Exhibit 4.04
RELEASE AND TERMINATION AGREEMENT
This Release and Termination Agreement ("Agreement") is dated as of
June 15, 1999 and is by and among RealMed Corporation (the "Company"), Newcourt
Financial USA Inc. ("Newcourt"), Candel & Partners, Gemplus SCA, Gemplus Corp.,
West Plains Investment, Inc., Finno SCA, Xxxxx Xxxxx, JLT, LP, Xxxxxx X. Xxxx,
Xxxxxx X. Xxxxxxxx, and Xxxx X. Xxxxxx, (all parties other than the Company
shall be referred to as the "Interested Parties").
RECITALS
A. Contemporaneously with the execution and delivery of this Agreement,
the Company and Newcourt are entering into a Loan Agreement pursuant to which,
among other things, Newcourt will commit, subject to certain terms and
conditions, to loan up to $17,500,000 to the Company (the "Loan Agreement").
B. In connection with the Loan Agreement and the transactions
contemplated thereby, Newcourt and the other parties to this Agreement desire to
establish with certainty the nature and extent of any and all relationships
between the Company, on the one hand, and the Interested Parties, on the other
hand, and between or among the Interested Parties.
C. Newcourt will not execute and deliver the Loan Agreement or
consummate the transaction contemplated thereby unless, among other things, this
Agreement is executed and delivered by the parties hereto.
D. The parties hereto believe it is desirable for the Company and
Newcourt to enter into the Loan Agreement and are, therefore, willing to enter
into this Agreement in order to induce Newcourt to enter into the Loan
Agreement. Each of the parties also believes it is in its best interest to enter
into this Agreement in order to establish with certainty the matters set forth
in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained in this Agreement, the parties agree as follows:
1. This Agreement shall become effective when the Loan
Agreement has been executed and delivered and the conditions precedent set forth
in Section 2.1 of the Loan Agreement have been satisfied or have been waived by
Newcourt.
2. For purposes of this Agreement, the term "Surviving
Agreements" means the agreements listed on Exhibit A.
3. Each of the Interested Parties, on the one hand, and the
Company, on the other hand, agree that, except for the Surviving Agreements,
each and every agreement, commitment, contract and/or understanding, whether
written or oral, entered into on or prior to the date of this Agreement (a)
between or among any of the Interested Parties which relate to the Company
and/or any of the capital stock of the Company, and/or (b) between such
Interested Party and the Company (including, but not limited to each agreement,
commitment, contract and understanding listed on Exhibit B) (collectively, the
"Terminated Agreements") is hereby terminated and rendered null and void and the
Company is hereby released from any and all obligations, covenants and duties
under each of the Terminated Agreements.
4. Each of the Interested Parties absolutely, irrevocably
and unconditionally releases the Company and its officers, directors and
employees from any and all claims, causes of action, demands, and rights, which
he or it has, or may have, whether known or unknown, absolute or contingent,
matured, or unmatured, in connection with or arising under (a) any of the
Terminated Agreements, and/or (b) any transaction, event or occurrence occurring
on or prior to the date of this Agreement; provided, however, that the foregoing
release shall not extend to claims, causes of action, demands or rights arising
under the Surviving Agreements.
5. Each party agrees that, from time to time, it will execute
and deliver, or cause to be executed and delivered, such additional agreements,
instruments, certificates and documents and take all such actions as any other
party to this Agreement may reasonably request for purposes of implementing or
effectuating the provisions of this Agreement.
6. This Agreement shall be binding upon and shall inure to the
benefit of all of the parties to this Agreement and their respective heirs,
executors, administrators, assigns and successors in interest.
7. The parties affirm that this Agreement has been entered
into in the State of Indiana and shall be governed by and construed in
accordance with the substantive laws of the State of Indiana, notwithstanding
any state's choice of law rules to the contrary. Further, the parties expressly
agree that any and all action concerning any dispute arising under this
Agreement shall be filed and maintained only in a state or federal court sitting
in the State of Indiana or the State of California, and each party hereby
consents and submits to the jurisdiction of such state or federal court.
8. If any term or provision of this Agreement is held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms and provisions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated, and
each of the parties shall use its reasonable best efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term or provision.
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9. No change, amendment, modification or supplement to this
Agreement shall be valid or effective unless it is in writing and is duly
executed by each party to this Agreement or its duly authorized successor or
assign.
10. The failure of any party to this Agreement to enforce at
any time any provision of this Agreement shall not be construed to be a waiver
of such provision, nor in any way to affect the validity of this Agreement or
any part of it or the right of such party to enforce each and every provision of
this Agreement. Any waiver of any breach or provision of this Agreement must be
in a writing signed by the waiving party in order to be effective and, except as
otherwise clearly expressed in such a writing, no waiver of any breach or
provision of this Agreement shall constitute a waiver of any other breach or
provision or a continuing waiver. The performance by any party to this Agreement
of any act not required of it by the terms of this Agreement shall not
constitute either an agreement that such act is required or a waiver of the
scope of, or limitations on, its obligations under this Agreement and no such
performance shall estop such party from denying any obligation to perform such
act or asserting such scope or limitations with respect to any further or future
acts or failures to act.
11. When used in this Agreement, words denoting the singular
include the plural and vice versa and words of any gender include all genders.
12. This Agreement constitutes a complete and total
integration of the understanding of the parties with respect to the subject
matter of this Agreement and it supersedes all prior and all contemporaneous
agreements and understandings (whether written, oral or implied) of the parties,
or their respective agents, with respect to such subject matter.
13. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute but one agreement. Any facsimile transmission of a
signed counterpart of this Agreement shall be deemed to be an original
counterpart and all signatures appearing thereon shall be deemed to be
originals.
14. This Agreement shall not be strictly construed against any
party.
15. In the event of any litigation among any of the parties to
this Agreement regarding the matters governed hereby or the enforcement hereof,
the losing party shall pay to the prevailing party all reasonable expenses and
costs, including reasonable attorneys' fees, incurred by the prevailing party in
connection with such litigation.
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IN WITNESS WHEREOF, the parties have entered into this Agreement as of
the date set forth at the beginning of this Agreement.
JLT, XX XXXXXX & PARTNERS
By: By:
--------------------------
Xxxxxx X. Xxxx, General Partner
Printed Name, Title
Xxxxxx X. Xxxxxxxx Xxxx X. Xxxxxx
Xxxxxx X. Xxxx Xxxxx Xxxxx
GEMPLUS SCA GEMPLUS CORP.
By: By:
--------------------------
Printed Name, Title Printed Name, Title
West Plains Investment, Inc. Finno SCA
By: By:
--------------------------
Printed Name, Title Printed Name, Title
(Signatures continued on next page)
(Signatures continued from preceding page)
NEWCOURT FINANCIAL USA INC. REALMED CORPORATION
By: By:
------------------------ -------------------------
Xxxxxx X. Xxxxx, Executive Vice President Xxxxxx X. Xxxxxxxx, President
Exhibit A
Surviving Agreements
1. Any and all stock option agreements for employees (other than Interested
Parties).
2. Option Agreement, dated June 10, 1998, by and among JLT, LP, Xxxx X. Xxxxxx
and Xxxxxx X. Xxxxxxxx.
3. Memorandum signed by the Company and agreed to by Xxxxxx X. Xxxxxxxx
memorializing the loan on May 4, 1998 made to the Company by Xxxxxx X.
Xxxxxxxx in the principal amount of $150,000 with an interest rate of
4%.
4. Loan Agreement dated June 15, 1999 between the Company and Newcourt.
5. Subordinated Convertible Promissory Note dated June 15, 1999 executed
by the Company in favor of Newcourt in the aggregate principal amount of
$17,500,000.
6. Registration Rights Agreement dated June 15, 1999 among the Company,
Newcourt, Xxxx X. Xxxxxx, Xxxxxx X. Xxxxxxxx, JLT, LP, Gemplus Corp.,
Gemplus SCA, Xxxxx Xxxxx, West Plains Investment, Inc., Finno SCA and
Candel & Partners.
7. Shareholder Agreement dated June 15, 1999 among the Company, Newcourt,
Xxxx X. Xxxxxx, Xxxxxx X. Xxxxxxxx, JLT, LP, Gemplus Corp., Gemplus SCA,
Xxxxx Xxxxx, West Plains Investment, Inc., Finno SCA, Candel & Partners
and Xxxxxx X. Xxxx.
8. Employment Agreement dated June 15, 1999 between the Company and Xxxxxx X.
Xxxxx.
9. Employment Agreement dated June 15, 1999 between the Company and Xxxxx
Given.
10. Employment Agreement dated June 15, 1999 between the Company and Xxxx X.
Xxxxxx.
11. Employment Agreement dated June 15, 1999 between the Company and Xxxxxx X.
Xxxxxxxx.
12. Subscription Agreement dated June 15, 1999 executed by Newcourt (for 100
common shares of the Company).
13. 1999 Stock Option and Incentive Plan adopted by the Company as of June
15, 1999 (the "Plan") and the Award of a Non-Qualified Option to Xxxxxx
X. Xxxxxxxx to purchase 250,000 Shares pursuant to the Plan and the
Award of a Non-Qualified Option to Xxxx X. Xxxxxx to purchase 250,000
Shares pursuant to the Plan which Awards are subject to the terms and
conditions approved by the Board of Directors of the Company on June
15, 1999.
Exhibit A, Page 1 of 2
14. Stock Option Agreement between the Company and Xxxxxx X. Xxxxx.
15. Stock Option Agreement between the Company and Xxxxx Given.
16. Restricted Stock Agreement between the Company and Xxxxxx X. Xxxxx.
17. Restricted Stock Agreement between the Company and Xxxxx Given.
18. Subordinated Secured Promissory Note dated June 15, 1999 executed by the
Company in favor of Gemplus Corp. in the aggregate principal amount of
$4,285,797.87.
19. Security Agreement dated June 15, 1999 signed by the Company in favor of
Gemplus Corp.
20. This Release and Termination Agreement.
21. Recapitalization Confirmation Agreement dated as of June 15, 1999 among
the Company, Xxxx X. Xxxxxx, Xxxxxx X. Xxxxxxxx, Xxxxxx Xxxxxx, Xxxxxx
Xxxx, Xxxxxxxxx Xxxxxxxx, Xxxxxx Xxxxxx, Xxxxxx Xxxxxxxx, Xxxx Xxxx,
Gemplus SCA, JLT, LP, Jefferson Consulting Group, LLC, Jefferson
Government Relations, LLC, West Plains Investment, Inc., Finno SCA,
Xxxxxxx Xxxxxxxxx, Xxxxx Xxxxx and Candel & Partners.
22. Eclipse/RealMed Agreement dated June 15, 1999 among the Company,
Xxxx X. Xxxxxx, Xxxxxx X. Xxxxxxxx, RealMed Capital Corporation,
Eclipse Computing, Inc., Eclipse Consulting Group, Inc., Eclipse Powernet,
Inc., Eclipse Financial Corporation, Eclipse Group, Inc. and Eclipse
America Corporation.
23. Master Lease Vendor Agreement dated June 15, 1999 between the Company and
Newcourt.
Exhibit A, 2 of 2
Exhibit B
Partial List of Terminated Agreements
1. Non_Qualified Stock Option Bonus Agreement for Non_Employee dated June 10,
1998 between the Company and Xxxx Xxxxxx;
2. Non_Qualified Stock Option Bonus Agreement for Non_Employee dated June 10,
1998 between the Company and Xxxx Xxxxxx;
3. Non_Qualified Stock Option Bonus Agreement for Non_Employee dated June 10,
1998 between the Company and Xxxxxx Xxxxxxxx;
4. Non_Qualified Stock Option Bonus Agreement for Non_Employee dated June 10,
1998 between the Company and Xxxxxx Xxxxxxxx;
5. Agreement dated December 17, 1998 between the Company and Xxxxxx X. Xxxx
regarding the Company's funded debt with First National Bank of Kokomo;
6. Warrant to Purchase Capital Stock of RealMed Corporation, dated April 16,
1999, in favor of JLT, LP;
7. Any and all agreements evidencing or relating to loans by the Company in
favor of JLT, LP of $500,000 and $250,000 commencing on November 25, 1998 and
December 16, 1998, respectively;
8. Proxies of Xxxx X. Xxxxxx and Xxxxxx X. Xxxxxxxx dated December 16, 1998 in
favor of Xxxxxx X. Xxxx;
9. Subscriptions to Capital Stock of the Company by JLT, LP dated June 18, 1998,
July 27, 1998, August 10, 1998, September 30, 1998 and October 14, 1998;
10. Loan Agreement dated April 16, 1999 between the Company and JLT, LP;
11. Promissory Notes in the original principal amounts of $100,000, $500,000,
$250,000, $250,000 and $150,000 dated March 19, 1999, April 16, 1999, May 3,
1999, May 19, 1999 and June 7, 1999 respectively executed by the Company in
favor of JLT, LP;
12. Employment Agreements dated October 1, 1997 and June 1, 1998 between the
Company and Xxxxxx X. Xxxxxxxx;
13. Employment Agreement dated October 1, 1997 and June 1, 1998 between the
Company and Xxxx X. Xxxxxx;
Exhibit B, Page 1 of 3
14. Employment Agreement dated October 1, 1997 and June 1, 1998 between the
Company and Xxxx X. Xxxxxx; 14. Note Purchase Agreement between the Company and
Gemplus Corporation dated November 13, 1998;
15. Subordinated Convertible Secured Promissory Note in the original principal
amount of $4,180,187.01, dated November 13, 1998, executed by the Company in
favor of the Gemplus Corporation;
16. Subordinated Convertible Secured Promissory Note in the original principal
amount of $350,000, dated January 12, 1999, executed by the Company in favor of
the Gemplus Corporation;
17. Subordinated Convertible Secured Promissory Note in the original principal
amount of $50,000, dated March 15, 1999,
executed by the Company in favor of the Gemplus Corporation;
18. Subordinated Convertible Secured Promissory Note in the original principal
amount of $50,000, dated March 23, 1999,
executed by the Company in favor of the Gemplus Corporation;
19. Warrant to Purchase Capital Stock of RealMed Corporation, dated March 15,
1999, in favor of Gemplus Corporation;
20. Warrant to Purchase Capital Stock of RealMed Corporation, dated March 23,
1999, in favor of Gemplus Corporation;
21. Financial Advisor Agreement dated June 17, 1998 between the Company and
Candel & Partners;
22. Subordinated Convertible Promissory Note dated February 23, 1999, executed
by the Company in favor of Candel & Partners;
23. Loan Agreement dated June 17, 1998 between the Company and Xxxxx Xxxxx;
24. Loan Agreement dated October 30, 1998 between the Company and Xxxxx Xxxxx;
25. Subordinated Convertible Promissory Note dated February 23, 1999, executed
by the Company in favor of Xxxxx Xxxxx;
26. Note and Warrant Purchase Agreement between the Company and Xxxxx Xxxxx
dated February 23, 1999;
27. Warrant to Purchase $180,000 of Capital Stock of RealMed Corporation dated
February 23, 1999, executed by the Company in favor of Xxxxx Xxxxx;
Exhibit B, Page 2 of 3
28. Any and all agreements evidencing or relating to a loan from Xxxxxx Xxxxxxxx
to the Company in the amount of $150,000, maturing on December 31, 1998;
29. Memorandum of Understanding, undated, by and between the Company and Gemplus
SCA regarding investment by the latter in the former;
30. Purchase Agreement dated August 22, 1997 between the Company and Gemplus
SCA;
31. Purchase Agreement dated October 22, 1997 between the Company and West
Plains Investment, Inc.;
32. Purchase Agreement dated January 28, 1998 between the Company and West
Plains Investment, Inc.;
33. Put and Call Agreement, dated January, 1998 between the Company and West
Plains Investment, Inc;
34. Put and Call Termination Agreement dated February 2, 1998 between the
Company and Finno, S[C]A;
35. Put and Call Agreement dated January 28, 1998 between the Company and West
Plains Investment, Inc.;
36. Put and Call Termination Agreement binding as of October 28, 1997 between
the Company and Finno, S[C]A;
37. Stock Option Agreement dated April 11, 1997 among the Company, Gemplus SCA
and Finno;
38. Extension of Stock Option Agreement dated May 23, 1997 among the Company,
Finno and Gemplus SCA;
39. Put and Call Agreement dated October 28, 1997 between the Company and Finno,
SA; and
40. Extension of Stock Option Agreement dated May 23, 1997 among Gemplus SCA,
Finno and the Company.
Exhibit B, Page 3 of 3
