EXHIBIT 10.9
STRATEGIC MARKETING AGREEMENT
THIS AGREEMENT is entered into as of the 2nd day of September, 1999 (the
"Effective Date"), by and between The XxxXxx.xxx, Inc., a Florida corporation
(the "Company"), and Biomerica, Inc., a Delaware corporation ("Biomerica"),
with reference to the following facts:
WHEREAS, the Company owns and operates a web site on the Internet at
xxx.xxxxxxxxx.xxx which, among other things, is an advanced portal and contains
a metasearch engine.
WHEREAS, Biomerica desires to leverage the traffic through the Company's
website;
NOW, THEREFORE, in consideration of the covenants, agreements and
considerations herein contained, the Company and Biomerica agree as follows:
1. Services. The Company agrees that, during the Term (as defined below), it
shall provide strategic placement of advertising and marketing for Biomerica on
the Company's website, which shall include permanent, perpetual and continuous
advertising on the Company's website and continuous banners on and links from
its website to Biomerica' website (the "Services"). All advertising and banners
shall be pre-approved by Biomerica.
2. Compensation. In consideration for the Services, Biomerica shall issue to
the Company a common stock warrant to purchase 250,000 shares of Biomerica's
restricted common stock with an exercise price equal to $5.00 per share. The
Company's right to exercise the warrant shall vest pro rata over a period of
three (3) years with one-third of the shares vesting on the first, second and
third anniversaries of the date of grant; provided, however, that it shall fully
vest immediately prior to a public offering of the Company's common stock. The
warrant shall have an exercise period of five (5) years commencing on the date
that the Company shall begin providing the Services to Biomerica.
3. Representations and Warranties. Each party to this Agreement represents and
warrants to the other party that:
(a) such party has the full corporate right, power and authority to
enter into this Agreement and to perform the acts required of it hereunder;
(b) the execution of this Agreement by such party, and the
performance by such party of its obligations and duties hereunder, do not and
will not violate such party's charter documents or any agreement to which such
party is a party or by which it is otherwise bound; and
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(c) when executed and delivered by such party, this Agreement will
constitute the legal, valid and binding obligation of such party, enforceable
against such party in accordance with its terms.
4. Term and Termination.
(a) The term of this Agreement shall commence on the date that the
Services start and shall, unless sooner terminated as provided below, remain
effective for an initial term of five (5) years (the "Initial Term"). After the
Initial Term, this Agreement shall automatically be extended for successive
additional five-year periods (each an "Extension Term"), unless otherwise
terminated by either party by giving written notice to the other party of its
intent not to extend not less than thirty (30) days prior to the end of the
Initial Term or any Extension Term then in effect. As used herein, the "Term"
shall mean the Initial Term and any Extension Term(s). Within 60 days of the
prior to the expiration of the Initial Term and each Extension Term, the parties
shall negotiate in good faith the compensation to be paid to the Company for
such year.
(b) Notwithstanding the foregoing, this Agreement may be terminated
at any time by either party, effective immediately upon notice, if the other
party: (i) becomes insolvent; (ii) files a petition in bankruptcy; (iii) makes
an assignment for the benefit of its creditors; or (iv) breaches its obligations
of confidentiality set forth in Section 5 below. Either party may terminate this
Agreement, effective upon thirty (30) days notice, in the event that the other
party breaches any of its representations, warranties, covenants or agreements
contained herein which breach is not remedied within thirty (30) days following
written notice to such party.
(c) Any termination pursuant to this Section 4 shall be without any
liability or obligation of the terminating party, other than with respect to any
breach of obligations under this Agreement prior to termination. The provisions
in Sections 5 and 6 shall survive any termination or expiration of this
Agreement.
Upon any termination of this Agreement, each party shall promptly
deliver to the other party all Confidential Information (defined below) and
property belonging to the other party that is in its possession or under its
control, and neither party shall retain copies or reproductions of such
Confidential Information.
5. Confidentiality and Non-Circumvention.
(a) Each party acknowledges and agrees that it will have access to or
be provided with confidential information of the other party during the term of
this Agreement. As used herein, the term "Confidential Information" shall mean
any and all proprietary or confidential information of a party, including,
without limitation such party's business plan, business presentation or related
proprietary and financial information as well as other
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confidential or proprietary information of such party regarding such party's
business, plans, financial results and statements, markets, projected
activities, customers and results of operations, requirements and sources,
contracts, means, methods and processes of providing services, copyrights,
patents, trademarks, trade secrets, and financial information.
(b) Each party agrees to keep the Confidential Information of the
other party in the strictest confidence, and agrees that it will not, directly
or indirectly, publish or disclose, or authorize the publication or disclosure
of, or assist any third party in publishing or disclosing, any Confidential
Information to anyone other than its employees or consultants, but only to the
extent necessary for the fulfillment of its obligations under this Agreement and
subject in each such case to the such party using its best efforts to ensure
that the persons to whom Confidential Information is disclosed keep such
information confidential and do not use such Confidential Information except for
the purposes for which the disclosure is made. Each party agrees to comply with
the other party's policies and regulations, as may be reasonably established
from time to time, for the protection of its Confidential Information.
(c) Each party's confidentiality obligations shall continue with
respect to each item of Confidential Information, including after the
termination of this Agreement, until such time as such party can show that any
such item of Confidential Information (i) has legally and properly entered the
public domain through a source other than its own and through no fault of its
own, (ii) has legally and properly been received from an unrelated third party
through no breach of any agreement with the other party and without an
obligation to keep it confidential, (iii) was known to such party or was in such
party's possession prior to the receipt of such item of Confidential Information
from the other party, (vi) was independently developed by one party without
reference to the Confidential Information received hereunder.
(d) Each party acknowledges that the other party's Confidential
Information is of a special, unique and extraordinary character and for that
reason the other party will be irreparably damaged in the event that the
confidentiality or non-circumvention obligations imposed upon it, as set forth
herein, are not specifically enforced. Accordingly, each party agrees that the
other party shall be entitled, at its election, to institute and prosecute
proceedings against it, as set forth herein, in any court of competent
jurisdiction, either at law or equity, to: (a) obtain damages for breach of the
obligations hereunder; (b) enforce specific performance of said obligations, or
both. Such remedies are cumulative and not exclusive and shall be in addition to
any and all other remedies which the other party may have, at law or in equity,
in the event the a party breaches any of its obligations hereunder. The parties
hereto confirm that the covenants in this Agreement are expressly deemed to
cover acts of negligence and any inadvertent disclosure or violation of the
terms herein.
6. Independent Contractor Relationship. This Agreement shall in no way be
construed to constitute either party as a partner, joint venturer, agent, or
employee of the other party, and neither party shall act or attempt to act or
represent itself, directly or by implication, as
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a partner, joint venturer, agent or employee of the other party. Neither party
nor any of its respective employees shall have any authority to enter into
contracts, make commitments or otherwise bind the other party to any obligations
without the other party's prior written consent.
7. Miscellaneous.
(a) This Agreement contains the complete and exclusive agreement
between the parties with respect to the subject matter hereof, superseding and
replacing any and all prior agreements, communications, and understandings, both
written and oral, regarding such subject matter. This Agreement may only be
modified, or any rights under it waived, by a written document executed by both
parties.
(b) Neither this Agreement nor any of its provisions are assignable
by either of the contracting parties. This Agreement shall inure to the benefit
of and be binding upon their respective successors in interest and shall extend
to their controlled corporations, partnerships, trusts, proprietorships,
affiliates, and agents.
(c) This Agreement will be governed by and construed in accordance
with the laws of the State of California, without reference to conflicts of laws
rules, and without regard to its location of execution or performance.
(d) If any provision of this Agreement is found invalid or
unenforceable, that provision will be enforced to the maximum extent
permissible, and the other provisions of this Agreement will remain in force.
(e) All notices, requests and other communications called for by this
Agreement shall be deemed to have given upon receipt if made by mail, courier or
personal delivery, or immediately if made by telecopy or electronic (confirmed
by concurrent written notice sent first-class U.S. mail, postage prepaid):
The XxxXxx.xxx, Inc.: Biomerica, Inc.:
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2939 Xxxx Rock 0000 Xxxxxxxx Xxxxxx
Xxxxx 000 Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Xxx Xxxxxxx, Xxxxx 00000 Facsimile: (000) 000-0000
Facsimile: (000) 000-0000 Attn: Xxxxxxx Xxxxx, President/CEO
Attn: Xxxxxxx X. XxXxxxx, President/CEO
or to such other addresses as either party shall specify to the other. Notice
by any other means shall be deemed made when actually received by the party to
which notice is provided.
(f) Except for matters covered by Section 5 above, all disputes
arising out of
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or in connection with this Agreement shall be finally settled under the Rules of
American Arbitration Association ("AAA") by one or more arbitrators appointed in
accordance with said Rules. The place of arbitration shall be Orange County,
California. The parties hereby renounce any right of recourse which they may
have before the court of any jurisdiction except to obtain preliminary or
injunctive relief or enforce an award of the arbitrator.
If any award rendered by AAA in accordance with this arbitration
clause would not be capable of being executed in the jurisdiction of a party
against whom a claim for payment is made or where that party resides or carries
on business, neither the award nor the said arbitration clause shall bar a party
hereto from taking action before the courts that have jurisdiction over such
other party.
(g) In the event that any party shall bring an action or arbitration
in connection with the performance, breach or interpretation hereof, then the
prevailing party in such action, as determined by the court or other body having
jurisdiction, shall be entitled to recover from the losing party in such action,
as determined by the court or other body having jurisdiction, all reasonable
costs and expenses of litigation or arbitration, including reasonable attorneys'
fees, court costs, costs of investigation and other costs reasonably related to
such proceeding, in such amounts as may be determined in the discretion of the
court or other body having jurisdiction.
(h) The various section headings are inserted for purposes of
convenience only and shall not affect the meaning or interpretation of this
Agreement or any section hereof.
(i) No failure of either party to exercise or enforce any of its
rights under this Agreement will act as a waiver of such rights.
(j) This Agreement may be executed in any number of counterparts, all
of which taken together shall constitute a single instrument. Execution and
delivery of this Agreement may be evidenced by facsimile transmission.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives as of the date first written above.
THE XXXXXX.XXX, INC. BIOMERICA, INC.
By: /s/ Xxxxxxx X. XxXxxxx By: /s/ Xxxxxxx Xxxxx
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Xxxxxxx X. XxXxxxx Xxxxxxx Xxxxx
President and CEO President and CEO
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