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EXHIBIT 10.4
MARKET LICENSE
Between
ACCESS HEALTH ALTERNATIVES, INC.
And
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This agreement, when signed below by you, on behalf of
____________________, a __________ corporation ("Licensee"), will serve as a
binding agreement by which Licensee agrees to fund the installation of certain
Access HealthMax Nutritional Centers (the "Centers"), to be among those located
in the ___________________ (the "Market").
1. General. The following is a general description of the relative rights
and obligations of the parties to this agreement.
(a) Access Health Alternatives Inc, through its subsidiary Access
HealthMax, Inc. (collectively "HealthMax") agrees to identify
healthcare providers and locations (jointly the "Providers")
throughout the Market that meet or exceed HealthMax' criteria
for becoming Centers, within the scope of HealthMax' existing
Center models, as previously described to Licensee. HealthMax
will present those Providers to Licensee for Licensee's
approval, which will not be unreasonably withheld. Providers
rejected by Licensee may be introduced to other funding
sources by HealthMax. Once a Provider has been accepted by
Licensee, HealthMax will undertake to enter into provider
agreements, train, supply, support, and otherwise engage in
all reasonable steps to ensure the installation and operation
of a Center with such Provider.
(b) Licensee agrees to fund the establishment of a minimum of
twenty (20) Centers in the Market, on the terms and conditions
set forth below. Further, once the twentieth Center funded by
Licensee has been installed in the Market, Licensee will have
the further right to fund up to twenty (20) additional Centers
in the Market should HealthMax determine that the Market can
support such additions.
(c) Licensee will be entitled to a minimum of twenty (20) start up
packages which will be housed by Access until such time as the
packages are delivered to Provider. Start up packages shall
include, display board, marketing/product material, and
initial inventory. It is expressly understood that the product
inventory, once delivered to the Provider shall be on
consignment in that office.
(d) In consideration of Licensee funding the Centers, and as a
licensee of HealthMax, Licensee will receive revenue from the
sale of Access HealthMax Nutritional Products sold by the
Centers funded and licensed by Licensee, as set forth below.
Such sales may include direct sales and sales to HealthMax
members identified by the funded Center.
(e) Notwithstanding anything set forth to the contrary in this
agreement, in the License Agreement or in any provider
agreement, HealthMax expressly reserves the right to
discontinue, change pricing, or initiate any HealthMax
Nutritional Product or associated program, at any time and for
any reason, upon written notice to Licensee.
2. Installation of Initial Centers.
(a) HealthMax shall identify and introduce to Licensee, for
Licensee's approval, no fewer than three (3) Providers
believed by HealthMax to be suitable candidates for the
installation of Centers, within thirty (30) business days
following the date of this agreement. Unless HealthMax has
received written notice from Licensee as to the
unacceptability of such Provider within one (1) business day
following the date the identify of such Provider has been
given to Licensee, the Provider will be deemed to
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have been accepted by Licensee. It is agreed that Licensee's
acceptance will not be unreasonably withheld.
(b) As quickly as practical following Licensee's acceptance of a
Provider, HealthMax will enter into an appropriate provider
agreement consistent with HealthMax' current practice, and
represented in Exhibit A, and will take all reasonable steps
to complete the Installation of the Center, it being agreed
that for purposes of this agreement, Installation shall be
deemed to have occurred when HealthMax' initial equipment
package has been delivered to, and accepted by, an approved
Provider and initial training has been completed, and it being
further agreed and understood that Installation shall be
completed within 30 business days following Licensee's
acceptance of the Provider.
(c) As quickly as possible following the Installation of the first
three (3) Centers in accordance with the foregoing, and
assuming the Terms of Funding set forth below have been met,
HealthMax will identify, qualify and accomplish the
Installation of seventeen (17) additional Centers in the
Market.
(d) HealthMax will use its best efforts to complete the
Installation of the first ten (10) Centers within sixty (60)
business days following the date of this Agreement, and the
next ten (10) Centers within one hundred twenty (120) business
days thereafter.
3. Installation of Additional Centers.
(a) Upon the completion of the Installation of the Initial
Centers, Licensee shall have the right to fund up to twenty
(20) additional Centers (the "Additional Centers"), which
right shall be exercised, if at all, as follows.
(b) Upon the completion of the Installation of the Initial
Centers, HealthMax shall notify Licensee in writing of such
event and of Licensee's option to fund additional Centers , in
groups of ten (10) in the Market; Licensee shall have five (5)
business days from the date of such notice in which to notify
HealthMax, in writing, of Licensee's exercise of that option,
and to fund the ten (10) Additional Centers in accordance with
the applicable provisions set forth below.
4. Replacement of Centers. In the event that HealthMax' relationship with
a particular Center is terminated for any reason during the five-year
period commencing on the date of this Agreement, HealthMax shall use
its best efforts to replace that Center as quickly as possible;
provided, however, that HealthMax shall identify a replacement Center
within sixty (60) business days from the termination of a Center, and
shall complete Installation of the replacement Center within thirty
(30) business days following Licensee's acceptance of such a
replacement Center and execution and delivery of Provider Agreement
with respect to the replacement Center. Irrespective of the foregoing,
HealthMax will be under no obligation to identify and support a
replacement Center if Licensee has received a minimum of $20,000 return
from the terminated Center.
6. Revenue Distribution.
(a) In consideration for funding the Initial Centers and the
Additional Centers (collectively, the "Funded Centers"), and
as contemplated by the License Agreements with respect
thereto, Licensee, as licensor, shall receive $2.50 all
HealthMax Nutritional Products purchased by the Funded Centers
and sales to HealthMax members identified by the funded Center
during the Term as defined below (the "Revenue Distribution").
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(b) As further consideration and for a five year period to run
concurrent with this agreement, Licensee shall be entitled to
$0.25 of each monthly paid membership under the Nutritional
Options Plus Plan (the "NOP Distribution"). In addition
Licensee shall be entitled to a bonus $0.25 until the total of
$200,000 has been received from paid membership.
(c) Licensee will receive its applicable Revenue Distribution and
NOP Distribution, along with a detail of the basis for such
Distributions, no less frequently than quarterly.
(d) The period of time for which Licensee shall be entitled to
receive Revenue Distributions from the Funded Centers shall be
for a five-year period commencing on the Installation with
respect to each Center (the "Term").
7. Terms of Funding. Licensee agrees to fund each of the respective
Centers as follows:
(a) Initial Centers: payment of $200,000 upon execution of this
agreement
(b) Additional Centers: payment of $100,000 upon execution of
option agreement
8. Exclusivity. At such time as the twentieth (20th) Initial Center has
been fully funded in accordance herewith, Licensee shall be deemed to
have been granted the exclusive right (the "Exclusivity") to establish
Centers in the Territory, for the duration of the last-to-expire Term;
provided, however, that the following shall not be deemed to be within
the scope of this Exclusivity: the establishment and operation of any
Centers owned by HealthMax or an affiliate of HealthMax; the direct
marketing and/or sale of any HealthMax Nutritional Products to
individuals in the Territory; the establishment and operation of any
non-Center methods of distribution of HealthMax Nutritional Products in
the Territory; and the establishment and operation of any Center
reasonably required in connection with an employer-associated contract
(an "Employer Center") (such as the establishment of a Center located
on, or in close proximity to, an employer's premises for purposes of
inducing the employer to participate in a member benefits plan
instituted by HealthMax or an affiliate of HealthMax). In the latter
case, HealthMax agrees to offer Licensee the opportunity to fund the
Employer Center, on terms to be established if and when such
opportunity arises.
9. Termination. This Agreement (and any Term hereunder) may be terminated
at any time by mutual agreement of the parties, at which time all of
the respective rights and obligations for Revenue Distribution,
Exclusivity, Right of First Refusal, and otherwise, shall cease, unless
otherwise mutually agreed. In addition, this Agreement may be
terminated as follows:
(a) Termination by Licensee: Licensee may terminate this Agreement
for HealthMax Cause (as defined below) at any time upon 30
days' written notice to HealthMax.
(i) For purposes of this Agreement, HealthMax Cause shall
mean the occurrence of any of the following, which,
after receipt by HealthMax of written notice from
Licensee, has not been cured within sixty (60)
business days: (A) failure of HealthMax to deliver
any HealthMax Nutritional Product within ten (10)
business days from receipt of an order from any
Funded Center; (B) HealthMax' breach of a material
provision of this Agreement; or (C) appointment of a
receiver over HealthMax or filing of a petition for
voluntary or involuntary bankruptcy of HealthMax.
(b) Termination by HealthMax: HealthMax may terminate this
Agreement for Licensee Cause (as defined below) at any time
upon 30 days' written notice to Licensee.
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(i) For purposes of this Agreement, Licensee Cause shall
mean the occurrence of any of the following, which,
after receipt by Licensee of written notice from
HealthMax, has not been cured within sixty (60)
business days: (A) failure of Licensee to timely make
any payment required under this Agreement; (B)
Licensee's breach of a material provision of this
Agreement; (C) appointment of a receiver over
Licensee or filing of a petition for voluntary or
involuntary bankruptcy of Licensee; or (D)
determination by a regulatory or similar authority
prohibiting Licensee from conducting business in the
State of __________.
10. Miscellaneous.
(a) This Agreement is the entire agreement presently in effect
between HealthMax and Licensee with respect to the funding of
Centers; it may be modified or amended only in writing signed
by both parties.
(b) Licensee may assign its rights under this Agreement to any
entity (corporation, limited partnership or limited liability
company) under common control with Licensee, upon written
notice to HealthMax; no other assignments or transfer of
interests hereunder by Licensee will be permitted.
(c) Any disputes arising in connection with this Agreement will be
resolved under the laws of the State of Florida, in the
appropriate federal or state courts located in Orange County,
Florida, which shall be the exclusive venue for the resolution
of such disputes; HealthMax and Licensee both submit to the
jurisdiction of such courts.
(d) Nothing in this Agreement creates, nor is intended to create,
a partnership, agency, employment or joint venture
relationship between HealthMax and Licensee.
(e) This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original but both of which
together will constitute one and the same agreement.
(f) In the event of breach of any payment by Licensee under this
Agreement, HealthMax shall have the right to pursue all
remedies at law or in equity, and seek all applicable damages,
including but not limited to the right of setoff; specific
performance; quantum meruit; and rescission. Notwithstanding
and without limiting the foregoing, it is expressly agreed and
understood that HealthMax may elect its remedies, which may be
cumulative, including (i) the right to terminate the
Agreement; (ii) the right to terminate Revenue Distribution;
(iii) the right to require full payment for the Funded
Centers; and/or (iv) the right to terminate the Exclusivity
and/or the Right of First Refusal.
(g) All notices, requests, demands, claims and other
communications pursuant to this Agreement will be in writing.
Any notice, request, demand, claim or other communication
shall be deemed given if (and then two business days after) it
is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended
recipient, at the following addresses (which may be changed by
written notice):
If to HealthMax: 0000 X. Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxx, President
(000) 000-0000 (phone)
(000) 000-0000 (fax)
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e-mail: xxxxxxxx@xxxxxxxxxxxxxxx.xxx
If to Licensee: _____________________
Attn: _______________
(phone)
(fax)
e-mail: ____________________________
If the foregoing accurately reflects our agreement, please sign below
and return a copy of this letter agreement to the undersigned, at the fax number
below; please mail the original payment, along with your check representing the
payment due under Section 7 of this agreement.
ACCESS HEALTH ALTERNATIVES, INC.
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Xxxxxx Xxxxxxx, Chief Operating Officer
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, Market Licensee
AGREED AND ACCEPTED THIS
_________ DAY OF_______ 1999,
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