EXHIBIT 10.9
AGREEMENT
This Agreement is entered into as of the 9th day of May 2002, by and
among XXXxxxxxx.xxx, Inc., a Colorado corporation ("IDMD"), ToolTrust
Corporation, a Nevada corporation ("ToolTrust"), LocalToolbox Corporation
("LocalToolbox"), ClearDialog Communications, Inc. ("ClearDialog"), Xxxxxx X.
Xxxxxx ("Xxxxxx"), Xxxxxx X. Xxxxx ("Xxxxx"), Xxxxxxx X. Xxxxxx, and Xxxxx X.
Xxxxxxx ("Xxxxxxx").
RECITALS
WHEREAS, pursuant to the Agreement and Plan of Reorganization by and
among IDMD, ToolTrust and certain shareholders of ToolTrust, IDMD acquired 100%
ownership of LocalToolbox and ClearDialog.
WHEREAS, pursuant to the Share Exchange Agreement dated this date by
and among IDMD and the shareholders of LocalToolbox, IDMD acquired 100% of the
8,000,000 IDMD shares formerly owned by the LocalToolbox shareholders, and the
LocalToolbox shareholders reacquired a majority of their shares of LocalToolbox.
WHEREAS, pursuant to a Share Exchange Agreement dated this date by and
among IDMD and certain shareholders of ClearDialog, IDMD acquired 100% of the
2,000,000 IDMD shares formerly owned by the ClearDialog shareholders, and the
ClearDialog shareholders reacquired a majority of their shares of ClearDialog.
WHEREAS, by virtue of the share exchange transactions described above,
all of the remaining shares of stock in LocalToolbox and ClearDialog held by
IDMD or ToolTrust are being canceled as of the date of Closing and neither IDMD
nor ToolTrust shall own or hold any stock in LocalToolbox or ClearDialog.
WHEREAS, by virtue of the share exchange transactions described above,
neither IDMD nor ToolTrust controls LocalToolbox or ClearDialog, and the parties
desire to memorialize agreements by and among IDMD, LocalToolbox and ClearDialog
related to any and all amounts owed, licenses granted, and management of the
respective entities.
WHEREAS, in full and complete satisfaction of all claims or disputes
that IDMD may have now or in the future against LocalToolbox and ClearDialog,
all claims or disputes that LocalToolbox and ClearDialog may have now or in the
future against IDMD, and all claims or disputes that Xxxxxx, Xxxxx and Xxxxxxx
may have now or in the future against each other, the parties have agreed to the
terms set forth below.
NOW, THEREFORE, for and in consideration of the mutual covenants and
representations and warranties of the parties contained herein and other good
and valuable consideration, the receipt of which is hereby acknowledged, IDMD,
LocalToolbox and ClearDialog agree as follows:
1. Agreement.
1.1 Payment. IDMD shall pay to LocalToolbox $150,000 as full
settlement of amounts due LocalToolbox as of the date of this Agreement. The
payment shall be payable in two equal installments of $75,000, with the first
installment due October 19, 2002 and the second due April 19, 2003. LocalToolbox
shall not be obligated to provide additional services to IDMD.
(a) The payment described in Section 1.1 shall be secured by:
(i) 1,500,000 shares of IDMD restricted common stock to be issued
pursuant to this Agreement; and (ii) IDMD's technology and pending
patent application related to its online medical records business
(collectively, the "Collateral"). Appropriate UCC and USPTO liens in
the forms attached hereto as Exhibit "A," shall be prepared by IDMD
(and executed by the owner of the patent pending and the technology),
deliver to LocalToolbox, and recorded, and filed by LocalToolbox.
Upon receipt of timely payment in full, LocalToolbox shall
promptly prepare lien release forms and forward them to IDMD. The
portion of the Collateral consisting of IDMD stock shall be placed in
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escrow pending payment by IDMD as specified in an Escrow Agreement
being executed simultaneously with this Agreement. A copy of the form
of Escrow Agreement is attached hereto as Exhibit "B."
(b) The payment described above represents full and complete
settlement of all amounts which are or may be due for any reason to
LocalToolbox by IDMD.
1.2 Change of Name. ToolTrust shall change its name from "ToolTrust
Corporation" to a name which is not confusing with the business of LocalToolbox
and such name change shall be effective no later than December 31, 2002.
ToolTrust shall take all necessary actions to transfer the right to use the name
"ToolTrust Corporation" to LocalToolbox.
1.3 IDMD Grant of License. Upon execution of this Agreement by all the
parties, IDMD shall execute a license agreement granting to LocalToolbox a
license to use and develop IDMD's online medical records technology in the form
attached hereto as Exhibit "C."
Pursuant to such license, IDMD shall grant a perpetual license to
LocalToolbox to use and develop IDMD's current medical technology at the rate of
$1.00 per subscriber per month with respect to subscribers signed up by
LocalToolbox. This rate of $1.00 per subscriber shall be subject to a
most-favored nation provision. At the option of IDMD, LocalToolbox shall also
manage subscribers signed up by IDMD for such service with respect to IDMD's
technology at a rate of $1.00 per subscriber per month. Any derivative or
enhancement developed by LocalToolbox (but not the original IDMD technology)
shall belong to LocalToolbox.
1.4 Heart of a Champion. IDMD shall retain its agreement with Heart of
a Champion Foundation ("HOC"). IDMD shall consent to LocalToolbox entering into
a separate commercially reasonable agreement with HOC to provide services to HOC
and to be paid for such services by HOC directly.
1.5 Disclaimer of Interest. IDMD and ToolTrust disclaim any interest in
LocalToolbox and ClearDialog and hereby tender to LocalToolbox and ClearDialog
any shares owned or held as of the Closing date for cancellation.
1.6 Transition of Technology Services. For a period of thirty (30)
days, LocalToolbox will use reasonable commercial means to assist IDMD in
maintaining the technology requirements for its online medical records business
currently being serviced by LocalToolbox to avoid a service lapse in accordance
with the terms of the Software License Agreement executed concurrently herewith.
1.7 Press Releases and Xxxxx Filings. In order to make full and fair
disclosure of this transaction and the related share exchanges, IDMD shall issue
appropriate and accurate press releases and make appropriate and accurate Xxxxx
filings with the SEC. LocalToolbox and ClearDialog may also issue such press
releases as it deems appropriate.
1.8 S-8 Stock and Option Issuance.
125,000 shares of IDMD common stock previously issued to Messrs. Evans,
Robbins, and Girvan pursuant to the March 22, 2002 board resolution of IDMD
shall be transferred to LTBX.
1,537,500 options previously issued pursuant to the March 22, 2002
board resolution of IDMD to Messrs. Xxxxx, Xxxxxxx and Xxxxxx and to employees
(Xxxxx Xxxxxxx, Xxxxxx Xxxxxxx, Xxxxxxx Xxxxxxx, Lunatic E'sex, Xxxxx Xxxxxxxx)
shall be exercised by those individuals solely upon the written request of LTBX,
which shall pay the entire required exercise price to IDMD on behalf of these
individuals for such exercise and upon the exercise of such options and the
issuance of the underlying shares, the underlying shares shall be transferred to
LTBX and IDMD shall accept and make prompt transfer in response to each such
transfer request. The options shall be allocated, pro rata, among the various
priced options provided under the March 22, 2002 board resolution of IDMD, with
this provision pertaining to the following options: 537,500 $.25 Options,
500,000 $.50 options, and 500,000 $1.00 options.
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Xxxxx Xxxxxx shall retain all of the shares of common stock issued to
him and options granted to him pursuant to the March 22, 2002, board resolution
of IDMD.
IDMD and ToolTrust represent that all shares of common stock covered by
the March 22, 2002, board resolution of IDMD have been registered on Form S-8.
Xx. Xxxxx, Xx. Xxxxxxx, Xx. Xxxxxx, Xx. Xxxxxxx, Xx. Xxxxxxx, Xx.
Xxxxxxx, Mr. E'sex, and Xx. Xxxxxxxx have each executed and delivered to LTBX an
Irrevocable Stock or Bond Power in the form attached hereto as Exhibit "A."
1.9 Payment to Xxx Xxxxx. IDMD shall pay the sum of $3,000 to Xxx Xxxxx
contemporaneous with the Closing.
1.10 Monies Due. Except as set forth herein, ToolTrust, IDMD, and
Xxxxxx waive all claims for any amount due from LocalToolbox, ClearDialog,
Evans, Robbins, and Girvan, or any of them. Except as set forth herein,
LocalToolbox, ClearDialog, Evans, Robbins, and Girvan waive all claims for any
amount due from ToolTrust, IDMD, and Xxxxxx, or any of them.
2. Resignation of Officers and Directors.
2.1 Resignations of Xxxxx X. Xxxxxxx. Upon execution of this Agreement
by all the parties, Xxxxx X. Xxxxxxx shall execute a resignation letter
resigning as an officer and director of IDMD and ToolTrust.
2.2 Resignations of Xxxxxx X. Xxxxx. Upon execution of this Agreement
by all the parties, Xxxxxx X. Xxxxx shall execute a resignation letter resigning
as an officer and director of IDMD and ToolTrust.
2.3 Resignations of Xxxxxxx X. Xxxxxx. Upon execution of this Agreement
by all the parties, Xxxxxxx X. Xxxxxx shall execute a resignation letter
resigning as a director of IDMD and ToolTrust.
2.4 Resignations of Xxxxxx X. Xxxxxx. Upon execution of this Agreement
by all the parties, Xxxxxx X. Xxxxxx shall execute a resignation letter
resigning as an officer and director of LocalToolbox and ClearDialog.
3. Representations of IDMD, ToolTrust, LocalToolbox and ClearDialog. IDMD,
ToolTrust, LocalToolbox and ClearDialog each hereby represent and warrant that
effective this date, the representations and warranties listed below are true
and correct:
3.1 Organization. Such party is a corporation duly organized, validly
existing and in good standing under the laws of the state of its incorporation
with full power and authority to own and use its properties and conduct its
business as presently conducted by it. Such party is duly qualified and in good
standing to do business as a foreign corporation in any other jurisdiction where
failure to so qualify would have a material adverse effect on its business or
assets.
3.2 Authority. Such party has the requisite corporate authority to
enter into and perform its obligations under this Agreement and to consummate
the transactions contemplated hereby in accordance with the terms hereof. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby will not violate or conflict with any law,
rule, regulation, court or administrative order binding on such party, or result
in the breach of or constitute a default in the performance of any material
obligation, agreement, covenant or condition contained in any material contract,
lease, judgment, decree, order, award, note, loan or credit agreement or any
other material agreement or instrument to which such party is a party or by
which it is bound, the default or breach of which would have a material adverse
effect on the property and assets of such party, considered as a whole. Such
party has taken all requisite corporate action to authorize and approve the
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby. Upon due execution and
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delivery of this Agreement, this Agreement will constitute a valid, legal and
binding obligation of IDMD enforceable against it in accordance with its terms.
4. Representations of IDMD and ToolTrust. IDMD and ToolTrust each hereby
represent and warrant that effective this date, the representations and
warranties listed below are true and correct:
4.1 Medical Technology and Pending Patent. IDMD is the sole owner of
the medical technology and the pending patent application being assigned as
security to LocalToolbox pursuant to paragraph 1.1(a) of this Agreement.
4.2 Share Ownership. Neither IDMD nor ToolTrust has sold, liened,
encumbered, transferred, or otherwise disposed of any shares in LocalToolbox or
ClearDialog.
4.3 Intellectual Property Ownership. Neither IDMD nor ToolTrust has
sold, altered, liened, encumbered, transferred, licensed, or otherwise disposed
of any technology, intellectual property, or intellectual property rights held,
used, or owned by LocalToolbox or ClearDialog.
5. Releases
5.1. Release of IDMD, ToolTrust and Xxxxxx. LocalToolbox, ClearDialog,
Evans, Girvan, and Xxxxxxx hereby absolutely, fully, and forever irrevocably and
unconditionally release IDMD, ToolTrust and Xxxxxx and their respective past and
present officers, directors, shareholders, agents, employees, attorneys,
successors and assigns from any and all action or actions, cause or causes of
action, suits, debts, liabilities, claims, accountings, demands, obligations,
damages, reckonings, and liens of every kind, nature and description whatsoever,
whether known or unknown, anticipated or unanticipated, suspected or unsuspected
based upon or arising out of matters referenced in this Agreement, or any other
matter, cause or anything whatsoever, from the beginning of the world to the
date of this Agreement. Notwithstanding the foregoing, LocalToolbox,
ClearDialog, Evans, Girvan, and Xxxxxxx are entitled to enforce this Agreement
according to its terms.
(a) LocalToolbox, ClearDialog, Xxxxx and Xxxxxxx acknowledge
that they are aware that they may hereafter discover claims or facts in
addition to or different from those which they now know or believes to
exist with respect to the subject matter of this Agreement, but it is
their intention to hereby fully, finally and forever to settle and
release all of the released matters, disputes and differences known or
unknown, except as otherwise expressly provided herein. In furtherance
of this intention, the releases herein given shall be and shall remain
in effect and the complete mutual releases herein given shall be and
shall remain in effect as full and complete mutual releases
notwithstanding discovery or existence of any additional or different
claims or facts.
5.2. Release of LocalToolbox, ClearDialog Evans, Girvan, and Xxxxxxx.
IDMD, ToolTrust and Xxxxxx hereby absolutely, fully, and forever irrevocably and
unconditionally release LocalToolbox, ClearDialog, Xxxxx, Xxxxxx and Xxxxxxx and
their respective past and present officers, directors, shareholders, agents,
employees, attorneys, successors and assigns from any and all action or actions,
cause or causes of action, suits, debts, liabilities, claims, accountings,
demands, obligations, damages, reckonings, and liens of every kind, nature and
description whatsoever, whether known or unknown, anticipated or unanticipated,
suspected or unsuspected based upon or arising out of matters referenced in this
Agreement, or any other matter, cause or anything whatsoever, from the beginning
of the world to the date of this Agreement. Notwithstanding the foregoing, IDMD,
ToolTrust and Xxxxxx are entitled to enforce this Agreement according to its
terms.
(a) IDMD, ToolTrust and Xxxxxx acknowledge that they aware
that they may hereafter discover claims or facts in addition to or
different from those which they now know or believes to exist with
respect to the subject matter of this Agreement, but it is their
intention to hereby fully, finally and forever to settle and release
all of the released matters, disputes and differences known or unknown,
except as otherwise expressly provided herein. In furtherance of this
intention, the releases herein given shall be and shall remain in
effect and the complete mutual releases herein given shall be and
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shall remain in effect as full and complete mutual releases
notwithstanding discovery or existence of any additional or different
claims or facts.
5.3 Right, Title and Interest. Each party warrants and represents to
the others that it is the sole and lawful owner of all right, title and interest
in and to all of the respective released matters and that it has not heretofore
voluntarily, by operation of law or otherwise, assigned or transferred or
purported to assign or transfer to any person whatsoever any released matter or
any part or portion of a claim, demand or right against the others.
5.4 Review of Agreement. Each party hereby represents that such party
has read and understood this Agreement and that such party has discussed, or has
had the opportunity to discuss, this Agreement with the attorney of such party's
choice.
6. Covenant Not to Xxx. Each party covenants for itself and its assigns and
affiliates to refrain from making any claim or demand, or to commence, cause, or
permit to be prosecuted, any action in law or suit in equity against the other,
on account of any and all claims whether now known or unknown, which each party
now has, or at any time heretofore ever had, against the other party, based upon
matters referenced in this Agreement, or any other matter, cause or anything
whatsoever, from the beginning of the world to the date of this Agreement.
Notwithstanding the foregoing, each party is entitled to enforce this Agreement
according to its terms.
7. Miscellaneous.
7.1 Undertakings and Further Assurances. At any time, and from time to
time, hereafter, each party will execute such additional instruments and take
such action as may be reasonably requested by any other party to carry out the
intent and purposes of this Agreement.
7.2 Waiver. Any failure on the part of any party hereto to comply with
any of its obligations, agreements or conditions hereunder may be waived in
writing by the party to whom such compliance is owed.
7.3 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been given if delivered in person or sent by
prepaid first class registered or certified mail, return receipt requested, or
by Federal Express or other means of overnight delivery to the addresses set
forth on the signature page hereof.
7.4 Headings. The paragraph and subparagraph headings in this Agreement
are inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
7.5 Governing Law. This Agreement shall be governed by the laws of the
State of Colorado.
7.6 Binding Effect. This Agreement shall be binding upon the parties
hereto and inure to the benefit of the parties, their respective heirs,
administrators, executors, successors and assigns. This Agreement shall not be
assigned by any party hereto, except upon the consent, in writing, of the other
parties hereto.
7.7 Entire Agreement. This Agreement, including any documents delivered
pursuant to the terms hereof, is the entire agreement of the parties covering
everything agreed upon or understood with respect to the transactions
contemplated hereby and supersedes all prior agreements, covenants,
representations or warranties, whether written or oral, by any party hereto.
There are no oral promises, conditions, representations, understandings,
interpretations or terms of any kind as conditions or inducements to the
execution hereof.
7.8 Time. Time is of the essence. The parties each agree to proceed
promptly and in good faith to consummate the transactions contemplated herein.
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7.9 Expenses. Each of the parties hereto shall pay its own expenses
incurred in connection with the authorization, preparation, execution and
performance of this Agreement and obtaining any necessary regulatory approvals,
including, without limitation, all fees and expenses of their respective
counsel.
7.10 Severability. If any part of this Agreement is deemed to be
unenforceable the balance of the Agreement shall remain in full force and
effect.
7.11 Counterparts and Facsimile Signatures. This Agreement and any
exhibits, attachments, or documents ancillary hereto, may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute one and the same
instrument. Execution and delivery of this Agreement by exchange of facsimile
copies bearing the facsimile signature of a party hereto shall constitute a
valid and binding execution and delivery of this Agreement by such party. Such
facsimile copies shall constitute enforceable original documents.
7.12 Attorneys' Fees. In the event that there is any litigation or
arbitration arising out of, or relating to, this Agreement, the prevailing party
in any such dispute shall be entitled to recover such party's reasonable
attorneys' fees in connection therewith.
IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above written.
XXXXXXXXX.XXX, INC.
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Xxxxxx X. Xxxxxx, Chairman and CEO Address: 0 Xxxxx Xxxxx Xxxxx Xxxx,
Xxxx 00
Xx. Xxxxxxxxxx, XX 00000
TOOLTRUST CORPORATION
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Xxxxxx X. Xxxxxx, Chairman and CEO Address: 0 Xxxxx Xxxxx Xxxxx Xxxx,
Xxxx 00
Xx. Xxxxxxxxxx, XX 00000
LOCALTOOLBOX CORPORATION
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Xxxxx X. Xxxxxxx, CEO Address: 0000 Xxxx Xxxxxxxxx
Xxxx Xxxx, XX 00000
CLEARDIALOG COMMUNICATIONS, INC.
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Xxxxxx X. Xxxxx, President Address: 0000 Xxxx Xxxx.
Xxxx Xxxx, XX 00000
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