otherwise provided herein, this Warrant and all rights
hereunder are transferable by the registered holder hereof in person
or by duly authorized attorney on the books of the Company upon
surrender of this Warrant, properly endorsed, to the Company. The
Company may deem and treat the registered holder of this Warrant at
any time as the absolute owner hereof for all purposes and shall not
be affected by any notice to the contrary.
f. By acceptance of this Warrant the registered holder represents and
warrants to the Company that such holder is acquiring this Warrant and
will acquire any shares of Common Stock issued upon the exercise of
this Warrant for the holder's own account with the intent of holding
such warrant or shares for investment and without the intent of
participating directly or indirectly in a distribution of the same.
Any certificates for Common Stock issued upon the exercise of this
Warrant shall bear a legend similar to the legend appearing on the
first page of this Warrant.
g. The term "Fair Market Value" shall mean the average Closing Sales
Price of the Company's Common Stock for the five (5) trading days
immediately preceding the date of notice or exercise which relates to
said determination of Fair Market Value.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its
duly authorized officers and its corporation seal to be affixed hereto.
Dated: February 15, 2002
INNERSPACE CORPORATION
By:/s/ Xxxxxx X. Xxxxx
Chief Executive Officer
41
ASSIGNMENT
(To be Executed by the Registered Holder to effect a Transfer of the foregoing Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, and assigns and transfers
unto the foregoing Warrant and the rights represented thereto to purchase shares
of Common Stock of INNERSPACE CORPORATION, in accordance with the terms and
conditions thereof, and does hereby irrevocably constitute and appoint
__________________________________________ Attorney to transfer the said Warrant
on the books of the Company, with full power of substitution.
___________________________________ By __________________________
Signature
___________________________________
___________________________________
___________________________________
Address
Dated:_____________________________
In the presence of:
___________________________________
42
SUBSCRIPTION FORM
(To be Executed by the Registered Holder to Exercise the Rights to Purchase
Stock evidenced by the foregoing Warrant)
TO: INNERSPACE CORPORATION
The undersigned hereby exercises the right to purchase _______ shares of
Common Stock covered by the attached Warrant in accordance with the terms and
conditions thereof, and herewith makes payment of the Warrant Price of such
shares in full.
The undersigned represents and warrants to you that the undersigned is
acquiring such shares for the undersigned's own account with the intent of
holding such shares for investment and without the intent of participating
directly or indirectly in a distribution of such shares.
________________________________
By: ________________________________
Signature
________________________________
________________________________
Address
Dated: _________________.
43
INNERSPACE CORPORATION
COMMON STOCK PURCHASE WARRANT
DATED AS OF FEBRUARY 15, 2002
XXXXXXX X. XXXXX
44
THIS WARRANT AND THE SHARES OF COMMON STOCK COVERED HEREBY (COLLECTIVELY, THE
"SECURITIES") HAVE NOT BEEN REGISTERED UNDER THE GEORGIA SECURITIES ACT OF 1973,
AS AMENDED ("GEORGIA ACT"), IN RELIANCE UPON THE EXEMPTION PROVIDED BY SECTION
9(m) (NOW CODIFIED AS O.C.G.A. SECTION 10-5-9(13)) THEREOF, AND HAVE NOT BEEN
REGISTERED UNDER ANY OTHER STATE SECURITIES LAW OR THE SECURITIES ACT OF 1933,
AS AMENDED ("FEDERAL ACT"). THE SECURITIES WILL BE ACQUIRED FOR INVESTMENT AND
MAY NOT BE OFFERED FOR SALE, HYPOTHECATED, SOLD OR TRANSFERRED, NOR WILL ANY
ASSIGNEE OR TRANSFEREE THEREOF BE RECOGNIZED BY INNERSPACE CORPORATION (THE
"COMPANY") AS HAVING ANY INTEREST IN SUCH SECURITIES, IN THE ABSENCE OF (i) AN
EFFECTIVE REGISTRATION STATEMENT WITH RESPECT TO THE SECURITIES UNDER THE
GEORGIA ACT, OR AN OPINION OF COUNSEL, WHICH OPINION AND COUNSEL SHALL BE
SATISFACTORY TO THE COMPANY, THAT THE TRANSACTION BY WHICH SUCH SECURITIES WILL
BE OFFERED FOR SALE, HYPOTHECATED, SOLD OR TRANSFERRED IS EXEMPT UNDER THE
GEORGIA ACT OR IS OTHERWISE IN COMPLIANCE WITH THE GEORGIA ACT; AND (ii) AN
EFFECTIVE REGISTRATION STATEMENT WITH RESPECT TO THE SECURITIES UNDER THE
FEDERAL ACT, AND ANY OTHER APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF
COUNSEL, WHICH OPINION AND COUNSEL SHALL BE SATISFACTORY TO THE COMPANY, THAT
SUCH REGISTRATION IS NOT REQUIRED.
INNERSPACE CORPORATION
COMMON STOCK PURCHASE WARRANT
Warrant No 4 No. of Shares - 20,800
This certifies that, for value received, Xxxxxxx X. Xxxxx, hereinafter
referred to as the registered holder or the "Optionee," or his successors and
assigns, is entitled, subject to the terms and conditions hereinafter set forth,
at or before 5:00 o'clock P.M., Eastern time, on February 15, 2006, but not
thereafter, to purchase 20,800 shares of $.001 par value Common Stock (the
"Common Stock") of INNERSPACE CORPORATION, a Delaware corporation (the
"Company"), such number of shares being subject to adjustment upon the
occurrence of the contingencies set forth in this Warrant. The purchase price
payable upon the exercise of this Warrant shall be $1.00 per share, said amount
being hereinafter referred to as the "Warrant Price" and being subject to
adjustments upon the occurrence of the contingencies set forth in this Warrant.
Upon delivery of this Warrant with the subscription form annexed hereto,
duly executed, together with payment of the Warrant Price for the shares of
Common Stock thereby purchased, at the principal office of the Company, 000
Xxxxx Xxxx XX, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000-0000, or at such other address
as the Company may designate by notice in writing to the registered holder
hereof, the registered holder of this Warrant shall be entitled to receive a
certificate or certificates for the shares of Common Stock so purchased. All
shares of Common Stock which may be issued upon the exercise of this Warrant
will, upon issuance, be fully-paid and non-assessable and free from all taxes,
liens and charges with respect thereto.
This Warrant is subject to the following terms and conditions:
45
1. Optional Exercise of Warrant. This Warrant may be exercised in whole at any
time, or in any part from time to time, at or prior to 5:00 o'clock P.M.,
Eastern time, on February 15, 2006, but not thereafter, as to all or any
part of the number of whole shares of Common Stock then subject hereto.
Payment of the Warrant Price shall be made in cash. In case of any partial
exercise of this Warrant, the Company shall execute and deliver a new
Warrant of like tenor and date for the balance of the shares of Common
Stock purchasable hereunder. Upon any exercise of this Warrant, Optionee
may, in lieu of payment of the Warrant Price in cash, surrender this
Warrant (or any successor hereto or fraction hereof) (valued for such
purpose at the Fair Market Value of the underlying Common Stock for which
such Warrant is exercisable on the date of such exercise less the Warrant
Price then in effect) and apply all or a portion of the amount so
determined to the payment of the Warrant Price for the number of shares of
Common Stock being purchased.
2. Adjustment of Warrant Price and Number of Shares Purchasable Hereunder. In
case the Company shall at any time subdivide the outstanding shares of its
Common Stock, the Warrant Price in effect immediately prior to such
subdivision shall be proportionately decreased, and in case the Company
shall at any time combine the outstanding shares of its Common Stock, the
Warrant Price in effect shall immediately prior to such combination be
proportionately increased, effective from and after the record date of such
subdivision or combination, as the case may be.
3. Notice of Adjustments. Upon any adjustment of the Warrant Price and any
increase or decrease in the number of shares of Common Stock purchasable
upon the exercise of this Warrant, then and in each such case, the Company,
within thirty (30) days thereafter, shall give written notice thereof to
the registered holder of this Warrant at the address of such holder as
shown on the books of the Company, which notice shall state the Warrant
Price as adjusted and the increased or decreased number of shares
purchasable upon the exercise of this Warrant, setting forth in reasonable
detail the method of calculation of each. The holder of the Warrant shall
have 10 days in which to review the proposed adjustment and to object to
the proposed adjustment by notifying the Company in writing of such
objection, setting forth in reasonable detail the reasons for such
objection. If the holder fails to object to the proposed adjustment during
such 10-day period the proposed adjustment shall become final. If the
holder objects to the proposed adjustment then the Company and the holder
shall attempt to reconcile their differences and if unable to do so such
adjustment shall be determined by the Company's independent accountants
whose determination shall be final.
4. Notice of Exercise of Option. This Option may be exercised by the Optionee
by a written notice signed by the Optionee, and delivered or mailed to the
Company to the attention of the President. The notice shall specify the
number of shares of Stock which the Optionee elects to purchase hereunder,
and be accompanied by (i) a certified or cashier's check payable to the
Company in payment of the total Exercise Price applicable to such shares as
provided herein, (ii) shares of Stock owned by Optionee and duly endorsed
or accompanied by stock transfer powers having a Fair Market Value equal to
the total Exercise Price applicable to such shares purchased hereunder, or
(iii) a certified or cashier's check accompanied by a certificate or
46
certificates representing the number of shares of Stock whose Fair Market
Value when added to the amount of the check equals the total Exercise Price
applicable to such shares purchased hereunder. Upon receipt of an such
notice and accompanying payment, the Company agrees to issue to the
Optionee stock certificates for the number of shares specified in such
notice registered in the name of the Optionee.
5. Charges, Taxes and Expenses. The issuance of certificates for shares of
Common Stock upon any exercise of this Warrant shall be made without charge
to the holder hereof for any tax or other expense in respect to the
issuance of such certificates, all of which taxes and expenses shall be
paid by the Company, and such certificates shall be issued in the name of,
or in such name or names as may be directed by, the holder of this Warrant;
provided, however, that in the event that certificates for shares of Common
Stock are to be issued in a name other than the name of the holder of this
Warrant, this Warrant when surrendered for exercise shall be accompanied by
an instrument of transfer in form satisfactory to the Company, duly
executed by the holder hereof in person or by an attorney duly authorized
in writing.
6. Certain Obligations of the Company. The Company will not, by amendment of
its Certificate of Incorporation or through reorganization, consolidation,
merger, dissolution or sale of assets, or by any other voluntary act or
deed, avoid or seek to avoid the performance or observance of any of the
covenants, stipulations or conditions to be performed or observed by the
Company, but will at all times in good faith assist, insofar as it is able,
in the carrying out of all provisions of this Warrant and in the taking of
all other action which may be necessary in order to protect the rights of
the holder of this Warrant against dilution. Without limiting the
generality of the foregoing, the Company agrees that it will not establish
or increase the par value of the shares of any Common Stock which are at
the time issuable upon exercise of this Warrant above the then prevailing
Warrant Price hereunder and that, before taking any action which would
cause an adjustment reducing the Warrant Price hereunder below the then par
value, if any, of the shares of any Common Stock issuable upon exercise
hereof, the Company will take any corporate action which may, in the
opinion of its counsel, be necessary in order that the Company may validly
and legally issue fully-paid and non-assessable shares of such Common Stock
at the Warrant Price as so adjusted.
7. Miscellaneous.
a. The Company covenants that it will at all times reserve and keep
available, solely for the purpose of issue upon the exercise hereof, a
sufficient number of shares of Common Stock to permit the exercise
hereof in full and a sufficient number of shares of Common Stock to
permit the conversion of all such shares of Common Stock.
b. The terms of this Warrant shall be binding upon and shall inure to the
benefit of any successors or assigns of the Company and of the holder
or holders hereof and of the Common Stock issued or issuable on the
exercise hereof.
47
c. No holder of this Warrant, as such, shall be entitled under this
Warrant to vote or receive dividends (except as provided in paragraph
2 hereof) or be deemed to be a shareholder of the Company for any
purpose.
d. This Warrant may be divided into separate Warrants covering one share
of the Common Stock or any whole multiple thereof, for the total
number of shares of Common Stock then subject to this Warrant at any
time, or from time to time, upon the request of the registered holder
of this Warrant and the surrender of the same to the Company for such
purpose. Such subdivided Warrants shall be issued promptly by the
Company following any such request and shall be of the same form and
tenor as this Warrant, except for any requested change in the name of
the registered holder stated herein.
e. Except as otherwise provided herein, this Warrant and all rights
hereunder are transferable by the registered holder hereof in person
or by duly authorized attorney on the books of the Company upon
surrender of this Warrant, properly endorsed, to the Company. The
Company may deem and treat the registered holder of this Warrant at
any time as the absolute owner hereof for all purposes and shall not
be affected by any notice to the contrary.
f. By acceptance of this Warrant the registered holder represents and
warrants to the Company that such holder is acquiring this Warrant and
will acquire any shares of Common Stock issued upon the exercise of
this Warrant for the holder's own account with the intent of holding
such warrant or shares for investment and without the intent of
participating directly or indirectly in a distribution of the same.
Any certificates for Common Stock issued upon the exercise of this
Warrant shall bear a legend similar to the legend appearing on the
first page of this Warrant.
g. The term "Fair Market Value" shall mean the average Closing Sales
Price of the Company's Common Stock for the five (5) trading days
immediately preceding the date of notice or exercise which relates to
said determination of Fair Market Value.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its
duly authorized officers and its corporation seal to be affixed hereto.
Dated: February 15, 2002
INNERSPACE CORPORATION
By:/s/ Xxxxxx X. Xxxxx
Chief Executive Officer
48
ASSIGNMENT
(To be Executed by the Registered Holder to effect a Transfer of the foregoing Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, and assigns and transfers
unto the foregoing Warrant and the rights represented thereto to purchase shares
of Common Stock of INNERSPACE CORPORATION, in accordance with the terms and
conditions thereof, and does hereby irrevocably constitute and appoint
__________________________________________ Attorney to transfer the said Warrant
on the books of the Company, with full power of substitution.
___________________________________ By __________________________
Signature
___________________________________
___________________________________
___________________________________
Address
Dated:_____________________________
In the presence of:
___________________________________
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SUBSCRIPTION FORM
(To be Executed by the Registered Holder to Exercise the Rights to Purchase
Stock evidenced by the foregoing Warrant)
TO: INNERSPACE CORPORATION
The undersigned hereby exercises the right to purchase _______ shares of
Common Stock covered by the attached Warrant in accordance with the terms and
conditions thereof, and herewith makes payment of the Warrant Price of such
shares in full.
The undersigned represents and warrants to you that the undersigned is
acquiring such shares for the undersigned's own account with the intent of
holding such shares for investment and without the intent of participating
directly or indirectly in a distribution of such shares.
________________________________
By: ________________________________
Signature
________________________________
________________________________
Address
Dated: _________________.
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EXHIBIT D
VESTING CONDITIONS
The right of each registered holder to exercise his or her rights under the
Warrant Agreements attached to the License Agreement as Exhibit C will vest upon
satisfaction by the Licensor of the following conditions:
1. Provide and load base data for primary care internal medicine/family
practice by not later than February 28, 2002;
2. assist in loading the Licensed Program on Licensee's servers by
February 28, 2002;
3. within five working days after receiving mutually acceptable
specifications signed and approved by both Licensor and Licensee,
provide a time and cost estimate for, and within 30 days of the agreed
upon completion date, complete and deliver to Licensee, each of the
following:
a. a superbill to meet Licensed Program integration requirements;
b. island codes;
c. a database for at least one proof of concept site;;
d. precertification capability to meet Licensed Program marketing
requirements;
e. modifications to Licensed Program so that Licensee can reasonably
operate the Licensed Program from within Licensee's Internet
Portal to meet marketing and customer rollout requirements;
f. training tools to meet customer rollout requirements; and
g. work aided drawings for ortho, optham and other enhanced
specialty support to meet Licensed Program marketing
requirements.
Notwithstanding the foregoing conditions, the registered holders' entitlement to
exercise their rights under the Warrant Agreements will vest on May 15, 2002 if
the Licensee has failed to provide mutually acceptable specifications relating
to each of Items 3.a through 3.g above. If Licensee has provide said
specifications and the scope of work requires the professional services to
extend beyond August 15, 2002, the registered holders' entitlement to exercise
their rights under the Warrant Agreements will vest on August 15, 2002.
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EXHIBIT E
SOURCE CODE ESCROW AGREEMENT
This Agreement is effective February 15, 2002 between Xxxxxxx & Xxxxx, LLP
("Escrow Agent"), The KRC Group, Inc., a Delaware corporation ("Depositor"), and
InnerSpace Corporation, a Delaware corporation (the "Preferred Beneficiary").
Escrow Agent, Depositor and the Preferred Beneficiary are hereinafter referred
to collectively as the "parties."
RECITALS:
A. Depositor and Preferred Beneficiary have entered or will enter into a
License Agreement regarding certain proprietary technology of Depositor
(referred to in this Agreement as "the License Agreement").
B. Depositor desires to avoid disclosure of its proprietary technology except
under certain limited circumstances.
C. The availability of the proprietary technology of Depositor is critical to
Preferred Beneficiary in the conduct of its business and, therefore,
Preferred Beneficiary needs access to the proprietary technology under
certain limited circumstances.
D. Depositor and Preferred Beneficiary desire to establish an escrow with
Escrow Agent to provide for the retention, administration and controlled
access of certain proprietary technology materials of Depositor.
E. The parties desire this Agreement to be supplementary to the License
Agreement pursuant to11 United States Bankruptcy Code, Section 365(n).
ARTICLE 1
DEPOSITS
1.1 Obligation to Make Deposit. Upon the signing of this Agreement by the
parties, including the signing of the Acceptance Form, Depositor shall
deliver to Escrow Agent the proprietary technology and other materials
("Deposit Materials") required to be deposited by the License Agreement or,
if the License Agreement does not identify the materials to be deposited
with Escrow Agent, then such materials will be identified on Exhibit 1. If
Exhibit 1 is applicable, it is to be prepared and signed by Depositor and
Preferred Beneficiary. Escrow Agent shall have no obligation with respect
to the preparation, signing or delivery of Exhibit 1.
1.2 Identification of Tangible Media. Prior to the delivery of the Deposit
Materials to Escrow Agent, Depositor shall conspicuously label for
identification each document, magnetic tape, disk, or other tangible media
upon which the Deposit Materials are written or stored. Additionally,
Depositor shall complete Exhibit 2 to this Agreement by listing each such
tangible media by the item label description, the type of media and the
quantity. Exhibit 2 shall be signed by Depositor and delivered to Escrow
Agent with the Deposit Materials. Unless and until Depositor makes the
initial deposit with Escrow Agent, Escrow Agent shall have no obligation
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with respect to this Agreement, except the obligation to notify the parties
regarding the status of the account as required in Section 2.2 below.
1.3 Deposit Inspection. When Escrow Agent receives the Deposit Materials and
the information contained in Exhibit 2, Escrow Agent will conduct a deposit
inspection by visually matching the labeling of the tangible media
containing the Deposit Materials to the item descriptions and quantity
listed on Exhibit 2.
1.4 Acceptance of Deposit. At completion of the deposit inspection, if Escrow
Agent determines that the labeling of the tangible media matches the item
descriptions and quantity on Exhibit 2, Escrow Agent will date and sign
Exhibit 2 and mail a copy thereof to Depositor and Preferred Beneficiary.
If Escrow Agent determines that the labeling does not match the item
descriptions or quantity on Exhibit 2, Escrow Agent will (a) note the
discrepancies in writing on Exhibit 2; (b) date and sign Exhibit 2 with the
exceptions noted; and (c) mail a copy of Exhibit 2 to Depositor and
Preferred Beneficiary. Escrow Agent's acceptance of the deposit occurs upon
the signing of Exhibit 2 by Escrow Agent. Delivery of the signed Exhibit 2
to Preferred Beneficiary is Preferred Beneficiary's notice that the Deposit
Materials have been received and accepted by Escrow Agent.
1.5 Depositor's Representations. Depositor represents as follows:
a. Depositor lawfully possesses all of the Deposit Materials deposited
with Escrow Agent;
b. With respect to all of the Deposit Materials, Depositor has the right
and authority to grant to Escrow Agent and Preferred Beneficiary the
rights as provided in this Agreement;
c. The Deposit Materials are not subject to any lien or other
encumbrance;
d. The Deposit Materials consist of the proprietary technology and other
materials identified either in the License Agreement or Exhibit 1, as
the case may be; and
e. The Deposit Materials are readable and useable in their current form
or, if any portion of the Deposit Materials is encrypted, the
decryption tools and decryption keys have also been deposited.
1.6 Verification. Verification determines, in different levels of detail, the
accuracy, completeness, sufficiency and quality of the Deposit Materials.
a. Escrow Agent shall perform an Initial Verification of the Deposit
Materials upon the initial deposit and for each update. An Initial
Verification is defined as follows: Escrow Agent will cause Xxxxx
Xxxxxxxxx or if Xx. Xxxxxxxxx is unavailable a technically qualified
Escrow Agent designee to evaluate the Deposit Materials in order to
identify (a) the hardware and software configurations reasonably
necessary to maintain the Deposit Materials; (b) the hardware and
software configurations reasonably necessary to compile the Deposit
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Materials; and (c) the compilation instructions. Escrow Agent will
then prepare and deliver to Depositor and Preferred Beneficiary a
report describing the information so identified. It shall be the
responsibility of the Depositor, and not Escrow Agent, to ensure that
the Deposit Materials contain the information so identified in Escrow
Agent's report, as well as any other information that may be required
in the License Agreement.
b. Preferred Beneficiary shall have the right to cause a verification of
any Deposit Materials, at Preferred Beneficiary's expense (except
Depositor shall pay such cost if the verification fails). Preferred
Beneficiary shall notify Depositor and Escrow Agent of Preferred
Beneficiary's request for verification. Depositor shall have the right
to be present at the verification. If a verification is elected after
the Deposit Materials have been delivered to Escrow Agent, then only
Escrow Agent, or at Escrow Agent's election an independent person or
company selected and supervised by Escrow Agent, may perform the
verification.
1.7 Deposit Updates.
a. Generally. Unless otherwise provided by the License Agreement,
Depositor shall update the Deposit Materials within thirty (30) days
of each release of a new version of the product, which is subject to
the License Agreement. Such updates will be added to the existing
deposit. All deposit updates shall be listed on a new Exhibit 2 and
Depositor shall sign the new Exhibit 2. Each Exhibit 2 will be held
and maintained separately within the escrow account. An independent
record will be created which will document the activity for each
Exhibit 2. The processing of all deposit updates shall be in
accordance with Sections 1.2 through 1.6 above. All references in this
Agreement to the Deposit Materials shall include the initial Deposit
Materials and any updates.
b. DeposiTrack Service. Escrow Agent shall notify Depositor in writing
semi-annually of Depositor's obligation to make updated deposits.
Within thirty (30) days of receipt of such notice, Depositor shall
certify in writing to Escrow Agent that (a) it has made the updated
deposits as required in the immediately preceding paragraph; or (b)
there has not been a release of a new version of the product since the
last deposit. After the thirty (30) days, Escrow Agent shall notify
Preferred Beneficiary that Escrow Agent has received (a) an updated
deposit from Depositor; (b) a statement from Depositor advising there
has not been a release of a new version of the product since the last
deposit; or (c) no response from Depositor.
1.8 Removal of Deposit Materials. The Deposit Materials may be removed and/or
exchanged only on written instructions signed by Depositor and Preferred
Beneficiary, or as otherwise provided in this Agreement.
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ARTICLE 2
CONFIDENTIALITY AND RECORD KEEPING
2.1 Confidentiality. Escrow Agent shall maintain the Deposit Materials in a
secure, environmentally safe, locked facility, which is accessible only to
authorized representatives of Escrow Agent. Escrow Agent shall have the
obligation to reasonably protect the confidentiality of the Deposit
Materials. Except as provided in this Agreement, Escrow Agent shall not
disclose, transfer, make available, or use the Deposit Materials. Escrow
Agent shall not disclose the content of this Agreement to any third party.
If Escrow Agent receives a subpoena or any other order from a court or
other judicial tribunal pertaining to the disclosure or release of the
Deposit Materials, Escrow Agent will immediately notify the parties to this
Agreement unless prohibited by law. It shall be the responsibility of
Depositor and/or Preferred Beneficiary to challenge any such order;
provided, however, that Escrow Agent does not waive its rights to present
its position with respect to any such order. Escrow Agent will not be
required to disobey any order from a court or other judicial tribunal. (See
Section 7.5 below for notices of requested orders.)
2.2 Audit Rights. During the term of this Agreement, Depositor and Preferred
Beneficiary shall each have the right to inspect the written records of
Escrow Agent pertaining to this Agreement. Any inspection shall be held
during normal business hours and following reasonable prior notice.
ARTICLE 3
GRANT OF RIGHTS TO Escrow Agent
3.1 Title to Media. Depositor hereby transfers to Escrow Agent the title to the
media upon which the proprietary technology and materials are written or
stored. However, this transfer does not include the ownership of the
proprietary technology and materials contained on the media such as any
copyright, trade secret, patent or other intellectual property rights.
3.2 Right to Make Copies. Escrow Agent shall have the right to make copies of
the Deposit Materials as reasonably necessary to perform this Agreement.
Escrow Agent shall copy all copyright, nondisclosure, and other proprietary
notices and titles contained on the Deposit Materials onto any copies made
by Escrow Agent. With all Deposit Materials submitted to Escrow Agent,
Depositor shall provide any and all instructions as may be necessary to
duplicate the Deposit Materials including but not limited to the hardware
and/or software needed.
3.3 Right to Transfer Upon Release. Depositor hereby grants to Escrow Agent the
right to transfer Deposit Materials to Preferred Beneficiary in accordance
with Section 4.5. Except upon such a release or as otherwise provided in
this Agreement, Escrow Agent shall not transfer the Deposit Materials.
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ARTICLE 4
RELEASE OF DEPOSIT
4.1 Release Conditions. As used in this Agreement, "Release Conditions" shall
mean the existence of any one or more of the following circumstances,
uncorrected for more than thirty (30) days:
a. Depositor's failure to carry out material obligations imposed on it
pursuant to the License Agreement;
b. Entry of an order for relief for Depositor under Title 11 of the
United States Code;
c. The making by Depositor of a general assignment for the benefit of
creditors;
d. The appointment of a general receiver or trustee in bankruptcy of
Depositor's business or property;
e. Action by Depositor under any state insolvency or similar law for the
purpose of its bankruptcy, reorganization or liquidation; or
f. Depositor's failure to continue to do business in the ordinary course.
4.2 Filing for Release. If Preferred Beneficiary believes in good faith that a
Release Condition has occurred, Preferred Beneficiary may provide to Escrow
Agent written notice of the occurrence of the Release Condition and a
request for the release of the Deposit Materials. Upon receipt of such
notice, Escrow Agent shall provide a copy of the notice to Depositor by
commercial express mail.
4.3 Contrary Instructions. From the date Escrow Agent mails the notice
requesting release of the Deposit Materials, Depositor shall have ten (10)
business days to deliver to Escrow Agent contrary instructions ("Contrary
Instructions"). Contrary Instructions shall mean the written representation
by Depositor that a Release Condition has not occurred or has been cured.
Upon receipt of Contrary Instructions, Escrow Agent shall send a copy to
Preferred Beneficiary by commercial express mail. Additionally, Escrow
Agent shall notify both Depositor and Preferred Beneficiary that there is a
dispute to be resolved pursuant to Section 7.3 of this Agreement. Escrow
Agent will continue to store the Deposit Materials without release pending
(a) joint instructions from Depositor and Preferred Beneficiary; (b)
dispute resolution pursuant to Section 7.3; or (c) order of a court.
4.4 Release of Deposit. If Escrow Agent does not receive Contrary Instructions
from the Depositor, Escrow Agent is authorized to release the Deposit
Materials to the Preferred Beneficiary or, if more than one beneficiary is
registered to the deposit, to release a copy of the Deposit Materials to
the Preferred Beneficiary. However, Escrow Agent is entitled to receive any
fees due Escrow Agent before making the release. Any copying expense in
excess of $300 will be chargeable to Preferred Beneficiary. Upon any such
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release, the escrow arrangement will terminate as it relates to the
Depositor and Preferred Beneficiary involved in the release.
4.5 Right to Use Following Release. Unless otherwise provided in the License
Agreement, upon release of the Deposit Materials in accordance with this
Article 4, Preferred Beneficiary shall have the right to use the Deposit
Materials for the sole purpose of continuing the benefits afforded to
Preferred Beneficiary by the License Agreement. Preferred Beneficiary shall
be obligated to maintain the confidentiality of the released Deposit
Materials.
ARTICLE 5
TERM AND TERMINATION
5.1 Term of Agreement. The initial term of this Agreement is for a period of
one year. Thereafter, this Agreement shall automatically renew from
year-to-year unless (a) Depositor and Preferred Beneficiary jointly
instruct Escrow Agent in writing that the Agreement is terminated; or (b)
Escrow Agent instructs Depositor and Preferred Beneficiary in writing that
the Agreement is terminated for nonpayment in accordance with Section 5.2
or by resignation in accordance with Section 5.3. If the Acceptance Form
has been signed at a date later than this Agreement, the initial term of
the Acceptance Form will be for one year with subsequent terms to be
adjusted to match the anniversary date of this Agreement. If the Deposit
Materials are subject to another escrow agreement with Escrow Agent, Escrow
Agent reserves the right, after the initial one year term, to adjust the
anniversary date of this Agreement to match the then prevailing anniversary
date of such other escrow arrangements.
5.2 Termination for Nonpayment. In the event of the nonpayment of fees owed to
Escrow Agent, Escrow Agent shall provide written notice of delinquency to
the parties to this Agreement affected by such delinquency. Any such party
shall have the right to make the payment to Escrow Agent to cure the
default. If the past due payment is not received in full by Escrow Agent
within one month of the date of such notice, then at any time thereafter
Escrow Agent shall have the right to terminate this Agreement to the extent
it relates to the delinquent party by sending written notice of termination
to such affected parties. Escrow Agent shall have no obligation to take any
action under this Agreement so long as any payment due to Escrow Agent
remains unpaid.
5.3 Termination By Resignation. Escrow Agent reserves the right to terminate
this Agreement, for any reason, by providing Depositor and Preferred
Beneficiary with 60-days' written notice of its intent to terminate this
Agreement. Within the 60-day period, the Depositor and Preferred
Beneficiary may provide Escrow Agent with joint written instructions
authorizing Escrow Agent to forward the Deposit Materials to another escrow
company and/or agent or other designated recipient. If Escrow Agent does
not receive said joint written instructions within 60 days of the date of
Escrow Agent's written termination notice, then Escrow Agent shall destroy,
return or otherwise deliver the Deposit Materials in accordance with
Section 5.4.
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5.4 Disposition of Deposit Materials Upon Termination. Subject to the foregoing
termination provisions, and upon termination of this Agreement, Escrow
Agent shall destroy, return, or otherwise deliver the Deposit Materials in
accordance with instructions. If there are no instructions, Escrow Agent
may, at its sole discretion, destroy the Deposit Materials or return them
to Depositor. Escrow Agent shall have no obligation to destroy or return
the Deposit Materials if the Deposit Materials are subject to another
escrow agreement with Escrow Agent or have been released to the Preferred
Beneficiary in accordance with Section 4.4.
5.5 Survival of Terms Following Termination. Upon termination of this
Agreement, the following provisions of this Agreement shall survive:
a. Depositor's Representations (Section 1.5);
b. The obligations of confidentiality with respect to the Deposit
Materials;
c. The rights granted in the sections entitled Right to Transfer Upon
Release (Section 3.3) and Right to Use Following Release (Section
4.5), if a release of the Deposit Materials has occurred prior to
termination;
d. The obligation to pay Escrow Agent any fees and expenses due;
e. The provisions of Article7; and
f. Any provisions in this Agreement, which specifically state they
survive the termination of this Agreement.
ARTICLE 6
ESCROW AGENT'S FEES
6.1 Fee Schedule. Escrow Agent is entitled to be paid its standard fees and
expenses applicable to the services provided. Unless otherwise stated in
this Agreement or agreed in a writing signed by Escrow Agent, Preferred
Beneficiary will pay Escrow Agent's fees. Escrow Agent shall notify the
party responsible for payment of Escrow Agent's fees at least sixty (60)
days prior to any increase in fees. For any service not listed on Escrow
Agent's standard fee schedule, Escrow Agent will provide a quote prior to
rendering the service, if requested.
6.2 Payment Terms. Escrow Agent shall not be required to perform any service
unless the payment for such service and any outstanding balances owed to
Escrow Agent are paid in full. Fees are due upon receipt of a signed
contract or receipt of the Deposit Materials whichever is earliest. If
invoiced fees are not paid, Escrow Agent may terminate this Agreement in
accordance with Section 5.2.
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ARTICLE 7
LIABILITY AND DISPUTES
7.1 Right to Rely on Instructions. Escrow Agent may act in reliance upon any
instruction, instrument, or signature reasonably believed by Escrow Agent
to be genuine. Escrow Agent may assume that any employee of a party to this
Agreement who gives any written notice, request, or instruction has the
authority to do so. Escrow Agent shall not be required to inquire into the
truth or evaluate the merit of any statement or representation contained in
any notice or document. Escrow Agent shall not be responsible for failure
to act as a result of causes beyond the reasonable control of Escrow Agent.
7.2 Indemnification. Depositor and Preferred Beneficiary each agree to
indemnify, defend and hold harmless Escrow Agent from any and all claims,
actions, damages, arbitration fees and expenses, costs, attorney's fees and
other liabilities ("Liabilities") incurred by Escrow Agent relating in any
way to this escrow arrangement unless such Liabilities were caused solely
by the negligence or willful misconduct of Escrow Agent.
7.3 Dispute Resolution. Any dispute relating to or arising from this Agreement
shall be resolved by arbitration using a panel of three (3) arbitrators
under the Commercial Rules of the American Arbitration Association. Three
arbitrators shall be selected. The Depositor and Preferred Beneficiary
shall each select one arbitrator and the two chosen arbitrators shall
select the third arbitrator, or failing agreement on the selection of the
third arbitrator, the American Arbitration Association shall select the
third arbitrator. However, if Escrow Agent is a party to the arbitration,
Escrow Agent shall select the third arbitrator. Unless otherwise agreed by
Depositor and Preferred Beneficiary, arbitration will take place in
Atlanta, Georgia, USA. Any court having jurisdiction over the matter may
enter judgment on the award of the arbitrators. Service of a petition to
confirm the arbitration award may be made by First Class mail or by
commercial express mail, to the attorney for the party or, if
unrepresented, to the party at the last known business address.
7.4 Controlling Law. This Agreement is to be governed and construed in
accordance with the laws of Georgia, without regard to its conflict of law
provisions.
7.5 Notice of Requested Order. If any party intends to obtain an order from the
arbitrator or any court of competent jurisdiction, which may direct Escrow
Agent to take, or refrain from taking any action, that party shall:
a. Give Escrow Agent at least two business days' prior notice of the hearing;
b. Include in any such order that, as a precondition to Escrow Agent's
obligation, Escrow Agent be paid in full for any past due fees and be
paid for the reasonable value of the services to be rendered pursuant
to such order; and
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c. Ensure that Escrow Agent not be required to deliver the original (as
opposed to a copy) of the Deposit Materials if Escrow Agent may need
to retain the original in its possession to fulfill any of its other
escrow duties.
ARTICLE 8
GENERAL PROVISIONS
8.1 Entire Agreement. This Agreement, which includes the Acceptance Form and
Exhibits described herein, embodies the entire understanding among all of
the parties with respect to its subject matter and supersedes all previous
communications, representations or understandings, either oral or written.
Escrow Agent is not a party to the License Agreement between Depositor and
Preferred Beneficiary and has no knowledge of any of the terms or
provisions of any such License Agreement. Escrow Agent's only obligations
to Depositor or Preferred Beneficiary are as set forth in this Agreement.
No amendment or modification of this Agreement shall be valid or binding
unless signed by all the parties hereto, except that Exhibit 1 need not be
signed by Escrow Agent, Exhibit 2 need not be signed by Preferred
Beneficiary, and the Acceptance Form need only be signed by the parties
identified therein.
8.2 Notices. All notices, invoices, payments, deposits and other documents and
communications shall be given to the parties at the addresses specified
from time to time. It shall be the responsibility of the parties to notify
each other as provided in this Section in the event of a change of address.
The parties shall have the right to rely on the last known address of the
other parties. Unless otherwise provided in this Agreement, all documents
and communications may be delivered by First Class mail.
8.3 Severability. In the event any provision of this Agreement is found to be
invalid, voidable or unenforceable, the parties agree that unless it
materially affects the entire intent and purpose of this Agreement, such
invalidity, voidability or unenforceability shall affect neither the
validity of this Agreement nor the remaining provisions herein, and the
provision in question shall be deemed to be replaced with a valid and
enforceable provision most closely reflecting the intent and purpose of the
original provision.
8.4 Successors. This Agreement shall be binding upon and shall inure to the
benefit of the successors and assigns of the parties. However, Escrow Agent
shall have no obligation in performing this Agreement to recognize any
successor or assign of Depositor or Preferred Beneficiary unless Escrow
Agent receives clear, authoritative and conclusive written evidence of the
change of parties.
8.5 Regulations. Depositor and Preferred Beneficiary are responsible for and
warrant compliance with all applicable laws, rules and regulations,
including but not limited to customs laws, import, export, and re-export
laws and government regulations of any country from or to which the Deposit
Materials may be delivered in accordance with the provisions of this
Agreement.
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IN WITNESS WHEREOF AND INTENDING TO BE BOUND, the parties hereto execute this
Agreement through their authorized representatives as of the date first above
written.
INNERSPACE CORPORATION
By:/s/Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Chief Executive Officer
THE KRC GROUP, INC.
By:/s/Xxxxxx Xxxxx
Xxxxxx Xxxxx
Chief Executive Officer
XXXXXXX & XXXXX, LLP
By:/s/A. Xxxx Xxxxxxx
A. Xxxx Xxxxxxx, Esq.
Partner
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EXHIBIT 1
MATERIALS TO BE DEPOSITED
Depositor represents to Preferred Beneficiary that Deposit Materials delivered
to Escrow Agent shall consist of the following:
Signature: ________________________
Print Name: _______________________
Date: _____________________________
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EXHIBIT 2
DESCRIPTION OF DEPOSIT MATERIALS
Product Name: ____________________________ Version: _____________
DEPOSIT MATERIAL DESCRIPTION:
Quantity Media Type & Size Label Description of Each Separate Item
____ Disk3.5" or ____
____ DAT tape ____mm
____ CD-ROM
____ Data cartridge tape ____
____ TK70 or ____ tape
____ Magnetic tape ____
____ Documentation
____ Other ______________________
PRODUCT DESCRIPTION:
Environment: ______________________________________________________________
DEPOSIT MATERIAL INFORMATION:
Is the media or are any of the files encrypted? Yes / No If yes, please include
any passwords and the decryption tools.
Encryption tool name________________________ Version:__________________
Hardware required: _________________________________________________________
Software required: _________________________________________________________
Other required information: ________________________________________________
I certify for Depositor that the above described Deposit Materials have been
transmitted to Escrow Agent:
Signature: ________________________
Print Name: _______________________
Date: _____________________________
Escrow Agent has inspected and accepted the above materials (any exceptions are
noted above):
Signature: _________________________
Print Name: ________________________
Date Accepted:______________________
Exhibit 2#:_________________________
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EXHIBIT F
SOFTWARE MAINTENANCE SUPPORT POLICY
The KRC Group, Inc. will provide support services for the Licensed Program as
follows:
1. 24X7 telephone support by qualified personnel designated by The KRC Group,
Inc. to assure the performance described in Exhibit B.
2. This level of support will be provided and remain in effect for the term of
the License Agreement (since the License Fees described at Section 3.1 of
the License Agreement include maintenance and support fees).
3. Support services include without limitation the following:
a. Technical services to remedy software application defects.
b. Technical support for hardware, communications or other equipment The
KRC Group, Inc. specifically provides in order for the Licensed
Program to perform in accordance with Exhibit B.
4. Support services are directly provided to employees, agents, affiliates and
officers of InnerSpace Corporation, including Health Unified, Inc. Support
services are not directly provided to end users.
On-site support will be provided at an additional fee of $150.00 / hour as well
as ordinary and customary out of pocket expenses including pre-approved
transportation expenses.
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