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EXHIBIT 99.2
GARRA SCIENCES, INC.
JOINT VENTURE AGREEMENT
This GARRA SCIENCES INC. JOINT VENTURE AGREEMENT ("Agreement") is entered into
as of the latest date set forth on the Signature Page hereof, by and between:
OPTIGENE-X, LLC ("Optigene"), a New Jersey limited liability company with its
principal place of business located at 20 Avenue of the Common, Xxxxx 000,
Xxxxxxxxxx, Xxx Xxxxxx, 00000, and
CAMPAMED, LLC ("CampaMed"), a New Jersey limited liability company with its
principal place of business located at 000 Xxxxxxx Xxxxxx, 00xx xxxxx, Xxx Xxxx,
XX, 00000, and
DB CAPITAL MANAGEMENT, INC. a Delaware corporation and wholly owned
subsidiary of Digital Bridge, Inc., a Nevada corporation, (jointly
"DB") whose principal place of business is located at 00000 Xxxxx 00xx
Xxxxxx, Xxxxxxx, Xxxxxxx, 00000.
RECITALS
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1. Optigene, by and through its employees, agents, and contractors, is in the
business of researching, developing, manufacturing, and packaging a line of
proprietary nutritional supplements which incorporate ingredients proven to
assist in the reversal and/or slowing of the aging process.
2. CampaMed, by and through its employees, agents, and contractors, is in the
business of researching, developing and manufacturing a line of proprietary
nutritional supplements which incorporate ingredients proven to assist in the
reversal and/or slowing of the aging process.
3. DB is an international business architect which creates sales distribution
channels, marketing initiatives, and Internet enterprise solutions through a
suite of applications and professional services.
4. Optigene, CampaMed, and DB desire to work together in a joint venture to
create and manage a new Corporation for the purpose of marketing, selling,
and distributing the Optigene Product Line and the CampaMed Product Line
throughout the world, to be called "Garra Sciences Inc." or such other
name as the parties shall agree ("GSI").
5. The parties enter into this Agreement to clearly set forth the resources
and personnel to be contributed by each party to create, manage, and
administer GSI, and to define each party's percentage of ownership of
thereof.
NOW, THEREFORE, in consideration of the mutual covenants and conditions as
set forth herein, and other valuable consideration, the receipt of which is
hereby acknowledged, the parties agree as follows:
AGREEMENTS
SECTION 1. DEFINITIONS
1.1 DEFINITIONS: The parties agree that, for the purposes of this Agreement,
and for so long as the Joint Venture established by this Agreement is in
effect, the following words shall have the following meanings:
(a) "OPTIGENE PRODUCT LINE" or "OPTIGENE PRODUCTS" refer to any
and all nutritional supplement or other products presently
manufactured or purchased by or for Optigene and/or any
subsidiaries or affiliates thereof, including (but not
limited to) those which incorporate multiple vitamin,
mineral, and herbal supplements, digestive enzymes,
electrolytes, antioxidants, cellular energy compounds,
fatty acids, nucleic acids, amino acids, and any form of
the C-Med 100 nutritional supplement, and any and all
potential pharmaceutical applications associated therewith.
(b) "CAMPAMED PRODUCT LINE" or "CAMPAMED PRODUCTS" refer to any
and all nutritional supplement or other products presently
manufactured or purchased by or for CampaMed and/or any
subsidiaries or affiliates thereof, including (but not
limited to) those which incorporate multiple vitamin,
mineral, and herbal supplements, digestive enzymes,
electrolytes, antioxidants, cellular energy compounds,
fatty acids, nucleic acids, amino acids, and any form of
the C-Med 100 nutritional supplement, and any and all
potential pharmaceutical applications associated therewith.
(c) "GSI" refers to the joint venture corporation to be created pursuant
to this Agreement for the purpose of marketing, selling, and
distributing Optigene Products and CampaMed Products throughout the
United States and to all other markets throughout the world.
(d) "LICENSE" refers to the exclusive and continual licenses that will
be granted to GSI by Optigene and CampaMed, pursuant to separate
Distribution and License agreements, to market, sell, and distribute
the Optigene Product line and the CampaMed Product Line throughout
the world.
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(e) "JOINT VENTURE" refers to the joint undertaking by Optigene,
CampaMed, and DB to form GSI. "Joint Venture" does not refer to the
form of the GSI business entity, which shall be a corporation or
similar limited liability entity.
(f) "FOUNDER'S STOCK" refers to shares of GSI common stock issued to
Optigene, CampaMed, DB, and PlanetLinxs in consideration for their
respective contributions to GSI, as set forth in Section 2.2 of this
Agreement.
(g) "CONFIDENTIAL INFORMATION" shall mean any information, not generally
known in the trade or industry, which was obtained from the parties
to this Agreement, or which was learned, discovered, developed,
conceived, originated, or prepared during or as a result of any
performance hereunder and which falls within the following general
categories:
(i) information relating to trade secrets of the parties;
(ii) information relating to existing or contemplated
products, services, technology, designs, computer systems,
computer software and research, or developments of the
parties;
(iii) information relating to business plans, sales or
marketing methods, methods of doing business, customer lists,
customer usages and/or requirements, names of sales
representatives, and supplier information of the parties;
(iv) information relating to proprietary computer software not
generally known to the public; and
(v) any other confidential information that the parties may
wish to protect by patent, copyright, or by keeping such
information secret and confidential.
(h) "INTELLECTUAL PROPERTY" shall mean all: (i) software; (ii) hardware
and designs therefor; (iii) all patent and inventor rights in the
United States and other countries and applications therefor; (iv)
all copyrights and all other literary property and author rights,
whether or not copyrightable; (v) all know-how, whether or not
protectible by patent, copyright, trade secret or other intellectual
property right, and (vi) all materials incorporating, embodying, or
representing any of the intellectual property, including computer
tape(s) and disks, printouts, notebooks, and other documentation
belonging to either party to this Agreement.
(i) "ANCILLARY AGREEMENTS" shall mean the License Agreement, the
Optigene Exclusive Distribution Agreement, the CampaMed Exclusive
Distribution Agreement, and the Development, Maintenance, and
Management Agreement, and such other documents as the parties, in
their mutual discretion, may deem necessary.
SECTION 2. THE GSI CORPORATION
2.1 FORMATION OF CORPORATION: Within ninety (90) days following the execution
of this Agreement, the parties shall establish a corporation called "Garra
Sciences, Inc." (or such other name to which the parties shall mutually
agree), which shall be a general purpose corporation whose business model
is dedicated to the marketing, sale, and international distribution of
both the Optigene Product Line and the CampaMed Product Line. Within the
time frame set forth above, the parties shall execute any and all (i)
documents necessary to register GSI as a corporation with the proper
governmental offices in the jurisdiction of its incorporation (which the
parties currently contemplate to be the State of Delaware), and, (ii)
subject to the terms and conditions of section 9.1, the parties shall
enter into the Ancillary Agreements. As set forth in Section 5 hereof, GSI
shall be ultimately responsible for the costs associated with the
establishment of GSI, including legal, administrative, and filing costs.
Each party shall contribute to the initial capitalization and property of
GSI as set forth in this Agreement. It is further understood and agreed
that all terms and conditions set forth herein pertaining to the
organization and capital structure of GSI shall be incorporated into
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the articles, bylaws, and/or shareholders' agreements governing the
operation of GSI, as appropriate, as well as the Ancillary Agreements.
(a) ORGANIZATIONAL STRUCTURE: GSI shall be controlled by a Board of
Directors to be initially comprised of two (2) representatives
appointed by Optigene, two (2) representatives appointed by
CampaMed, two (2) representatives appointed by DB, and one (1)
unaffiliated representative to be agreed to by the parties. It is
understood and agreed that GSI may grant additional Board seats to
persons appointed by outside investors; provided, however, that
Board seats shall be staggered in odd numbers up to the maximum
number of Board seats allowable in accordance with the corporate
bylaws, which shall also set forth a reasonable term for the
Director position. The parties further agree that any decision of
the Board of Directors must be approved by at least 75% of the
Directors.
(i) DIRECTOR VETO: It is understood and agreed that the
representatives appointed by CampaMed to the GSI Board of
Directors shall jointly have the power to veto any decision
undertaken by the Board as a whole that pertains to the
distribution or sale of CampaMed products by or through GSI or
any distribution contract between CampaMed and a third party
that is assigned to or assumed by GSI pursuant to this
Agreement.
(b) COMMITTEES: In addition to any other committees it may establish,
the Board of Directors shall establish a Product Distribution
Committee, a Product Review Committee, a Finance Committee an Audit
Committee, and a Scientific Advisory Committee. All persons serving
on such committees shall: (1) do so voluntarily; (2) shall not be
compensated in connection with such service; and (3) shall be
reimbursed for expenses in connection with such service only upon
the prior approval of the GSI CFO. The duties of each Committee are
as set forth herein, or otherwise to be defined by the Board.
(i) PRODUCT DISTRIBUTION COMMITTEE: The Product Distribution
Committee shall plan, establish, and refine the distribution
plan for the Optigene Product Line and the CampaMed Product
Line. The Product Distribution Committee shall be comprised of
three (3) individuals, with one appointed by each party. The
Committee shall meet every three (3) months, and after each
meeting shall provide a report to the Board of Directors
detailing the following: (1) the current status of Product
sales distribution; (2) a revised timeline for future sales
and distribution; (3) product planning suggestions; and (4)
any other matter discussed in the Product Distribution
Committee meeting. The Product Distribution Committee shall be
further responsible for implementing the decisions reached
thereby at any Committee meeting.
(ii) PRODUCT REVIEW COMMITTEE: The Product Review Committee shall
review the Optigene Product Line and the CampaMed Product Line
and shall make suggested changes so as to increase overall
sales. In addition, the Product Review Committee shall review
all medical research reports and testimonials concerning
Optigene Products and CampaMed Products and the components
thereof, and shall discuss the inclusion of outside medical
advisors for any Medical Advisory Committee established by the
Board of Directors. The Product Review Committee shall be
comprised of three (3) individuals, with one appointed by each
party. The Committee shall meet every three (3) months, and
after each meeting shall provide a report to the Board of
Directors detailing the following: (1) suggested changes to
the Optigene Product Line or CampaMed Product Line, if any,
and the reasons behind such suggestions; and (2) any other
matter discussed in the Product Review Committee meeting. The
Product Review Committee shall be further responsible for
implementing the decisions reached thereby at any Committee
meeting.
(iii) FINANCE COMMITTEE: The Finance Committee shall review all
existing and proposed capital expenditures and make long and
short term recommendations with regard to GSI capital
requirements. The Finance Committee shall be comprised of
three (3) individuals, with one appointed by each party. The
Committee shall meet every three (3) months, and after each
meeting shall provide a report to the Board of Directors
detailing its recommendations with regard to capital
expenditures and requirements. The Finance Committee shall be
further responsible for implementing the decisions reached
thereby at any Committee meeting.
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(iv) AUDIT COMMITTEE: The Audit Committee shall oversee the
auditing of GSI's financial records, and shall work with any
internal or external auditor to ensure the proper and accurate
auditing of corporate records. The Audit Committee shall meet
on an as needed basis. The Audit Committee shall be further
responsible for implementing the decisions reached thereby at
any Committee meeting.
(v) SCIENTIFIC ADVISORY COMMITTEE: The Scientific Advisory
Committee shall review the scientific program being carried
out by CampaMed and Optigene to support their respective
product developments as licensed by GSI. The goals outlined by
the Product Review Committee will be evaluated against the
research programs to be conducted by CampaMed and Optigene to
ensure optimization and cost-effective support for the market
development of GSI licensed products. The Scientific Advisory
Committee shall be comprised of three (3) individuals, with
one appointed by each party. The Committee shall meet every
three (3) months, and after each meeting shall provide a
report to the Board of Directors detailing its
recommendations, which may include additional research
projects.
(c) CAPITAL STRUCTURE: The GSI corporation shall be authorized to issue
a minimum of One Hundred Million (100,000,000) common (voting)
shares, Five Million (5,000,000) Series "A" preferred (nonvoting)
shares, at .001 par value, and One Thousand (1,000) Series "B"
preferred (nonvoting) shares. Common shares and Series "B" preferred
shares shall be distributed to each party as founders' stock in
accordance with the equity distribution set forth in Section 2.2
hereof. The disposition of any remaining shares shall be subject to
the will of the Board of Directors and in accordance with applicable
state law.
(i) CAPITAL CONTRIBUTIONS: As set forth in Sections 3, 4, and 5
below, the parties shall make significant contributions to the
initial capitalization of GSI. The parties shall receive the
percentage of stock ownership set forth in Section 2.2 hereof
in consideration for these contributions.
(ii) DIVIDENDS: The Board of Directors shall have the discretion to
authorize dividends to holders of common and/or preferred
stock at such intervals as may be determined by the Board in
the best business judgment of its members.
(d) BUSINESS PLAN: DB shall prepare a comprehensive Business Plan for
GSI in accordance with Section 5 hereof. The GSI Business Plan shall
serve as a guide for the Board of Directors for planning the overall
strategic direction of GSI. However, the parties understand and
agree that the Board of Directors shall not be required to follow
the Business Plan if their best business judgment dictates
otherwise.
(e) INSURANCE: As soon as practicable following the formation of GSI,
the Board of Directors shall obtain D&O, Product Liability, and any
other insurance policies applicable to the business of GSI.
(f) DIRECTOR DECISIONS: Notwithstanding the percentage of share
ownership of GSI, the following specific matters shall be subject to
the unanimous approval of the directors: (i) undertaking steps to
make GSI a public company; (ii) amending the articles of
incorporation; (iii) the sale or transfer of all or substantially
all of the corporate assets; (iv) mergers; (v) consolidations; (vi)
voluntary dissolution; (vii) capital contributions; (viii) capital
distributions; and (ix) any change, alteration, or adjustment in and
to the licensing rights granted to GSI.
2.2 FOUNDERS STOCK DISTRIBUTION: Founders Stock shall be distributed to the
parties in accordance with the following:
(a) TO OPTIGENE: Following execution of this Agreement and the
incorporation of GSI, Optigene shall be issued an amount of Founders
Stock equivalent to thirty five percent (35%) of the initial issued
and outstanding stock of the GSI corporation. When so issued to
Optigene, the Founders Stock shall be considered fully paid and
nonassessable, and shall be represented by a certificate or
certificates issued in accordance with Optigene's
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instructions and duly authorized by the GSI Board of Directors. All
Founders Stock shall be subject to the antidilution protection set
forth in Section 2.3.
(b) TO CAMPAMED: Following execution of this Agreement and the
incorporation of GSI, CampaMed shall be issued an amount of Founders
Stock equivalent to thirty percent (30%) of the initial issued and
outstanding stock of the GSI corporation. When so issued to
CampaMed, the Founders Stock shall be considered fully paid and
nonassessable, and shall be represented by a certificate or
certificates issued in accordance with CampaMed's instructions and
duly authorized by the GSI Board of Directors. All Founders Stock
shall be subject to the antidilution protection set forth in Section
2.3.
(c) TO DB: Following execution of this Agreement and the incorporation
of GSI, DB shall be issued an amount of Founders Stock equivalent to
thirty two percent (32%) of the initial issued and outstanding stock
of the GSI corporation. When so issued to DB, the Founders Stock
shall be considered fully paid and nonassessable, and shall be
represented by a certificate or certificates issued in accordance
with DB's instructions and duly authorized by the GSI Board of
Directors. All Founders Stock shall be subject to the antidilution
protection set forth in Section 2.3.
(d) TO PLANETLINXS: Following execution of this Agreement and the
incorporation of GSI, PlanetLinxs International, Inc., a BVI
corporation, shall be issued an amount of Founders Stock equivalent
to three percent (3%) of the initial issued and outstanding stock of
the GSI corporation in consideration for the services provided by
PlanetLinxs in connection with the organization of the GSI Joint
Venture. When so issued to PlanetLinxs, the Founders Stock shall be
considered fully paid and nonassessable, and shall be represented by
a certificate or certificates issued in accordance with PlanetLinxs'
instructions and duly authorized by the GSI Board of Directors. All
Founders Stock shall be subject to the antidilution protection set
forth in Section 2.3.
2.3 ANTIDILUTION OF FOUNDERS STOCK: The Founders Stock issued to the parties
in accordance with this Agreement shall be subject to antidilution
protection, such that the actual amount of common shares issued to the
parties may increase from time to time throughout the term of this
Agreement to account for additional common stock issuances to third
parties. Notwithstanding the foregoing, the parties recognize the need for
dilution to account for equity issuance to third party investors.
(a) EQUAL DILUTION: The parties agree that they shall share in any
dilutive effects caused by additional stock issuances to third
parties equally, such that each parties' equity interest is subject
to the same percentage of dilution as the other party, and their
relative equity stake remains constant.
(b) MAXIMUM DILUTION: Unless the parties otherwise agree, at no time
during the term of the joint venture shall the parties' combined
equity interest in GSI fall below Fifty One percent (51%) as a
result of dilution. GSI shall issue additional stock to each party
to maintain the minimum equity stake in accordance with this
antidilution provision on a quarterly basis, at the commencement of
each calendar quarter
2.4 DAY-TO-DAY MANAGEMENT: The Parties understand and agree that DB shall
handle the company's day-to-day business operations under the guidance of
the Board of Directors, and that overall strategic direction shall be
undertaken by the Board of Directors.
2.5 SALE OF PRODUCTS: GSI shall have the right to market, sell, and distribute
Products created, developed, and/or manufactured by or for Optigene and
CampaMed, which right is granted pursuant to the Licenses contemplated in
Section 3.1 and 4.1 of this Agreement.
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SECTION 3. RESPONSIBILITIES OF OPTIGENE
3.1 LICENSE TO DISTRIBUTE OPTIGENE PRODUCT LINE: Upon formation of GSI and the
fulfillment of all initial obligations of the parties hereto, and upon the
satisfaction of all conditions set forth in Section 9.1 below, Optigene
shall enter into a License Agreement, under terms which are mutually
satisfactory to the parties hereto, to grant to GSI an exclusive,
continual, and worldwide License to market, sell, and distribute any and
all elements constituting the Optigene Product Line throughout the United
States and all other markets throughout the world.
(a) OPTION TO PURCHASE NEW PRODUCTS: The exclusive rights granted to GSI
pursuant to this Agreement shall extend to any and all new Products
developed by Optigene for so long as Optigene is a participant in
the Joint Venture. GSI shall have the right of first refusal to
purchase and distribute any and all new products on an exclusive
basis.
3.2 EXCLUSIVE DISTRIBUTION AGREEMENT/PRODUCT DELIVERY: As contemplated in
Section 9.1, the Parties shall negotiate in good faith the terms of an
Exclusive Distribution Agreement between GSI and Optigene, which shall
provide for the sale, purchase, and delivery of all Optigene Products
required by GSI.
(a) FIXED PRICE GUARANTEE: The Optigene Exclusive Distribution Agreement
shall set forth a fixed price for the Optigene Product Line that is
equal to the direct cost of manufacturing and packaging plus a
profit margin of thirty percent (30%). The Product prices
established by the Exclusive Distribution Agreement shall be
effective for a period of twelve (12) months, after which the prices
shall be subject to a reasonable rate of increase to be agreed to by
the parties, as detailed in the Executive Distribution Agreement.
(i) AUDITS: Upon the advance written request of the GSI Board of
Directors, Optigene shall provide GSI with an audited
financial statement of Optigene's finances for the preceding
year. Such audited financial statement shall be prepared at
GSI's expense. In addition, during ordinary business hours,
GSI's representatives shall have the right, with reasonable
prior notice, to inspect Optigene's books and records as they
pertain to this Agreement.
(b) MINIMUM PURCHASE GUARANTEE: The Optigene Exclusive Distribution
Agreement shall set forth a minimum of $4.44 million worth of
Optigene Product units to be purchased by GSI on an annual basis.
The minimum purchase guarantee shall be effective for a period of
two (2) years, after which period the minimum purchase amount may be
adjusted as agreed to by the parties.
(c) PAYMENT METHOD: The Optigene Exclusive Distribution Agreement shall
provide for payment to Optigene within thirty days after delivery of
any products. Any payment not made within sixty (60) days following
delivery shall constitute a material breach of this Agreement.
3.3 ASSIGNMENT OF EXISTING SALES AGREEMENTS: Upon the formation of GSI and the
satisfaction of all conditions set forth in Section 9.1, Optigene shall
assign any and all existing and/or contemplated sales contracts for the
sale of Optigene Products to GSI for fulfillment irrespective of the date
of execution of such contract, in accordance with the intent and purpose
of the exclusive License granted herein. Following the execution of this
Agreement, Optigene shall refer all future sales inquiries to GSI.
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3.4 SUPPORT AND TRAINING: Upon the formation of GSI and the satisfaction of
all conditions set forth in Section 9.1, Optigene shall enter into an
agreement to provide support and training in certain minimum amounts as
GSI may, from time to time request. The nature and extent of any required
support and/or training shall be mutually agreed upon between the parties
as required, and shall be provided at the sole expense of GSI. Optigene
shall provide GSI employees with support and training in the benefits,
use, and operation of the Products that comprise the Optigene Product
Line.
3.5 RESEARCH AND DEVELOPMENT: Throughout the term of the Joint Venture,
Optigene shall engage in research, development, and enhancement of the
Optigene Product Line on a continual basis to ensure that the Products
keep pace with the latest scientific advancements and remain competitive.
(a) DEFENSE OF PATENTS: Optigene shall be responsible for defending any
and all challenges to Optigene patents, copyrights, or other
intellectual property rights pursuant to the indemnification
provisions of this Agreement.
(b) R&D BUDGET: Optigene shall establish an internal budget for research
and development, and may request additional funding grants from the
GSI Board of Directors for specific R&D purposes.
3.6 NO LIMITATION ON OTHER OPTIGENE BUSINESS: This Agreement shall in no way
limit Optigene's right to conduct its business as a designer and
manufacturer of lifespan enhancing nutritional supplements, or to
establish anti-aging centers or an anti-aging e-learning company.
SECTION 4. RESPONSIBILITIES OF CAMPAMED
4.1 LICENSE TO DISTRIBUTE CAMPAMED PRODUCT LINE: Upon formation of GSI and the
fulfillment of all initial obligations of the parties hereto, and upon the
satisfaction of all conditions set forth in Section 9.1 below, CampaMed
shall enter into a License Agreement, under terms which are mutually
satisfactory to the parties hereto, to grant to GSI an exclusive,
continual, and worldwide License to market, sell, and distribute those
elements constituting the CampaMed Product Line throughout the United
States and all other markets throughout the world, on such terms as are
mutually acceptable to both parties.
(a) OPTION TO PURCHASE NEW PRODUCTS: The exclusive rights granted to GSI
pursuant to this Agreement shall extend to any and all new Products
developed by CampaMed for so long as CampaMed is a participant in
the Joint Venture. GSI shall have the right of first refusal to
purchase and distribute any and all new products on an exclusive
basis.
4.2 EXCLUSIVE DISTRIBUTION AGREEMENT/PRODUCT DELIVERY: As contemplated in
Section 9.1, the Parties shall negotiate in good faith the terms of an
Exclusive Distribution Agreement between GSI and CampaMed, which shall
provide for the sale, purchase, and delivery of all CampaMed Products
required by GSI.
(a) FIXED PRICE GUARANTEE: The CampaMed Exclusive Distribution Agreement
shall set forth a fixed price for the CampaMed Product Line as
follows: (1) C-Med 100 = $160/kilo; (2) Nicoplex = $35/kilo; (3)
Thiol Test = $22/test (subject to reduction pending automation); (4)
C-Med NZ = price to be agreed upon. The Product prices established
by the Exclusive Distribution Agreement shall be effective for a
period of two (2) years, after which the prices shall be subject to
a reasonable rate of increase to be agreed to by the parties, as
detailed in the Executive Distribution Agreement.
(i) AUDITS: Upon the advance written request of the GSI Board of
Directors, CampaMed shall provide GSI with an audited
financial statement of CampaMed's finances for
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the preceding year. Such audited financial statement shall be
prepared at GSI's expense. In addition, during ordinary
business hours, GSI's representatives shall have the right,
with reasonable prior notice, to inspect CampaMed's books and
records as they pertain to this Agreement.
(b) MINIMUM PURCHASE GUARANTEE: The CampaMed Exclusive Distribution
Agreement shall set forth a minimum of $1.5 million worth of
CampaMed Product units to be purchased by GSI on an annual basis.
The minimum purchase guarantee shall be effective for a period of
twelve (12) months, after which period the minimum purchase amount
may be adjusted as agreed to by the parties.
(c) PAYMENT METHOD: The CampaMed Exclusive Distribution Agreement shall
provide for payment to CampaMed within thirty days after delivery of
any products. Any payment not made within sixty (60) days following
delivery shall constitute a material breach of this Agreement.
4.3 ASSUMPTION OF EXISTING SALES AGREEMENTS: Upon the formation of GSI and the
satisfaction of all conditions set forth in Section 9.1, GSI shall assume
the obligations, liabilities, and benefits of CampaMed's existing and/or
contemplated contracts for the sale or distribution of CampaMed's C-Med
100 Product (subject to the provisions set forth in such contracts),
irrespective of the date of execution of such contract, in accordance with
the intent and purpose of the exclusive License granted herein. In
addition, GSI shall assume all other contracts for the sale or
distribution of other elements of the CampaMed Product Line as soon as
those markets are deemed serviceable by GSI as determined by the Board of
Directors (such assumption not to be unreasonably withheld, provided,
however that such agreements are, in fact assignable or assumable in
accordance with their terms). Following the execution of this Agreement,
CampaMed shall inform GSI of all future sales inquiries.
4.4 SUPPORT AND TRAINING: Upon the formation of GSI and the satisfaction of
all conditions set forth in section 9.1, CampaMed shall enter into an
agreement to provide support and training in certain minimum amounts as
GSI may, from time to time request. The nature and extent of any required
support and/or training shall be mutually agreed upon between the parties
as required, and shall be provided at the sole expense of GSI. CampaMed
shall provide GSI employees with support and training in the benefits,
use, and operation of the Products that comprise the CampaMed Product
Line.
4.5 RESEARCH AND DEVELOPMENT: Throughout the term of the Joint Venture,
CampaMed shall engage in research, development, and enhancement of the
CampaMed Product Line on a continual basis to ensure that the Products
keep pace with the latest scientific advancements and remain competitive.
(a) DEFENSE OF PATENTS: CampaMed shall be responsible for defending any
and all challenges to CampaMed patents, copyrights, or other
intellectual property rights pursuant to the indemnification
provisions of this Agreement.
(b) R&D BUDGET: CampaMed shall establish an internal budget for research
and development, and may request additional funding grants from the
GSI Board of Directors for specific R&D purposes.
4.6 NO LIMITATION ON OTHER CAMPAMED BUSINESS: This Agreement shall in no way
limit CampaMed's right to conduct its business as a designer and
manufacturer of lifespan enhancing nutritional supplements.
SECTION 5. RESPONSIBILITIES OF DB
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5.1 CAPITAL CONTRIBUTION: Following the execution of this Agreement, DB shall
offer investors a total of one million (1,000,000) shares of Digital
Bridge, Inc. Series "A" Convertible Preferred Stock at a price of $5.00
per share (or such other rate as market conditions permit, in sole
discretion of DB) for the purpose of capitalizing GSI. Each share of
Convertible Preferred Stock shall be convertible to one share of GSI
common stock, or a number of DB common shares, at the discretion of the
Investor.
(a) AMOUNT AND TIME OF ANTICIPATED CAPITAL CONTRIBUTION: DB contemplates
raising up to $5 million within ninety (90) days following the
closing of this Agreement as follows:
(i) Up to $200,000 within forty-five (45) days following the
execution of this Agreement. The amount raised within the
initial forty-five (45) day period shall establish an overall
initial valuation for GSI;
(ii) Up to $5 million within ninety (90) days following the
execution of this Agreement (including all amounts previously
infused);
(iii) DB shall be responsible for raising all funds necessary to
conduct GSI business operations and expansion in all future
financing rounds. It is understood and agreed that DB shall
undertake its best efforts in connection with such future
fundraising efforts, with no guarantee of complete or partial
success.
(b) USE OF PROCEEDS: The Parties agree that all proceeds raised for or
on behalf of GSI (less cost of sales) shall be placed in escrow to
be utilized for the initial capitalization and to further the
business of GSI. The Parties hereby agree that the initial funds
shall be utilized as follows:
(i) The sum of $1,110,000 shall be forwarded to Optigene towards
the purchase of Optigene products pursuant under the cost plus
30% pricing structure established in Section 3.2(a) of this
Agreement. The parties further agree that GSI shall pay
Optigene the sum of $1,110,000 on a quarterly basis commencing
90 days following the initial payment referenced in this
subsection, which payments shall apply towards the minimum
purchase guarantee referenced in Section 3.2(b) of this
Agreement. GSI may order additional Products at any time.
(ii) The sum of $1,000,000 shall be forwarded to CampaMed towards
the purchase of CampaMed products pursuant under the pricing
structure established in Section 4.2(a) of this Agreement and
set forth in the Exclusive Distribution Agreement. The parties
further agree that GSI shall pay CampaMed the sum of $375,000
on a quarterly basis commencing 270 days following the initial
payment of the first year referenced in this subsection, which
payments shall apply towards the minimum purchase guarantee
referenced in Section 3.2(b) of this Agreement. GSI may order
additional Products at any time.
(iii) The sum of $350,000 shall be forwarded to DB towards the
establishment of the GSI Online Service as set forth in
Section 5.5 of this Agreement, with $200,000 payable to DB
immediately, and $150,000 payable upon completion of the GSI
Online Service. In addition, initial payment shall be made to
DB for the management, personnel, facilities, and other
services being provided to GSI by DB on a monthly basis, which
payment shall be made to DB on a monthly basis following
receipt of the initial payment.
(iv) Each party shall submit to GSI all costs incurred by each
party that are directly associated with the establishment of
the GSI Joint Venture (together with any receipts associated
therewith), which costs shall be repaid by GSI from the
initial funds in an amount not to exceed $200,000 for each
Party.
(v) All additional funds shall be applied toward the sale and
marketing of the Optigene and CampaMed product lines.
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5.2 FACILITIES AND EQUIPMENT: Upon the formation of GSI and the satisfaction
of all conditions set forth in section 9.1, DB shall enter into an
agreement, upon terms mutually acceptable to all parties hereto, to
provide to GSI, for a period of two (2) years, (the "Startup Period"),
office facilities, communications equipment, computer equipment,
utilities, and any other equipment or facilities necessary to carry out
the expressed business purpose of the GSI corporation as set forth in this
Agreement and the Ancillary Agreements. Such facilities and equipment
shall be detailed in a Development, Maintenance, and Management Agreement
to be executed by DB and GSI, the terms of which shall be negotiated in
good faith by the Parties as set forth in Section 10.1. All facilities and
equipment shall be provided at GSI's sole expense, but not to exceed DB's
actual cost, during the course of the Startup Period. Within ninety (90)
days prior to the expiration of the Startup Period, DB and GSI shall
commence discussions on and thereafter agree to the future disposition of
the facilities and equipment (i.e., the sale and/or lease thereof).
5.3 PERSONNEL: The Development, Maintenance, and Management Agreement shall
also require DB to provide GSI with the management, accounting, sales,
marketing, and technical personnel necessary to carry out the expressed
business purpose of the corporation as set forth in this Agreement and the
exhibits thereto. GSI shall be solely responsible for the payroll, taxes
and benefits of all DB contractors and employees utilized by the GSI
corporation during the Startup Period, the details of which shall be set
forth and agreed upon in the Development, Maintenance, and Management
Agreement. The cost to GSI shall not exceed DB's actual cost. Within
ninety (90) days prior to the expiration of the Startup Period, DB and GSI
shall commence discussions for the future disposition of the DB personnel
then being utilized by GSI. The personnel provided by DB for the joint
venture shall be responsible for the following management services:
(a) INCORPORATION OF GSI: Within ninety (90) days following the
execution of this Agreement, DB shall draft or have drafted all
documents necessary to incorporate GSI in a jurisdiction
advantageous to its operations. Copies of all incorporation and
organization documents shall be submitted to Optigene, CampaMed, and
DB for examination and approval in advance of filing. Following
approval of the form of the documents, DB and its legal counsel
shall take all steps necessary to file the documents in the
appropriate jurisdiction and commence the legal existence of the GSI
corporation. Immediately following the successful incorporation of
GSI, stock certificates or other indicia of ownership shall be
issued to Optigene, CampaMed, DB, and PlanetLinxs representing their
respective ownership of the issued shares of GSI as set forth in
Section 2 of this Agreement. GSI shall be responsible for payment of
all costs necessary to establish the GSI corporation, and shall
reimburse DB for any such costs incurred.
(b) PROMOTION OF ONLINE SERVICE: DB shall be primarily responsible for
publicizing and promoting the GSI Online Service to potential users,
and shall employ any and all reasonable means to attract and bring
users to the GSI Online Service, including (but not limited to)
advertising campaigns in print, radio, and televised media, and
other promotional efforts.
(i) PROMOTIONAL PLAN: DB, together with the GSI Board of
Directors, shall establish a promotional plan to guide its
promotional and advertising efforts for the GSI Online
Service, and shall coordinate its promotional efforts with the
other parties.
(c) BUSINESS CASE ANALYSIS AND IMPLEMENTATION SERVICES: DB shall create
a detailed business plan, which shall include a detailed Executive
Summary, technology assessment, market analysis, marketing plan,
financial pro-formas, and other matters normally associated with
sophisticated business plans.
(d) DEVELOPMENT OF CORPORATE STRATEGY: DB shall develop the core
components and structure of a corporate strategy for GSI through
focused collaborative strategy meetings with the GSI Board of
Directors. Elements of the corporate strategy shall be incorporated
into the business plan and
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investment presentations. Elements of the recommended corporate
strategy to be delivered by DB are as follows:
(i) COMPETITIVE ANALYSIS: DB shall identify key competitors,
competing products, and competitors' market focus and market
share. DB shall also develop a competitor matrix and identify
GSI's core competencies in light of the competitive analysis.
(ii) EVALUATION OF MARKET POTENTIAL: DB shall develop a
comprehensive definition of GSI's current target market,
assess future market growth by geographical region and
industry, and identify potential strategic alliances and
partners.
(iii) FINANCIAL ANALYSIS AND VALUATION: DB shall determine GSI's
current financial requirements and prepare financial
projections for a minimum of three (3) years. Further, DB
shall evaluate GSI's funding requirements over time in the
context of its long-term market goals.
(e) JOINT VENTURE AND STRATEGIC ALLIANCE ANALYSIS SERVICES: DB shall
utilize its extensive industry network connections to seek out and
negotiate joint ventures and strategic alliances (in accordance with
the corporate strategy) so as to rapidly increase the market
presence and overall revenue potential of GSI.
(f) ACCOUNTING, BOOKKEEPING, AND FINANCIAL SERVICES: DB shall provide
GSI with any and all required accounting, bookkeeping, and similar
financial services. DB shall provide the required services in
accordance with GAAP, and shall provide financial reports to the
Board of Directors in accordance with a schedule to be established
thereby. DB shall also arrange for and coordinate, in conjunction
with GSI's audit committee, GSI's annual audit.
(g) INVESTMENT PRESENTATION PREPARATION SERVICES: DB shall prepare
investment presentations, including computer slide presentations,
Internet flash presentations, and written materials tailored to
specific investor groups on a continual basis throughout the term of
this Agreement.
(h) BUSINESS DOCUMENT PREPARATION SERVICES: DB shall provide GSI with
any and all business contracts required by GSI to conduct its
business throughout the term of this Agreement (i.e., Letters of
Intent, Joint Venture Agreements, Sales Distribution Agreements,
Service Agreements, Subscription Agreements, licenses, etc.). DB
shall draft and present all such documents following consultation
with GSI executive management concerning the nature of the business
arrangement that is the subject of the document.
(i) CORPORATE BRANDING SERVICES: DB shall create logos, slogans, and
other
trademarks and servicemarks on behalf of GSI. It is understood and
agreed that all trademarks and servicemarks created by DB for GSI in
accordance with this Agreement shall become the intellectual property
of GSI once selected.
(j) MARKETING MATERIALS: DB, together with Optigene, shall be
responsible for the creation of all outbound marketing materials
(one-sheets, business cards, collateral packages, b2b program
sendouts, etc.) on behalf of GSI.
(k) MARKETING CAMPAIGN: Following identification and clarification of
the corporate position and strategy, DB, in cooperation with
Optigene, shall devise a strategy for broadcasting and target
marketing GSI as a company and a product. It is understood and
agreed that this process may involve certain outside parties,
including those who conduct surveys, publish demographic information
or otherwise assist DB in providing services that are not inherently
part of DB operations.
5.4 FULLY FUNCTIONAL E-COMMERCE WEB SITE: The Development, Maintenance, and
Management Agreement shall also provide for the design, development,
construction, hosting and operation of a fully functional e-commerce
Internet site for the purpose of promoting,
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selling, and distributing the Optigene Product Line and the CampaMed
Product Line on behalf of GSI (the "GSI Online Service"). The GSI Online
Service shall be designed, created, and maintained in accordance with the
Development and Maintenance Agreement, with all costs to be borne by GSI.
5.5 NO LIMITATION ON OTHER DB BUSINESS: This Agreement shall in no way limit
DB from conducting any aspect of its business.
SECTION 6. REVENUES AND BUSINESS RELATIONSHIPS
6.1 REVENUES: The parties anticipate reinvesting all GSI revenues received
during the two years following organization into GSI so as to grow the
business as rapidly as possible, except for commissions payable upon
receipt of sublicense fees.
6.2 BUSINESS AGREEMENTS: Upon the formation of GSI and the satisfaction of all
conditions set forth in section 9.1, the parties hereto shall enter into
the Ancillary Agreements on terms which are satisfactory to all parties
hereto.
SECTION 7. REPRESENTATIONS AND WARRANTIES
7.1 BY OPTIGENE: Optigene hereby represents and warrants that: (1) it has full
and absolute right, title, and interest in and to all elements of the
Optigene Product Line to be licensed to GSI, including all Intellectual
Property Rights associated therewith; and (2) Optigene has not granted a
distribution license for its Product Line to any third party prior to the
execution of this Agreement except as otherwise disclosed.
7.2 BY CAMPAMED: CampaMed hereby represents and warrants that: (1) it has full
and absolute right, title, and interest in and to all elements of the
CampaMed Product Line to be licensed to GSI, including all Intellectual
Property Rights associated therewith; and (2) CampaMed has not granted a
distribution license for its Product Line to any third party prior to the
execution of this Agreement except as otherwise disclosed. It is
understood and agreed that the agreements granting CampaMed rights to the
Nicoplex and Thiol Test products are in process of finalization.
Therefore, this Agreement, as pertains to those products, is subject to
the final execution of those agreements.
7.3 BY DB: DB represents and warrants that it will provide all products and
services (including, but not limited to the GSI Online Service) to GSI as
set forth in Section 5 of this Agreement, and that all products and
services will be provided in a good and workmanlike manner within the time
frame set forth in the Development, Maintenance, and Management Agreement
and in accordance with industry standards.
7.4 NO CIRCUMVENTION: At no time shall any party to this Agreement undertake
any action that has the effect of circumventing the rights of GSI or any
party to this Agreement as granted herein, or otherwise fail to act
affirmatively when such failure has a similar affect of circumvention.
Such prohibited actions and/or inactions include (but are not limited to)
the creation of additional corporate entities to which rights and/or
obligations may be assigned, or the deliberate failure to provide any and
all rights, products, and/or services to GSI as required hereby.
SECTION 8. INDEMNIFICATION
8.1 DB INDEMNIFICATION: DB hereby agrees to indemnify and hold harmless
Optigene and CampaMed, including their affiliates, subsidiaries,
successors, assigns, officers, directors, agents, and employees, from and
against any and all liabilities, damages, losses, expenses,
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claims, demands, suits, fines, or judgments (including, but not limited
to, attorneys' fees, expert witness costs, court costs, and expenses) that
may at any time be threatened against, suffered by, accrued against,
charged to, or recoverable against them in any forum, by reason of DB's
inexcusable failure to perform any material covenant set forth herein for
the establishment of the Garra Sciences Distribution Program. For the
purposes of this section, DB's failure to perform shall be considered
excusable if such failure is due to circumstances beyond DB's influence or
control (i.e., a force majeure event). With the exception of any liability
to Optigene and CampaMed for personal injury or death caused by DB's
negligence, DB's liability under this Agreement shall not exceed the value
of the Founders' Stock received by DB, determined as of the time of the
event giving rise to indemnification.
8.2 OPTIGENE INDEMNIFICATION: Optigene hereby agrees to indemnify and hold
harmless DB and CampaMed, including their affiliates, subsidiaries,
successors, assigns, officers, directors, agents, and employees, from and
against any and all liabilities, damages, losses, expenses, claims,
demands, suits, fines, or judgments (including, but not limited to,
attorneys' fees, expert witness costs, court costs, and expenses) that may
at any time be threatened against, suffered by, accrued against, charged
to, or recoverable against them in any forum by reason of any alleged
defect in the Optigene Product Line, including (but not limited to) a
failure to design and manufacture the Optigene Product Line in accordance
with applicable federal, state, and local regulations; Optigene's failure
to obtain or maintain all permits and licenses required under law in
relation to the manufacture of the Product Line or this Agreement, and any
financial loss, injuries or death of persons or loss of, damage to, or
destruction of property (including loss of use thereof) arising directly
out of the distribution of Optigene products by or through GSI. With the
exception of any liability to DB and CampaMed for personal injury or death
caused by Optigene's negligence, Optigene's liability under this Agreement
shall not exceed the value of the Founders' Stock received by Optigene,
determined as of the time of the event giving rise to indemnification.
8.3 CAMPAMED INDEMNIFICATION: CampaMed hereby agrees to indemnify and hold
harmless DB and Optigene, including their affiliates, subsidiaries,
successors, assigns, officers, directors, agents, and employees, from and
against any and all liabilities, damages, losses, expenses, claims,
demands, suits, fines, or judgments (including, but not limited to,
attorneys' fees, expert witness costs, court costs, and expenses) that may
at any time be threatened against, suffered by, accrued against, charged
to, or recoverable against them in any forum by reason of any alleged
defect in the CampaMed Product Line, including (but not limited to) a
failure to design and manufacture the CampaMed Product Line in accordance
with applicable federal, state, and local regulations; CampaMed's failure
to obtain or maintain all permits and licenses required under law in
relation to the manufacture of the Product Line or this Agreement, and any
financial loss, injuries or death of persons or loss of, damage to, or
destruction of property (including loss of use thereof) arising directly
out of the distribution of CampaMed products by or through GSI. With the
exception of any liability to DB and Optigene for personal injury or death
caused by CampaMed's negligence, CampaMed's liability under this Agreement
shall not exceed the value of the Founders' Stock received by CampaMed,
determined as of the time of the event giving rise to indemnification.
8.4 NOTIFICATION OF CLAIM: Each party shall give prompt written notice to the
others of the receipt of any Claim or the commencement of any action which
is or may be covered by the indemnities set forth above. Upon receipt of
such notice, the party notified of the claim shall assume the defense
thereof and the other party shall, if required for the purpose of such
proceedings, lend its name thereto. The notifying party shall co-operate
fully with the notified party in defending or settling such Claim, and
shall perform all acts, execute all documents, and provide all information
and documents as are reasonably necessary for the notified party to
perform its obligation. The notifying party shall not compromise or settle
any such Claim or any proceedings pursuant thereto without the notified
party's prior written consent.
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SECTION 9. TERM OF AGREEMENT
9.1 CLOSING OF JOINT VENTURE: This Agreement shall close concurrently with the
Ancillary Agreements. DB shall have up to ninety (90) days following the
closing of this Agreement in which to satisfy the fundraising requirements
set forth in Section 5.1(a) of this Agreement, during which time each
party shall continue to act in good faith with regard to the obligations
set forth herein. In the event DB fails to provide the required funds in
accordance with the timelines set forth in Section 5.1, the Joint Venture
shall terminate, and no party hereto shall be under any further obligation
or liability to any other party with respect to the Joint Venture and/or
its termination, except that the parties shall be forever bound by the
terms of Section 11.
9.2 EFFECTIVE PERIOD:
(a) This Agreement shall become effective as of the date last set forth
below and shall remain in effect for ninety (90) days following the
establishment of the GSI Corporation (provided, however, that the
Licenses referenced herein shall remain in full force and effect in
perpetuity in accordance with their terms). However, the parties
understand and agree that, following the establishment of the GSI
Corporation, most of their rights and responsibilities with respect
to the GSI Corporation and each other shall be set forth in and
superseded by the bylaws, shareholders' agreements, and business
agreements described elsewhere in this Agreement. Any rights and/or
responsibilities not specifically superseded shall remain in full
force and effect during the effective term of this Agreement or as
otherwise set forth herein.
9.3 TERMINATION: Notwithstanding the effective period of this Agreement as set
forth in this Section 9, the parties may mutually agree in writing to the
early termination of this Agreement and the Joint Venture created thereby,
at any time during the effective period hereof. In addition, in the event
DB fails to provide the required funds in accordance with the timelines
set forth in Section 5.1, the Joint Venture shall terminate, and no party
hereto shall be under any further obligation or liability to any other
party with respect to the Joint Venture and/or its termination, except
that the parties shall be forever bound by the terms of Section 11. A
termination under this subsection shall not be considered an Event of
Default under Section 9.4 of this Agreement.
9.4 DEFAULT: The occurrence of any one or more of the following events shall
constitute an event of default (the "Event of Default") pursuant to the
terms of this Agreement:
(a) Any party fails to timely, fully, and properly perform any material
covenant, agreement, obligation, term, or condition contained
herein, and such failure continues for a period of thirty (30) days
after receipt by the defaulting party of written notice thereof from
the other party.
(b) Any party: (i) ceases to do business; (ii) takes any action or
otherwise commences legal proceedings to declare bankruptcy, or to
wind-up, liquidate, dissolve, or reorganize (other than a
reorganization while solvent), or (iii) has appointed on its behalf
a receiver, trustee, or similar officer.
9.5 RIGHTS UPON DEFAULT: Upon the occurrence of an Event of Default, the
non-defaulting party shall have the right to: (i) continue this Agreement
without the defaulting party; (ii) terminate this Agreement and the joint
venture set forth herein; (iii) retain a third party to take on the
responsibilities of the defaulting party as set forth herein until the
default is cured; and/or (iv)
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seek all legal and equitable remedies to which it is entitled, including
without limitation all actual and direct damages it may have suffered by
virtue of the breach.
9.6 LIMITATION OF LIABILITY/CONSEQUENTIAL DAMAGES: Under no circumstances
shall either party be liable to the other for lost profits, revenues,
savings, or data, and any other consequential, indirect, special, or
incidental damages that may arise from: (i) the creation and/or operation
of the GSI Corporation as set forth in this Agreement; and (ii) a breach
or default of the terms of this Agreement, including any damages which may
arise under indemnities provided by either party under this Agreement,
regardless of the parties' prior awareness of the potential for such loss.
SECTION 10: ASSIGNMENT
10.1 NO ASSIGNMENT: Except as specifically set forth in this Agreement, neither
party shall sell, assign, license, franchise, sub license, or otherwise
transfer or convey all or any part of this Agreement or the rights or
obligations associated with the Joint Venture created hereby; or the
services provided hereunder to any third person or entity without the
express written consent of the other party in advance.
10.2 LIMITED RIGHT TO ASSIGN: Notwithstanding the preceding paragraph, any
party may, upon thirty (30) days prior written notice to the other
parties, assign this Agreement, in whole or in pertinent part, to any
person or entity succeeding to the business of the assigning party whether
by merger, acquisition, joint venture, or otherwise; provided that such
person or entity shall have the financial and technical capacity to
perform those obligations being assigned in the non-assigning parties'
reasonable opinion. Upon assignment of this Agreement, appropriate
modifications will be made where necessary to give effect to the terms of
this Agreement.
SECTION 11. CONFIDENTIALITY
11.1 CONFIDENTIAL INFORMATION: The party which receives confidential
information from the other party agrees to maintain such information in
secrecy at all times, and to take reasonable steps, including such steps
as it takes to protect its own proprietary information, prior to and after
termination of this Agreement, to prevent the duplication or disclosure of
any such confidential and proprietary information, other than by or to its
own employees or agents who must have access to such information to
perform such party's obligations hereunder. Information of either party
shall not be subject to the obligations imposed by this Section if such
information is publicly available or is lawfully obtained by the
disclosing party from another source free of restrictions or is
independently developed by the disclosing party.
11.2 NON-DISCLOSURE: Neither party shall use, sell, transfer, publish,
disclose, display, or otherwise make available the confidential
information of the other party to any third person, except as permitted or
intended by the terms of this Agreement, or as may be required by
applicable law, in which case the party from whom disclosure is sought
shall:
(i) Promptly notify the other party;
(ii) Use reasonable and lawful efforts to resist making any disclosure of
confidential information not approved by such other party;
(iii) Use reasonable and lawful efforts to limit the amount of
confidential information to be disclosed pursuant to any such
disclosure not approved by such other party; and
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(iv) Use its best efforts to obtain a protective order or other
appropriate relief to minimize the further dissemination of any
confidential information to be disclosed pursuant to any such
disclosure not approved by such other party.
Each party shall ensure that all its employees and agents recognize that
the confidential information of the other party is subject to this
non-disclosure obligation.
11.3 RETURN OF CONFIDENTIAL INFORMATION: Upon termination of this Agreement for
any cause or reason: (i) each party shall deliver to the other party all
of such other party's confidential information (including all copies
thereof) then in its or in its agents' or affiliates' possession, and
shall purge any copies thereof encoded or stored on magnetic or other
electronic media or processors.
11.4 FINANCIAL INFORMATION: It is understood and agreed that, in light of DB's
standing as a public company, any financial information pertaining to GSI
(regardless of whether such information constitutes Confidential
Information) shall not be released to any third party or to the public at
large without the prior written consent of DB's Chief Financial Officer.
11.5 NO ADEQUATE REMEDY AT LAW: Each party acknowledges and agrees that the
other party will have no adequate remedy at law if there is a breach or
threatened breach of this Section and, accordingly, that the other party
shall be entitled to an injunction against such breach. Nothing herein
shall be construed as a waiver of any other legal or equitable remedies
which may be available to either party if the other party breaches this
Section.
11.6 PRESS RELEASES AND OTHER PUBLIC ANNOUNCEMENTS: It is understood and agreed
that the execution of this Agreement and the establishment of the Joint
Venture shall not be considered Confidential Information, and each party
shall have the right to issue press releases and other public
announcements concerning its involvement with the same, provided, however,
that any press release which references any other Party or that Party's
products and/or services shall be subject to the prior written approval of
the party so referenced, which approval shall not be unreasonably upheld.
SECTION 12. INTELLECTUAL PROPERTY RIGHTS
12.1 OWNERSHIP: The parties understand and agree that, notwithstanding any
licenses or other rights granted elsewhere herein, any and all rights
associated with Intellectual Property developed by Optigene, CampaMed
and/or DB, including, but not limited to, the Optigene Product Line, the
CampaMed Product line, and any software, computer hardware, source code,
object code and machine executable code are and shall remain the sole
property of Optigene, CampaMed, and/or Digital Bridge, as was the case
prior to the execution of this Agreement. The parties understand and agree
that all other Intellectual Property rights associated with the
establishment, development, and operation of the GSI Corporation,
including any trade names, trademarks, trade dress, service marks, logos,
slogans, software, computer hardware, processes, printed materials, and/or
voice/television/internet advertising materials that are developed in
connection therewith, shall become the property of the GSI Corporation.
Notwithstanding the foregoing, upon the termination of the License, the
License and all associated Intellectual Property rights shall revert to
Optigene and/or CampaMed as set forth in Section 3 and 4 of this
Agreement.
12.2 USE OF INTELLECTUAL PROPERTY: Each party shall have the right, without
prior approval, to utilize the other parties' name, logo, and other
Intellectual Property in connection with the marketing and promotion of
GSI to third parties. The parties hereby agree to take reasonable steps to
protect the Intellectual Property of the other party, including such steps
as it takes to protect its own Intellectual Property, while promoting and
marketing GSI.
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SECTION 13. GENERAL PROVISIONS
13.1 NOTICES: Any notice or communication required under this Agreement to be
made to either party shall be typewritten in English and shall be
considered delivered when personally delivered, delivered by registered
mail with confirmed receipt (postage prepaid), or delivered by overnight
courier to the address of the party as set forth above. A notice sent by
facsimile transmission shall be deemed to have been delivered on
transmission provided that a copy of such notice was also sent via
registered mail with confirmed receipt.
13.2 TITLES AND CAPTIONS: All article and section titles or captions in this
Agreement are for convenience only. They shall not be deemed a part of
this Agreement, and in no way define, limit, extend, or describe the scope
or intent of any of its provisions.
13.3 BINDING EFFECT: This Agreement shall be binding upon and inure to the
benefit of the Parties and their successors, legal representatives, and
permitted assigns.
13.4 ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between
the parties hereto, and supersedes all prior and contemporaneous
agreements, arrangements, negotiations, and understandings between the
parties hereto relating to the subject matter hereof. There are no other
understandings, statements, promises or inducements, oral or otherwise,
contrary to the terms of this Agreement. No representations, warranties,
covenants, or conditions, express or implied, whether by statute or
otherwise, other than as set forth herein have been made by any party
hereto.
13.5 NO WAIVER: No waiver of any term, provision, or condition of this
Agreement, whether by conduct or otherwise, in any one or more instances,
shall be deemed to be, or shall constitute, a waiver of any other
provision hereof, whether or not similar, nor shall any such waiver
constitute a continuing waiver, and no waiver shall be binding unless
executed by the party making such waiver.
13.6 PARTIES IN INTEREST: Nothing in this Agreement (whether express or
implied) is intended to confer upon any person other than the parties
hereto and their respective successors and permitted assigns, any rights
or remedies under or by reason of this Agreement, nor is anything in this
Agreement intended to relieve or discharge the liability of any other
party hereto, nor shall any provision hereof give any entity any right to
subrogation against any party.
13.7 NO RELATIONSHIP BEYOND JOINT VENTURE: The relationship between the parties
shall be limited to the performance of the terms and conditions of this
Agreement. Nothing herein shall be construed to create a general
partnership between the parties, or to authorize any party to act as a
general agent for another, or to permit any party to bind another other
than as set forth in this Agreement, or to borrow money on behalf of
another party, or to use the credit of any party for any purpose.
13.8 BRANDING: Either party may use the other's Intellectual Property for
advertising purposes with prior written approval, which shall not be
unreasonably withheld. No party may make any unauthorized claims with
regard to the other party's products; any such unauthorized claims shall
absolve the other party of any liability in connection therewith.
13.9 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.
13.10 INVALIDITY OF PROVISIONS: If any provisions of this Agreement is or
becomes wholly or partly invalid, illegal, or unenforceable:
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(a) the validity, legality, and enforceability of the remaining
provisions shall continue in force unaffected, and
(b) the parties shall meet as soon as possible and negotiate in good
faith upon a replacement provision that is legally valid and that as
nearly as possible achieves the objectives of the Agreement and
produces an equivalent economic effect. A replacement provision
shall apply as of the date that the replaced provision had become
invalid, illegal, or unenforceable.
13.11 TRANSACTION EXPENSES: Each party shall pay its own fees and expenses
(including legal and accounting fees) incident to the preparation and
execution of this Agreement.
13.12 FORCE MAJEURE: Neither party shall be liable to the other in the event and
to the extent that performance is delayed or prevented by any cause
reasonably beyond such party's control, including, but not limited to,
acts of God, public enemies, war, civil disorder, fire, flood, explosion,
labor disputes, or any acts or orders of any governmental authority,
inability to obtain supplies or materials (including, without limitation,
computer hardware) or any delay or deficiency caused by the electrical or
telephone line suppliers or other common carriers (herein referred to as
"Force Majeure"). A party's failure to perform due to the existence of a
Force Majeure event shall be excused only for so long as the Force Majeure
event continues.
13.13 GOVERNING LAW/ARBITRATION: This Agreement shall be construed and governed
in accordance with the laws of the United States and the State of New
York. Any controversy or claim arising out of or relating to this
agreement shall be determined by arbitration in accordance with the
International Arbitration Rules of the International Arbitration
Association. The number of arbitrators shall be three (3) and the place of
arbitration shall be New York City, New York, and the language of the
arbitration shall be in English. Arbitration proceedings shall take no
more than three (3) days, and no party shall be entitled to conduct
discovery in connection with any such arbitration.
13.14 FURTHER DOCUMENTS: The parties agree to execute such other documents as
may be necessary to effectuate the purposes of this Agreement as set forth
above.
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
(THE FOLLOWING PAGE IS THE SIGNATURE PAGE)
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IN WITNESS WHEREOF, the parties have executed the Agreement as of the date last
written below.
OPTIGENE-X, LLC DB CAPITAL MANAGEMENT, INC.
BY: BY:
--------------------------- ----------------------------------
NAME: XXXXXXXX XXXXXX NAME: XXXX X. XXXXXXXX
------------------------------ --------------------------------
TITLE: PRESIDENT TITLE: CHIEF EXECUTIVE OFFICER
------------------------------ ------------------------
DATE: JUNE 12, 2001 DATE: JUNE 12, 2001
------------------------------- --------------------------
CAMPAMED, LLC
BY:
---------------------------
NAME: XX. XXXXXX XXXX
------------------------------
TITLE: PRESIDENT
------------------------------
DATE: JUNE 12, 2001
------------------------------
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