Cybearclub LC Joint Venture
The following reflects the terms and conditions of the Joint Venture entered
into as of August 25, 1999 by and between Anda, Inc. and Cybear, Inc.
STRUCTURE
Joint Venture - Cybearclub LC a Florida limited liability company
BUSINESS
E-Commerce to/with physicians with respect to products including but
not limited to Vaccines, Oral Dosage Pharmaceuticals, Injectibles and
Medical/Surgical Supplies.
INCOME TAXES
The Joint Venture is a limited liability company that has elected to be
taxed as a partnership and will file as such.
OWNERSHIP, CAPITAL CONTRIBUTIONS, DISTRIBUTIONS AND PROFIT AND LOSS ALLOCATIONS
Xxxx Xxxxxx
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45% 55%
MANAGEMENT COMMITTEE
Xxxx Xxxxxx
---- ------
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INITITAL CONTRIBUTIONS TO FORM JOINT VENTURE
Xxxx Xxxxxx
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Xxxx contributed the following: Xxxxxx contributed
the following:
o List of existing physicians ordering o xx.xxxxxx.xxx website
through telemarketing (the "List").
EMPLOYEES
None initially. Services are provided pursuant to contracts with both
Cybear and Anda.
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CONTRACTED SERVICES
Xxxx Xxxxxx
---- ------
o Fulfillment Services*, including: o Establish Business Terms:
(a) Purchasing (a) Pricing
(b) Warehousing (b) Payment
(c) Product Determination Decisions
o Invoicing and posting of cash receipts o Invoicing decisions
o Credit and collection decisions
* The cost and extent of Fulfillment Services o Physical Loss Inventory Risk
performed by Anda have been determined by o Credit Risk
arms-length negotiations between the parties. o Delivery Risk
o Accounting/Bookkeeping
o Internet Sales
o Internet services including:
(a) design
(b) development
(c) product and NOC maintenance
(d) graphic design
(e) implementation
(f) technical support
(g) installation
(h) consultation
(i) training material
(j) tools
RELATED AGREEMENT
In consideration for entering into this Joint Venture, Cybear will
grant Anda certain advertising rights on current and future Cybear
sites and a right of first refusal for competitive advertising by other
pharmaceutical companies on the current and future sites, including but
not limited to, the dr.cybear website. It is contemplated that Anda
shall later transfer its physician telemarketers (sometime referred to
as the "Qualamed Business") to Cybear, who will then be contracted for
use by the Joint Venture. If the parties choose to implement this
arrangement, they and the Joint Venture shall enter into such further
agreements as may be appropriate to reflect those understandings.
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FINANCIAL RESULTS
The Joint Venture records all product sales as a principal.
Anda, Inc. Cybear, Inc.
By: ____________________________ By: __________________________
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FIRST SUPPLEMENT TO JOINT VENTURE AGREEMENT
THIS FIRST SUPPLMENT TO JOINT VENTURE AGREEMENT (the "Supplement")
dated as of the 9th day of October, 2000 between Cybear, Inc. ("Cybear") and
Anda, Inc. ("Anda"), each of which is a subsidiary of Andrx Corporation.
WHEREAS, on August 25, 1999 Cybear and Anda formed Cybearclub LC, a
Florida limited liability company ("Cybearclub") in order to market and
distribute certain products ("Products") to physicians and their offices
("Customers") through the Internet;
WHEREAS, on or about August 15, 2000, Cybear and Anda entered into a
Joint Venture Agreement (the "JV Agreement"), confirming their prior oral
agreements concerning the structure and operation of Cybearclub, to wit: (1)
Cybearclub would be the parties' vehicle to jointly market and distribute
products to physicians and their offices through the Internet, (2) Cybearclub
would use Cybear's website and Internet services, and (3) Cybearclub would use
Anda's warehousing, fulfillment and certain other services;
WHEREAS, recognizing that Customer purchases made over the Internet
would provide future cost savings and operational efficiencies, and that they
did not wish to compete with each other for Customer purchases, Cybear and Anda
agreed that Cybearclub should aggressively encourage Customers to begin making
Product purchases over the Internet;
WHEREAS, Xxxxxx believed that if Cybearclub offered lower pricing than
Anda, Customers would begin making Product purchases over the Internet and
thereby "transition" into Internet users and Product purchasers over a
reasonable period of time;
WHEREAS, consistent with this belief, Xxxxxx authorized Anda
telemarketers to assist the Customer in placing an order over the Internet and,
for a limited time, to receive Product purchase orders over the telephone and to
cause such order to be input onto the Cybear website, and the parties agreed
that during this transitional period, which would be periodically reviewed and
agreed upon, these sales would be Cybearclub's sales;
WHEREAS, after reviewing the operational results for the quarter ended
September 30, 2000, Xxxxxx determined that an insufficient number of Customers
were actually "transitioning" into Internet users, and advised Anda of that
determination; and
WHEREAS, as a result of this determination and its consequences, the
parties have determined to modify their understandings concerning the operation
of the joint venture.
NOW THEREFORE, the parties agree as follows:
1. Incorporation of Introductory Paragraphs. The recitals set forth above
are true and correct and are incorporated herein by reference.
2. Defined Terms. Capitalized terms used in this Supplement, unless
otherwise defined herein, will have the meanings given such terms in
the JV Agreement.
3. Supplement. Commencing October 9, 2000, Customer sales generated
through Anda telemarketing efforts (previously transition sales) shall
be deemed Anda sales, rather than Cybearclub sales.
4. Status of Joint Venture Agreement. The JV Agreement, as supplemented
hereby, will remain in full force and effect, and except to the extent
expressly set forth in this Supplement, will not be deemed waived,
modified, superseded or otherwise affected in any respect.
5. General.
a) Notice. Unless otherwise agreed to by the parties, all notices
required under the JV Agreement will be deemed effective when
received and made in writing by either (i) registered mail,
(ii) certified mail, return receipt requested, or (iii) a
national overnight courier service, addressed and sent to the
attention:
Cybear, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxxx 000
Xxxx Xxxxx, XX 00000
Attn: Chief Operating Officer
Anda, Inc.
0000 Xxxxxx Xxxx
Xxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxx, General Counsel
b) Headings. The headings of this Supplement are provided for
reference only and will not be used as a guide to
interpretation.
c) Compliance with Laws. Each party will, at its own expense,
comply with any governmental law, statute, ordinance,
administrative order, rule or regulation relating to its
duties, obligations and performance under this Supplement and
will procure all licenses and pay all fees and other charges
required thereby.
d) Assignment. Neither party may sell, transfer, assign, or
subcontract any right or obligation set forth in the JV
Agreement as supplemented hereby without the prior written
consent of the other party, which consent will not be
unreasonably withheld. Any act in derogation of the foregoing
will be null and void. Neither party may sell, transfer, or
assign the JV Agreement as supplemented hereby, except as
expressly provided herein or therein, without the prior
written consent of the other party.
e) Governing Law. The validity, construction, and performance of
the JV Agreement and Supplement will be governed by the
substantive law of the State of Florida without regard to the
conflicts of law provisions thereof.
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f) No Other Rights. This Supplement will not be construed to
grant any rights by implication, estoppel, or otherwise, that
are not granted through its express provisions.
g) Severability. If any provision of the JV Agreement or this
Supplement hereby, is held by a court of competent
jurisdiction to be contrary to law, the remaining provisions
of the JV Agreement or this Supplement will remain in full
force and effect and will be interpreted, to the extent
possible, to achieve its purposes without the invalid, illegal
or unenforceable provision.
h) Entire Agreement. The provisions of the JV Agreement and this
Supplement hereby from time to time, constitute the entire
agreement between the parties and supersede all prior
agreements, oral or written.
i) Control. If there are any inconsistencies between the terms
and provisions of the JV Agreement and this Supplement, this
Supplement shall control.
6. Counterparts. This Supplement may be executed in several counterparts,
all of which together shall constitute one agreement binding on all
parties hereto, notwithstanding that all the parties have not signed
the same counterpart.
7. Signatures. The parties have caused this Supplement to be executed by
their duly authorized representatives.
Anda, Inc. Cybear, Inc.
Signature Signature
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Name Xxxxx Xxxxx Name Xxxxxxx X. Xxxxx
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Title Vice President & General Counsel Title President & COO
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