EX-10.4 EXCLUSIVE SUPPLY CHAIN SOLUTIONS LICENSE AGREEMENT
EXCLUSIVE SUPPLY CHAIN SOLUTIONS LICENSE AGREEMENT
DATED FOR REFERENCE THE 29th DAY OF AUGUST, 2003
BETWEEN
The Niseda Group, Inc.
Suite 114-201
00000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxx 00000
(hereinafter referred to as "The Niseda Group" or "Licensor")
OF THE FIRST PART,
AND:
Nations Rx, Inc.
Xxxxx 0
0 Xxxxxxx Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxx 00000
(hereinafter referred to as "Nations Rx" or "Licensee")
OF THE SECOND PART,
RECITALS
A. Licensor has developed a business and business model comprised
of unique technology, business plans, economic models, systems,
licenses, patents, trade secrets, trademarks, service marks, know-how
and processes (collectively "the Business" or the "Business Model"
and/or the "proprietary information") for the provision of Group
Purchasing Organization (GPO) Client Advisory services. The Business
is as set out in Schedule A
B. Licensee desires to obtain an exclusive license to establish the
Business worldwide, in all markets, utilizing Licensor's Business
model and proprietary information and acknowledges that use of such
Business model and its proprietary information are subject to
controls and restrictions established by Licensor for the purpose of
maintaining a high level of uniform quality and goodwill in the
operation of the Business.
In consideration of the mutual covenants set forth herein, the
parties hereby agree to the following terms and conditions
ARTICLE ONE
DEFINITIONS
As used in this Agreement, the following terms have the definition
set forth below:
1.1 "Effective Date" means the date on which this License Agreement
has been executed by the latter of the parties to do so.
1.2 "Gross Sales" means the total of all sales transacted at,
through or through the use of the Business model, whether such sales
are evidenced by check, cash, credit, exchange of otherwise,
exclusive of sales tax or other change imposed on sales by any
government authority. "Gross Sales" also includes all payments to
Licensee from Sub-Licensees from revenues generated at, through, or
through the use of the Business model.
1.3 "Net Revenue" shall be Gross Sales less all reasonable expenses
permitted according to generally accepted accounting principles,
consistently applied.
1.3 "Information Package" means the written technical
information prepared by the Licensor, including business plans,
executive summaries, operating plans and other materials, which set
forth the details of the Business model.
1.4 "Territory" means the geographic area consisting of the
world on an exclusive basis.
1.5 "Trademarks" means those, trademarks, copyrights, service
marks and patents set forth in the Information Package.
1.6 "Payments" means payments between Licensor and Licensee as
stated in this License Agreement and shall be made in the form of
U.S. Dollars.
1.7 "Sub Licensees" means persons and entities who sub-license any
or all of the rights licensed to Licensee by Licensor under this
Agreement.
1.8 "Preferred Shares" or "Class A Convertible Preferred Shares"
means the Preferred shares of the Company as further described in
Schedule C.
ARTICLE TWO
GRANT OF EXCLUSIVE LICENSE
2.1 Licensor grants to Licensee a license to engage in, sublicense,
use and operate the Business and or the Business model in the
Territory, all as more specifically defined in Schedule B (herein the
"Licensee's Market") and the right to grant Sub-Licenses in connection
with engaging in, sublicensing, using and operating the Business and
or the Business model upon the terms and subject to the provisions of
this Agreement. The grant of the above license shall be exclusive in
the Territory for the Licensee's Market.
2.2 Licensor grants to Licensee a license to use and display
Licensor's Trademarks in the Territory in connection with the
Business and with regard to the Sub-Licenses granted by Licensee,
upon the terms and subject to the provisions of this Agreement.
2.3 Licensee shall have the right but not the obligation to use the
trademark "The Niseda Group, Inc." or "The Niseda Group" in its
advertisements, in its Corporate name(s), in its daily operations, as
part of its product descriptions and specifically represent and refer
to itself as the exclusive licensee for the Territory for the
Business and Business model
ARTICLE THREE
SITE LOCATION AND EXCLUSIVE TERRITORY
3.1 The Business shall be located in the Territory at locations
("Site Locations") to be selected by Licensee (or Sub-Licensees).
3.2 Subject to the terms of this Agreement, Licensor shall not
directly or indirectly engage in, use or operate the Business, or
license or allow others to directly or indirectly engage in, use or
operate the Business, within the exclusive Territory, in the
Licensee's Market, during the term hereof.
ARTICLE FOUR
TRADEMARKS
4.1 Licensee has no right, title or interest in or to any of the
Trademarks, except for Licensee's privilege and license during the
term hereof to display and use the same. Licensee shall not do or
permit any act or thing to be done in derogation of any of the rights
of Licensor in connection with the Trademarks, whether during the
term of this Agreement or after. Licensee shall use the Trademarks
only for the uses and in the manner licensed under and as provided
in, this Agreement. During or after the term of this Agreement,
Licensee shall not in any way dispute or impugn the validity of the
Trademarks, or the rights of Licensor to them, or the rights of
Licensor or other licensees of Licensor to use them.
4.2 Licensee may utilize and physically affix signs containing the
Trademarks at such places within or without the Business.
4.3 Licensee agrees promptly to notify Licensor and Licensor agrees
to notify Licensee, in writing, of the institution of any suit or
action or any claim of infringement against Licensee or Licensor for
infringement based on use of the Trademarks and proprietary information.
ARTICLE FIVE
TRAINING
5.0 Licensee shall have the exclusive obligation and right to
train and otherwise educate all Sub-Licensees throughout the
Territory. Licensee shall have the right to charge Sub-Licensees for
said training and education.
5.1 Licensor will provide an initial training program for up to 3
individuals to be designated by Licensee, at a time and place to be
designated by Licensor, so that they will be trained in the complete
operation and management of the Business. These individuals must
sign a confidentiality agreement approved by Licensor. This training
program shall provide basic guidance on all aspects of Business
implementation and operation. Should the principals of the Licensor
become employees or independent consultants to the Licensee this
condition could be waived.
5.2 At Licensee's expense during the initial start up period for the
initial Business start up in the Territory, the Licensor shall
provide, if requested by Licensee, a qualified representative to
train and/or operate the Business at the corporate headquarters of
Licensee or at site locations as deemed appropriate by Licensor and
Licensee. Should the principals of the Licensor become employees or
independent consultants to the Licensee this condition could be waived.
5.3 The cost of the initial training program instruction and
assistance except for personal meals, travel, lodging, and other
personal expenses of individuals receiving training shall be paid by
the Licensor.
5.4 Should Licensee request additional assistance at site locations
at any time during the term of this Agreement following start-up,
Licensor shall provide a qualified representative at such times and
places as may be reasonable necessary and mutually convenient.
Licensee shall pay all reasonable personal expenses, plus $300.00 per
day for each such representative. Should the principals of the
Licensor become employees or independent consultants to the Licensee
this condition could be waived.
5.5 Licensor shall have the right from time to time to request
Licensee and/or its manager to attend and complete additional
training courses or programs. Licensee shall bear the cost of all
expenses of such trainees. Licensor shall determine the time and
place of such training in its sole discretion, except that Licensee
shall have the option to have training at Licensee's headquarters at
Licensee's expense. Should the principals of the Licensor become
employees or independent consultants to the Licensee this condition
could be waived.
5.6 Licensor shall make itself available at its office for
consultation and guidance of Licensee in the operation and management
of the Business. Should the principals of the Licensor become
employees or independent consultants to the Licensee this condition
could be waived.
5.7 Each party shall be responsible for obtaining all visas and
other immigration or travel documents required for their respective
personnel in the provision of training and assistance to License
pursuant to this Article 5.
ARTICLE SIX
ADVERTISING
6.1 Licensee shall be responsible for it's own advertising
program and shall bear the cost of same. In the event that in the
future a mutually agreed advertising program is established a
separate agreement will be executed.
6.2 Licensee shall be responsible for providing the proper on
site advertising. This advertising shall include but not be limited
to promotional personnel (at Licensee's discretion to maximize
sales), collateral material and brochures.
6.3 Licensee shall have the exclusive right to initiate and
maintain all advertising relating to its license in all areas of the
Territory.
6.4 Licensor shall furnish to Licensee all advertising and
promotional materials or artwork used by Licensor in its advertising
at the best price Licensor charges to others for such materials.
Further, Licensee and Sub licensee's shall have the express right to
use for their advertising at the best price Licensor charges to
others for such materials all of the Licensor's copyrighted
materials, promotional materials, patents, any brochures, signage,
decals and the like materials. Licensor shall immediately make all
said materials available to the Licensee upon the execution of this
Agreement and upon any change, modification or addition to materials,
including all of the above listed items. Existing artwork, brochures,
collateral and promotional material in small quantities (less than 25
each) will be provided free of charge. On orders over 25, a best
price shall be given. Licensor at its sole discretion, shall make
available to Licensee when possible, camera ready artwork, copy, film
and negatives.
6.5 Licensee shall have the right to charge Sub-Licensees a fee for
Advertisement.
ARTICLE SEVEN
GENERAL RESPONSIBILITIES OF LICENSEE
7.1 Licensee shall purchase and, at all times during the term
hereof, maintain policies of insurance with such minimum standards,
coverages, and limits (or such additional limits or types of
coverage) as Licensee and Licensor may from time to time agree is
appropriate to the risks ensuing from the Licensees operation of the
Business.
7.2 If Licensee has leased the premises for the License Units the
lease shall not grant to the landlord under the lease any rights
against Licensor, nor agree to any other term, condition or covenant
that is inconsistent with any provision of this Agreement. Licensee
shall duly and timely perform all of the terms, conditions, covenants
and obligations imposed under the lease.
7.3 Licensee shall prepare and file all necessary tax returns, and
shall pay any and all local, state/provincial and federal/national
sales and use taxes imposed or incurred, or levied or assessed by any
governmental body, in connection with any part of this Agreement,
promptly, in full, when due, and before any delinquency.
7.4 Licensee shall not, during the term hereof and for a period of 2
years following termination of this Agreement, engage in any business
which offers any products or services which are competitive with the
Business, either as a proprietor, partner, investor, shareholder,
director, officer, employee, principal, agent, advisor or consultant.
7.5 Licensor may from time to time suggest prices for the goods and
services offered by Licensee. Licensee and Licensor agree that the
prices suggested by Licensor are recommendations only and are not
mandatory. Nothing contained in this Agreement shall be deemed a
representation or warranty by Licensor that the use of Licensee's
suggested prices shall produce, increase or optimize profits.
7.6 Except as provided in Section 8.18 and Article 13 below,
Licensee shall protect, defend and indemnify Licensor, its
subsidiaries, affiliates and designees, and shall hold them harmless,
from and against any and all costs, expenses (including attorney's
fees and court costs), losses, liabilities, damages, claims and
demands of every kind or nature, arising in any way out of Licensee's
operation of the Business.
7.7 Licensee agrees to use all commercially reasonable efforts to
promote the distribution, sale, and use of the Business.
GENERAL RESPONSIBILITIES OF LICENSOR:
7.8 Licensor shall provide the Licensee with all applicable
specifications and information required to operate the Business as
intended.
7.9 Licensor shall be responsible for furnishing the Business with
the proper information and assistance for the Licensees operation of
the Business.
7.10 Licensor agrees to use all commercially reasonable efforts to
promote the operation and use of the Business through Licensee.
7.11 Licensor agrees to provide Licensee with all marketing and sales
leads related to the Business, which they generate, and to fairly
devote its efforts to making Licensee a successful venture.
7.12 Licensor agrees to assist Licensee in arranging sufficient
management assistance to pursue the marketing and distribution of the
Businesses Products.
7.13 Licensor agrees to transfer to Licensee all rights, title and
interest in and to the various new products and applications related to
the Business currently being developed or subsequently developed by
Licensor, at no cost.
7.14 Licensor shall protect, defend and indemnify Licensee, its
subsidiaries, affiliates and designees, and shall hold them harmless,
from and against any and all costs, expenses (including attorney's
fees and court costs), losses, liabilities, damages, claims and
demands of every kind or nature, arising in any way out of the
structure of the Business or Business model.
ARTICLE EIGHT
TERM AND RENEWAL
8.1 Unless sooner terminated in accordance with the provisions of
this Agreement, the term of this Agreement shall commence on the
Effective Date of this Agreement and shall terminate 10 years
thereafter. If applicable law in the Territory requires that
Licensor give notice to Licensee with respect to the expiration of
the initial term, this Agreement shall remain in effect on a year-to-
year basis after the expiration of the initial term until Licensor
has given Licensee the notice required by applicable law.
8.2 If Licensee has in all respects complied with the conditions set
forth in this Article 9.2, Licensee shall have the right, but not the
obligation, to enter into a Renewal Agreement for a term commencing
on the day which follows the last day of the initial term and
terminating 10 years thereafter. Licensee shall be entitled to enter
into a Renewal Agreement only if, at the time of Licensee's exercise
of its right to do so, Licensee shall have fully performed all of
Licensee's obligations under this Agreement and shall have received
no more than two verified and justified notices of default during any
twelve (12) month period during the initial term of this Agreement.
If Licensor elects not to renew the Agreement, notice shall be
given six (6) months prior to expiration of term.
8.3 Unless otherwise expressly agreed in writing, the terms of the
Renewal Agreement shall be identical to those of Licensor's then-
current form of license agreement generally offered by Licensor for
the Business.
8.4 Licensee shall not be required to pay any initial license fee
upon entering into a Renewal Agreement.
ARTICLE NINE
PAYMENTS TO LICENSOR FROM LICENSEE
9.1 As an initial license fee, on the Effective Date, Licensee shall
deliver to Licensor a certificate representing 3 million Class A
Convertible Preferred shares (having six to one voting rights and six
to one conversion rights into common shares) of Nations Rx, Inc as
further described in Schedule C.
9.2 As a continuing license fee Licensee shall also pay Licensor a
further 150,000 Class A Convertible Preferred shares, as further
described in Schedule C, for each $5 million in cumulative Net
Revenue derived by Licensee from the use of the Business model by
Licensee or its Sub Licensee's. Licensee shall also pay Licensor as
a continuing license fee, a sum equal to two percent (2%) of the Net
Revenue derived by Licensee from the use of the Business model by
Licensee or its Sub Licensee's, on an annual basis.
9.3 All payments provided for in this Agreement shall be made at
Licensor's or Licensee's (as the case may be) principal place of
business in the manner agreed. No later than 30 days following the
end of each month during the term hereof, Licensee shall,
concurrently with its submission to Licensor of the daily reports for
such month pursuant to Article 12, pay to Licensor the full amount of
the royalty and license fees due to Licensor for such year.
9.4 If Licensee is delinquent in the payment of any obligation,
under this Agreement, Licensee shall pay to Licensor a late payment
fee of 1.5% plus a percentage of the delinquent amount, calculated
daily commencing on the first day that the payment is delinquent and
terminating on the day the delinquent amount is paid. Such
percentage shall be eighteen (18%), on an annualized basis.
Notwithstanding the foregoing, if the amount of the late payment fee
is greater than the amount permitted by applicable law, then such fee
shall be reduced to an amount equal to the maximum lawful fee, it
being the intention of the parties that such late payment fee shall
in no event be greater than that permitted by law.
9.5 All funds due and owing from royalties and/or License fees and
other amounts shall be paid in U.S. Currency. The funds paid to
Licensor shall be converted into U.S. Currency on the first day of
the month in which the payment is to be paid, and all payments to be
made in ACH or wire transfer form, unless another method is requested
by Licensor.
ARTICLE TEN
RECORDS AND REPORTING
10.1 No later than 90 days after the expiration of each quarter of
Licensee's fiscal year and 90 days after the expiration of each
fiscal year, during the term hereof, Licensee shall furnish a full
set of financial statements in U.S. Dollars for such respective
quarter and fiscal year and a balance sheet as of the end of such
quarter and fiscal year certified to be true and correct by Licensee.
ARTICLE ELEVEN
RELATIONSHIP OF PARTIES
11.1 Licensee is and shall be considered an independent contractor
with the entire control and direction of its business and operations,
subject only to the conditions and obligations established by this
Agreement. No agency, employment, or partnership is created by this
Agreement. Licensee's business is separate and apart from any that
may be operated by Licensor. Neither party to this Agreement shall
make any representations tending to create apparent agency,
employment, or partnership. Neither party will have authority to act
for the other in any manner to create obligations or debts binding on
the other, and neither party will be responsible for any obligations
or expenses whatsoever of the other. Neither Licensee nor any person
performing any duties or engaged in any work on the premises at the
request of Licensee shall be deemed an employee or agent of Licensor.
ARTICLE TWELVE
TRANSFER OF INTEREST
12.1 Licensor has the right to assign this Agreement, and all of its
rights, benefits, consideration and privileges. The assignee shall be
financially responsible and capable of performing the obligations of
Licensor; and shall assume and agree to perform all Licensor
obligations under this Agreement.
12.2 With respect to Licensee's obligations, this Agreement is
acknowledged to be a personal one, being entered into in reliance
upon and in consideration of the singular skill, character, and
qualifications of Licensee and its principals, and owners and the
trust and confidence reposed therein by Licensor. Therefore,
Licensee may not effect an assignment, voluntarily or involuntarily,
by operation of law or otherwise, in any manner, without the prior
written consent of Licensor. Licensor may impose, among other
things, the following conditions precedent to its consent to an
assignment: (i) that the assignee (or the principal officers,
shareholders or directors of the assignee in the case of a corporate
assignee) has the skills, qualifications and economic resources
necessary in Licensor's judgment, reasonably exercised, to conduct
the business contemplated by this Agreement, and to fulfill the
assignee's obligations to the Licensor ; (ii) that as of the date of
any such assignment, Licensee shall have fully complied with all of
its obligations to Licensor under this Agreement; (iii) that the
assignee assumes all of the obligations of Licensee under all leases
for the Business, and that Licensee shall not be in default with
respect to any of its obligations under said leases; (iv) that
assignee pay to Licensor the sum of five thousand dollars ($5,000) as
a transfer fee; (v) that in the event of an assignment of this
Agreement, Licensor shall require the assignee to execute a new
agreement in the form and on the terms and conditions then being
offered by Licensor to prospective licensees similarly situated,
except that the assignee shall not be obligated to pay an initial
license fee. The term of the new agreement shall expire on the date
provided herein for the expiration of this Agreement. The execution
of the new License Agreement shall, except for the post-term
obligations of Licensee under this Agreement, be deemed to terminate
this Agreement; (vi) that the assignee, or a manager designated by
the assignee, shall have satisfactorily completed at assignee's cost
and expense, the initial training program then required of all new
licensees of Licensor, unless such training is waived by Licensor, in
writing.
12.3 If the Licensee is not, or at any time ceases to be, a publicly
traded company, the transfer in the aggregate of more than fifty
percent (50 %) of the capital stock or voting power of Licensee if it
is a corporation or of more than a fifty percent (50%) interest if it
is a partnership, as such parties were originally constituted at the
time of the execution of this Agreement, shall be deemed to be an
assignment of this Agreement within the meaning of this Article.
12.4 Licensee shall have no right to pledge, encumber, hypothecate or
otherwise give any third party a security interest in its rights
under this Agreement in any manner whatsoever without the prior
written permission of Licensor, which shall not be unreasonably
withheld.
ARTICLE THIRTEEN
TERMINATION
13.1 Licensor may terminate this Agreement for the following
defaults:
(i) Except with respect to Licensee's failure to pay any
of the sums due Licensor under this Agreement, or any related or
ancillary agreement between the parties, and except as expressly
provided in this Agreement, Licensor may terminate this Agreement
upon a material breach by Licensee of any material provision of this
agreement, but only upon 30 days prior written notice to Licensee,
setting forth the material breach of which Licensor complains. If
Licensee cures such breach before the end of such period, then
Licensor shall have no right to terminate this Agreement because of
such breach. However, if, because of the nature of such breach,
Licensee is unable to cure such breach within such 30 day period,
Licensee shall be given such additional time as is reasonably
necessary within which to cure such breach, upon condition that
Licensee, upon receipt of such notice from Licensor, shall have
immediately commenced to cure such breach and shall continue to use
diligence and all reasonable commercial efforts to do so.
(ii) With respect to any breach by Licensee of its obligation
to pay any sums due under this Agreement, Licensor may terminate this
Agreement upon not less than 30 days prior written notice of such
breach. If Licensee cures such breach before the end of such period,
then Licensor shall have no right to terminate this Agreement because
of such breach.
13.2 Licensor shall have the right to terminate this Agreement
immediately without prior notice to Licensee, upon the occurrence of
any or all of the following events, each of which shall be deemed to
be an incurable breach of this Agreement which Licensee shall have no
right or opportunity to cure.
(i) If Licensee is adjudicated bankrupt or judicially
determined to be insolvent (subject to any contrary provisions of any
applicable laws), admits Licensee's inability to meet its financial
obligations when due, or makes a disposition of all or a substantial
part of its assets to or for the benefit of its creditors, or if the
Business premises are seized, taken over or foreclosed by a
government official in the exercise of such official's duties, or by
a creditor, lienholder or lessor, or if a judgment against Licensee
in the amount of more than $500,000.00 remains unsatisfied (unless an
appeal is filed) for a period of more than 60 days.
(ii) If Licensee is convicted of any felony, or any crime
involving moral turpitude or otherwise relevant to the operation of
the Business;
(iii) If Licensee purports to sell, assign, transfer, pledge,
hypothecate, or encumber, in whole or in part, the Business in
violation of the terms hereof.
(v) If an audit or investigation conducted by Licensor
discloses that Licensee has fraudulently understated Gross Sales or
Net Revenue or has fraudulently withheld the reporting of Gross Sales
or Net Revenue.
13.3 If any valid applicable law or regulation of a governmental
authority having jurisdiction over this Agreement and the Business,
limits Licensor's rights of termination under this Agreement or
requires longer notice periods than those set forth above, this
Agreement shall be deemed amended to conform to the minimum notice
periods or restrictions upon termination required by such laws and
regulations. Licensor shall not, however, be precluded from
contesting the validity, enforceability or application of such laws
or regulations in any action, arbitration, gearing or dispute
relating to this Agreement or to its termination.
13.4 In the event of termination of this Agreement, whether by
reason of default, lapse of time or other cause, Licensee shall
forthwith discontinue the use of the Trademarks, and shall not
thereafter operate or do business under any name or in any manner
that might tend to give the general public the impression that
Licensee is operating the Business and Licensee shall not thereafter
use, in any manner, or for any purpose, directly or indirectly, any
of Licensor's business models, trade secrets, procedures, techniques
or materials acquired by Licensee by virtue of the relationship
established by this Agreement, including, without limitation to the
foregoing:
(i) any manuals, bulletins, instruction sheets and supplements
thereto.
(ii) any forms, advertising matter, marks, devices, insignia,
slogans and designs used from time in connection with the Business or
its Product;
(iii) any Trademarks, or trade names and patents now or
hereafter applied for or granted in connection therewith, and if
Licensee fails or refuses to do so, Licensor may execute, in
Licensee's name and on Licensee's behalf, any and all documents
necessary to cause the discontinuance of Licensee's use of trade
names and Trade marks, and/or any other related name used under this
Agreement. Licensee hereby irrevocably appoints Licensor as
Licensee's attorney-in-fact to do so.
13.5 The termination of this Agreement shall be without prejudice to
the rights of Licensor against Licensee and Licensee against Licensor
and such termination shall not relieve Licensor or Licensee of any of
its obligations to each other or terminate those obligations of
Licensor or Licensee, which by their nature, survive the termination
of this Agreement.
13.6 In the event Licensor is adjudicated a bankrupt under Chapter 7
of the United States Bankruptcy Code, Licensee shall have the right
to all information, licenses, business models, software, actual
programs, software provider names and addresses and any other
material whether copyrighted or patented, that might assist the
Licensee in the Business.
13.7 (i) Upon the expiration or termination of this Agreement,
Licensee shall have no further right to offer or enter into any
additional Sublicense Agreements; and Licensor may itself open, own
or operate, or license others to open own or operate the Business in
the Territory.
(ii) Upon the expiration or termination of this Agreement for
any reason, Licensee shall at Licensee's election, assign to Licensor
its rights and interest in each and every Sublicense or at Licensor's
election assign such Sublicenses to other Licensees of Licensor.
ARTICLE FOURTEEN
DISPUTE SETTLEMENT
14.1 In the event of any dispute or difference arising out of or
relating to this Agreement or the breach thereof, the parties hereto
shall use their best endeavors to settle such disputes or
differences. To this effect, they shall consult and negotiate with
each other, in good faith and understanding of their mutual
interests, to reach a just and equitable solution satisfactory to the
parties. If they do not reach such solution within a reasonable
period of time, then the disputes or differences shall be finally
settled by an Arbitration before an arbitration panel operating in
accordance with the Rules of Conciliation and Arbitration of the
International Chamber of Commerce.
14.2 The arbitration panel shall be formed of 3 (three)
arbitrators, to be appointed by proper authority. The arbitration
shall take place at Las Vegas, Nevada. The arbitrators shall resolve
any dispute or controversy in accordance with the wording and spirit
of this Agreement, and, if there are no controlling provisions, in
accordance with the laws of Nevada.
14.3 The arbitration award shall be final and binding on the
parties, not subject to any appeal, and shall deal with the question
of costs or arbitration and all matters related thereto. The
arbitration proceedings shall be conducted in English and the
arbitration award shall be written in English.
14.4 Judgment upon the award rendered may be entered into any
court having jurisdiction, or application may be made to such court
for a judicial recognition of the award or an order of enforcement
thereof, as the case may be.
ARTICLE FIFTEEN
FORCE MAJEURE
The performance or observance by either party of any obligations of
such party under this Agreement may be suspended by it, in whole or
in part, in the event of any of the following which prevents such
performance or observance: Act of God, war, riot, fire, explosion,
flood, sabotage, injunction, compliance with governmental laws,
regulations, orders or action, or any other cause beyond the
reasonable control of such party; provided, however, that the party
so prevented from complying with its obligations hereunder shall
immediately notify in writing the other party thereof and such party
so prevented shall exercise diligence in an endeavor to remove or
overcome the cause of such inability to comply.
ARTICLE SIXTEEN
CONFIDENTIALITY
16.1 Licensee shall hold in confidence any and all information
disclosed to it by Licensor concerning the Business, business and
marketing plans or strategies, operations and technical advice and
any and all other information of a sensitive business or technical
nature arising under this Agreement. With respect to all such
information, Licensee shall not disclose the same to others without
the Licensor's prior written consent and to limit dissemination of
the same among Licensee's personnel to those persons having a need to
know it for performance of duties under this Agreement. Licensee
shall use such information only for the purposes contemplated by this
Agreement.
16.2 The foregoing obligation concerning confidentiality and
limitations on use of information shall apply for a period five (5)
years after the date of expiration or termination of this Agreement
except insofar as such information is published or otherwise in the
public domain at the time it was disclosed to Licensee or thereafter
becomes published or part of the public domain through no fault of
Licensee; or is obtained by Licensee in good faith without
restrictions on disclosure or use from a third person who did not
derive it from Licensee.
ARTICLE SEVENTEEN
INTEGRATION OF AGREEMENT: AMENDMENT
17.1 This Agreement constitutes the entire agreement between the
parties with reference to the subject matter of this Agreement and
supersedes all prior negotiations, understandings, representations
and agreements, if any. Licensee acknowledges that it is entering
into this Agreement as a result of its own independent investigation
and not as a result of any representations of Licensor, its agents,
officers or employees, not contained in any offering circular,
prospectus, disclosure document, or other similar document required
or permitted to be given to Licensee pursuant to applicable law.
17.2 This Agreement, including but not limited to, this
provision, may not be amended orally, but may be amended only by a
written instrument signed by the parties.
ARTICLE EIGHTEEN
MISCELLANEOUS
18.1 Any notice required or permitted to be given under this
Agreement shall be in writing in the English language and may be hand
delivered, telexed, cabled, sent via facsimile or mailed by airmail
(return receipt requested, postage prepaid) and shall be deemed given
when received. Notices shall be addressed as follows:
(i) Notices to Licensor: address first written above
(ii) Notices to Licensee: address first written above
18.2 English language shall be controlling for all purposes,.
and any language translation shall not affect the meaning or
interpretation of the Agreement.
18.3 This Agreement is executed in two originals, all in the
English language.
18.4 The headings contained in the Agreement are for reference
purposes only and shall not affect the meaning or interpretation of
the Agreement.
18.5 Either party's waiver of any breach, or failure to enforce
any of the terms and conditions of this Agreement, at any time, shall
not in any way affect, limit or waive such party's right thereafter
to enforce and compel strict compliance with every term and condition
of the Agreement.
18.6 The construction, performance and completion of this
Agreement is to be governed by the laws of Nevada, USA, without
giving effect to the principals of conflicts of law thereof.
18.7 Licensor acknowledges that Licensee may be required by the
laws applicable in the Territory to disclose and/or register this
Agreement with governmental authorities, and consents to such
disclosure, provided however, that Licensee shall inform Licensee of
all such required disclosures and/or registrations made by Licensee.
All such registrations, shall, unless prohibited by local law,
identify Licensee as a Licensee of Licensor.
IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above written.
The Niseda Group, Inc.
By: /s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx, President and CEO
Nations Rx, Inc.
By: /s/ Xxxx Xxxxxxxx
Xxxx Xxxxxxxx, Director
By: /s/ Xxx Xxxxxx
Xxx Xxxxxx, Director
Schedule A
The Licensee is acquiring from The Niseda Group Inc. its operating
division currently described as Niseda Advisors-Supply Chain
Solutions. After acquisition the acquired business will be known as
'Nations Rx Supply Chain Solutions'. The Business is a national
client based advisory services firm that focuses on servicing the
healthcare provider continuum. As a full service healthcare
procurement advisory firm, the Business represents a broad cross
section of healthcare providers, from hospitals and health systems to
surgery centers, ambulatory infusion centers and physician practices.
Through our aggregate base of healthcare providers, the Business will
be able to negotiate enhanced revenue positions and lower supply
sided expenditures for our clients. This is accomplished utilizing
both the clients' existing group purchasing relationships as well as
evaluating and recommending potential alternative GPO and
distribution relationships.
The mission of the Business is focused on making hospital and out-of-
hospital healthcare practices more efficient through enhanced supply
chain agreements. The Business will endeavor to flawlessly deliver a
full complement of information and services while exceeding customer
expectations.
The Business will initially offer the following products and
services:
-GPO (Group Purchasing Organization) Advisory Services
-Distribution Advisory Services
-Business Acquisition & Disposition Services
-Specialty Sales & Marketing Program Designs
-Supply Chain Contract Compliance Audit Services
-Initial capabilities will also include web enabled contract product
and service, request for quotation services, manufacturer contract
comparison engines and vendor RFP management services.
Schedule B
1) The extent of the exclusive license granted hereunder for the
Territory is to market the Business as described in Schedule A on a
exclusive worldwide basis
Schedule C
Class A Convertible Preferred Stock
The Company is authorized to issue up to 10,000,000 shares of
Preferred Stock, $0.001 par value per share (the "Authorized
Preferred Stock"). There are 3 million shares of the Company's Class
A Convertible Preferred Stock presently outstanding.
Dividends on Preferred Stock
Shares of Class A Convertible Preferred Stock shall not bear a
dividend unless declared by the Board.
In the event a holder of Class A Convertible Preferred Stock converts
his Class A Convertible Preferred Stock shares to shares of the
Company's Common Stock, all accrued but unpaid dividends shall be
forfeited.
The Class A Convertible Preferred Stock shall be treated equivalently
with the common in all respects as to dividends and the pro ration
thereof.
No series or class of the Company's authorized Preferred Stock may be
hereafter issued which by its terms ranks senior or in parity as to
dividends to or with the Class A Convertible Preferred Stock without
the approval of holders of at least fifty percent (50%) of the Class
A Convertible Preferred Stock.
Liquidation Rights
In case of the voluntary or involuntary liquidation, dissolution or
winding-up of the Company, holders of Shares of the Class A
Convertible Preferred Stock are entitled to receive a liquidation
preference of $1.00 per share plus all accrued but unpaid dividends,
before any payment or distribution is made to the holders of Common
Stock or any other series or class of the Company's stock hereafter
issued which ranks junior as to liquidation rights to the Class A
Convertible Preferred Stock. A consolidation or merger of the Company
with another corporation will be deemed to be a liquidation,
dissolution or winding-up of the Company unless the Company is the
surviving corporation and its shareholders immediately prior to the
consolidation or merger are the holders of at least fifty-one percent
(51%) of the voting equity of the surviving corporation immediately
after the consolidation or merger. A sale or transfer of all or part
of the Company's assets for cash, securities or other property will
not be considered a liquidation, dissolution or winding-up of the
Company.
Holders of shares of any Class A Convertible Preferred Stock issued
in the future shall be entitled to receive a liquidation preference
of $1.00 per share plus an amount equal to any accrued and unpaid
dividends, before any payment or distribution is made to the holders
of Common Stock or any other series or class of the Company's stock
hereafter issued which ranks junior as to liquidation rights to the
Class A Convertible Preferred Stock. To the extent any payment or
distribution is insufficient to pay the entire liquidation preference
on all outstanding shares of Class A Convertible Preferred Stock, the
payment shall be apportioned pro rata among the holders of the Class
A Convertible Preferred Stock in accordance with the purchase price
paid by each shareholder, and thereafter in accordance with any
accrued and unpaid dividends, in proportion to the amount thereof.
Voting Rights for Preferred Stock
The holders of the Class A Convertible Preferred Stock shall vote for
the election of directors, and shall have full and complete voting
rights, except that each Class A Convertible Preferred Stock shall
entitle the holder to exercise six (6) votes for each one (1) Class A
Convertible Preferred Stock held.
Conversion Rights of Preferred Stock
The Company's Articles of Incorporation, as amended, provide that the
holders of the Class A Convertible Preferred Stock will be entitled
at any time to convert their shares of Class A Convertible Preferred
Stock into shares of the Company's Common Stock at the rate of one
(1) share of Class A Convertible Preferred Stock for six (6) shares
of Common Stock until redemption (the "Conversion Ratio"). No
fractional shares will be issued.
The Conversion Ratio of the Class A Convertible Preferred Stock shall
be adjusted in certain circumstances, including the payment of a
stock dividend on shares of the Common Stock and combinations and
subdivisions of the Common Stock.
In the case of any share exchange, capital reorganization,
consolidation, merger or reclassification whereby the Common Stock is
converted into other securities or property, the Company will make
appropriate provisions so that the holder of each share of Class A
Convertible Preferred Stock then outstanding will have the right
thereafter to convert such share of Class A Convertible Preferred
Stock into the kind and amount of shares of stock and other
securities and property receivable upon such consolidation, merger,
share exchange, capital reorganization or reclassification by a
holder of the number of shares of Common Stock into which such shares
of Class A Convertible Preferred Stock might have been convened
immediately prior to such consolidation, merger, share exchange,
capital reorganization or reclassification. If the shares of Common
Stock are subdivided or combined into a greater or smaller number of
shares of Common Stock, or if a dividend is paid on the Common Stock
in shares of Common Stock, the Conversion Ratio shall be
proportionately reduced in case of subdivision of shares or stock
dividend. If the shares of Common Stock are combined into a smaller
number of shares of Common Stock the Conversion Ratio shall not be
increased. The kind and amount of Class A Convertible Preferred
Stock issuable both before and after consolidation of the Common
shares shall be the same.
The same transfer restrictions imposed on the Class A Convertible
Preferred Stock shall be applicable to the Common Stock into which
the Class A Convertible Preferred Stock is converted, although for
purposes of Rule 144 as presently in effect, the holding period
requirement may be met by adding together the period in which the
Class A Convertible Preferred Stock is held and the period in which
the Common Stock into which the Class A Convertible Preferred Stock
is converted, is held.
