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EXHIBIT 10.33
STRATEGIC RELATIONSHIP AGREEMENT
THIS STRATEGIC RELATIONSHIP AGREEMENT (this "Agreement") is entered
into as of January 7, 2000, by and among XXXXXXX.XXX, INC., a Delaware
corporation having its principal place of business at 00000 Xxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000 (the "Company"), Allianz
Capital Partners, GmbH, and Xxxxxx Xxxxxx (each a "Strategic Partner" and
together the "Strategic Partners").
RECITALS
WHEREAS, the Company is in the business of providing web-based commerce
and content applications for the global healthcare community of buyers and
vendors (the "Business"), and desires to take steps to explore and potentially
expand the Business to include Europe; and
WHEREAS, each of the Strategic Partners severally has information,
knowledge and relationships which may be of assistance to the Company in
pursuing such expansion of the Business, which information, knowledge and
relationships the Company desires to obtain from the Strategic Partners and the
Strategic Partners desire to make available to the Company on the terms and
conditions set forth below.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises hereinafter set forth, the parties agree as follows:
1. INFORMATION. Each of the Strategic Partners hereby severally agrees
that, from time to time during the "Term" (as defined below) upon the request of
the Company, each Strategic Partner shall use good faith efforts to provide the
Company on a timely basis with information and know-how concerning (i) European
health care markets generally, (ii) distribution channels for the sale of health
care related products in European markets, (iii) competitive enterprises in the
European markets as they are identified by the Company or either Strategic
Partner, (iv) practice and custom concerning the distribution and sale of health
care products in European markets, and (v) identification of, and introduction
to, additional sources of information regarding European markets. In addition,
during the Term and upon the request of the Company, each Strategic Partner
shall use good faith efforts to provide the Company on timely basis with
introductions to persons or entities which may be beneficial to the Company in
the European expansion of the Business.
The Company acknowledges that neither Strategic Partner makes any
representations or warranties regarding (i) the accuracy or completeness of any
information provided to the Company, (ii) the value of such information, or
(iii) any outcome or expected benefit to the Company from the use of such
information. The Company also acknowledges that neither Strategic Party shall be
obligated to provide any information if, in the reasonable opinion of such
Strategic Partner, the provision of such information would violate applicable
laws, rules or regulations, or any contract binding on such Strategic Partner
restricting the use or disclosure of such information. Each Strategic Partner
hereby disclaims any and all warranties concerning any information provided to
the Company.
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2. TERM. This Agreement shall commence on the date hereof and shall
terminate on the first anniversary hereof unless extended by the mutual written
agreement of the parties. The Company may terminate this Agreement at any time
with regard to a Strategic Partner upon delivery of written notice to such
Strategic Partner.
3. MISCELLANEOUS.
3.1 SUCCESSORS AND ASSIGNS. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors and administrators of
the parties hereto and shall inure to the benefit of and be enforceable by each
person who shall be a holder of the Shares from time to time. This Agreement and
the obligations hereunder may not be assigned without the prior written consent
of all of the parties.
3.2 ENTIRE AGREEMENT. This Agreement constitutes the full and
entire understanding and agreement between the parties with regard to the
subjects hereof and no party shall be liable or bound to any other in any manner
by any representations, warranties, covenants and agreements except as
specifically set forth herein and therein.
3.3 SEVERABILITY. In case any provision of the Agreement shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
3.4 AMENDMENT AND WAIVER. This Agreement may be amended or
modified only upon the written consent of the Company and the Strategic
Partners. The obligations and the rights of the parties under the Agreement may
be waived only with the written consent of the party from whom such waiver is
sought.
3.5 NOTICES. All notices required or permitted hereunder shall
be in writing and shall be deemed effectively given: (a) upon personal delivery
to the party to be notified, (b) when sent by confirmed telex or facsimile if
sent during normal business hours of the recipient, if not, then on the next
business day, (c) ten (10) days after having been sent by registered or
certified mail, return receipt requested, postage prepaid, or (d) four (4)
business days after deposit with a nationally recognized overnight courier,
specifying next day delivery, with written verification of receipt. All
communications shall be sent to the parties at the addresses for such parties on
the books and records of the parties or at such other address as the any party
may desire to designate by ten (10) days advance written notice to the other
parties hereto.
3.6 EXPENSES. Each party shall bear its own expenses in the
negotiation, execution and performance of this Agreement.
3.7 TITLES AND SUBTITLES. The titles of the sections and
subsections of the Agreement are for convenience of reference only and are not
to be considered in construing this Agreement.
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3.8 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
3.9 CONFIDENTIALITY. Each Strategic Partner and the Company
severally agrees that, except with the prior written consent of the party from
whom such information was obtained, it shall at all times keep confidential and
not divulge, furnish or make accessible to any third party any confidential
information, knowledge or data concerning or relating to the Business or
provided by a Strategic Partner pursuant to Section 1 above; provided, however,
that no party shall be under such obligation with respect to any information,
knowledge or data which (i) becomes publicly known and made generally available
through no wrongful act of such party or (ii) is publicly known and generally
available in the public domain prior to the time of disclosure.
3.10 PRONOUNS. All pronouns contained herein, and any variations
thereof, shall be deemed to refer to the masculine, feminine or neutral,
singular or plural, as to the identity of the parties hereto may require.
3.11 GOVERNING LAW. This Agreement shall be governed in all respects by
the laws of the State of California as such laws are applied to agreements
between California residents entered into and performed entirely in California.
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IN WITNESS WHEREOF, the parties hereto have executed this Strategic
Relationship Agreement as of the date first set forth above.
COMPANY:
XXXXXXX.XXX, INC.
By: /S/ XXXXXX XXXXXXXX
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Name: Xxxxxx Xxxxxxxx
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Title: EVP & CFO
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STRATEGIC PARTNERS:
ALLIANZ CAPITAL PARTNERS, GMBH
By: /S/ XXXXXX PUTTER /S/ XXXXXX XXXXXX
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Name: Xxxxxx Putter Xxxxxx Xxxxxx
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Title: CEO Sen. Inv. Manager
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XXXXXX XXXXXX
/S/ XXXXXX XXXXXX
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