Exhibit 10.1
Dated: April 24, 2003
Exhibit 10.1- License Agreement dated April 6th, 2003
LICENSE AGREEMENT
DATED FOR REFERENCE THE 6th DAY OF April, 2003
BETWEEN
NATIONSRX, INC.
Suite 114-201
00000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxx 00000
(Hereinafter referred to as "NationsRx" or "Licensor")
OF THE FIRST PART,
AND:
ECLIPSE ENTERTAINMENT GROUP, INC.
00000 Xxxxxx Xxxxxxxxx,
Xxxxxx Xxxx, Xxxxxxxxxx, 00000
(hereinafter referred to as "Eclipse" or "Licensee")
OF THE SECOND PART,
RECITALS
A. Licensor has developed a business and business model comprised of unique
technology, business plans, economic models, systems, licenses, patents, trade
secrets, trademarks, service marks, know-how and processes (collectively "the
Business" or the "Business Model" and/or the "proprietary information") for the
provision of pharmacy benefits management services. The Business is as set out
in Schedule A
B. Licensee desires to obtain an exclusive license to establish the Business
worldwide, in all markets, utilizing Licensor's Business model and proprietary
information and acknowledges that use of such Business model and its proprietary
information are subject to controls and restrictions established by Licensor for
the purpose of maintaining a high level of uniform quality and goodwill in the
operation of the Business.
In consideration of the mutual covenants set forth herein, the parties hereby
agree to the following terms and conditions
ARTICLE ONE
DEFINITIONS
As used in this Agreement, the following terms have the definition set forth
below:
1.1 "Effective Date" means the date on which this License Agreement has been
executed by the latter of the parties to do so.
1.2 "Gross Sales" means the total of all sales transacted at, through or through
the use of the Business model, whether such sales are evidenced by check, cash,
credit, exchange of otherwise, exclusive of sales tax or other change imposed on
sales by any government authority. "Gross Sales" also includes all payments to
Licensee from Sub-Licensees from revenues generated at, through, or through the
use of the Business model.
1.3 "Net Revenue" shall be Gross Sales less all reasonable expenses permitted
according to generally accepted accounting principles, consistently applied.
1.3 "Information Package" means the written technical information prepared by
the Licensor, including business plans, executive summaries, operating plans and
other materials, which set forth the details of the Business model.
1.4 "Territory" means the geographic area consisting of the world on an
exclusive basis.
1.5 "Trademarks" means those, trademarks, copyrights, service marks and patents
set forth in the Information Package.
1.6 "Payments" means payments between Licensor and Licensee as stated in this
License Agreement and shall be made in the form of U.S. Dollars.
1.7 "Sub Licensees" means persons and entities who sub-license any or all of the
rights licensed to Licensee by Licensor under this Agreement.
1.8 "Preferred Shares" or "Class A Convertible Preferred Shares" means the
Preferred shares of the Company as further described in Schedule C.
ARTICLE TWO
GRANT OF EXCLUSIVE LICENSE
2.1 Licensor grants to Licensee a license to engage in, sublicense, use and
operate the Business and or the Business model in the Territory, all as more
specifically defined in Schedule B (herein the "Licensee's Market") and the
right to grant Sub-Licenses in connection with engaging in, sublicensing, using
and operating the Business and or the Business model upon the terms and subject
to the provisions of this Agreement. The grant of the above license shall be
exclusive in the Territory for the Licensee's Market.
2.2 Licensor grants to Licensee a license to use and display Licensor's
Trademarks in the Territory in connection with the Business and with regard to
the Sub-Licenses granted by Licensee, upon the terms and subject to the
provisions of this Agreement.
2.3 Licensee shall have the right but not the obligation to use the trademark
"NationsRx, Inc." or "NationsRx" in its advertisements, in its Corporate
name(s), in its daily operations, as part of its product descriptions and
specifically represent and refer to itself as the exclusive licensee for the
Territory for the Business and Business model
ARTICLE THREE
SITE LOCATION AND EXCLUSIVE TERRITORY
3.1 The Business shall be located in the Territory at locations ("Site
Locations") to be selected by Licensee (or Sub-Licensees).
3.2 Subject to the terms of this Agreement, Licensor shall not directly or
indirectly engage in, use or operate the Business, or license or allow others to
directly or indirectly engage in, use or operate the Business, within the
exclusive Territory, in the Licensee's Market, during the term hereof.
ARTICLE FOUR
TRADEMARKS
4.1 Licensee has no right, title or interest in or to any of the Trademarks,
except for Licensee's privilege and license during the term hereof to display
and use the same. Licensee shall not do or permit any act or thing to be done in
derogation of any of the rights of Licensor in connection with the Trademarks,
whether during the term of this Agreement or after. Licensee shall use the
Trademarks only for the uses and in the manner licensed under and as provided
in, this Agreement. During or after the term of this Agreement, Licensee shall
not in any way dispute or impugn the validity of the Trademarks, or the rights
of Licensor to them, or the rights of Licensor or other licensees of Licensor to
use them.
4.2 Licensee may utilize and physically affix signs containing the Trademarks at
such places within or without the Business.
4.3 Licensee agrees promptly to notify Licensor and Licensor agrees to notify
Licensee, in writing, of the institution of any suit or action or any claim of
infringement against Licensee or Licensor for infringement based on use of the
Trademarks and proprietary information.
ARTICLE FIVE
TRAINING
5.0 Licensee shall have the exclusive obligation and right to train and
otherwise educate all Sub-Licensees throughout the Territory. Licensee shall
have the right to charge Sub-Licensees for said training and education.
5.1 Licensor will provide an initial training program for up to 3 individuals to
be designated by Licensee, at a time and place to be designated by Licensor, so
that they will be trained in the complete operation and management of the
Business. These individuals must sign a confidentiality agreement approved by
Licensor. This training program shall provide basic guidance on all aspects of
Business implementation and operation. Should the principals of the Licensor
become employees or independent consultants to the Licensee this condition could
be waived.
5.2 At Licensee's expense during the initial start up period for the initial
Business start up in the Territory, the Licensor shall provide, if requested by
Licensee, a qualified representative to train and/or operate the Business at the
corporate headquarters of Licensee or at site locations as deemed appropriate by
Licensor and Licensee. Should the principals of the Licensor become employees or
independent consultants to the Licensee this condition could be waived.
5.3 The cost of the initial training program instruction and assistance except
for personal meals, travel, lodging, and other personal expenses of individuals
receiving training shall be paid by the Licensor.
5.4 Should Licensee request additional assistance at site locations at any time
during the term of this Agreement following start-up, Licensor shall provide a
qualified representative at such times and places as may be reasonable necessary
and mutually convenient. Licensee shall pay all reasonable personal expenses,
plus $300.00 per day for each such representative. Should the principals of the
Licensor become employees or independent consultants to the Licensee this
condition could be waived.
5.5 Licensor shall have the right from time to time to request Licensee and/or
its manager to attend and complete additional training courses or programs.
Licensee shall bear the cost of all expenses of such trainees. Licensor shall
determine the time and place of such training in its sole discretion, except
that Licensee shall have the option to have training at Licensee's headquarters
at Licensee's expense. Should the principals of the Licensor become employees or
independent consultants to the Licensee this condition could be waived.
5.6 Licensor shall make itself available at its office for consultation and
guidance of Licensee in the operation and management of the Business. Should the
principals of the Licensor become employees or independent consultants to the
Licensee this condition could be waived.
5.7 Each party shall be responsible for obtaining all visas and other
immigration or travel documents required for their respective personnel in the
provision of training and assistance to License pursuant to this Article 5.
ARTICLE SIX
ADVERTISING
6.1 Licensee shall be responsible for it's own advertising program and shall
bear the cost of same. In the event that in the future a mutually agreed
advertising program is established a separate agreement will be executed.
6.2 Licensee shall be responsible for providing the proper on site advertising.
This advertising shall include but not be limited to promotional personnel (at
Licensee's discretion to maximize sales), collateral material and brochures.
6.3 Licensee shall have the exclusive right to initiate and maintain all
advertising relating to its license in all areas of the Territory.
6.4 Licensor shall furnish to Licensee all advertising and promotional materials
or artwork used by Licensor in its advertising at the best price Licensor
charges to others for such materials. Further, Licensee and Sub licensee's shall
have the express right to use for their advertising at the best price Licensor
charges to others for such materials all of the Licensor's copyrighted
materials, promotional materials, patents, any brochures, signage, decals and
the like materials. Licensor shall immediately make all said materials available
to the Licensee upon the execution of this Agreement and upon any change,
modification or addition to materials, including all of the above listed items.
Existing artwork, brochures, collateral and promotional material in small
quantities (less than 25 each) will be provided free of charge. On orders over
25, a best price shall be given. Licensor at its sole discretion, shall make
available to Licensee when possible, camera ready artwork, copy, film and
negatives.
6.5 Licensee shall have the right to charge Sub-Licensees a fee for
Advertisement.
ARTICLE SEVEN
GENERAL RESPONSIBILITIES OF LICENSEE
7.1 Licensee shall purchase and, at all times during the term hereof, maintain
policies of insurance with such minimum standards, coverages, and limits (or
such additional limits or types of coverage) as Licensee and Licensor may from
time to time agree is appropriate to the risks ensuing from the Licensees
operation of the Business.
7.2 If Licensee has leased the premises for the License Units the lease shall
not grant to the landlord under the lease any rights against Licensor, nor agree
to any other term, condition or covenant that is inconsistent with any provision
of this Agreement. Licensee shall duly and timely perform all of the terms,
conditions, covenants and obligations imposed under the lease.
7.3 Licensee shall prepare and file all necessary tax returns, and shall pay any
and all local, state/provincial and federal/national sales and use taxes imposed
or incurred, or levied or assessed by any governmental body, in connection with
any part of this Agreement, promptly, in full, when due, and before any
delinquency.
7.4 Licensee shall not, during the term hereof and for a period of 2 years
following termination of this Agreement, engage in any business which offers any
products or services which are competitive with the Business, either as a
proprietor, partner, investor, shareholder, director, officer, employee,
principal, agent, advisor or consultant.
7.5 Licensor may from time to time suggest prices for the goods and services
offered by Licensee. Licensee and Licensor agree that the prices suggested by
Licensor are recommendations only and are not mandatory. Nothing contained in
this Agreement shall be deemed a representation or warranty by Licensor that the
use of Licensee's suggested prices shall produce, increase or optimize profits.
7.6 Except as provided in Section 8.18 and Article 13 below, Licensee shall
protect, defend and indemnify Licensor, its subsidiaries, affiliates and
designees, and shall hold them harmless, from and against any and all costs,
expenses (including attorney's fees and court costs), losses, liabilities,
damages, claims and demands of every kind or nature, arising in any way out of
Licensee's operation of the Business.
7.7 Licensee agrees to use all commercially reasonable efforts to promote the
distribution, sale, and use of the Business.
GENERAL RESPONSIBILITIES OF LICENSOR:
7.8 Licensor shall provide the Licensee with all applicable specifications and
information required to operate the Business as intended.
7.9 Licensor shall be responsible for furnishing the the Business with the
proper information and assistance for the Licensees operation of the Business.
7.10 Licensor agrees to use all commercially reasonable efforts to promote the
operation and use of the Business through Licensee.
7.11 Licensor agrees to provide Licensee with all marketing and sales leads
related to the Business, which they generate, and to fairly devote its efforts
to making Licensee a successful venture.
7.12 Licensor agrees to assist Licensee in arranging sufficient management
assistance to pursue the marketing and distribution of the Businesses Products.
7.13 Licensor agrees to transfer to Licensee all rights, title and interest in
and to the various new products and applications related to the Business
currently being developed or subsequently developed by Licensor, at no cost.
7.14 Licensor shall protect, defend and indemnify Licensee, its subsidiaries,
affiliates and designees, and shall hold them harmless, from and against any and
all costs, expenses (including attorney's fees and court costs), losses,
liabilities, damages, claims and demands of every kind or nature, arising in any
way out of the structure of the Business or Business model.
ARTICLE EIGHT
TERM AND RENEWAL
8.1 Unless sooner terminated in accordance with the provisions of this
Agreement, the term of this Agreement shall commence on the Effective Date of
this Agreement and shall terminate 10 years thereafter. If applicable law in the
Territory requires that Licensor give notice to Licensee with respect to the
expiration of the initial term, this Agreement shall remain in effect on a
year-to-year basis after the expiration of the initial term until Licensor has
given Licensee the notice required by applicable law.
8.2 If Licensee has in all respects complied with the conditions set forth in
this Article 9.2, Licensee shall have the right, but not the obligation, to
enter into a Renewal Agreement for a term commencing on the day which follows
the last day of the initial term and terminating 10 years thereafter. Licensee
shall be entitled to enter into a Renewal Agreement only if, at the time of
Licensee's exercise of its right to do so, Licensee shall have fully performed
all of Licensee's obligations under this Agreement and shall have received no
more than two verified and justified notices of default during any twelve (12)
month period during the initial term of this Agreement. If Licensor elects not
to renew the Agreement, notice shall be given six (6) months prior to expiration
of term.
8.3 Unless otherwise expressly agreed in writing, the terms of the Renewal
Agreement shall be identical to those of Licensor's then-current form of license
agreement generally offered by Licensor for the Business.
8.4 Licensee shall not be required to pay any initial license fee upon entering
into a Renewal Agreement.
ARTICLE NINE
PAYMENTS TO LICENSOR FROM LICENSEE
9.1 As an initial license fee, on the Effective Date, Licensee shall deliver to
Licensor a certificate representing 1.5 million Class A Convertible Preferred
shares (having six to one voting rights and six to one conversion rights into
common shares), as further described in Schedule C, of Eclipse Entertainment
Group, Inc.
9.2 As a continuing license fee Licensee shall also pay Licensor a further
150,000 Class A Convertible Preferred shares, as further described in Schedule
C, for each $5 million in cumulative Net Revenue derived by Licensee from the
use of the Business model by Licensee or its Sub Licensee's. Licensee shall also
pay Licensor as a continuing license fee, a sum equal to two percent (2%) of the
Net Revenue derived by Licensee from the use of the Business model by Licensee
or its Sub Licensee's, on an annual basis.
9.3 All payments provided for in this Agreement shall be made at Licensor's or
Licensee's (as the case may be) principal place of business in the manner
agreed. No later than 30 days following the end of each month during the term
hereof, Licensee shall, concurrently with its submission to Licensor of the
daily reports for such month pursuant to Article 12, pay to Licensor the full
amount of the royalty and license fees due to Licensor for such year.
9.4 If Licensee is delinquent in the payment of any obligation, under this
Agreement, Licensee shall pay to Licensor a late payment fee of 2% plus a
percentage of the delinquent amount, calculated daily commencing on the first
day that the payment is delinquent and terminating on the day the delinquent
amount is paid. Such percentage shall be eighteen (18%), on an annualized basis.
Notwithstanding the foregoing, if the amount of the late payment fee is greater
than the amount permitted by applicable law, then such fee shall be reduced to
an amount equal to the maximum lawful fee, it being the intention of the parties
that such late payment fee shall in no event be greater than that permitted by
law.
9.5 All funds due and owing from royalties and/or License fees and other amounts
shall be paid in U.S. Currency. The funds paid to Licensor shall be converted
into U.S. Currency on the first day of the month in which the payment is to be
paid, and all payments to be made in ACH or wire transfer form, unless another
method is requested by Licensor.
ARTICLE TEN
RECORDS AND REPORTING
10.1 No later than 90 days after the expiration of each quarter of Licensee's
fiscal year and 90 days after the expiration of each fiscal year, during the
term hereof, Licensee shall furnish a full set of financial statements in U.S.
Dollars for such respective quarter and fiscal year and a balance sheet as of
the end of such quarter and fiscal year certified to be true and correct by
Licensee.
ARTICLE ELEVEN
RELATIONSHIP OF PARTIES
11.1 Licensee is and shall be considered an independent contractor with the
entire control and direction of its business and operations, subject only to the
conditions and obligations established by this Agreement. No agency, employment,
or partnership is created by this Agreement. Licensee's business is separate and
apart from any that may be operated by Licensor. Neither party to this Agreement
shall make any representations tending to create apparent agency, employment, or
partnership. Neither party will have authority to act for the other in any
manner to create obligations or debts binding on the other, and neither party
will be responsible for any obligations or expenses whatsoever of the other.
Neither Licensee nor any person performing any duties or engaged in any work on
the premises at the request of Licensee shall be deemed an employee or agent of
Licensor.
ARTICLE TWELVE
TRANSFER OF INTEREST
12.1 Licensor has the right to assign this Agreement, and all of its rights and
privileges. The assignee shall be financially responsible and capable of
performing the obligations of Licensor; and shall assume and agree to perform
all Licensor obligations under this Agreement.
12.2 With respect to Licensee's obligations, this Agreement is acknowledged to
be a personal one, being entered into in reliance upon and in consideration of
the singular skill, character, and qualifications of Licensee and its
principals, and owners and the trust and confidence reposed therein by Licensor.
Therefore, Licensee may not effect an assignment, voluntarily or involuntarily,
by operation of law or otherwise, in any manner, without the prior written
consent of Licensor. Licensor may impose, among other things, the following
conditions precedent to its consent to an assignment: (i) that the assignee (or
the principal officers, shareholders or directors of the assignee in the case of
a corporate assignee) has the skills, qualifications and economic resources
necessary in Licensor's judgment, reasonably exercised, to conduct the business
contemplated by this Agreement, and to fulfill the assignee's obligations to the
Licensor ; (ii) that as of the date of any such assignment, Licensee shall have
fully complied with all of its obligations to Licensor under this Agreement;
(iii) that the assignee assumes all of the obligations of Licensee under all
leases for the Business, and that Licensee shall not be in default with respect
to any of its obligations under said leases; (iv) that assignee pay to Licensor
the sum of five thousand dollars ($5,000) as a transfer fee; (v) that in the
event of an assignment of this Agreement, Licensor shall require the assignee to
execute a new agreement in the form and on the terms and conditions then being
offered by Licensor to prospective licensees similarly situated, except that the
assignee shall not be obligated to pay an initial license fee. The term of the
new agreement shall expire on the date provided herein for the expiration of
this Agreement. The execution of the new License Agreement shall, except for the
post-term obligations of Licensee under this Agreement, be deemed to terminate
this Agreement; (vi) that the assignee, or a manager designated by the assignee,
shall have satisfactorily completed at assignee's cost and expense, the initial
training program then required of all new licensees of Licensor, unless such
training is waived by Licensor, in writing.
12.3 If the Licensee is not, or at any time ceases to be, a publicly traded
company, the transfer in the aggregate of more than fifty percent (50 %) of the
capital stock or voting power of Licensee if it is a corporation or of more than
a fifty percent (50%) interest if it is a partnership, as such parties were
originally constituted at the time of the execution of this Agreement, shall be
deemed to be an assignment of this Agreement within the meaning of this Article.
12.4 Licensee shall have no right to pledge, encumber, hypothecate or otherwise
give any third party a security interest in its rights under this Agreement in
any manner whatsoever without the prior written permission of Licensor, which
shall not be unreasonably withheld.
ARTICLE THIRTEEN
TERMINATION
13.1 Licensor may terminate this Agreement for the following defaults:
(i) Except with respect to Licensee's failure to pay any of the sums due
Licensor under this Agreement, or any related or ancillary agreement between the
parties, and except as expressly provided in this Agreement, Licensor may
terminate this Agreement upon a material breach by Licensee of any material
provision of this agreement, but only upon 30 days prior written notice to
Licensee, setting forth the material breach of which Licensor complains. If
Licensee cures such breach before the end of such period, then Licensor shall
have no right to terminate this Agreement because of such breach. However, if,
because of the nature of such breach, Licensee is unable to cure such breach
within such 30 day period, Licensee shall be given such additional time as is
reasonably necessary within which to cure such breach, upon condition that
Licensee, upon receipt of such notice from Licensor, shall have immediately
commenced to cure such breach and shall continue to use diligence and all
reasonable commercial efforts to do so.
(ii) With respect to any breach by Licensee of its obligation to pay any
sums due under this Agreement, Licensor may terminate this Agreement upon not
less than 30 days prior written notice of such breach. If Licensee cures such
breach before the end of such period, then Licensor shall have no right to
terminate this Agreement because of such breach.
13.2 Licensor shall have the right to terminate this Agreement immediately
without prior notice to Licensee, upon the occurrence of any or all of the
following events, each of which shall be deemed to be an incurable breach of
this Agreement which Licensee shall have no right or opportunity to cure.
(i) If Licensee is adjudicated bankrupt or judicially determined to be
insolvent (subject to any contrary provisions of any applicable laws), admits
Licensee's inability to meet its financial obligations when due, or makes a
disposition of all or a substantial part of its assets to or for the benefit of
its creditors, or if the Business premises are seized, taken over or foreclosed
by a government official in the exercise of such official's duties, or by a
creditor, lienholder or lessor, or if a judgment against Licensee in the amount
of more than $500,000.00 remains unsatisfied (unless an appeal is filed) for a
period of more than 60 days.
(ii) If Licensee is convicted of any felony, or any crime involving moral
turpitude or otherwise relevant to the operation of the Business;
(iii) If Licensee purports to sell, assign, transfer, pledge, hypothecate,
or encumber, in whole or in part, the Business in violation of the terms hereof.
(v) If an audit or investigation conducted by Licensor discloses that
Licensee has fraudulently understated Gross Sales or Net Revenue or has
fraudulently withheld the reporting of Gross Sales or Net Revenue.
13.3 If any valid applicable law or regulation of a governmental authority
having jurisdiction over this Agreement and the Business limits Licensor's
rights of termination under this Agreement or requires longer notice periods
than those set forth above, this Agreement shall be deemed amended to conform to
the minimum notice periods or restrictions upon termination required by such
laws and regulations. Licensor shall not, however, be precluded from contesting
the validity, enforceability or application of such laws or regulations in any
action, arbitration, gearing or dispute relating to this Agreement or to its
termination.
13.4 In the event of termination of this Agreement, whether by reason of
default, lapse of time or other cause, Licensee shall forthwith discontinue the
use of the Trademarks, and shall not thereafter operate or do business under any
name or in any manner that might tend to give the general public the impression
that Licensee is operating the Business and Licensee shall not thereafter use,
in any manner, or for any purpose, directly or indirectly, any of Licensor's
business models, trade secrets, procedures, techniques or materials acquired by
Licensee by virtue of the relationship established by this Agreement, including,
without limitation to the foregoing:
(i) any manuals, bulletins, instruction sheets and supplements thereto.
(ii) any forms, advertising matter, marks, devices, insignia, slogans and
designs used from time in connection with the Business or its Product;
(iii) any Trademarks, or trade names and patents now or hereafter applied
for or granted in connection therewith, and if Licensee fails or refuses to do
so, Licensor may execute, in Licensee's name and on Licensee's behalf, any and
all documents necessary to cause the discontinuance of Licensee's use of trade
names and Trade marks, and/or any other related name used under this Agreement.
Licensee hereby irrevocably appoints Licensor as Licensee's attorney-in-fact to
do so.
13.5 The termination of this Agreement shall be without prejudice to the rights
of Licensor against Licensee and Licensee against Licensor and such termination
shall not relieve Licensor or Licensee of any of its obligations to each other
or terminate those obligations of Licensor or Licensee, which by their nature,
survive the termination of this Agreement.
13.6 In the event Licensor is adjudicated a bankrupt under Chapter 7 of the
United States Bankruptcy Code, Licensee shall have the right to all information,
licenses, business models, software, actual programs, software provider names
and addresses and any other material whether copyrighted or patented, that might
assist the Licensee in the Business.
13.7 (a) Upon the expiration or termination of this Agreement, Licensee shall
have no further right to offer or enter into any additional Sublicense
Agreements; and Licensor may itself open, own or operate, or license others to
open own or operate Tte Business in the Territory.
(b) Upon the expiration or termination of this Agreement for any reason,
Licensee shall at Licensee's election, assign to Licensor its rights and
interest in each and every Sublicense or at Licensor's election assign such
Sublicenses to other Licensees of Licensor.
ARTICLE FOURTEEN
DISPUTE SETTLEMENT
14.1 In the event of any dispute or difference arising out of or relating to
this Agreement or the breach thereof, the parties hereto shall use their best
endeavors to settle such disputes or differences. To this effect, they shall
consult and negotiate with each other, in good faith and understanding of their
mutual interests, to reach a just and equitable solution satisfactory to the
parties. If they do not reach such solution within a reasonable period of time,
then the disputes or differences shall be finally settled by an Arbitration
before an arbitration panel operating in accordance with the Rules of
Conciliation and Arbitration of the International Chamber of Commerce.
14.2 The arbitration panel shall be formed of 3 (three) arbitrators, to be
appointed by proper authority. The arbitration shall take place at Las Vegas,
Nevada. The arbitrators shall resolve any dispute or controversy in accordance
with the wording and spirit of this Agreement, and, if there are no controlling
provisions, in accordance with the laws of Nevada.
14.3 The arbitration award shall be final and binding on the parties, not
subject to any appeal, and shall deal with the question of costs or arbitration
and all matters related thereto. The arbitration proceedings shall be conducted
in English and the arbitration award shall be written in English.
14.4 Judgment upon the award rendered may be entered into any court having
jurisdiction, or application may be made to such court for a judicial
recognition of the award or an order of enforcement thereof, as the case may be.
ARTICLE FIFTEEN
FORCE MAJEURE
The performance or observance by either party of any obligations of such party
under this Agreement may be suspended by it, in whole or in part, in the event
of any of the following which prevents such performance or observance: Act of
God, war, riot, fire, explosion, flood, sabotage, injunction, compliance with
governmental laws, regulations, orders or action, or any other cause beyond the
reasonable control of such party; provided, however, that the party so prevented
from complying with its obligations hereunder shall immediately notify in
writing the other party thereof and such party so prevented shall exercise
diligence in an endeavor to remove or overcome the cause of such inability to
comply.
ARTICLE SIXTEEN
CONFIDENTIALITY
16.1 Licensee shall hold in confidence any and all information disclosed to it
by Licensor concerning the Business, business and marketing plans or strategies,
operations and technical advice and any and all other information of a sensitive
business or technical nature arising under this Agreement. With respect to all
such information, Licensee shall not disclose the same to others without the
Licensor's prior written consent and to limit dissemination of the same among
Licensee's personnel to those persons having a need to know it for performance
of duties under this Agreement. Licensee shall use such information only for the
purposes contemplated by this Agreement.
16.2 The foregoing obligation concerning confidentiality and limitations on use
of information shall apply for a period five (5) years after the date of
expiration or termination of this Agreement except insofar as such information
is published or otherwise in the public domain at the time it was disclosed to
Licensee or thereafter becomes published or part of the public domain through no
fault of Licensee; or is obtained by Licensee in good faith without restrictions
on disclosure or use from a third person who did not derive it from Licensee.
ARTICLE SEVENTEEN
INTEGRATION OF AGREEMENT: AMENDMENT
17.1 This Agreement constitutes the entire agreement between the parties with
reference to the subject matter of this Agreement and supersedes all prior
negotiations, understandings, representations and agreements, if any. Licensee
acknowledges that it is entering into this Agreement as a result of its own
independent investigation and not as a result of any representations of
Licensor, its agents, officers or employees, not contained in any offering
circular, prospectus, disclosure document, or other similar document required or
permitted to be given to Licensee pursuant to applicable law.
17.2 This Agreement, including but not limited to, this provision, may not be
amended orally, but may be amended only by a written instrument signed by the
parties.
ARTICLE EIGHTEEN
MISCELLANEOUS
18.1 Any notice required or permitted to be given under this Agreement shall be
in writing in the English language and may be hand delivered, telexed, cabled,
sent via facsimile or mailed by airmail (return receipt requested, postage
prepaid) and shall be deemed given when received. Notices shall be addressed as
follows:
(a) Notices to Licensor: address first written above
(b) Notices to Licensee: address first written above
18.2 English language shall be controlling for all purposes,. and any language
translation shall not affect the meaning or interpretation of the Agreement.
18.3 This Agreement is executed in two originals, all in the English language.
18.4 The headings contained in the Agreement are for reference purposes only and
shall not affect the meaning or interpretation of the Agreement.
18.5 Either party's waiver of any breach, or failure to enforce any of the terms
and conditions of this Agreement, at any time, shall not in any way affect,
limit or waive such party's right thereafter to enforce and compel strict
compliance with every term and condition of the Agreement.
18.6 The construction, performance and completion of this Agreement is to be
governed by the laws of Nevada, USA, without giving effect to the principals of
conflicts of law thereof.
18.7 Licensor acknowledges that Licensee may be required by the laws applicable
in the Territory to disclose and/or register this Agreement with governmental
authorities, and consents to such disclosure, provided however, that Licensee
shall inform Licensee of all such required disclosures and/or registrations made
by Licensee. All such registrations, shall, unless prohibited by local law,
identify Licensee as a Licensee of Licensor.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and year
first above written.
NATIONSRX, INC.
BY:
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XXXXX XXXXXX, PRESIDENT AND CEO
ECLIPSE ENTERTAINMENT GROUP, INC.
BY:
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ART BIRZNECK, PRESIDENT
SCHEDULE A
NationsRx, incorporated in July 2002, is a pharmaceutical healthcare services
organization that provides a broad array of innovative pharmacy benefit related
products and services to healthcare consumers, client organizations (HEALTH
PLANS, SELF-INSURED EMPLOYERS, UNIONS, GOVERNMENT AGENCIES AND THIRD-PARTY
ADMINISTRATORS) and the pharmaceutical manufacturer industry. The Company
combines its clinical expertise, integrated data management platform and
therapeutic fulfillment capabilities to serve the pharmacy related needs of each
of its customers and clients. The Company's core program includes the design and
management of customized pharmacy related services geared towards assisting
clients and consumers effectively manage escalating prescription drug costs
while optimizing clinical outcomes. The Company has also developed an innovative
sample medication distribution program (XxxxxxXx.xxx(TM)) that minimizes the
pharmaceutical manufacturers' cost of entry into the traditional sample product
distribution channel. All of the Company's programs are designed with the
objective of enhancing overall clinical outcomes while capturing economic
efficiencies across the healthcare supply chain.
SCHEDULE B
1) The extent of the exclusive license granted hereunder for the Territory is
to market the Business as described in Schedule A on a exclusive worldwide
basis
SCHEDULE C
CLASS A CONVERTIBLE PREFERRED STOCK
The Company is authorized to issue up to 25,000,000 shares of Preferred Stock,
$0.001 par value per share (the "Authorized Preferred Stock"). There are no
shares of the Company's Class A Convertible Preferred Stock presently
outstanding. However, the Board of Directors has authorized the issuance of up
to 3,000,000 shares of Class A Convertible Preferred Stock with rights and
preferences described in the Articles of Incorporation as summarized herein.
With respect to the remaining shares of authorized but unissued Preferred Stock,
the Company's Articles of Incorporation, provide that the Company's Board of
Directors may determine, in whole or in part, the preferences, limitations and
relative rights (within the limits set forth by Nevada statute) of: (I) any
class of shares before the issuance of any shares of that class, or (2) one or
more series within a class before the issuance of any shares of that series.
Each series of a class must be given a distinguishing designation. All shares of
a series must have preferences, limitations, and relative rights identical with
those of other shares of the same Series, except to the extent otherwise
provided in the description of the series, of those of other series of the same
class.
DIVIDENDS ON PREFERRED STOCK
Shares of Class A Convertible Preferred Stock shall not bear a dividend unless
declared by the Board.
In the event a holder of Class A Convertible Preferred Stock converts his Class
A Convertible Preferred Stock shares to shares of the Company's Common Stock,
all accrued but unpaid dividends shall be forfeited.
The Class A Convertible Preferred Stock shall be treated equivalently with the
common in all respects as to dividends and the pro ration thereof.
No series or class of the Company's authorized Preferred Stock may be hereafter
issued which by its terms ranks senior or in parity as to dividends to or with
the Class A Convertible Preferred Stock without the approval of holders of at
least fifty percent (50%) of the Class A Convertible Preferred Stock.
LIQUIDATION RIGHTS
In case of the voluntary or involuntary liquidation, dissolution or winding-up
of the Company, holders of Shares of the Class A Convertible Preferred Stock are
entitled to receive a liquidation preference of $1.00 per share plus all accrued
but unpaid dividends, before any payment or distribution is made to the holders
of Common Stock or any other series or class of the Company's stock hereafter
issued which ranks junior as to liquidation rights to the Class A Convertible
Preferred Stock. A consolidation or merger of the Company with another
corporation will be deemed to be a liquidation, dissolution or winding-up of the
Company unless the Company is the surviving corporation and its shareholders
immediately prior to the consolidation or merger are the holders of at least
fifty-one percent (51%) of the voting equity of the surviving corporation
immediately after the consolidation or merger. A sale or transfer of all or part
of the Company's assets for cash, securities or other property will not be
considered a liquidation, dissolution or winding-up of the Company.
Holders of shares of any Class A Convertible Preferred Stock issued in the
future shall be entitled to receive a liquidation preference of $1.00 per share
plus an amount equal to any accrued and unpaid dividends, before any payment or
distribution is made to the holders of Common Stock or any other series or class
of the Company's stock hereafter issued which ranks junior as to liquidation
rights to the Class A Convertible Preferred Stock. To the extent any payment or
distribution is insufficient to pay the entire liquidation preference on all
outstanding shares of Class A Convertible Preferred Stock, the payment shall be
apportioned pro rata among the holders of the Class A Convertible Preferred
Stock in accordance with the purchase price paid by each shareholder, and
thereafter in accordance with any accrued and unpaid dividends, in proportion to
the amount thereof.
VOTING RIGHTS FOR PREFERRED STOCK
The holders of the Class A Convertible Preferred Stock shall vote for the
election of directors, and shall have full voting rights, equivalent to the
Common shares, on a six (6) Preferred share six (6) vote basis.
CONVERSION RIGHTS OF PREFERRED STOCK
The Company's Articles of Incorporation, as amended, provide that the holders of
the Class A Convertible Preferred Stock will be entitled at any time to convert
their shares of Class A Convertible Preferred Stock into shares of the Company's
Common Stock at the rate of six (6) shares of Class A Convertible Preferred
Stock for six (6) shares of Common Stock until redemption (the "Conversion
Ratio"). No fractional shares will be issued.
Conversion of the Class A Convertible Preferred Stock is voluntary on the part
of the holders thereof, and accordingly, the Company reserves as a prerequisite
to allowing such conversion the right to furnish such information to and require
such representations from the holders seeking conversion, and impose such
additional conditions on the conversion as may be authorized by the Company to
the extent such a delay is deemed by the Company to be necessary or convenient
to the provisions of such disclosure. The Company will, in all likelihood,
impose conditions to assure the validity of an exemption under Regulation D for
the conversion of the Shares.
The Conversion Ratio of the Class A Convertible Preferred Stock shall be
adjusted in certain circumstances, including the payment of a stock dividend on
shares of the Common Stock and combinations and subdivisions of the Common
Stock.
In the case of any share exchange, capital reorganization, consolidation, merger
or reclassification whereby the Common Stock is converted into other securities
or property, the Company will make appropriate provisions so that the holder of
each share of Class A Convertible Preferred Stock then outstanding will have the
right thereafter to convert such share of Class A Convertible Preferred Stock
into the kind and amount of shares of stock and other securities and property
receivable upon such consolidation, merger, share exchange, capital
reorganization or reclassification by a holder of the number of shares of Common
Stock into which such shares of Class A Convertible Preferred Stock might have
been convened immediately prior to such consolidation, merger, share exchange,
capital reorganization or reclassification. If the shares of Common Stock are
subdivided or combined into a greater or smaller number of shares of Common
Stock, or if a dividend is paid on the Common Stock in shares of Common Stock,
the Conversion Ratio shall be proportionately reduced in case of subdivision of
shares or stock dividend. If the shares of Common Stock are combined into a
smaller number of shares of Common Stock the Conversion Ratio shall not be
increased. The kind and amount of Class A Convertible Preferred Stock issuable
both before and after consolidation of the Common shares shall be the same.
The same transfer restrictions imposed on the Class A Convertible Preferred
Stock shall be applicable to the Common Stock into which the Class A Convertible
Preferred Stock is converted, although for purposes of Rule 144 as presently in
effect, the holding period requirement may be met by adding together the period
in which the Class A Convertible Preferred Stock is held and the period in which
the Common Stock into which the Class A Convertible Preferred Stock is
converted, is held.
