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Exhibit 10.3
Capital Contribution Agreement between Torchmark Holdings, Ltd.
and Registrant dated March 17, 1999.
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CAPITAL CONTRIBUTION AGREEMENT
THIS CAPITAL CONTRIBUTION AGREEMENT (the "Agreement") is entered into
to be effective as of March 17, 1999 by and between Torchmark Holdings Limited
("Torchmark"), a Turks and Caicos Islands B.W.I. corporation, and Dicom Imaging
Systems, Inc., a Nevada Corporation ("Dicom").
WITNESSETH :
WHEREAS, Torchmark has rights to certain archiving and search software
(the "Software") suitable for use in dental diagnostic procedures and for other
applications; and
WHEREAS, certain of the shareholders of Dicom and Torchmark wish to
enter into a shareholder voting agreement concurrently and as a condition to the
execution of this Agreement; and
WHEREAS, Torchmark and Dicom desire to enter into certain arrangements
regarding the grant of a license to use the Software in the field of dental
imagery to Dicom in exchange for a controlling equity interest in Dicom.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows:
1. LICENSE AGREEMENT AND STOCK ISSUANCE
Simultaneously with the execution of this Agreement, Torchmark is
granting to Dicom an exclusive, worldwide, fully paid license to Dicom of its
rights to market Image Explorer (the "Product") solely in the field of
dentistry, and also any software modules, plug-ins, modifications, or updates
developed by Torchmark designed to enhance the functionality of the Product,
which license is set forth in the License Agreement (the "License") attached
hereto as Annex A. As consideration for the License, Dicom is issuing to
Torchmark 950,000 fully-paid and nonassessable shares of Dicom Common Stock, par
value $0.001 per share (the "Torchmark Shares"). The Torchmark Shares have not
been and will not be registered under the United States Securities Act of 1933,
as amended (the "U.S. Securities Act"), and accordingly may not be offered or
sold within the United States except in certain transactions exempt from the
registration requirements of the U.S. Securities Act.
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2. CLOSING; EFFECTIVE DATE
2.1 CLOSING. The execution of the License and issuance of the Dicom
shares to Torchmark required under this Agreement shall be deemed to occur
simultaneously with the execution of this Agreement at 9:00 am at the offices of
Xxxxxxxx Xxxxxxxxxx, Esq. The term "CLOSING" shall mean the completion of the
execution of the License and transfer of the Dicom shares to Torchmark on the
terms described in this Agreement, and the term "CLOSING DATE" shall mean the
date of this Agreement.
2.2 EFFECTIVE DATE. The execution of the License and issuance of the
Dicom shares to Torchmark shall be deemed effective as of the commencement of
business on the Closing Date (the "EFFECTIVE DATE").
3. REPRESENTATIONS AND WARRANTIES OF DICOM
Dicom represents and warrants to and agrees with Torchmark as follows:
3.1 CAPITALIZATION. The authorized capital stock of Dicom consists of
50,000,000 shares of Dicom Common Stock, of which 1,350,000 shares are issued
and outstanding as of the Closing Date and 10,000,000 shares of Dicom Preferred
Stock, none of which are issued and outstanding as of the Closing Date. Schedule
3(a) correctly sets forth the identity of the Dicom shareholders and the amount
of stock owned by each. All of the issued and outstanding shares of Dicom Common
Stock (including the Torchmark Shares) have been duly authorized, validly
issued, and are fully paid and non-assessable, with no personal liability
attaching to the ownership thereof, free from all pre-emptive or other rights to
acquire such shares. Dicom is not bound by any outstanding subscriptions,
options, warrants, calls, commitments, or agreements of any character calling
for the transfer, purchase, or issuance of any shares of its capital stock or
any securities representing the right to purchase or otherwise receive any
shares of its capital stock or any securities convertible into or representing
the right to purchase or subscribe for any such shares, and there are no
agreements or undertakings to which Dicom is a party with respect to voting any
such shares other than this Agreement, the Co-Sale Agreement and the Shareholder
Voting Agreement executed in connection with this Agreement.
3.2 ORGANIZATION, POWER, GOOD STANDING, ETC.; AFFILIATES AND
SUBSIDIARIES. Dicom is a corporation duly organized, validly existing and in
good standing under the laws of the State of Nevada. Dicom has all the requisite
corporate power and authority to own, lease and operate all of its properties
and assets and to carry on the business contemplated by this Agreement. Dicom is
or is capable of being duly licensed or qualified to do business and is or may
be in good standing in each jurisdiction in which the nature of the business to
be conducted by it makes such licensing or qualification necessary and where the
failure to be so qualified would, individually or in the aggregate, have a
materially adverse effect on Dicom. Dicom has previously delivered or made
available to Torchmark true and correct copies, including all amendments
thereto, of its Articles of Incorporation and its bylaws (the "Dicom Charter
Documents") as in effect on the date hereof. There is no firm, corporation,
partnership, joint venture or similar organization in which Dicom has a direct
or indirect equity interest.
3.3 ACCURATE RECORDS. The minute books of Dicom contain materially
complete and accurate records of all meetings held and other corporate action
taken since its date of organization, by its shareholders and Board of
Directors.
3.4 DISCLOSURE OF AGREEMENTS. Dicom has previously delivered to
Torchmark true and complete copies of all agreements to which it is a party or
by which its assets may be bound (i) which relate to any ownership interest by
Dicom of an equity interest in any partnership, joint venture, or similar
enterprise or (ii) pursuant to which Dicom may be required to transfer funds in
respect of an equity interest to, make and investment in, or guarantee or assume
any debt, dividend or other obligation of, any person or entity, partnership,
joint venture or similar enterprise. Schedule 3(e) correctly sets forth a list
of all such agreements.
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3.5 REPORTS. Dicom has previously delivered or made available to
Torchmark an accurate and complete copy of all reports or other material
communications delivered by Dicom to its stockholders since its inception and no
such report or communication, as of its date, contained any untrue statement of
a material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
3.6 LITIGATION. As of the Closing Date, there were no actions, suits,
claims, inquiries, proceedings or investigations before any court, commission,
bureau, regulatory, administrative or governmental agency, arbitrator, body or
authority pending or threatened against Dicom. Dicom is not subject to any
order, judgment or decree.
3.7 VALID AGREEMENTS; RESTRICTIVE DOCUMENTS. All transactions
contemplated by and necessary to this Agreement have been authorized by all
necessary corporate action on the part of Dicom. This Agreement has been duly
executed and delivered on behalf of Dicom and constitutes a valid and binding
obligation, enforceable against Dicom in accordance with its terms, except as
the enforcement thereof may be limited by applicable bankruptcy and other laws
of general application relating to creditors' rights or general principles of
equity. Dicom is not subject to, or a party to, any mortgage, lien, lease,
license, permit, agreement, contract, instrument, law, rule, ordinance,
regulation, order, judgment or decree, or any other restriction of any kind or
character, which would prevent consummation of the transactions contemplated by
this Agreement or compliance by Dicom with the terms, conditions and provisions
of this Agreement or any other agreement entered into by Dicom in connection
with the transactions contemplated hereby. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby will not (i) violate, conflict with or result in the breach
of any provision of the Dicom Charter Documents, (ii) violate any order,
judgment, award or decree of any court, arbitrator or governmental or regulatory
body against, or binding upon, Dicom; or (iii) violate any statute, law or
regulation of any jurisdiction, which violation could have a material adverse
effect on Dicom.
3.8 LIABILITIES. Dicom does not have any outstanding claims,
liabilities or indebtedness of any nature whatsoever, including without
limitation, claims or liabilities for any federal, state, local or foreign taxes
(collectively, "Liabilities"), whether accrued, absolute or contingent,
determined or undetermined, asserted or unasserted, and whether due or to become
due, other than Liabilities specifically disclosed in Schedule 3(i) hereto.
3.9 CONSENTS AND APPROVALS. No consents or approvals of or filings or
registrations with any third party or public body or authority are necessary in
connection with the execution and delivery by Dicom of this Agreement, the
License, and the other documents executed in connection with this Agreement.
3.10 EMPLOYEES. Except as specifically identified in this Agreement,
Dicom has no employees, consultants, staff or other paid or unpaid agents
whatsoever. Dicom has no outstanding or potential obligations to pay any amount
to any former employee or other agent (including, but not limited to wages,
salaries, vacation pay, pensions, severance pay, any direct or indirect
compensation earned or accrued at the date hereof).
3.11 TAXES AND TAX RETURNS. Dicom has timely and correctly filed all
federal, state, county and local tax and other returns and reports
(collectively, "Returns") required by applicable law to be filed, including,
without limitation, estimated tax returns, income tax returns, excise tax
returns, sales tax returns, use tax returns, property tax returns, franchise tax
returns, information returns and withholding, employment and payroll tax
returns, and has paid all taxes, levies, license and registration fees, charges
or withholdings of any nature whatsoever shown by such Returns to be owed, or
which are otherwise due and payable (hereinafter, "Taxes"). Dicom is not in
default in the payment of any Taxes due or payable or any assessments received
in respect thereof except for Taxes which are being contested in good faith. No
assessments of Taxes against Dicom are proposed, pending or threatened.
3.12 DISCLOSURE. Nothing in this Agreement or any Annex, certificate,
document or statement in writing which has been supplied by or on behalf of
Dicom, in connection with the transactions contemplated hereby, contains any
untrue statement of a material fact, or omits any statement of a material fact
required to be stated or necessary in order to make the statements contained
herein or therein not misleading. There is no fact which materially and
adversely affects Dicom, which has not been set forth in this Agreement or in
the Annexes, certificates, documents or statements in writing furnished in
connection with the transactions contemplated by this Agreement.
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4. REPRESENTATIONS AND WARRANTIES OF TORCHMARK
Torchmark represents and warrants to and agrees with Dicom as follows:
4.1 EXISTENCE AND GOOD STANDING. Torchmark is a corporation duly
organized, validly existing and in good standing under the laws of Turks and
Caicos and has the full corporate power and authority to own and operate its
properties and to carry on its business all as, and in the places where, such
properties are now owned or operated or such business is now being conducted.
Torchmark is qualified to do business as a foreign corporation in each
jurisdiction where such qualification is required, whether by ownership or
leasing of property or the conduct of business, except where the failure so to
qualify or to be in good standing would not result in a material adverse effect
on Torchmark or its obligations under this Agreement.
4.2 VALID AGREEMENTS; RESTRICTIVE DOCUMENTS. The execution, delivery
and performance of this Agreement, and the transactions contemplated hereby,
have been duly authorized by all necessary corporate action on the part of
Torchmark. This Agreement has been duly executed and delivered on behalf of
Torchmark and constitutes its valid and binding obligation, enforceable against
Torchmark in accordance with its terms, except as the enforcement thereof may be
limited by applicable bankruptcy and other laws of general application relating
to creditors' rights or general principles of equity. Torchmark is not subject
to, or a party to, any charter, by-law, mortgage, lien, lease, license, permit,
agreement, contract, instrument, law, rule, ordinance, regulation, order,
judgment or decree, or any other restriction of any kind or character, which
materially and adversely affects the rights granted under the License, or which
would prevent consummation of the transactions contemplated by this Agreement,
compliance by Torchmark with the terms, conditions and provisions of this
Agreement or any other agreement entered into by Torchmark in connection with
the transactions contemplated hereby. The execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated hereby will
not (i) violate, conflict with or result in the breach of any provision of the
charter documents of Torchmark, (ii) violate or result in the breach of any of
the terms of, result in a material modification of, or otherwise give any other
contracting party the right to terminate, or constitute (or with notice or lapse
of time or both constitute) a default under, any contract to which Torchmark is
a party; (iii) violate any order, judgment, award or decree of any court,
arbitrator or governmental or regulatory body against, or binding upon, the
Product; or (iv) violate any statute, law or regulation of any jurisdiction,
which violation could have a material adverse effect on the License.
4.3 REQUIRED APPROVALS, NOTICES AND CONSENTS. No consent or approval
of, other action by, or notice to, any governmental body or agency, domestic or
foreign, or any third party is required in connection with the execution and
delivery by Torchmark of this Agreement or the consummation by Torchmark of the
transactions contemplated hereby, including, without limitation, the grant of
the License.
4.4 LITIGATION. As of the Closing Date, there were no actions, suits,
claims, inquiries, proceedings or investigations before any court, commission,
bureau, regulatory, administrative or governmental agency, arbitrator, body or
authority pending or threatened against Torchmark or any affiliated entity
thereof. Torchmark is not subject to any order, judgment or decree. Reference is
made to the litigation between various parties identified and further described
in Annex C hereto (the "1997 Litigation"). Torchmark represents that the 1997
Litigation has been fully settled and that true copies of the Settlement
Agreement and Mutual Release in Full are attached in Annex C hereto. Torchmark
represents and warrants that no party to the 1997 Litigation has a basis in law
or fact to interfere with the granting of the License to Dicom and the
fulfillment of the terms of this Agreement and the terms of the License.
4.5 DISCLOSURE. Nothing in this Agreement or any Annex, certificate,
document or statement in writing which has been supplied by or on behalf of
Torchmark, in connection with the transactions contemplated hereby, contains any
untrue statement of a material fact, or omits any statement of a material fact
required to be stated or necessary in order to make the statements contained
herein or therein not misleading. There is no fact known to Torchmark that
materially and adversely affects the License which has not been set forth in
this Agreement or in the Annexes, certificates, documents or statements in
writing furnished in connection with the transactions contemplated by this
Agreement.
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5. INDEMNIFICATION
5.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Notwithstanding any
right of either party to this Agreement fully to investigate the affairs of the
other party and notwithstanding any knowledge of facts determined or
determinable by either party pursuant to such investigation or right of
investigation, each party has the right to rely fully upon the representations,
warranties, covenants and agreements of the other party contained in this
Agreement and the Annexes or in any document or other papers delivered in
connection with this Agreement. All such representations, warranties, covenants
and agreements shall survive the execution and delivery of this Agreement and
the Closing hereunder.
5.2 OBLIGATION OF TORCHMARK TO INDEMNIFY DICOM. Torchmark agrees to
indemnify and hold harmless Dicom (and its affiliates, agents, representatives,
successors and assigns) from and against any and all losses, liabilities,
damages, deficiencies, demands, claims, actions, judgments or causes of action,
assessments, costs or expenses (including, without limitation, bonds, interest,
penalties and reasonable attorneys' fees and disbursements) ("Losses") based
upon, arising out of or otherwise in respect of any inaccuracy in or any breach
of any representation, warranty, covenant or agreement of Torchmark contained in
this Agreement or any Annex or Schedule hereto, or any other agreement delivered
by Torchmark to Dicom in connection with this Agreement.
5.3 OBLIGATION OF DICOM TO INDEMNIFY TORCHMARK. Dicom agrees to
indemnify and hold harmless Torchmark (and its directors, managers, officers,
employees, affiliates, agents, representatives, successors and assigns) from and
against any and all Losses based upon, arising out of or otherwise in respect of
(i) any inaccuracy in or any breach of any representation, warranty, covenant or
agreement of Dicom contained in this Agreement or any Annex or Schedule hereto,
or in any other agreement delivered by Dicom to Torchmark in connection with
this Agreement, and (ii) any liabilities and obligations of whatever nature
pertaining to Dicom arising before the Effective Date.
5.4 NOTICE AND OPPORTUNITY TO DEFEND.
5.4.1 NOTICE OF ASSERTED LIABILITY. Promptly after receipt by
any party hereto (the "Indemnitee") of notice of any demand, claim or
circumstances which, with the lapse of time, would or might give rise to a claim
or the commencement (or threatened commencement) of any action, proceeding or
investigation (an "ASSERTED LIABILITY") that may result in any Losses to which
such Indemnitee is entitled to indemnification hereunder, the Indemnitee shall
promptly give notice thereof (the "CLAIMS NOTICE") to any other party obligated
to provide indemnification pursuant to Section 5.2 or 5.3 (the "INDEMNIFYING
PARTY"), PROVIDED, HOWEVER, that the failure to promptly notify the Indemnifying
Party shall not relieve him or it, as the case may be, from any liability which
such Indemnifying Party may have to any Indemnitee except to the extent that
such Indemnifying Party is prejudiced thereby. The Claims Notice shall describe
the Asserted Liability in reasonable detail, and shall indicate the amount
(estimated, if necessary and to the extent feasible) of the Losses that have
been or may be suffered by the Indemnitee.
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5.4.2 OPPORTUNITY TO DEFEND. The Indemnifying Party may elect to
compromise or defend, at its own expense and by its own counsel (such counsel to
be reasonably satisfactory to Indemnitee(s)), any Asserted Liability relating to
a third party claim or action. If the Indemnifying Party elects to compromise or
defend such Asserted Liability, it shall within 20 days (or sooner, if the
nature of the Asserted Liability so requires) notify the Indemnitee of its
intent to do so and confirm in such notice such Indemnifying Party's agreement
to pay the full amount of any Losses to the Indemnitee, and the Indemnitee shall
cooperate, at the expense of the Indemnifying Party, in the compromise of, or
defense against, such Asserted Liability. If the Indemnifying Party elects not
to compromise or defend the Asserted Liability, fails to notify the Indemnitee
of its election as herein provided, fails to aggressively defend the Asserted
Liability or contests its obligation to indemnify under this Agreement, the
Indemnitee may pay, compromise or defend such Asserted Liability at the expense
of the Indemnifying Party. Notwithstanding the foregoing, neither the
Indemnifying Party nor the Indemnitee may settle or compromise any claim without
the prior written consent of the other; PROVIDED, HOWEVER, that consent to
settlement or compromise shall not be unreasonably withheld. The Indemnitee
shall have the right to participate in the defense and employ its own counsel in
any case with respect to an Asserted Liability, but the fees and expenses of
such counsel shall be at the expense of such Indemnitee unless (a) the
employment of such counsel shall have been authorized in writing by the
Indemnifying Party in connection with the defense of such action, (b) such
Indemnifying Party shall not have promptly employed counsel as provided above,
reasonably satisfactory to such Indemnitee to take charge of the defense of such
action, or (c) such Indemnitee shall have reasonably concluded that there may be
one or more legal defenses available to it which are different from or
additional to those available to such Indemnifying Party, in any of which events
such reasonable fees and expenses shall be borne by the Indemnifying Party and
the Indemnifying Party shall not have the right to direct the defense of such
action on behalf of the Indemnitee in respect of such different or additional
defenses. If the Indemnifying Party chooses to defend any claim, the Indemnitee
shall make available to the Indemnifying Party any books, records or other
documents within its control that are necessary or appropriate for such defense.
The parties hereto agree to cooperate fully with one another in the defense,
compromise or settlement of any Asserted Liability.
6. MANAGEMENT AND OPERATION OF THE COMPANY
6.1 BOARD OF DIRECTORS. At the Effective Date, the Board of Directors
of Dicom will consist of five members, Xxxxx Xxxx, Xxxx Xxxx, Xxxxx Xxxx and
Xxxxxxx Xxxxxx as elaborated in the Shareholder Voting Agreement attached hereto
as Annex A, which requires the parties thereto to elect directors in accordance
with this Agreement.
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6.2 GRANT OF STOCK OPTIONS. Each director named on the Closing Date
shall receive options to purchase 250,000 shares of common stock at an exercise
price of $1.00 per share to vest upon the bid price of the Common Stock of Dicom
as reported on Nasdaq reaching the following levels: 50,000 shares will vest
when the price reaches $7.50; 50,000 shares when the price reaches $10.00;
50,000 shares when the price reaches $12.50 and 100,000 shares when the price
reaches $15.00.
6.3 CONSULTING AGREEMENTS. Dicom shall retain as consultants the
services of Xxxxx Xxxx, Xxxx Xxxx, Xxxxx Xxxx, and/or such persons as the Board
of Directors of Dicom should deem desirable. Each such consultant shall enter
into consulting agreements in a form to be mutually agreed upon by the parties.
Each consultant retained by Dicom under this Agreement shall enter into a
Non-Competition and Non-Solicitation Agreement in substantially the form as that
attached hereto as Annex B.
6.4 AGREEMENT WITH LANDMARK. Dicom shall enter into a consulting
agreement with Landmark Consulting and Developing Ltd. on or before Closing
Date.
7. ADDITIONAL AGREEMENTS
7.1 EQUITY. The grant of the License is conditioned on, and subject to,
Dicom raising a minimum of $1,000,000 in equity through the sale of common stock
on or prior to June 1, 1999 under rule 504 of Regulation D of the Securities Act
of 1933, as amended (the "Private Placement"), including sales of capital shares
of Dicom which have been made prior to the date hereof. If the Private Placement
has not been consummated by this date, the License shall be terminable according
to its terms at the election of Torchmark.
7.2 EXECUTION OF NON-COMPETITION AND NON-SOLICITATION AGREEMENTS. The
obligations of Torchmark under this Agreement shall be subject to the execution
by all consultants retained by Dicom under this Agreement of the form of
Non-Competition and Non-Solicitation Agreement attached hereto as Annex B.
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8. MISCELLANEOUS
8.1 EXPENSES. The parties hereto shall pay all of their own expenses
relating to the transactions contemplated by this Agreement, including, without
limitation, the fees and expenses of their respective counsel and financial
advisers.
8.2 CONFIDENTIAL INFORMATION. In the course of a party's preparation
for and performance of this Agreement, it may disclose to the other party
nonpublic proprietary information or trade secrets, including, without
limitation, software programs, designs, specifications, protocols, schedules,
competition analyses, price or cost data, supplier information, customer
information, and the like (collectively, "Confidential Information"). All
information identified as being "confidential" or "trade secret" shall be
presumed to be Confidential Information. The term "Confidential Information" as
used herein shall not include any information which (a) is in the public domain
at the time of disclosure or becomes part of the public domain through no fault
or act of the receiving party; (b) is obtained by the receiving party from a
third party under no duty of nondisclosure; (c) is independently developed or
derived by the receiving party prior to its disclosure by the disclosing party,
as shown by the receiving party's books and records; or (d) is required to be
disclosed pursuant to law, regulation or court order. A party required by law,
regulation or court order to disclose the other party's Confidential Information
shall use its best efforts to afford the other party a reasonable opportunity to
challenge such requirement and/or to obtain any protective order as may be
available to limit or control the disclosure.
8.3 NONUSE AND NONDISCLOSURE. Each party agrees to use the Confidential
Information of the other party only to perform its obligations under the terms
of this Agreement and for no other purpose. The receiving party agrees to treat
as confidential all Confidential Information of the disclosing party made
available to receiving party or to any employee, agent or representative of
receiving party. The receiving party agrees to use commercially reasonable
efforts to protect the Confidential Information of the disclosing party from any
unauthorized use of disclosure by it or its employees, agents or representatives
and shall at least use the same degree of care to protect the Confidential
Information of the disclosing party as the receiving party uses to protect its
own confidential information. The receiving party agrees not to, or allow its
employees and agents to, copy, disclose to unauthorized parties or use any
Confidential Information of the disclosing party for any purpose other than the
purposes set forth in this Agreement. The receiving party shall be liable to the
disclosing party for any breach of the terms of this Section 8.3 by any of its
employees, agents or representatives.
8.4 NO BROKERS. Except as provided in the next sentence, each of the
parties represents and warrants to the other that no broker, finder or agent has
acted on its or his behalf in connection with this Agreement or the transactions
contemplated thereby. The parties acknowledge that Torchmark has entered into an
agreement with Xxxxx Xxxxxx and VCBM Ltd. pursuant to which Torchmark is
obligated to pay to each of Ullock and VCBM Ltd. a fee consisting of 25,000
shares of Dicom Common Stock in connection with the transactions contemplated
hereby. Dicom will pay such a fee in restricted shares of Dicom Common Stock
directly to Xxxxx Xxxxxx and VCBM Ltd. upon the Closing Date.
8.5 FURTHER ASSURANCES AND COOPERATION. Each of the parties agrees
that, after the Closing Date, they will execute and deliver such further
documents and instruments and take such further action as may be reasonably
necessary or proper to fully effectuate this Agreement and the intent hereof.
8.6 GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of Nevada, without application of its conflict of
laws provisions. The parties hereby irrevocably and unconditionally submit in
any legal action or proceeding relating to this Agreement to the non-exclusive
general jurisdiction of the courts of the State of Nevada and of the United
States located in Xxxxx County, Nevada and, in any such action or proceeding,
consent to jurisdiction in such courts and waive any objection to the venue in
any such court.
8.7 CAPTIONS. The captions or headings used herein are for reference
purposes only, and shall not in any way affect the meaning or interpretation of
this Agreement.
8.8 PUBLICITY. None of the parties hereto shall issue any press release
or make any other public statement, in each case relating to or connected with
or arising out of this Agreement or the matters contained herein, without
obtaining the prior written consent of the other party, which consent shall not
be unreasonably withheld or delayed. Notwithstanding the foregoing, either of
the parties may at any time make announcements that are required by applicable
law, regulatory bodies, or stock exchange or stock association rules, so long as
the party so required to make the announcement, promptly upon learning of such
requirement, notifies the other party of such requirement and discusses with the
other party in good faith the exact wording of any such announcement.
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8.9 NOTICES. Any notice or other communications required or permitted
hereunder shall be sufficiently given if delivered in person or sent by
registered or certified mail, postage prepaid, addressed as follows:
If to Torchmark, to: Torchmark Holdings Limited
Box 303
164 Richmond Hills
Providenciales
Turks and Caicos Islands B.W.I.
With a copy to: Xxxx X. Xxxxxx, Esq.
Xxxxxxx Xxxxx & Xxxxx LLP
Suite 5000
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to Dicom: Dicom Imaging Systems, Inc.
0000 X. Xxxxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
With a copy to: Xxxxxxxx Xxxxxxxxxx, Esq.
0000 Xxxxxx Xx., Xxxxx 0
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
, or such other address as shall be furnished in writing by
any such party, and such notice or communication shall be deemed to have been
given as of the date so delivered, sent by telex or mailed.
8.10 PARTIES IN INTEREST. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors, assigns, heirs and personal representatives; provided, that, this
Agreement may not be transferred, assigned, pledged or hypothecated by either
party without the prior written consent of the other party.
8.11 SEVERABILITY. In the event any provision of this
Agreement is found to be void and unenforceable by a court of competent
jurisdiction or arbitration panel, the remaining provisions of this Agreement
shall nevertheless be binding upon the parties with the same effect as though
the void or unenforceable part had been severed and deleted.
8.12 COUNTERPARTS. This Agreement may be executed in more than
one counterpart, all of which taken together shall constitute one instrument.
8.13 ENTIRE AGREEMENT. This Agreement, including the other
documents referred to herein which form a part hereof, contains the entire
understanding of the parties hereto with respect to the subject matter contained
herein and therein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
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8.14 MODIFICATIONS AND WAIVERS. No purported amendment,
modification or waiver of any provision of this Agreement shall be binding
unless set forth in a written document signed by all parties (in the case of
amendments and modifications) or by the party to be charged thereby (in the case
of waivers). Any waiver shall be limited to the circumstance or event
specifically referenced in the written waiver document and shall not be deemed a
waiver of any other term or provision of this Agreement or of the same
circumstance or event upon any recurrence thereof.
9. DEFINITIONS
For purposes of this Agreement, the following terms shall have the
meanings set forth in this Section 9. Additional terms may be defined elsewhere
in this Agreement.
9.1 "PERSON" shall mean and include an individual, a partnership, a
joint venture, a corporation, a trust, an unincorporated organization and a
government or other department or agency thereof.
9.2 "KNOWLEDGE" Defined. Where any representation and warranty
contained in this Agreement is expressly qualified by reference to knowledge,
information and belief of the parties hereto, the parties confirm that they have
made such due and diligent inquiry as to the matters that are the subject of
such representations and warranties that shall be reasonable under the
circumstances.
9.3 An "AFFILIATE" of any Person shall mean any Person that directly,
or indirectly through one or more intermediaries, controls, or is controlled by,
or is under common control with such Person.
9.4 "CONTROL" shall mean, among other things, the power to exercise a
controlling influence over the management or policies of a Person, by such means
as the ownership of the voting securities of such Person.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
DICOM IMAGING SYSTEMS, INC. TORCHMARK HOLDINGS LIMITED
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By (Sign) By (Sign)
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Name (Print) Name (Print)
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Title Title
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Date Date
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