EXHIBIT 10.14
EXCLUSIVITY AND SOFTWARE DEVELOPMENT AGREEMENT
This Exclusivity and Software Development Agreement ("Agreement")
dated this 14th day of November, 1996, is made by and between Global Med
Technologies, Inc. ("Global"), a Colorado corporation, and Ortho Diagnostic
Systems Inc. ("ODSI"), a New Jersey corporation.
WHEREAS, Global and ODSI have had informal discussions relating to
Global's activities and developments in information technology and
intellectual property relating to donor and transfusion medicine (the
"Technology"); and
WHEREAS, Global and ODSI are interested in continuing discussions
regarding an arrangement between Global and ODSI relating to the
Technology,
NOW, THEREFORE, the parties hereto, intending to be legally bound,
agree as follows:
SECTION I
EXCLUSIVITY AGREEMENT
1.1 EXCLUSIVITY PERIOD. For a period commencing with the date hereof
and ending at 5:00 p.m. Eastern Daylight Savings time on May 14, 1997 (the
"Exclusivity Period"), Global and ODSI agree that ODSI shall have the
exclusive right to negotiate with Global with respect to the Technology,
and during such period Global agrees not to directly or through any
intermediary accept, encourage, solicit, entertain or otherwise discuss
(including by way of furnishing information concerning the business,
properties, capital stock or assets of Global or engaging in any
discussions relative thereto) any acquisition of any of the Common Stock
(other than pursuant to Global's proposed registered initial public
offering of Units, consisting of Common Stock and Warrants, Reg. No. 333-
11723 (the "IPO")), businesses, property or know-how, including, without
limitation, the Technology with any person or entity other than ODSI or an
Affiliate thereof and will not otherwise encumber the ability of ODSI or
such Affiliate to enter into any arrangement with Global concerning its
Technology. The Exclusivity Period is subject to extension at Global's
option for up to 60 days in the event approval of the transaction is
required by Global's shareholders.
1.2 ACCESS TO INFORMATION AND CONFIDENTIALITY. During the
Exclusivity Period, Global agrees to furnish to ODSI any known information
concerning the Technology. ODSI will maintain in confidence, and will
cause the directors, officers, employees, agents, and advisors of ODSI to
maintain in confidence, and not use any written, oral, or other information
obtained in confidence from Global pursuant to ODSI's due diligence
investigation of Global, other than in connection with ODSI's evaluation of
the Technology for purposes of determining whether or not to pursue an
arrangement with Global, unless (a) such information is already known to
such party or to others not bound by a duty of confidentiality or such
information becomes publicly available through no fault of such party, (b)
the use of such information is necessary or appropriate in making any
filing or obtaining any consent or approval required for the consummation
of the transactions contemplated herein, or (c) the furnishing or use of
such information is required by or necessary or appropriate in connection
with legal proceedings. If the parties hereto are unable to reach an
agreement relating to the Technology, and if the right of first refusal to
acquire the Technology is not exercised as set forth in Section 3.4 hereof,
ODSI agrees to return or destroy as much of such written information
concerning the Technology as Global may reasonably request.
1.3 NEGOTIATIONS DURING EXCLUSIVITY PERIOD; NATURE OF UNDERSTANDING.
ODSI and Global hereby agree to negotiate in good faith toward reaching
agreement on transaction(s) relating to the Technology at the earliest
practicable date. The immediately preceding sentence merely constitutes a
statement of ODSI's and Global's mutual intention with respect to a
transaction(s) relating to the Technology. This Agreement does not contain
all matters upon which agreement must be reached in order for such
transaction(s) to be consummated and, therefore, does not constitute a
binding commitment, contract or obligation with respect to such
transaction(s). A binding commitment with respect to any such
transaction(s) will result only from the execution of a definitive
agreement and related ancillary documents, if any, subject to the terms and
conditions therein.
1.4 RIGHTS OF ODSI. Nothing in this Agreement shall prohibit or in
any way constrain ODSI's ability to discuss, negotiate, agree or consummate
any transaction with any other party in any field, including, without
limitation, the field of information technology relating to donor and
transfusion medicine.
SECTION II
SOFTWARE DEVELOPMENT
2.1 SOFTWARE DEVELOPMENT ARRANGEMENT. (a) Subject to the terms and
conditions set forth herein, on date of the Closing, ODSI will pay to
Global an amount equal to Five Hundred Thousand Dollars ($500,000) (the
"Initial Advance Payment") as an advance payment for certain software
development services that are more fully described on Exhibit A attached
hereto (the "Services") which will be provided by Global, except as
otherwise provided in clause (b)(i) below. Within two (2) months after the
date hereof, ODSI will pay to Global an additional Five Hundred Thousand
Dollars ($500,000) (the "Subsequent Advance Payment"; and, together with
the Initial Advance Payment, the "Advance Payments") as an advance payment
for the Services.
(b) (i) If Global and ODSI enter into definitive documentation
providing for transactions relating to the Technology or Global's other
assets or Common Stock ("Transactions") then, at ODSI's sole and absolute
discretion, ODSI may elect to decline the Services and instead may apply
the amount equal to the Advance Payments towards any consideration which
may be payable to Global pursuant to the terms of the Transactions which
consideration may, if the Transactions are so structured, take the form of
an investment in the Common Stock of Global.
(ii) If the parties are unable to come to terms regarding
the Transactions, then ODSI may not decline to accept the Services and
Global shall be required to provide the Services.
(c) In the event that ODSI does not exercise its right to
decline the Services pursuant to clause (b)(i) above, the following
provisions shall apply:
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(i) Within 20 days after the expiration of the Exclusivity
Period, or upon ODSI giving written notice to Global (which notice would
not be given prior to the payment of the Subsequent Advance Payment) of its
decision to have Global commence providing Services, ODSI shall select one
or more of the software projects described in Exhibit A as the software
project or projects for which the Services will be provided by Global; and
(ii) The parties shall negotiate in good faith towards a
definitive software development agreement with the aim of executing such
agreement as soon as reasonably practicable after ODSI has notified Global
of its selection pursuant to clause (i). The definitive agreement shall
include, without limitation, provisions regarding Global's fees for such
Services. The parties agree that the estimated fee for the Services for
each project as set forth on Exhibit A is a reasonable estimate of such
fees. The parties acknowledge that (A) the fees to be charged for the
Services are undetermined at this time and the parties shall use good faith
to determine such amount and (B) the fees as so determined may exceed the
amount of the Advance Payments and in such event the definitive
documentation will provide a mechanism through which ODSI will pay for any
such shortfall.
(d) If Global fails to provide the Services (other than as a
result of an election by ODSI to decline the Services pursuant to clause
(b)(i) of this Section 2.1) except to the extent that ODSI has materially
breached its obligations under the definitive agreement and such breach is
then continuing, then Global shall have been deemed to have granted to
ODSI, in consideration of the Advance Payments, a non-exclusive license
(with the right to sub-license) to the Technology with a royalty rate not
to exceed 4% of net sales for so long as Global's failure to provide the
Services is continuing, unless and until Global repays the Advance Payments
in full to ODSI, provided that any customers that shall have been sub-
licensed the Technology by ODSI would continue to operate under such sub-
license for the term of the applicable sub-license agreement. In such
event the parties would as soon as reasonably practicable negotiate in good
faith toward a definitive license agreement and execute and deliver such
license agreement.
SECTION III
RIGHT OF FIRST REFUSAL
3.1 SALE OF TECHNOLOGY. For a period of six (6) months after the
expiration of the Exclusivity Period, Global agrees that it shall not
transfer, dispose of, sell, lease, license (except on a non-exclusive basis
in its ordinary course of business), mortgage or otherwise encumber or
subject to any pledge, claim, lien, charge, encumbrance or security
interest of any kind or nature whatsoever (except for the Security
Agreement dated as of November 14, 1995 between the Bank and Global) (all
such transactions being hereafter referred to as a "Sale") any of the
Technology until it complies in full with the provisions of this Section
III.
3.2 NOTICE; EXERCISE OF RIGHT. Prior to consummating any Sale of any
of the Technology, Global shall present to ODSI a copy of the written offer
by or agreement with such
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third party (the "Third Party Offer"). ODSI shall, for a period of thirty
days (30) following the date of ODSI's receipt of the Third Party Offer,
have the right to notify Global of its intent to enter into a similar
transaction with Global upon substantially the same terms and conditions
specified therein by delivering written notice of such interest to Global
prior to the expiration of the thirty (30) day exercise period. If such
right is exercised, then ODSI and Global shall as promptly as practicable
enter into such transaction.
3.3 NON-CASH OFFERS. Should the purchase price specified in the
Third Party Offer be payable in property other than cash, ODSI shall have
the right to pay the purchase price in the form of cash equal in amount to
the value of such property. If Global and ODSI cannot agree on such cash
value prior to the expiration of the 30-day exercise period (the "Initial
Exercise Period"), the Exercise Period shall be extended until such cash
value is determined in accordance with this Section 3.3. If Global and
ODSI cannot agree on such cash value within ten (10) days after expiration
of the Initial Exercise Period, the valuation shall be made by an appraiser
of recognized standing selected by Global and ODSI, or, if they cannot
agree on an appraiser within twenty (20) days after expiration of the
Initial Exercise Period, each shall select an appraiser of recognized
standing and the two appraisers shall designate a third appraiser of
recognized standing, whose appraisal shall be determinative of such value.
The cost of such appraisal shall be shared equally by Global and ODSI.
3.4 NON-EXERCISE OF RIGHT. In the event ODSI chooses not to exercise
its rights pursuant to this Section III, Global shall have a period of
sixty (60) days thereafter, in which to sell or otherwise dispose of the
Technology upon terms and conditions (including the purchase price) no less
favorable to Global than those specified in the Third Party Offer. In the
event Global does not sell or otherwise dispose of the Technology during
such sixty (60) day period, the provisions of this Section III shall
continue to be applicable to any subsequent sale of the Technology by
Global during the period set forth in Section 3.1 of this Agreement.
SECTION IV
FEES, EXPENSES AND OTHER PAYMENTS
4.1 FEES. (a) All costs and expenses, including, without
limitation, fees and disbursements of counsel, financial advisors and
accountants, incurred by the parties hereto shall be borne solely and
entirely by the party which has incurred such costs and expenses (with
respect to such party, its "Expenses"); PROVIDED, HOWEVER, that all costs
and expenses related to printing, filing and mailing the Proxy Statement
and all other regulatory filing fees incurred in connection with the Proxy
Statement, if required, shall be borne by Global;
(b) Global shall pay to ODSI an amount equal to $2,000,000 plus
ODSI's Expenses if:
(i) (x) Global breaches any covenant, agreement,
representation or warranty contained herein and (y) Global shall have had
contacts or entered into negotiations relating
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to a Business Combination (as hereafter defined), in any such case at any
time within the Exclusivity Period, as such may be extended, and with
respect to any person, entity or group with whom the contacts or
negotiations described in clause (y) have occurred, a Business Combination
shall have occurred or Global shall have entered into a definitive
agreement providing for a Business Combination; or
(ii) this Agreement or any subsequent agreement between the
parties shall fail to receive the requisite vote for approval and adoption
by the shareholders of Global at the meeting of the shareholders of Global
called to vote thereon and at the time of such meeting there exists a
Competing Transaction (as hereafter defined); or
(iii) (w) the Board of Directors of Global shall withdraw,
modify or change its recommendation of this Agreement or any subsequent
agreement between the parties in a manner adverse to ODSI or shall have
resolved to do any of the foregoing; (x) if the Board of Directors of
Global shall have recommended to the shareholders of Global a Competing
Transaction; (y) a tender offer or exchange offer for 20% or more of the
outstanding shares of capital stock of Global is commenced, and the Board
of Directors of Global recommends that the stockholders of Global tender
their shares in such tender or exchange offer; or (z) any person shall
have acquired beneficial ownership or the right to acquire beneficial
ownership of or any "group" (as such term is defined under Section 13(d) of
the Exchange Act and the rules and regulations promulgated thereunder)
shall have been formed which beneficially owns, or has the right to acquire
"beneficial ownership" of more than 20% of the then outstanding shares of
Common Stock of Global. For purposes of this Agreement, a "Competing
Transaction" shall mean any of the following involving Global or any or its
subsidiaries (either existing or hereafter created): (i) any merger,
consolidation, share exchange, business combination, or other similar
transaction; (ii) any sale, lease, exchange, mortgage, pledge, transfer,
license (except for a non-exclusive license in the ordinary course of
Global's business) or other disposition of 20% or more of the assets, taken
as a whole, in a single transaction or series of transactions, or any of
the Technology; (iii) any tender offer or exchange offer for 20% or more
of the outstanding shares of Common Stock of Global or the filing of a
registration statement under the Securities Act of 1933 in connection
therewith; (iv) any person having acquired beneficial ownership or the
right to acquire beneficial ownership of, or any "group" (as such term is
defined under Section 13(d) of the Securities Exchange Act of 1934 and the
rules and regulations promulgated thereunder) having been formed which
beneficially owns or has the right to acquire beneficial ownership of, 20%
or more of the then outstanding shares of the Common Stock of Global; or
(v) any public announcement of a proposal, plan or intention to do any of
the foregoing or any agreement to engage in any of the foregoing.
(c) Any payment required to be made pursuant to paragraph (b) of
this Section IV shall be made a promptly as practicable but not later than
five (5) business days after the occurrence of any of the events described
in clauses (i) - (iii) of paragraph (b), and shall be made by wire
transfer of immediately available funds to an account designated by ODSI,
except that any payment to be made as the result of an event described in
clause (i) thereof shall be made as promptly as practicable but not later
than five (5) business days after the occurrence of the Business
Combination or the execution of the definitive agreement providing for a
Business Combination.
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(d) For purposes of this Section IV, the term "Business
Combination" shall mean (i) a merger, consolidation, share exchange,
business combination or similar transaction involving Global; (ii) a sale,
lease, exchange, transfer or disposition of 20% or more of the assets of
Global and its subsidiaries, if any, taken as a whole, in a single
transaction or series of transactions, including, without limitation, any
sale that would trigger the rights set forth in Section III; or (iii) the
acquisition by a person or entity, or any "group" (as such term is defined
under Section 13(d) of the Exchange Act and the rules and regulations
thereunder) of "beneficial ownership" of 20% or more of Global's Common
Stock whether by tender offer or exchange offer or otherwise.
SECTION V
REPRESENTATIONS AND WARRANTIES OF GLOBAL
Global hereby represents and warrants to ODSI as follows:
5.1 ORGANIZATION AND GOOD STANDING AND POWER. Global is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Colorado and has the requisite corporate power and
authority to carry out its business as now being conducted.
5.2 AUTHORITY; NO CONFLICT; NO VIOLATION.
(a) This Agreement constitutes the legal, valid, and binding
obligation of Global, enforceable against Global in accordance with its
terms. Global has the absolute and unrestricted right, power, authority
and capacity to execute and deliver this Agreement and to perform its
obligations hereunder.
(b) Neither the execution and delivery of this Agreement nor the
consummation or performance of any of the transactions contemplated by this
Agreement will, directly or indirectly (with or without notice or lapse of
time):
(i) contravene, conflict with, or result in a violation of
(A) any provision of the Articles of Incorporation and By-laws of Global,
as such have been amended and/or restated, or (B) any resolution adopted by
the Board of Directors or the shareholders of Global;
(ii) contravene, conflict with, or result in a violation of,
or give any governmental body or other person the right to challenge any of
the transactions contemplated by this Agreement or to exercise any remedy
or obtain any relief under, any legal requirement or any order to which
Global, or any of its assets, may be subject;
(iii) contravene, conflict with, or result in a
violation or breach of any provision of, or give any person the right to
declare a default or exercise any remedy under, or to accelerate the
maturity or performance of, or to cancel, terminate, or modify, any of
Global's contracts; or
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(iv) result in the imposition or creation of any encumbrance
upon or with respect to any of the assets owned or used by Global, except
the Technology.
(c) This Agreement has been duly executed and delivered by a
duly authorized officer of Global.
(d) Global is not in violation of any term or provision of (i)
its Articles of Incorporation or Bylaws, as amended to date, or in any
material respect, any note, indenture, mortgage, lease, agreement,
contract, purchase order or other material instrument, document or
agreement to which Global is a party or by which it or any of its
properties or assets is bound or affected, or (ii) any order, writ,
injunction or decree of any court or any federal, state, municipal or other
governmental department, authority, commission, board, bureau, agency or
instrumentality, domestic or foreign. There exists no condition, event or
act which constitutes, or which after notice, lapse of time or both, would
constitute a material default under any of the foregoing.
5.3 INTELLECTUAL PROPERTY. Global has sole title and ownership of
all material trademarks, service marks, trade names, copyrights, trade
secrets, technical information, proprietary rights and processes necessary
for its business as now conducted, and as proposed to be conducted, without
conflict with or infringement of the rights of others. Except as set forth
on Schedule 5.3, there are no outstanding options, licenses, or agreements
of any kind relating to the foregoing, nor is Global bound by or a party to
any patents, trademarks, service marks, trade names, copyrights, trade
secrets, licenses, technical information, proprietary rights and processes
of any other person or entity, which would be material to Global's business
as conducted or, to the best of Global's knowledge, as proposed to be
conducted. Global has not received any communications alleging, nor is
Global aware, to the best of its knowledge, of any basis for such
allegation, that Global has violated, or by conducting its business as
proposed, would violate any of the patents, trademarks, service marks,
trade names, copyrights or trade secrets or other proprietary rights of any
other person or entity. Global is not aware, to the best of its knowledge,
that any of its employees is obligated under any contract (including,
licenses, covenants or commitments of an nature) or other agreement, or
subject to any judgment, decree or order of any court or administrative
agency, that would interfere with the use of such employee's best efforts
to promote the interests of Global or that would conflict with Global's
business as proposed to be conducted. Neither the execution nor delivery
of this Agreement, nor the carrying on of Global's business by the
employees of Global, nor the conduct of Global's business as proposed,
will, to the best of Global's knowledge, conflict with or result in a
breach of the terms, conditions or provisions of, or constitute a default
under, any contract, covenant or instrument under which any of such
employees are now obligated. Each employee of and consultant to Global
with access to confidential or proprietary information has executed a
proprietary information agreement obligating such employee or consultant to
hold all such information in confidence. Global does not believe, to the
best of its knowledge, that it is or will be necessary to utilize any
inventions of any to its employees (or people it currently intends to hire)
made prior to their employment by Global.
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SECTION VI
CONDITIONS
6.1 CONDITIONS TO ODSI'S OBLIGATIONS AT CLOSING. The obligations of
ODSI under this Agreement are subject to the fulfillment on or before the
Closing of each of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Global contained in this Agreement shall be true on and as of
the date of the Closing with the same effect as though such representations
and warranties had been made on and as of the date of the Closing.
(b) PERFORMANCE. Global shall have performed and complied with
all agreements, obligations, and conditions contained in this Agreement
that are required to be performed or complied with by it on or before the
Closing.
(c) PROCEEDINGS AND DOCUMENTS. All corporate and other
proceedings in connection with the transactions contemplated at the Closing
and all documents incident thereto shall be reasonably satisfactory in form
and substance to ODSI and ODSI's counsel, and they shall have received all
such counterpart original and certified or other copies of such documents
as they may reasonably request.
(d) GLOBAL SHAREHOLDERS AGREEMENT. A Proxy and Right of First
Refusal Agreement (the "Shareholders Agreement") between the Global
shareholders parties thereto and ODSI, substantially in the form of Exhibit
B hereto, shall have been duly executed and delivered by the shareholders
parties thereto.
(e) OPINIONS OF GLOBAL COUNSEL AND SHAREHOLDERS' COUNSEL. ODSI
shall have received from (i) Xxxxxxx Key & Xxxxxxxx, P.C., counsel for
Global, an opinion addressed to ODSI covering the matters set forth in
Sections 5.1 and 5.2, (ii) Xxxxxx, Xxxxxxx & Xxxxx, P.C., counsel for
Global, covering the matters set forth in Section 5.3, and (iii) counsel to
each of the shareholders parties to the Shareholders Agreement, opinion(s)
addressed to ODSI covering the matters set forth in Section 3 of the
Shareholders Agreement.
(f) COMPLIANCE CERTIFICATE. The Chief Executive Officer of
Global shall deliver to ODSI at the Closing a certificate certifying that
the conditions specified in clauses (a) through (e) of this Section 6.1
have been fulfilled and stating that there has been no Material Adverse
Change (as hereafter defined) in Global since September 30, 1996. For
purposes of this Agreement, "Material Adverse Change" shall mean, with
respect to Global, any adverse change in the condition (financial or
other), business, results of operations, prospects, assets, liabilities or
operations of Global or on the ability to Global to consummate any of the
transactions contemplated hereby, or any event or condition that would,
with or without the passage of time, constitute a "Material Adverse
Change."
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6.2 CONDITIONS OF GLOBAL'S OBLIGATIONS AT CLOSING. The obligations
of Global under this Agreement are subject to ODSI having performed and
complied with all agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it on or
before the Closing.
SECTION VII
INDEMNIFICATION PROVISIONS
7.1 GLOBAL INDEMNITY. Global shall indemnify and hold harmless ODSI
and its Affiliates and their officers, directors and employees from and
against any and all claims, losses, damages, judgements, costs, awards,
expenses (including reasonable attorneys' fees) and liabilities of every
kind (collectively, "Losses") arising directly out of or resulting directly
from any breach by Global of any of its warranties, guarantees,
representations, obligations or covenants contained herein.
7.2 ODSI INDEMNITY. ODSI shall indemnify and hold harmless Global
and its Affiliates and their officers, directors and employees from and
against any and all Losses arising directly out of or resulting directly
from any breach by ODSI or any of its obligations or covenants contained
herein.
7.3 INDEMNIFICATION PROCEDURES. Each indemnified party agrees to
give the indemnifying party prompt written notice of any matter upon which
such indemnified party intends to base a claim for indemnification (an
"Indemnity Claim") under Section VII. The indemnifying party shall have
the right to participate jointly with the indemnified party in the
indemnified party's defense, settlement or other disposition of any
Indemnity Claim. With respect to any Indemnity Claim relating solely to
the payment of money damages and which could not result in the equitable
relief or otherwise adversely affect the business of the indemnified party
in any manner, and as to which the indemnifying party shall have
acknowledged in writing the obligation to indemnify the indemnified party
hereunder, the indemnifying party shall have the sole right to defend,
settle or otherwise dispose of such Indemnity Claim, on such terms as the
indemnifying party, in its sole discretion, shall deem appropriate,
provided that the indemnifying party shall provide reasonable evidence of
its ability to pay any damages claimed and with respect to any such
settlement shall have obtained the written release of the indemnified party
from the Indemnity Claim. The indemnifying party shall obtain the written
consent of the indemnified party, which shall not be unreasonably withheld,
prior to ceasing to defend, settling or otherwise disposing of any
Indemnity Claim if as a result thereof the indemnified party would become
subject to injunctive or other equitable relief or the business of the
indemnified party would be adversely affected in any manner.
7.4 SURVIVAL. This Section VII shall survive any termination of this
Agreement.
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SECTION VIII
GENERAL PROVISIONS
8.1 SURVIVAL OF WARRANTIES. The warranties, representations,
agreements, covenants, indemnities and undertakings or Global or ODSI
contained in or made pursuant to this Agreement shall survive the execution
and delivery of this Agreement, and the Closing and shall in no way be
affected by an investigation of the subject matter thereof made by or on
behalf of ODSI or Global.
8.2 PUBLIC ANNOUNCEMENTS. Any public announcement or similar
publicity with respect to this Agreement or any of the transactions
contemplated herein will be issued, if at all, at such time and in such
manner as Global and ODSI jointly determine, except in instances where
Global determines in good faith that disclosure is necessary to assure
compliance with applicable law.
8.3 NOTICES. All notices, consents, waivers and other communications
under this Agreement must be in writing and will be deemed to have been
duly given when (a) delivered by hand (with written confirmation of
receipt), (b) sent by telecopier (with written confirmation of receipt),
provided that a copy is mailed by registered mail, return receipt
requested, or (c) when received by the addressee, if sent by a nationally
recognized overnight delivery service (receipt requested), in each such
case to the appropriate addresses and telecopier numbers set forth below
(or to such other addresses and telecopier numbers as a party may designate
by notice to the other parties):
Global: Global Med Technologies, Inc.
00000 Xxxx Xxxxxx
Xxxxx X-000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Facsimile No.: (000) 000-0000
With a copy to: D. Xxxxxxxxx Xxxxx, Esq.
Xxxxxxx Key & Xxxxxxxx, P.C.
0000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
ODSI: Ortho Diagnostic Systems Inc.
0000 X. X. Xxxxxxx 000
Xxxxxxx, Xxx Xxxxxx 00000-0000
Attention: President
Facsimile No.: (000) 000-0000
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With a copy to: Xxxxxxx & Xxxxxxx
Xxx Xxxxxxx & Xxxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Office of General Counsel
Facsimile No.: (000) 000-0000
8.4 FURTHER ASSURANCES. The parties agree (a) to furnish upon
request to each other such further information, (b) to execute and deliver
to each other such other documents, and (c) to do such other acts and
things, all as the other party may reasonably request for the purpose of
carrying out the intent of this Agreement and the documents referred to in
this Agreement.
8.5 WAIVER. The rights and remedies of the parties to this Agreement
are cumulative and not alternative. Neither the failure nor any delay by
any party in exercising any right, power, or privilege under this Agreement
or the documents referred to in this Agreement will operate as a waiver of
such right, power or privilege, and no single or partial exercise of any
such right, power or privilege will preclude any other or further exercise
of such right, power or privilege or the exercise of any other right, power
or privilege. To the maximum extent permitted by applicable law, (a) no
claim or right arising out of this Agreement or the documents referred to
in this Agreement can be discharged by one party, in whole or in part, by
a waiver or renunciation of the claim or right unless in writing signed by
the other party; (b) no waiver that may be given by a party will be
applicable except in the specific instance for which it is given; and (c)
no notice to or demand on one party will be deemed to be a waiver of any
obligation of such party or of the right of the party giving such notice or
demand to take further action without notice or demand as provided in this
Agreement or the documents referred to in this Agreement.
8.6 ENTIRE AGREEMENT AND MODIFICATION. This Agreement supersedes all
prior agreements between the parties with respect to its subject matter and
constitutes (along with the documents referred to in this Agreement) a
complete and exclusive statement of the terms of the agreement between the
parties with respect to its subject matter. This Agreement may not be
amended except by a written agreement executed by the party to be charged
with the amendment.
8.7 ASSIGNMENTS, SUCCESSORS AND NO THIRD-PARTY RIGHTS. Neither party
may assign any of its rights under the Agreement without the prior consent
of the other parties, except that consent shall not be required for the
assignment by ODSI of any of its rights hereunder to any Affiliate of ODSI.
An "Affiliate" of a party to this Agreement shall mean any corporation or
partnership or other entity which directly or indirectly controls, is
controlled by or is under common control with such party. "Control" shall
mean the legal power to direct or cause the direction of the general
management or partners of such entity whether through the ownership of
voting securities, by contract or otherwise. This Agreement will apply to,
be binding in all respects upon, and inure to the benefit of the successors
of the parties. Nothing expressed or referred to in this Agreement will be
construed to give any person other than the parties to this Agreement any
legal or equitable right, remedy or claim under or with respect to this
Agreement or any provision of this Agreement.
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This Agreement and all of its provisions and conditions are for the sole
and exclusive benefit of the parties to this Agreement and their successors
and assigns.
8.8 SEVERABILITY. If any provision of this Agreement is held invalid
or unenforceable by any court or competent jurisdiction, the other
provisions of this Agreement will remain in full force and effect. Any
provision of this Agreement held invalid or unenforceable only in part or
degree will remain in full force and effect to the extent not held invalid
or unenforceable.
8.9 SECTION HEADINGS, CONSTRUCTION. The headings of Sections in this
Agreement are provided for convenience only and will not affect its
construction or interpretation. All references to 'Section" or "Sections"
refer to the corresponding Section or Sections of this Agreement. All
words used in this Agreement will be construed to be of such gender or
number as the circumstances require. Unless otherwise expressly provided,
the word "including" does not limit the preceding words or terms.
8.10 TIME OF ESSENCE. With regard to all dates and time periods set
forth or referred to in this Agreement, time is of the essence.
8.11 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all or which, when taken together, will be deemed to
constitute one and the same agreement.
8.12 CONSTRUCTION. This Agreement shall be governed by, and shall be
construed in accordance with, the laws of the State of Colorado without
regard to conflicts of laws principles. Any controversy or claim arising
out of or relating to this Agreement, or the parties' decision to enter
into this Agreement, or the breach thereof, shall be settled by arbitration
in accordance with the Commercial Arbitration Rules of the American
Arbitration Association, and judgment upon the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof. The
arbitration shall be held in New Jersey and the arbitrators shall apply the
substantive law of Colorado except that the interpretation and enforcement
of this arbitration provision shall be governed by the Federal Arbitration
Act. The arbitrators shall not award any of the parties punitive damages
and the parties shall be deemed to have waived any right to such damages.
This Section 8.12 shall survive any termination of this Agreement.
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first written above.
GLOBAL MED TECHNOLOGIES, INC.,
a Colorado corporation
By /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Xxxxxxx X. Xxxxx,
Chief Executive Officer
ORTHO DIAGNOSTIC SYSTEMS INC.,
a New Jersey corporation
By /s/ Xxxx Xxxxxxxxx
-----------------------------------
Xxxx Xxxxxxxxx,
President
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