EXHIBIT 10.21
WEBSITE AND REVENUE SHARING AGREEMENT BETWEEN
THE INSTITUTE FOR MEDICAL STUDIES, INC. AND XXXXXXXXXXXXXXXX.XXX
DATED JUNE 29, 19999
WEBSITE SERVICES AND REVENUE SHARING AGREEMENT
This Agreement, dated as of September 29, 1999 (the "Effective Date") is made by
and between The Institute for Medical Studies, Inc., a California corporation
having its principal place of business at 00000 Xxxx Xxxxxx Xxxxx, Xxxxx 0-XXX
#000, Xxxxxx Xxxxxx, XX 00000 ("IMS") and The Health Xxxxxxx.Xxx, Inc., a
Delaware corporation having its principal place of business at 0000 Xxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx Xxxxx, XX 00000 ("THCL").
In consideration of their mutual promises and covenants contained in this
Agreement, the parties agree as follows:
1. Website Services Agreement
A) IMS agrees to maintain in its website (the "CME Supersite" which, by
way of reference, currently resides on the World Wide Web at
xxx.xxxxxx.xxx) a prominent reference and link to THCL's health care
portal website (located at xxx.xxxxxxxxxxxxxxxx.xxx). The language and
other aspects of such reference and link shall be mutually agreed upon
by the parties.
B) Unless consented to in writing by THCL, IMS agrees that it will have
no agreement with any other health care portal website (other than the
health care portal website of THCL), providing for referrals to or
from the IMS website.
C) IMS' name, logo, and link shall appear prominently in THCL's
"professional" home page and Professional Education Page; the language
and other aspects of such reference and link shall be mutually agreed
upon by the parties. IMS shall be the only CME provider and CME portal
website so named and featured in the THCL health care portal
website(s), unless otherwise agreed to in writing by IMS.
2. IMS Website Maintenance
IMS will maintain its CME website on servers maintained by IMS at its
expense (or that of IMS' clients); an exception to this will be the costs
related to any technical revision of the IMS site that may be necessary in
order for it to interface with the THCL site, said costs to be borne by
THCL. IMS shall use its best efforts to ensure reasonably high quality of
the IMS CME website, said quality to be determined by IMS. If major design
changes to the IMS website are desired by THCL, THCL will cover the costs
of said changes.
Initials: /s/ RB IMS /s/ TL THCL
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IMS/THCL Agreement - Page 2 of 7
3. THCL Portrayal of Relationship with IMS and related IMS Services Contracted
A) IMS authorizes THCL to use IMS' name (in a manner to be approved by
IMS) to approach pharmaceutical (and other) CME supporters/sponsors to
solicit funding for development of web-based CME/CE and/or patient
education. Additionally, IMS will encourage other CME/CE providers
and/or developers to enter into similar arrangements with THCL under
which THCL will solicit funding for the development of web-based
CME/CE and/or patient education on behalf of those organizations. Any
and all funding from CME/CE supporters/sponsors or developers will be
received in a manner that is consistent with ACCME/FDA standards and
guidelines for commercially supported CME, as interpreted by IMS
and/or the ACCME. IMS will, in accordance with ACCME/FDA standards,
have the right to review and approve of any such materials prior to
their placement on any IMS website.
B) IMS authorizes THCL to approach IMS' CME program faculty (in a manner
to be approved by IMS) using IMS as a reference regarding potential
affiliation with a "Health Channel Medical Advisory Board," and/or for
other related projects as may be from time to time determined by the
mutual consent of IMS and THCL.
4. Revenue Sharing And Services Agreement
A) THCL will use its best efforts to approach pharmaceutical and other
CME/CE supporters to solicit funding for web based CME/CE and/or
patient education, as referenced in Section 3.A (above).
B) To assist THCL in its solicitation effort, IMS will provide THCL with
a database or directory of potential funding sources (pharmaceutical
companies and medical communications companies) and with suggestions
on how to best approach those funding sources. Additionally, IMS will
send an announcement to its medical communications company database,
in order to familiarize them with THCL.
C) If, during the term of this Agreement, any contract is entered into by
THCL with any pharmaceutical company or other CME supporter/sponsor,
provider or developer for the development of web-based CME/CE or
web-based patient education, then IMS shall receive from THCL 10%
(before deductions for any related expenses) of any payments THCL
received from such supporters, sponsors, providers or developers In
the case where IMS is the accredited provider of said CME, IMS shall
be responsible for overseeing and approving the quality, format and
content of the CME programs and THCL and/or its agents shall be
responsible for all educational and technical program development
costs, sales/marketing costs, and any other program expenses; in those
cases where IMS is the accredited provider, IMS will receive, in
addition to the abovementioned 10%, its fee for accreditation services
which is 10% of the overall budget for the educational program unless
the Parties mutually agree to a different percentage.
Initials: /s/ RB IMS /s/ TL THCL
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IMS/THCL Agreement - page 3 of 7
5. IMS Warrant to Purchase THCL Shares
A) As evidenced by the attached Warrant Agreement (attached "Exhibit A"),
IMS is receiving for its services performed under this agreement, a
non-transferable option to purchase up to 1,200,000 shares of THCL
common stock at an exercise price of $0.10 per share.
6. Information
A) Each party agrees to use reasonable efforts to keep secret and in
confidence all confidential documentation and information (such as
customer or client lists and data) furnished to it by the other party
under or in connection with this Agreement. Each party shall use
reasonable efforts to cause all of its officers, employees,
contractors, affiliates and agents to maintain such documentation and
information secret and confidential. The obligations of the parties
under this paragraph shall not apply to any disclosures of
confidential information required by court order or applicable laws,
or to any such documentation or information which, through no breach
on the part of the disclosing party, has become generally known or
available to the public, has been furnished to the disclosing party by
a third party as a matter of right and without restriction on
disclosure, or has been developed independently by the disclosing
party.
B) Each party will provide to the other party on a quarterly basis
written reports setting forth in reasonable detail all revenues,
expenses and other cash flows relating to this Agreement.
7. Term and Termination
A) Unless earlier terminated pursuant to this section, this Agreement
will expire on the third anniversary of the date of this Agreement.
B) If either party shall default in the payment of any amount owed to the
other party under Section 4 or shall become bankrupt or insolvent,
such other party may, at its option, terminate this Agreement by
delivery of a written notice of such termination to the defaulting,
bankrupt or insolvent party.
C) If either party shall otherwise commit any material breach of its
obligations under this Agreement, and shall fail to remedy such breach
within sixty (60) days after written notice of such breach and of the
other party's intent to terminate this Agreement under this item is
given to it by the other party, the other party may, at its option,
terminate this Agreement by delivery of written notice of such
termination to the defaulting party.
D) Following the expiration or termination of this Agreement under this
Section 7, each party's obligations with respect to previously
produced products and projects, or arising out of any prior failure to
pay an amount owed when due or other breach by the other party, shall
continue in effect.
E) At IMS' option, if at any time during the term of this Agreement, the
market price of THCL stock (adjusted for any intervening stock splits,
reverse stock splits, or stock dividends) is priced at less than $0.40
per share for five (5) consecutive business days, then paragraphs 1A,
1B and 1C shall no longer be applicable to this Agreement.
Initials: /s/ RB IMS /s/ TL THCL
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IMS/THCL Agreement - page 4 of 7
8. Miscellaneous
A) Entire Agreement. This Agreement contains the entire agreement between
the parties, and supersedes all prior agreements, representations and
under-standings of the parties, relating to the subject matter of this
Agreement.
B) Further Actions. Each party agrees that after the delivery of this
Agreement it will execute and deliver such further documents and do
such further acts and things as the other party may reasonably request
in order to carry out the terms of this Agreement.
C) Amendments. No supplement or amendment of this Agreement will be
binding unless executed in writing by both the parties.
D) Waivers. Any term or provision of this Agreement may be waived at any
time by the party entitled to its benefit by a written instrument
executed by a duly authorized officer of the party. No waiver
of any of the provisions of this Agreement will be deemed, or
will constitute, a waiver of any other provision, whether or not
similar, nor will any waiver constitute a continuing waiver. The
failure of any party to enforce at any time any provision of this
Agreement, or any right with respect thereto, or to exercise any
election herein provided, shall in no way be considered to be a waiver
of such provision, right or election, or to in any way affect the
validity of this Agreement. The exercise by any party of any right or
election under the terms or convenants herein shall not preclude or
prejudice any party from exercising the same or any other right it may
have under this Agreement, irrespective of any previous action or
proceeding taken by the parties hereunder.
E) Successors, Assigns and Sublicenses. This Agreement will be binding
on, and will inure to the benefit of, the parties and their respective
successors and assigns. Neither side may assign its rights or
obligations under this Agreement, except its rights to receive
payments from the other party, without the other party's written
consent. Provided that THCL shall continue to be bound by its payment
and other obligations under this Agreement and any such sublicensee
shall comply with applicable ACCME requirements, THCL shall be
entitled to a sublicense its rights under Sections 3A, 3B, and 4A to
third parties and to use independent contractors in the production and
marketing of the CME/CE programs.
F) Attorney's Fees. If any arbitration, legal action or other proceeding
is brought in connection with any of the provisions of this Agreement,
the successful or prevailing party will be entitled to recover
reasonable attorney's fees and other costs incurred in that
arbitration, action or proceeding, in addition to any other relief to
which that party may be entitled.
Initials: /s/ RB IMS /s/ TL THCL
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IMS/THCL Agreement - page 5 of 7
G) Governing Law. All questions with respect to the construction of this
Agreement, and the rights and liabilities of the parties under this
Agreement, will be governed by the laws of the State of California,
excluding conflicts of laws provisions.
H) Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed a valid, original
agreement, but all of which together will constitute one and the same
instrument.
I) Severance. If any provision of this Agreement or its application to
any person or circumstances is held to be unenforceable or invalid by
any court of competent jurisdiction, its other applications and the
remaining provisions of this Agreement shall be enforced so as to best
effect the intentions of the parties in entering into this Agreement.
J) Captions. The section headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement. The references to sections refer to
corresponding sections of this Agreement unless otherwise specified.
K) Notices. Any notice or other communication to either party pursuant to
this Agreement shall be deemed to have been duly given and received on
the date of actual delivery in writing, addressed to the President (or
other officer otherwise designated below for such purpose) of the
party, at its address set forth below.
If to IMS: The Institute for Medical Studies, Inc.
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00000 Xxxx Xxxxxx Xxxxx
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Suite 0-PMB #000
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Xxxxxx Xxxxxx, XX 00000-0000
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If to THCL: The Health Xxxxxxx.Xxx, Inc.
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0000 Xxxxx Xxxxxx
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Suite 4000
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Xxxxxxx Xxxxx, XX 00000
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Either party may change its address for purposes of this paragraph by
giving the other party written notice of the new address in the
manner set forth above.
L) Drafting. This Agreement has been negotiated at arm's length and
between persons sophisticated and knowledgeable in the matters dealt
with and represented by their own counsel. Accordingly, any rule of
law (including California Code of Civil Procedure Section 1654) or
legal decision that would require interpretation against the drafter
of this Agreement is not applicable and is waived.
Initials: /s/ RB IMS /s/ TL THCL
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IMS/THCL Agreement - page 6 of 7
M) Relationship of Parties. The relationships established between IMS and
THCL by this Agreement are that of independent contractors, and
nothing contained herein shall be deemed to establish or otherwise
create a relationship of principal and agent or a partnership between
them. Until and unless otherwise specifically agreed, neither party
nor any of its agents or other distributors shall have any right or
authority to assume or create any obligations of any kind, whether
express or implied, on behalf of the other party.
N) Definitions. For purposes of this Agreement, the following terms are
defined:
1) Health Care Portal Website: A website containing general and
specific health care information that is targeted primarily
towards a consumer audience, but may also be (somewhat) targeted
to a professional audience. A website that is targeted primarily
to health care professionals' CME needs shall not be considered a
health care portal website; neither shall a website that is
primarily devoted to one or more closely related disease entities
(e.g. a "Heart Disease" website).
2) CME: "CME" refers to "Continuing Medical Education," for
physicians and also to "CE" or "Continuing Education" for other
health care professionals such as nurses, pharmacists, etc.
3) CME Provider: A CME provider or developer refers to either an
accredited or non-accredited developer, overseer, planner, and/or
other implementor of CME programs or activities.
4) CME Supporter/Sponsor: Refers to any entity (pharmaceutical
company, medical device company, or other) that provides
financial support for CME/ CE programming.
5) ACCME: Accreditation Council for Continuing Medical Education.
6) FDA: Food and Drug Administration.
7) Patient Education: Originally developed (copyrightable)
educational programming or materials, targeted towards a patient
or health care consumer audience.
8. Educational Initiative: An overall program directed towards
educating physicians or other audiences about drug use or disease
management. Initiatives may include activities such as advisory
boards, faculty development, related CME/CE programming and
patient education.
Initials: /s/ RB IMS /s/ TL THCL
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IMS/THCL Agreement - Page 7 of 7
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the Effective Date.
On Behalf of On Behalf of
The Institute for Medical Studies, Inc. The Health Xxxxxxx.Xxx, Inc.
/s/ Xxxxxx X. Xxxxxxxx /s/ Xxxxxx Xxxxxxxx
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Xxxxxx X. Xxxxxxxx Xxxxxx Xxxxxxxx
Its President Its Chief Operating Officer, Secretary
and Chief Financial Officer
9/29/99 9/29/99
Date Date
Signed at: Signed at:
Irvine , California Irvine , California
