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Exhibit 10.34
LICENSE AGREEMENT
(PULSE HOME HEALTH)
THIS LICENSE AGREEMENT ("AGREEMENT") is made as of January 31, 1998, by
and among Xxxxx HealthSystem HealthCorp, a Delaware corporation ("LICENSOR"),
NAHC of Iowa, Inc., a Tennessee corporation ("LICENSEE") and New American
Healthcare Corporation, a Tennessee corporation ("LICENSEE'S PARENT"), with
reference to the following facts:
A. Pursuant to that certain Asset Sale Agreement ("SALE AGREEMENT")
dated December 22,1997 between Xxxxxxxxx Medical Center, Inc., EGH, Inc,
Qualicare of Wyoming, Inc. and Woodland Park Hospital, Inc. (collectively,
"SELLER") and Licensee's Parent, Seller has agreed to sell to Licensee's Parent
substantially all of Seller's assets. The assets subject to the Sale Agreement
include Xxxxxxxxx Medical Center, Eastmoreland Hospital, Lander Valley Medical
Center and Woodland Park Hospital.
X. Xxxxxxxxx Medical Center, Inc. uses the tradename "Pulse Home
Health" (hereinafter "TRADENAME") in connection with its operation of Xxxxxxxxx
Medical Center. Pursuant to the Sale Agreement, Licensee wishes to obtain a
limited license to use the Tradename, and Licensor desires to grant Licensee the
right to use the Tradename only at Xxxxxxxxx Medical Center, for the term hereof
and on the conditions hereinafter set forth, in connection with the ownership
and operation of Xxxxxxxxx Medical Center by Licensee.
NOW, THEREFORE, in consideration of the foregoing and the covenants and
conditions hereinafter set forth, and in consideration of the compensation
payable to Licensor pursuant to the Agreement, Licensor, Licensee and Licensee's
Parent hereby agree as follows:
1. Grant of License.
(a) Subject to the terms and conditions hereinafter set forth,
Licensor grants to Licensee, and Licensee hereby accepts, the right, license and
privilege to use the Tradename only in connection with the development,
ownership and operation of Xxxxxxxxx Medical Center by Licensee. The license
hereby granted extends only to Xxxxxxxxx Medical Center at its current location
or at such other locations as shall be approved by Licensor.
(b) Licensee agrees to pay to Licensor a license fee in the
amount of $10.00 per year during the term of this Agreement.
(c) The rights granted hereunder to Licensee with respect to
the use of the Tradename are non-exclusive and Licensee acknowledges that (i)
Licensor may grant other licenses for the use of the Tradename, the name "Pulse"
or any abbreviations or variations
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thereof, and (ii) that Affiliates of Licensor may use the Tradename, the name
"Pulse" or abbreviations or variations thereof.
(d) Licensee shall not sub-license or assign any of its rights
under this Agreement without Licensor's prior written consent, which consent may
be granted or withheld in Licensor's sole and absolute discretion.
(e) Licensor represents and warrants that the name "Pulse" was
registered with the United States Patent and Trademark Office on October 3, 1995
and that it is the sole owner of the name "Pulse".
2. Term. The term of the license granted herein shall commence on
the date hereof and shall continue until January 31, 2001 unless sooner
terminated in accordance with the provisions of this Agreement.
3. Termination.
(a) Licensor shall have the right to terminate this Agreement,
prior to the expiration of the term hereof, upon the occurrence of any of the
following events:
i) The voluntary or involuntary, actual or attempted,
alienation, sale, assignment, pledge, hypothecation, or transfer of any right,
interest, benefit, performance or obligation of Licensee set forth herein or
arising hereunder without the prior written consent of Licensor. The foregoing
notwithstanding, the hypothecation, mortgage or pledge by Licensee of all of its
assets (including its rights under this Agreement) to secure borrowings from an
institutional lender shall not constitute an event of default hereunder.
ii) Licensee or Licensee's Parent is dissolved or declared
insolvent or bankrupt; or Licensee or Licensee's Parent makes an assignment for
the benefit of creditors; or a receiver, trustee or similar official is
appointed for Licensee, Licensee's Parent or for any of their respective
properties; or any petition is filed or any proceeding is demanded by, for or
against Licensee or Licensee's Parent under any provision of a bankruptcy or
similar law.
(b) Notwithstanding anything contained herein to the contrary,
either Licensee or Licensee's Parent, at its sole option, may terminate this
Agreement at any time during the term of this Agreement upon written notice to
Licensor.
(c) Upon expiration of the term or other termination (for any
reason) of this Agreement all of Licensee's rights under this Agreement shall
(i) terminate and Licensee shall immediately and forever thereafter cease in any
manner whatsoever to use in any way the Tradename, or any variation thereof, and
(ii) remove the Tradename from all materials in
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Licensee's possession that bear the Tradename and certify to Licensor within 30
days of such termination that the Tradename has been so removed.
4. Quality Control. At all times during the duration of this
Agreement, Licensee shall maintain the quality standards set forth herein in
connection with its use of the Tradename hereunder. Licensee may continue using
the Tradename in the manner in which it is used by Xxxxxxxxx Medical Center,
Inc. on the date hereof, but may not use the name New American Healthcare
Corporation, NAHC of Iowa, Inc., or any variation thereof as an integral part of
the Tradename. Licensee shall use the Tradename only in association with
services (a) that are at least equal in quality to those provided by Xxxxxxxxx
Medical Center, Inc. at the date of this Agreement, and (b) that conform with
the accreditation standards of the Joint Commission on Accreditation of
Healthcare Organizations or any successor accreditation body, and all rules and
regulations of any applicable regulatory agency, including without limitation
the Health Care Financing Administration. Licensee agrees that it will not use
the Tradename in a manner that will, or would be likely to, cause harm to the
reputation of Licensor or the goodwill of the Tradename. Any violation of this
Paragraph 4 shall constitute a material breach of this Agreement by Licensee.
5. Indemnification.
(a) Indemnification by Licensee and Licensee's Parent.
Maintenance of the required quality standards for the goods or services with
which the Tradename is associated is solely the joint and several responsibility
of Licensee and Licensee's Parent. Licensee and Licensee's Parent shall jointly
and severally indemnify and hold Licensor harmless from and against any and all
claims, losses, liabilities, damages, demands, suits, actions, proceedings,
costs and expenses of any kind, including reasonable attorneys' fees (including
a reasonable estimate of the allocable costs of in-house legal counsel and
staff) and court costs (whether incurred, paid or required, including without
limitation, those required under penalty of law) resulting from or in connection
with the activities of Licensee pursuant to the license granted herein,
including without limitation, the services offered by Licensee under the
Tradename, or the failure of Licensee to satisfy any of its obligations
hereunder.
(b) Indemnification by Licensor. Neither Licensee nor
Licensee's Parent assumes any liability for any trademark or other infringement
arising from or related to use of the Tradename by Licensor or its Affiliates
(as hereinafter defined). Licensor hereby indemnifies and holds harmless
Licensee from and against all claims, losses, liabilities, damages, demands,
suits, actions, proceedings, costs and expenses of any kind, including
reasonable attorneys' fees and court costs, incurred by Licensee as a result of
or related to any claims arising from or related to use of the Tradename by
Licensor or its Affiliates. As used herein, an "Affiliate" of an entity shall
mean any corporation, partnership, sole proprietorship or any other entity of
any kind whatsoever, whether for profit or not for profit which directly or
indirectly
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through one or more intermediaries, controls, is controlled by or is under
common control with the entity specified. The term "control" means the
possession, direct or indirect, of the power to direct or cause the direction of
the management and policies of an entity.
(c) Notification and Settlement of Claims. Paragraph 16.3
(Notification and Settlement of Claims) of the Sale Agreement shall apply to
claims made under this Paragraph 5 and is incorporated herein by reference.
6. Enforcement. Licensee recognizes Licensor's rights in and to
the Tradename and the name "Pulse". It is understood that Licensee shall not
acquire or claim any title to the Tradename or the name "Pulse" adverse to
Licensor by virtue of the license granted herein or through Licensee's use of
the Tradename, it being the intention of the parties that any use of the
Tradename by Licensee shall at all times inure to the benefit of Licensor.
Licensee agrees to cooperate fully with Licensor to the extent reasonably
necessary to document, secure and protect any and all of Licensor's rights to
the Tradename or the name "Pulse". Licensee agrees during the term of this
Agreement and thereafter to execute and deliver to Licensor such forms as
Licensor shall reasonably request and any and all documents which Licensor deems
reasonably necessary or desirable to protect the rights of Licensor, the
Tradename and the name "Pulse". In the event Licensee learns of any infringement
upon the Tradename or the name "Pulse", it shall promptly notify Licensor of the
same. Licensor reserves the right to decide whether legal proceedings shall be
instituted in the event a third party infringes the Tradename or the name
"Pulse" and shall have the sole responsibility and control over such
proceedings. Any recovery in such legal proceedings shall belong exclusively to
Licensor.
7. Successors and Assigns. Subject to Paragraph 1(d), this
Agreement shall be binding upon the successors and assigns of both parties.
8. Notices. All notices, requests, demands, waivers, consents and
other communications hereunder shall be in writing, may be delivered in person,
by telegraphic, facsimile or other electronic means, by overnight air courier or
by mail, and shall be deemed to have been duly given and to have become
effective (a) upon receipt, if delivered in person or by telegraphic, facsimile
or other electronic means, (b) one business day after having been delivered to
an air courier for overnight delivery or (c) three business days after having
been deposited in the mails as certified or registered mail, return receipt
requested, all fees prepaid, directed to the parties at the following addresses
(or at such other address as shall be given in writing by a party hereto):
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If to Licensee or Licensee's Parent:
New American Healthcare Corporation
000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxx X. XxXxxx, Vice President
Facsimile: (000) 000-0000
With a copy to counsel for Licensee:
Xxxx Xxxx, Esq.
Xxxxxxx Xxxxxx Xxxx Xxxxxxx & Manner
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
If to Licensor:
c/x Xxxxx HealthSystem
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Vice President
Facsimile: (000) 000-0000
With copies to:
Xxxxx HealthSystem
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
and
Xxxx X. Xxxxxx, Esq.
Xxxxx, Xxxxx & Xxxxxx
0000 Xxxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxxx Xxxxx, XX 00000-0000
Facsimile: (000) 000-0000
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9. Further Assurances; Entire Agreement; Amendment. The parties hereto
agree to execute any further documents and instruments which are necessary to
effectuate the substance and intent of this Agreement. This Agreement sets forth
and constitutes the entire agreement and understanding between the parties with
respect to the subject matter hereof, and supersedes any and all prior
agreements, understandings, promises and representation, whether written or
oral, between the parties with respect to the subject matter hereof. This
Agreement may not be released, discharged, amended or modified in any manner
except by an instrument in writing, making specific reference to this Agreement,
and signed duly by authorized representatives of both parties.
10. No Partnership. The relationship hereby established between
Licensor and Licensee is solely that of independent contractors. This Agreement
shall not create an agency, partnership, joint venture, or employer/employee
relationship, and nothing hereunder shall be deemed to authorize either party to
act for, represent or bind the other except as expressly provided in this
Agreement.
11. Severability. If and solely to the extent that any provision of
this Agreement shall be invalid or unenforceable, or shall render this entire
Agreement to be unenforceable or invalid, such offending provision shall be of
no effect and shall not affect the validity of the remainder of this Agreement
or any of its provisions; provided, however, the parties shall use their
respective reasonable efforts to renegotiate the offending provisions to best
accomplish the original intentions of the parties.
12. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of California, without regard to the
principles of conflicts of law theory.
13. Attorneys' Fees. In any litigation or other proceeding relating to
this Agreement or the license granted hereby, the prevailing party shall be
entitled to recover its costs, expenses and disbursements in connection with
such action, including the costs of reasonable investigation, preparation, and
professional or expert consultation and reasonable attorneys' fees (including a
reasonable estimate of the allocable costs of in-house legal counsel and staff).
14. Waiver. No waiver of any right under this Agreement shall be deemed
effective unless contained in writing and signed by the party charged with such
waiver, and no waiver of any right shall be deemed to be a waiver of any future
right or any other right arising under this Agreement. All rights, remedies,
undertakings, obligations, and agreements contained in this Agreement shall be
cumulative and none of them shall be a limitation of any other remedy, right,
undertaking, obligation, or agreement.
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15. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
16. Effective Date. This Agreement and the license granted hereby shall
be effective at 12:01 a.m. on February 1, 1998.
IN WITNESS WHEREOF, the parties hereto have executed this agreement as
of the date first set forth above.
LICENSOR:
XXXXX HEALTHSYSTEM HEALTHCORP
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
LICENSEE:
NAHC OF OREGON, INC.
By: /s/ Xxxx X. XxXxxxxx, Xx.
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Name: Xxxx X. XxXxxxxx, Xx.
Title: Vice President
LICENSEE'S PARENT:
NEW AMERICAN HEALTHCARE
CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: President
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