Exhibit 99.1
TERMINATION AND SALE AGREEMENT
This Termination and Sale Agreement ("Termination and Sale Agreement") is
entered into as of May 31, 2001 ("Effective Date"), by and between Micromedex,
Inc., a Delaware corporation with offices at 0000 Xxxxx Xxxxxxxx Xxx, Xxxxx 000,
Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000-0000 ("Micromedex"), and Semotus Solutions
Inc. with headquarters at 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxx, Xxxxxxxxxx
00000 and Xxxxxx, Inc., a Florida company with offices at 0000 XX 00xx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxx 00000 (hereinafter collectively referred to as "Xxxxxx").
WHEREAS, Micromedex and Xxxxxx entered into that Joint Development Agreement
originally dated January 18, 1999 (the "Agreement"); and
WHEREAS, the parties desire to terminate the Agreement on the terms and
conditions set forth below; and
WHEREAS, Xxxxxx desires to sell, and Micromedex desires to purchase, all of
Xxxxxx'x rights, title and interest to the Assets, as defined below, also on the
terms and conditions set forth below.
NOW, THEREFORE in consideration of the mutual agreements contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. Micromedex and Xxxxxx hereby agree that the Agreement, as incorporated
herein by reference, shall be terminated as of the Effective Date hereof.
2. Xxxxxx hereby sells, assigns, and transfers all rights, title and interest
which it owns in the Product, Derived Products, Source Code, Updates, Work
Product, Documentation and Preexisting Proprietary Materials and in and to
the related copyright, patent, trade secret and other proprietary rights
therein (as those terms are defined in the Agreement) and to any and all
training materials related thereto (collectively, the "Assets") to
Micromedex, for the total sum of $350,000.00 ("Purchase Price"). The
parties agree that the Purchase Price includes any royalties that may have
been due or are due and owing to Xxxxxx from Micromedex under the
Agreement. Xxxxxx shall execute and deliver to Micromedex contemporaneously
with this Termination and Sale Agreement the Copyright Assignment, and any
and all instruments and assignments as may be necessary to carry out the
provisions hereof and the transactions contemplated hereby.
3. The Assets, and all copies thereof, shall be delivered to Micromedex within
seven (7) days of the Effective Date of this Termination and Sale
Agreement. Xxxxxx shall ensure that any copies of the Assets residing on
its computers are deleted therefrom.
4. The Purchase Price shall be due and paid to Xxxxxx by Micromedex within
fourteen (14) days of receipt of the fully executed Termination and Sale
Agreement and Copyright Assignment. Xxxxxx requests that the check be
mailed to Accounts Payable, at 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxx,
XX 00000.
5. Xxxxxx hereby makes the following representations and warranties:
a. The Assets, as delivered to Micromedex, are free of any errors or
defects and the Documentation, as delivered to Micromedex, shall be
sufficient for a trained computer programmer of general proficiency to
maintain and support the Product without assistance from any party.
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x. Xxxxxx has not, as of the Effective Date of this Termination and Sale
Agreement, incorporated any portion of any of the Assets into any
other product, including but not limited to the Dose Assist product.
x. Xxxxxx shall not, after the Effective date of this Termination and
Sale Agreement, incorporate any portion of any of the Assets into any
other product, including but not limited to the Dose Assist product.
d. The Assets do not violate any United States copyrights or other
intellectual property rights of any third party.
e. As of the Effective Date of this Termination and Sale Agreement,
Xxxxxx has good and marketable title to the Assets, free and clear of
any lien or other encumbrance.
f. As of the Effective Date of this Termination and Sale Agreement,
Xxxxxx has full right, power and authority to enter into this
Termination and Sale Agreement and to perform its obligations
hereunder.
g. Entering into this Termination and Sale Agreement and performing its
obligations hereunder will not violate the provisions of any agreement
by which Xxxxxx is bound or of any law or regulation by which Licensor
is governed.
6. Xxxxxx shall indemnify and hold Micromedex, its affiliated corporations and
its and their directors, officers, employees, agents, successors, assigns,
distributors and customers harmless against any and all damages, costs,
judgments, settlements, penalties, attorneys' fees or other costs or
expenses paid or incurred in connection with claims by any party arising
from: (i) Micromedex' use, authorization of use or use by customers of the
Assets; (ii) a claim that Micromedex' use of the Assets infringe the
copyright or other intellectual property right of a third party, or (iii)
any other breach by Xxxxxx of any warranties, terms or conditions of this
Termination and Sale Agreement; except to the extent any such claims
directly result from an addition to or modification of the Assets by
Micromedex. Xxxxxx'x obligations under this Section are subject to the
following conditions: (a) Micromedex provides Xxxxxx with prompt notice of
such claim (provided that the failure to so notify shall not affect
Micromedex's rights to indemnification hereunder unless, and then only to
the extent that, Xxxxxx has been actually prejudiced thereby); and (b)
Micromedex allows Xxxxxx to control the defense and any settlement of the
claim (provided that Xxxxxx may not agree to any settlement that involves
injunctive or equitable relief affecting Micromedex or the Assets or
admission of liability by Xxxxxx without obtaining Micromedex' prior
written consent); and (c) Micromedex provides cooperation as reasonably
requested by Xxxxxx (provided Xxxxxx reimburses Micromedex for any costs
involved in providing the cooperation).
7. For a period of three (3) years after the Effective Date of this
Termination and Sale Agreement, Xxxxxx agrees that it shall not, directly
or indirectly, create, develop, market, license or distribute any product
that is competitive with the Assets. Notwithstanding the above, Xxxxxx may
continue to offer its Handheld Dose Assist product but such product shall
not contain or be enhanced to include any pharmacokinetic dosing system.
The parties acknowledge that a breach of this Paragraph 7 will cause
irreparable injury to Micromedex and that money damages will not provide
adequate remedy therefore. Micromedex shall therefore be entitled to seek
equitable relief, including an injunction, in addition to any remedy it may
have at law or otherwise.
8. The parties agree to keep the terms and conditions of this Termination and
Sale Agreement confidential except insofar as disclosure may be required by
statute, regulation or legal process. Notwithstanding the above, parties
agree to make joint press release within thirty (30) days of the Effective
Date of this Termination and Sale Agreement announcing that the business
entity known as Xxxxxx, Inc., located in Gainesville, Florida, a wholly
owned subsidiary of Semotus Solutions, Inc., is being further
consolidated/integrated into Semotus' core wireless business, by moving in
a direction that focuses on wireless solutions in the medical/healthcare
space. Xxxxxx and Semotus will be developing wireless
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healthcare applications specifically created for use with PDAs and other
handheld devices. Xxxxxx'x Capcil product will no longer be available or
supported. The parties will further announce that Kinetidex 2.0, a leading
pharmacokinetic dosing system co-developed by Xxxxxx, Inc. and Micromedex,
is now solely owned, licensed and supported by Micromedex. Within ten (10)
days of the Effective Date of this Termination and Sale Agreement, all
references to the Capcil product on the Xxxxxx website located at
xxx.xxxxxx.xxx or similar Xxxxxx sites shall state that the Capcil product
is no longer available, reference the Kinetidex product as described above,
and contain a link to the Micromedex website at xxx.xxxxxxxxxx.xxx.
9. The parties acknowledge and represent that they have carefully read and
fully understand all of the terms and conditions set forth in this
Termination and Sale Agreement. The parties further acknowledge and
represent that they enter into this Termination and Sale Agreement freely,
knowingly, and without coercion and based on their own judgment.
10. If any provision of this Termination and Sale Agreement is deemed to be
illegal, invalid, or unenforceable, the legality, validity and
enforceability of the remaining parts shall not be affected.
11. In the event any dispute or controversy arises with respect to this
Termination and Sale Agreement, its breach, interpretation, modification,
or extinction, then the prevailing party shall be entitled to reasonable
attorneys' fees and costs from the adverse party if such dispute or
controversy is finally resolved by administrative or judicial order or
judgment.
12. This Termination and Sale Agreement contains all of the terms and
conditions agreed upon by the parties regarding the subject matter of this
Termination and Sale Agreement. Any prior agreements, promises,
negotiations, or representations, either oral or written, relating to the
subject matter of this Termination and Sale Agreement, not expressly set
forth in this Termination and Sale Agreement are of no force or effect.
13. Any amendment or modification of this Termination and Sale Agreement must
be in writing, and signed by duly authorized representatives of the
parties. Any amendment or modification not made in this manner shall have
no force or effect.
14. Each party agrees to do any and all acts or things reasonably necessary in
connection with the performance of its obligations under this Termination
and Sale Agreement.
15. This Termination and Sale Agreement shall be construed and enforced in
accordance with the laws of the State of Colorado.
IN WITNESS WHEREOF, each of the parties hereto has caused this Termination and
Sale Agreement to be executed by a duly authorized representative.
MICROMEDEX, INC. XXXXXX, INC.
By: /s/ Xxxx Xxxxx By: /s/ Xxxxxxx X. XxXxxx
(Signature) (Signature)
Title: COO, Thomson Healthcare Title: Chief Executive Officer
Date: June 4, 2001 Date: May 31, 2001
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SEMOTUS SOLUTIONS INC.
By: /s/ Xxxxxxx X. XxXxxx
(Signature)
Title: Chief Executive Officer
Date: May 31, 2001
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