EXHIBIT 10.10
ASSET PURCHASE AND SALE AGREEMENT
THIS AGREEMENT (this "Agreement") is dated as of January 31, 2001 (the
"Effective Date"), and is by and among Xxxx Xxxxxx, M.D., an individual resident
of California ("AG"), Xxxxxx Xxxxxxxx Xxxxxx, an individual resident of
California ("CLG"; collectively with AG, the "Purchasers"), and xxxx.xxx, Inc.,
a Georgia corporation ("Seller").
BACKGROUND
Seller is the owner of a web site on the Internet at
xxxx://xxx.xxxxxxxx.xxx (the "Site"). Seller purchased and acquired the domain
name and Internet protocol address of the Site, and all rights, title and
interests in the text, images, ideas, content, trademarks, service marks, trade
names and other copyrightable material of every kind and description found on
the Site as of July 31, 1999, and certain computer hardware, software and other
assets, from the Purchasers pursuant to that certain Asset Purchase and Sale
Agreement dated July 31, 1999 (the "Prior Agreement"). Seller has revised its
business plan and, consequently, the Purchasers and Seller have reached an
agreement whereby Seller will sell, assign, grant, convey, and transfer the Site
to Purchasers in accordance with the terms and conditions of this Agreement.
The parties agree as follows:
SECTION 1
SALE OF ASSETS
1.1 Seller hereby sells, assigns, transfers, grants, conveys and
relinquishes exclusively to Purchasers, and Purchasers hereby purchase and
acquires from Seller, the following (collectively, the "Assets"), free and clear
of all mortgages, liens, pledges, security interests, charges, claims,
restrictions and encumbrances of any nature whatsoever:
(a) Except for the Excluded Assets (as defined below), all of
Seller's worldwide rights, title, and interests in the Site and all
tangible and intangible property comprising the Site,, including:
(i) The domain name and Internet protocol address of the Site;
(ii) All of the images and pictures displayed at the Site on
and prior to the Effective Date;
(iii) Title to and possession of all electronic and hard copy
versions of the media that constitute all copies and versions of the text
and content of the Site, their respective component parts, and all
documentation relating thereto;
(iv) All copyright interests owned or claimed by Seller
pertaining to the content of the Site, together with any and all other
copyright interests relating thereto
accruing by reason of U.S. or international copyright conventions
(collectively, the "Copyright Interests");
(v) All rights, title, and interests of Seller in and to the
inventions, discoveries, improvements, ideas, trade secrets, know-how,
confidential information and all other intellectual property owned or
claimed by Seller pertaining to the Site;
(vi) All interests owned or claimed by Seller in the
trademarks, service marks and trade names listed on Schedule 1.1(a)(vi),
together with all U.S. and foreign applications and registrations
therefor, accompanied by the goodwill of all business connected with the
use of and symbolized by such marks including the right to xxx for,
settle, or release any past, present, or future infringement thereof or
unfair competition involving the same (collectively, the "Trademark
Interests"); and
(vii) All rights, title, and interests, and benefit of Seller
in, to, and under all agreements, contracts, licenses, and leases entered
into by Seller (all such agreements are listed on Schedule 1.1(a)(vii)),
or having Seller as a beneficiary, pertaining to the Site.
(b) All equipment, business machines, computer hardware and
software, tooling and other fixed assets or personal property identified
on Schedule 1.1(b) (collectively, the "Personal Property").
(c) All inventory of the text and content of the Site owned by
Seller, any public relations and marketing and promotional items related
to the Site, and any artwork or related materials related to the
Site(collectively, the "Inventory"), including the items listed on
Schedule 1.1(c) but specifically excluding the Excluded Assets.
(d) All of Seller's information, files, correspondence, records,
data, plans and recorded knowledge that relate to the Site, including
customer and supplier lists and data on traffic to the Site (collectively,
the "Books and Records").
(e) All of the goodwill of Seller relating to the Site.
1.2 Notwithstanding anything to the contrary in this Agreement, the term
"Assets" as used in this Agreement shall not include, nor shall any provision of
this Agreement be construed to involve any transfer, sale, assignment or grant
of rights with respect to, any of the items listed in Schedule 1.2
(collectively, the "Excluded Assets").
1.3 In consideration for transfer of the Assets, and subject to the terms
and conditions of this Agreement, Purchasers shall deliver to Seller at the
Closing an aggregate of 70,464 shares (collectively, the "xxxx.xxx Shares") of
the common stock of Seller, $.01 par value ("Common Stock"), previously issued
to AG and CLG pursuant to the Prior Agreement. Such number of xxxx.xxx Shares
shall be adjusted for stock splits, stock dividends, and the like relating to
the Common Stock occurring before the Closing Date (as defined below).
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1.4 Purchasers do not assume any liability or obligation of Seller
(whether or not related to the Assets) and shall not be responsible for any
debts, liabilities or obligations of Seller whether occurred now or hereafter
and whether known, unknown, contingent or otherwise.
1.5 On the Closing Date, Seller shall forgive the principal and accrued
interest owed to Seller by AG and CLG pursuant to a loan, in the aggregate
principal amount of $325,000, as evidenced by that certain loan agreement dated
as of March 30, 2000 by and among the Seller, AG and CLG.
1.6 In connection with the sale of the Assets to Purchasers, (i) AG shall
become an employee of Seller pursuant to Sections 9.2 and 10.2 of this
Agreement, (ii) Purchasers shall cause Xxxxxx Ink, Inc., a wholly owned
corporation controlled by the Purchasers ("Xxxxxx Ink") to enter into licensing
arrangements pursuant to Sections 9.3 and 10.3 of this Agreement and (iii)
Seller shall enter into licensing arrangements pursuant to Sections 9.3 and 10.3
of this Agreement.
1.7 The Employment Agreement between AG and Seller dated as of July 31,
1999 and the Employment Agreement between CLG and Seller dated as of July 31,
1999 shall each terminate and become null and void on the Closing Date; provided
that Sections III, VI, VII, IX, X and XIII of each employment agreement shall
survive termination of such employment agreement.
1.8 The Prior Agreement shall automatically terminate, and all obligations
and covenants arising out of the Prior Agreement shall automatically terminate
on the Closing Date.
1.9 All options to purchase the Common Stock previously granted to AG and
CLG, including those listed on Schedule 1.8 attached hereto, shall automatically
become fully vested on the Closing Date. Each of AG and CLG covenant that he or
she will abide and comply with Seller's Xxxxxxx Xxxxxxx and Tipping Policy.
1.10 The License Agreement between AG and Seller dated as of July 30, 1999
shall terminate and become null and void on the Closing Date.
1.11 Purchasers and/or Xxxxxx Ink may, but is under no obligation to,
offer employment to the Seller employees listed in Schedule 1.11, as well as to
any former Seller employees
SECTION 2
DELIVERY OF INSTRUMENTS, PHYSICAL OBJECTS AND PAYMENT
2.1 Upon the terms and subject to the conditions of this Agreement, the
sale of the Assets shall take place at a closing (the "Closing") to be held at
the offices of King & Spalding, 000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, at
1:00 p.m., local time, on January 31, 2001 or at such other time or such other
date or such other place and before such notary as Seller and Purchasers shall
agree to in writing (the "Closing Date").
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2.2 At or prior to the Closing or at a reasonable time thereafter, Seller
will deliver to Purchasers:
(a) All system and user documentation pertaining to the Site in
Seller's possession, including design or development specifications and
related correspondence and memoranda;
(b) All necessary consents to the assignment by Seller and
assumption by Purchasers of the rights and obligations under any contract
relating to the Site; and
(c) All Inventory, Books and Records and Personal Property in
Seller's possession.
2.3 At the Closing or at a reasonable time thereafter, AG and CLG will
deliver to Seller certificates representing the xxxx.xxx Shares (as adjusted).
SECTION 3
ADDITIONAL COVENANTS AND AGREEMENTS
OF THE PARTIES
3.1 To effect the transfer of ownership of the Trademark Interests to
Purchasers, including the goodwill of all business connected with the use of and
symbolized by the Trademark Interests, Seller will:
(a) Furnish Purchasers with the files in Seller's possession,
evidencing all proceedings involving the Trademark Interests;
(b) Execute the Assignment of Intellectual Property substantially in
the form attached hereto as Exhibit A; and
(c) Provide all reasonable assistance to Purchasers in preparing
applications for registration of all non-registered trademarks, service
marks and trade names pertaining to the Site and when reasonably requested
by Purchasers, provided that any out of pocket expenses associated
therewith shall be borne by Purchasers.
3.2 Seller covenants not to use or display the Trademark Interests, or any
xxxx confusingly similar thereto, anywhere in the world, except under the terms
of an agreement granting such rights, and further covenants not to contest or
challenge the validity of the Trademark Interests, any applicable registrations
thereof or the ownership of the Trademark Interests by Purchasers.
3.3 To effect the transfer of ownership of the Copyright Interests to
Purchasers, Seller will execute the Assignment of Intellectual Property
substantially in the form attached hereto as Exhibit A.
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3.4 Seller covenants to use its reasonable best efforts to provide all
existing documentation relating to the Site or Assets in its possession and to
do all things that Purchasers reasonably request to transfer the Assets.
SECTION 4
REPRESENTATIONS AND WARRANTIES
4.1 Except as set forth on Schedule 4.1, Seller represents and warrants to
Purchasers as follows:
(a) Seller is a corporation duly organized, validly existing and in
good standing under the laws of the State of Georgia. Seller has the
requisite power and authority to own, lease and operate its assets and
properties, to carry on its business as now being conducted and to perform
the terms of this Agreement and the transactions contemplated hereby.
Seller is duly qualified to conduct its business, and is in good standing,
in each jurisdiction where the ownership or leasing of its properties or
the nature of its activities in connection with the conduct of its
business makes such qualification necessary.
(b) The execution and delivery of this Agreement by Seller and the
consummation by Seller of the transactions contemplated hereby have been
duly and validly authorized by all necessary corporate action and no other
corporate proceedings on the part of Seller are necessary to authorize
this Agreement or to consummate the transactions contemplated hereby. This
Agreement has been duly executed and delivered by Seller and, assuming the
due authorization, execution and delivery by Purchasers, constitutes a
legal, valid and binding obligation of Seller, enforceable in accordance
with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws
of general applicability relating to or affecting creditors' rights
generally and by the application of general principles of equity.
(c) The execution and delivery of this Agreement by Seller does not,
and the performance by Seller of its obligations under this Agreement,
will not, (i) conflict with or violate the certificate of incorporation or
bylaws of Seller or (ii) result in any breach of or constitute a default
(or an event which with notice or lapse of time or both would become a
default) under any note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument or obligation to
which Seller is a party or by which Seller is bound, or to which any of
its properties or assets is subject.
(d) To the extent the Purchasers do not have any knowledge to the
contrary, Seller has good and marketable title to the Assets, free and
clear of any liens, claims, encumbrances, rights or equities whatsoever of
any third party. Purchasers will receive, as of the Closing Date, all of
Seller's complete and exclusive rights, title, and interests in and to the
Assets.
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(e) To the extent the Purchasers do not have any knowledge to the
contrary, the Site is free and clear of all liens, claims, encumbrances,
rights, or equities whatsoever of any third party.
(f) No litigation regarding the Site, the content of the Site, or
the Assets is pending or has been threatened since July 31, 1999.
(g) To Seller's knowledge, all copyright registrations, or
applications therefor, with respect to the Copyright Interests are listed
on Schedule 4.1(g).
(h) To Seller's knowledge, all trademark, service xxxx, trade name
or similar registrations, or applications therefor, with respect to the
Trademark Interests are listed on Schedule 4.1(h).
(i) To Seller's knowledge, all agreements, arrangements or
understandings in effect with respect to the Assets are listed on Schedule
4.1(i).
(j) Seller has not been a party to any license or other agreement
related to the Site or its content requiring the payment of a royalty
since July 31, 1999.
(k) Seller has and will convey to Purchasers at the Closing good and
marketable title to the Assets free and clear of all liens, pledges,
security interests, charges, claims, restrictions and encumbrances of any
nature whatsoever.
(l) There are no existing agreements, options, commitments or rights
with, of or to any person to acquire any of the Assets or any interest in
the Site.
(m) No representation, warranty or covenant made by Seller in this
Agreement, the Schedules or the Exhibits attached hereto or any
information provided by Seller to Purchasers in connection with the
acquisition described in this Agreement contains an untrue statement of a
material fact.
(n) Seller does not use any of the customer information it receives
through the Site in an unlawful manner or in a manner violative of the
rights of privacy of its customers. To the extent the Purchasers do not
have any knowledge to the contrary, Seller does not, and has not,
collected personally identifiable information from viewers of the Site
except in a manner disclosed in a privacy statement prominently displayed
on the Site. To the extent the Purchasers do not have any knowledge to the
contrary, Seller has reasonably adequate security measures in place to
protect the customer information it receives through the Site from illegal
use by third parties or use by third parties in a manner violative of the
rights of privacy of its customers. To the extent the Purchasers do not
have any knowledge to the contrary, Seller does not guarantee security of
any information it receives from its customers from the Site.
4.2 Each Purchaser represents and warrants to Seller as follows:
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(a) Purchaser has the requisite power and authority to perform the
terms of this Agreement and the transactions contemplated hereby.
(b) This Agreement has been duly executed and delivered by Purchaser
and, assuming the due authorization, execution and delivery by Seller,
constitutes a legal, valid and binding obligation of Purchaser,
enforceable in accordance with its terms, except as such enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws of general applicability relating to or affecting
creditors' rights generally and by the application of general principles
of equity.
(c) The execution and delivery of this Agreement by Purchaser does
not, and the performance by Purchaser of his or her obligations under this
Agreement, will not, result in any breach of or constitute a default (or
an event which with notice or lapse of time or both would become a
default) under any note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument or obligation to
which Purchaser is a party or by which Purchaser is bound, or to which any
of their properties or assets is subject.
SECTION 5
FURTHER ASSURANCES
Seller will execute and deliver such further conveyance instruments and
take such further actions as may be necessary or desirable to evidence more
fully the transfer of ownership of all of the Assets to Purchasers. Seller
therefore agrees:
(a) To execute, acknowledge, and deliver any affidavits or documents
of assignment and conveyance regarding the Assets reasonably requested by
Purchasers;
(b) To provide testimony in connection with any proceeding affecting
the rights, title, or interests of Purchasers in the Assets; and
(c) To perform any other acts Purchasers reasonably deem necessary
to carry out the intent of this Agreement.
SECTION 6
RESERVED
SECTION 7
ACKNOWLEDGMENT OF RIGHTS
In furtherance of this Agreement, Seller hereby acknowledges that, from
and after the Effective Date, to the Seller's knowledge, Purchasers have acceded
to all of Seller's rights, title, and standing to:
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(a) Receive all rights and benefits pertaining to the Site and the
Assets;
(b) Institute and prosecute all suits and proceedings and take all
actions that Purchasers, in their sole discretion, may deem necessary or
proper to collect, assert, or enforce any claim, right, or title of any
kind in and to any and all of the Site and the Assets; and
(c) Defend and compromise any and all such action, suits, or
proceedings relating to such transferred and assigned rights, title,
interest, and benefits, and perform all other such acts in relation
thereto as Purchasers, in their sole discretion, deem advisable.
SECTION 8
INDEMNIFICATION
8.1 Seller agrees to indemnify and hold harmless Purchasers, its
successors and assigns, including any subsidiary, officer, director, employee,
agent, contractor, licensee or customer, from and against any loss, liability,
claim or damage (including court costs and Attorneys' fees) sustained by it or
them as a result of (1) any liability or obligation relating to the Assets, the
Site or any of the content not expressly assumed by Purchasers (a "Commercial
Claim"), or (2) any breach by Seller of any of its representations, warranties
or covenants under this Agreement (a "Misrepresentation Claim") (all of which
will survive Closing of this Agreement for a period of two (2) years from the
Closing Date), provided, however, absent fraud, that the total maximum financial
liability of Seller hereunder shall not exceed an amount equal to $1,000,000
plus court costs, Attorneys' fees and other defense costs not to exceed $500,000
in the aggregate.
8.2 Nothing in this Section 8.2 is intended to limit any legal or
contractual obligation of Seller in the event of fraud by Seller. Otherwise,
however, Seller shall have no indemnification liability under Section 8.1,
unless it has received from Purchasers written notice of the alleged loss,
liability, claim or damage within a reasonable time after the loss, liability,
claim or damage arises and, in any event, prior to the second (2nd) anniversary
of the Closing Date (the "Claim Notice"). Furthermore, Seller shall have no
indemnification liability with respect to a Commercial Claim, unless Seller is
given (i) the right to control and direct the investigation and defense of such
claim and (ii) the right to control the settlement thereof so long as any such
settlement proposes no obligations or liabilities on Purchasers.
SECTION 9
CONDITIONS TO THE OBLIGATION OF
PURCHASERS TO CLOSE
The obligation of Purchasers to close the transaction and to deliver the
xxxx.xxx Shares at the Closing and to perform any obligations hereunder shall be
subject to the satisfaction as determined by, or waiver by, Purchasers of the
following conditions on or before the Closing Date.
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9.1 The representations and warranties made by Seller in Section 4.1 shall
be true and correct in all material respects on the Closing Date.
9.2 Seller and AG shall have duly executed and delivered the Employment
Agreement, substantially in the form attached hereto as Exhibit B.
9.3 Xxxxxx Ink and Seller shall have duly executed and delivered the
Limited License Agreement, substantially in the form attached hereto as Exhibit
C.
9.4 No action, suit, proceeding, claim or dispute shall have been brought
or otherwise arisen at law, in equity, in arbitration or before any governmental
authority against Seller which would, if adversely determined, have a material
adverse effect on the ability of Seller to perform its obligations under this
Agreement or any of the other transaction documents.
9.5 Seller shall have duly executed and delivered the Xxxx of Sale,
substantially in the form attached hereto as Exhibit E.
SECTION 10
CONDITIONS TO THE OBLIGATION OF
SELLER TO CLOSE
The obligation of Seller to close the transaction and to deliver the
Assets at the Closing and to perform any obligations hereunder shall be subject
to the satisfaction as determined by, or waiver by, Seller of the following
conditions on or before the Closing Date.
10.1 The representations and warranties made by Purchasers in Section 4.2
shall be true and correct in all material respects on the Closing Date.
10.2 Seller and AG shall have duly executed and delivered the Employment
Agreement, substantially in the form attached hereto as Exhibit B.
10.3 Xxxxxx Ink and Seller shall have duly executed and delivered the
Licensing and Distribution Agreement, substantially in the form attached hereto
as Exhibit D.
SECTION 11
TERMINATION
11.1 This Agreement may be terminated at any time prior to the Closing
Date (the "Termination Date"):
(a) in writing by mutual agreement by Purchasers and Seller;
(b) by written notice from Seller to Purchasers, if between the date
hereof and the Closing Date: (i) there shall have been a breach of any
material representation or warranty of a Purchaser contained in this
Agreement or (ii) Purchasers shall not have
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complied with any material covenant or agreement to be complied with by it
and contained in this Agreement; and
(c) by written notice from Purchasers to Seller, if between the date
hereof and the Closing Date: (i) there shall have been a breach of any
material representation or warranty of Seller contained in this Agreement,
or (ii) Seller shall not have complied with any material covenant or
agreement to be complied with by it and contained in this Agreement.
11.2 If this Agreement is terminated pursuant to this Section 11, this
Agreement shall forthwith cease to have effect by and among the parties and all
further obligations of the parties shall terminate without further liability.
SECTION 12
MISCELLANEOUS
12.1 This Agreement will inure to the benefit of, and be binding upon, the
parties hereto, together with their respective legal representatives,
successors, and assigns.
12.2 This Agreement will be governed by, and construed in accordance with,
the laws of the State of Georgia, excluding its principles of conflicts of law.
Purchasers may only commence legal proceedings against Seller in a state court
located in the County of Xxxxxx, State of Georgia or a federal court located in
the Northern District of Georgia, and Seller may only commence legal proceedings
against Purchasers in a state court located in the County of San Francisco,
State of California or a federal court located in the Northern District of
California.
12.3 This Agreement (along with the agreements expressly contemplated
hereby) merges and supersedes all prior and contemporaneous agreements,
assurances, representations, and communications between the parties.
12.4 All notices and other communications to be given by either party to
this Agreement to the other party hereto will be in writing, and will be given
by personal delivery or by depositing such notice in the United States mail,
postage prepaid, certified mail, return receipt requested, addressed as follows:
If to Purchasers: 000 Xxxx Xxxxxx Xxxx, Xxxxx X000
Xxxxxxxx, XX 00000
Telephone No.: 925/000-0000
Facsimile No.: 925/964-1794
If to Seller: xxxx.xxx, Inc.
0000 XxxxxXxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxxx
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Telephone No.: 770/000-0000
Facsimile No.: 770/989-4970
Any party to whom notices are being sent pursuant to this Agreement may, from
time to time, change its address for future communications hereunder by giving
notice in the manner described herein to the other party hereto. Notices will be
deemed given on the date delivered (provided that, in the case of notice sent by
facsimile, sender receives a facsimile report indicating that the facsimile was
sent in its entirety to the facsimile number of the addressee).
12.5 The parties will pay the fees and expenses of their respective
consultants, counsel, accountants and other experts, and all other expenses
incurred by such party incident to the negotiation, preparation, execution,
delivery and performance of this Agreement.
12.6 The terms of this Agreement may not be amended, modified or
eliminated, and the observance or performance of any term, covenant, condition
or provision herein may not be waived except by written consent of the party
charged with such amendment, modification or waiver. Failure of any party to
insist upon the strict performance of any provision of this Agreement or to
exercise any right or remedy under this Agreement shall not be deemed a waiver
of any right or remedy with respect to any existing or subsequent breach or
default; the election by any party of any particular right or remedy shall not
be deemed to exclude any other; and all rights and remedies of all parties shall
be cumulative.
12.7 If any provision of this Agreement is contrary to, prohibited by or
deemed invalid under applicable laws or regulations, such provisions will be
inapplicable and deemed omitted to the extent so contrary, prohibited or
invalid, but the remainder of this Agreement will not be invalidated thereby and
will be given effect so far as possible. If any provision of this Agreement is
contrary to, prohibited by or deemed invalid under the laws and regulations of
one jurisdiction, said provision is not thereby rendered invalid in any other
jurisdiction.
12.8 This Agreement may be executed in two or more counterparts, or any
number of duplicate originals, each of which will be deemed an original, but all
of which together will constitute one and the same instruments.
12.9 The following rules of interpretation must be applied in interpreting
this Agreement: (1) the section headings used in this Agreement are for
reference and convenience only, and will not enter into the interpretation of
this Agreement, (2) all references to Sections and Exhibits are to Sections in
this Agreement and Exhibits to this Agreement, as the case may be, (3) the
provisions of the Exhibits are incorporated in this Agreement, and (4) as used
in this Agreement, the term "including" will always be deemed to mean "including
without limitation."
12.10 Any disclosure made in any Schedule to this Agreement which should,
based on the substance of such disclosure, be applicable to another Schedule to
this Agreement shall be deemed to be made with respect to such other Schedule
regardless of whether or not a specific reference is made thereto; provided that
the description of such item on a Schedule is such that the Purchasers could
reasonably be expected to ascertain that such disclosure would relate to such
other provision of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date shown above.
XXXX.XXX, INC.
By: /s/ XXXXXX X. XXXXXX, XX.
-----------------------------------
Xxxxxx X. Xxxxxx, Xx.
Chairmand and CEO
PURCHASERS:
XXXX XXXXXX, M.D.
/s/ XXXX XXXXXX, M.D.
---------------------------------------
XXXXXX XXXXXXXX XXXXXX
/s/ XXXXXX XXXXXXXX XXXXXX
---------------------------------------
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Schedule 1.1(a)(vi)
Trademark Interests
1. "Xx. Xxxxxx'x HouseCalls"
2. "XxXxxxxx.xxx"
3. "Pediatric Wisdom for the Information Age"
Xx. Xxxxxx'x HouseCalls' logos will be provided to Purchasers on CD-ROM.
Schedule 1.1(a)(vii)
Assumed Agreements
1. Agreement with Network Solutions for domain name xxx.xxxxxxxx.xxx
Schedule 1.1(b)
Personal Property
1. Silicon Graphics "Indy" computer
2. Cosmo Create and PhotoShop application software programs
3. Xx. Xxxxxx'x HouseCalls letterhead stationery and business cards
4. ThinkPad 770E
5. Dell Dimension
6. ThinkPad 770
7. Inspiron 7500
Schedule 1.1(c)
Inventory
1. Public Relations kit
2. Xx. Xxxxxx'x HouseCalls site content on CD-ROM
3. Any copies of The Parent's Complete Guide to Ear Infections that are
remaining in inventory.
Schedule 1.2
Excluded Assets
1. All imagery, pictures, text or other content contained within the Xxxx Health
Illustrated Encyclopedia (the "Xxxx.xxx Encyclopedia") that are included on
the Site.
2. All imagery, pictures, text, presentations or other content contained within
the Xxxx Health Images and Presentations Library that are included on the
Site.
Schedule 1.8
Options
Name of Grantee Date of Grant Number of Options
Xxxx Xxxxxx 7/30/99 10,000
5/10/00 2,500
------
Total 12,500
Xxxxxx Xxxx 7/30/99 5,000
------
5/10/00 1,250
Total 6,250
------
Schedule 1.11
Seller's Employees that Purchasers May Hire
1. Xxxxx Xxxxx
2. All Community Manager and Host Consultants
Schedule 4.1
Seller's Exceptions
The representations and warranties by Seller contained in Sections 4.1(d),
4.1(e), 4.1(g), 4.1(h), 4.1(i) and 4.1(k) are qualified as follows:
1. Seller's representations and warranties are qualified to the extent of the
rights of any third party as set forth in the agreements listed on
Schedule 1.2 and Schedule 4.1(i).
2. Seller's representations and warranties are qualified to the extent such
representations and warranties were true and correct in all material
respects when made by AG and CLG in the Prior Agreement.
Schedule 4.1(g)
Copyright Registrations and Applications
None
Schedule 4.1(h)
Trademark, Service Xxxx and Trade Name Registrations and Applications
None
Schedule 4.1(i)
Agreements, Arrangements and Understanding
[to be confirmed]
1. See list of Excluded Assets under Schedule 1.2
2. Agreement with Network Solutions for domain name xxx.xxxxxxxx.xxx.
3. Agreement with Web-Swat for web site services.
EXHIBIT A
ASSIGNMENT OF INTELLECTUAL PROPERTY
THIS ASSIGNMENT OF INTELLECTUAL PROPERTY (the "ASSIGNMENT"), made and
entered into as of the 31st day of January, 2001, by and between Xxxx Xxxxxx,
M.D., an individual resident of California ("AG"), Xxxxxx Xxxxxxxx Xxxxxx, an
individual resident of California ("CLG;" together with AG collectively, the
"PURCHASERS"), and xxxx.xxx, Inc., a Georgia corporation ("ASSIGNOR").
WITNESSETH:
WHEREAS, pursuant to that certain Asset Purchase Agreement dated as of
January 31, 2001 by and among Purchasers and Assignor (the "PURCHASE
AGREEMENT"), Assignor has agreed to sell, transfer, and assign the Assets (as
defined therein) to Purchasers;
WHEREAS, Assignor is the owner and holder of the Copyright Interests
and Trademark Interests and all of the goodwill associated therewith
(collectively, the "INTELLECTUAL PROPERTY") relating to the Assets;
WHEREAS, Assignor desires to assign (other than as expressly excepted
below) to Purchasers all of Assignor's rights, title, and interests in and to
the Intellectual Property, and Purchasers desires to accept such assignment; and
WHEREAS, unless otherwise defined herein, the capitalized terms used
herein shall have the meanings ascribed to them in the Purchase Agreement.
NOW, THEREFORE, for and in consideration of the premises and the
consideration provided in the Purchase Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged:
SECTION 1
TRANSFER AND ASSIGNMENT
1.1 CONVEYANCE OF RIGHTS. Assignor hereby transfers, grants, conveys,
assigns, and relinquishes exclusively to Purchasers all of Assignor's rights,
title, and interests in and to the Intellectual Property, in perpetuity (or for
the longest period of time otherwise permitted by law), including all rights,
title, interests, and benefit (including copy, adapt, distribute, display, and
perform under copyright law; and to use and disclose under trade secret law) of
Assignor in and to the Copyright Interests and the Trademark Interests
(including, in the case of trademarks, service marks and trade names, all
goodwill appertaining thereto), and all other intellectual property rights owned
or claimed by Assignor embodied in the Intellectual Property, specifically
including (without limitation) the registrations and applications listed in
SCHEDULE 1 hereto.
1.2 FURTHER ASSURANCES. Assignor shall execute and deliver, from time
to time after the
1
date hereof upon the request of Purchasers, such further conveyance instruments,
and take such further actions, as may be necessary or desirable to evidence more
fully the transfer of ownership of all the Intellectual Property to Purchasers,
or the original ownership of all the Intellectual Property on the part of
Purchasers, to the fullest extent possible. Assignor therefore agrees to:
1. Execute, acknowledge, and deliver any affidavits or documents
of assignment and conveyance regarding the Intellectual
Property,
2. Provide all reasonable assistance in connection with any
proceeding affecting the rights, title, interests, or benefit
of the Company and to the Intellectual Property, PROVIDED THAT
any out of pocket expenses associated therewith shall be borne
by Purchasers, and
3. Perform any other acts deemed necessary to carry out the
intent of this Agreement.
1.3 ACKNOWLEDGMENT OF RIGHTS. In furtherance of this Agreement,
Assignor hereby acknowledges that, from this date forward, Purchasers have
succeeded to all of Assignor's rights, title, and standing to:
1. Receive all rights and benefits pertaining to the Intellectual
Property,
2. Institute and prosecute all suits and proceedings and take all
actions that the Company, in its sole discretion, may deem
necessary or proper to collect, assert, or enforce any claim,
right, or title of any kind in and to any and all of the
Intellectual Property, and
3. Defend and compromise any and all such actions, suits, or
proceedings relating to such transferred and assigned rights,
title, interests, and benefits, and do all other such acts and
things in relation thereto as Purchasers, in their sole
discretion, deem advisable.
SECTION 2
MISCELLANEOUS
2.1 This Agreement shall inure to the benefit of, and be binding upon,
the parties hereto together with their respective legal representatives,
successors, and assigns.
2.2 This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Georgia, excluding its principles of conflicts of
law.
2.3 This Agreement merges and supersedes all prior and contemporaneous
agreements, assurances, representations, and communications between or among the
parties hereto concerning the matters set forth herein other than the Purchase
Agreement.
2
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to
be executed by their duly authorized representatives as of the date first
provided above.
ASSIGNOR:
XXXX.XXX, INC.
By: /s/ XXXXXX X. XXXXXX, XX.
-----------------------------------
Xxxxxx X. Xxxxxx, Xx.
Chairmand and CEO
PURCHASERS:
XXXX XXXXXX, M.D.
/s/ XXXX XXXXXX, M.D.
---------------------------------------
XXXXXX XXXXXXXX XXXXXX
/s/ XXXXXX XXXXXXXX XXXXXX
---------------------------------------
3
SCHEDULE 1
None
1
EXHIBIT B
EMPLOYMENT AGREEMENT
IN CONSIDERATION of and as a condition to Employee's employment, pay, and
other benefits provided by xxxx.xxx, Inc. (the "Company") and other good and
valuable consideration, the sufficiency of which is hereby acknowledged, Xxxx
Xxxxxx, M.D. ("Employee") and the Company agree as follows:
Section I. Definitions.
For purposes of this Agreement, the following definitions apply:
(a) "Confidential Information" means (i) when the Company is the
disclosing party and Employee is the receiving party, any data or information,
other than Trade Secrets, that is valuable to the Company or to the Company's
customers or other third parties entrusting such information to the Company (the
"Associated Companies") and not generally known to the public or to competitors
of the Company or of the Associated Companies; and (ii) when Employee is the
disclosing party and the Company is the receiving party, any data or
information, other than Trade Secrets, that is valuable to Employee and not
generally known to the public.
(b) "Nondisclosure Period" means the period beginning on the date of this
Agreement and ending two (2) years after the date Employee's employment with the
Company ends or is terminated for any reason.
(c) "Nonsolicitation Period" means the period beginning on the date of
this Agreement and ending six (6) months after the date Employee's employment
with the Company ends or is terminated for any reason.
(d) "Trade Secret" means information including, but not limited to, any
technical or non-technical information or data, formula, pattern, compilation,
program, device, method, technique, drawing, process, financial data, financial
plan, product plan, list of actual or potential customers or suppliers or other
information similar to any of the foregoing, which (i) derives economic value,
actual or potential, from not being generally known to the public or to other
persons who can derive economic value from its disclosure or use and (ii) is the
subject of efforts that are reasonable under the circumstances to maintain its
secrecy.
Section II. Scope of Employment.
2.1 Effective Date of Agreement. This Agreement will be effective, and
employment by the Company pursuant hereto will commence on February 1, 2001 (the
"Effective Date").
2.2 Term of Employment. This Agreement, and Employee's employment by the
Company pursuant hereto, will be for the period commencing on the Effective Date
and continuing for a period of six (6) months, unless sooner terminated pursuant
to the terms hereof. This Agreement and Employee's employment will be
automatically renewed for consecutive six (6)-month periods until either party
gives the other of its or his intent not to renew at least thirty (30) days
prior to the end of the initial six (6)-month period or any renewal period.
2.3 Duties. Employee will be employed on the Effective Date as the Chief
Medical Officer ("CMO") and will serve as a member of the Company's Advisory
Board during the term of his employment. Employee will report to the Company's
Chief Executive Officer and will have and fulfill all of the duties and
responsibilities associated with such position together with any duties and
responsibilities established for the Employee's position by the Company's CEO.
Employee will devote a reasonable number of hours per week of his working time,
attention, and energy to fulfill his duties and responsibilities to the Company.
Employee will fulfill his duties and responsibilities as described in this
Paragraph 2.3 in a reasonable and appropriate manner in light of the Company's
policies and practices as established by the CEO and the laws and regulations
which apply to the Company's operation and administration. Initially, Employee's
duties and responsibilities will consist of: (i) representing the Company, as
appropriate, at professional meetings and conferences; (ii) identifying himself
as Chief Medical Officer of the Company, as appropriate, in television, radio,
and print media appearances; (iii) identifying himself as Chief Medical Officer
of the Company on the XxXxxxxx.xxx Web site located at xxx.xxxxxxxx.xxx, to
indicate an ongoing relationship; (iv) serving as an advocate for the Company at
Health Internet Ethics, URAC (also known as the American Accreditation
HealthCare Commission) and other appropriate associations; (v) attending (in
person or by teleconference as appropriate) weekly meetings of the Company's
leadership team to offer medical perspective; (vi) consulting on the Company's
procedures and policies for editorial/review/update of the Company's products;
(vii) promoting the sale and syndication of the Company's products; (vii)
consulting on the planning and development of the Children's Health product, as
well as other products as appropriate; and (viii) providing reasonable
assistance related to medical issues, physician representation to clients, and
editorial review not to exceed 24 hours in any month.
2.4 Compensation. Subject to the provisions of Paragraph 2.6 hereof, the
Company will pay Employee, and Employee accepts as full compensation for all
services to be rendered to the Company pursuant to this Agreement, the following
compensation:
(a) Base Salary. Employee will be paid a salary during the term of this
Agreement of $5,000 per month ("Monthly Salary"), less applicable withholding,
which will be paid in accordance with the Company's standard payroll practices
and policies as in effect from time to time for salaried employees.
(b) Stock Options. In addition to the Monthly Salary payable to Employee
under Paragraph 2.4(a), the Company shall grant Employee as of the Effective
Date an option to purchase 7,500 shares (the "Option Shares") of the Company's
common stock, par value per share $.01 (the "Common Stock") in accordance with
the terms and conditions of the stock option plan under which such options are
granted. The Option Shares shall be fully vested at the time of grant and have
an exercise price per share of the 4:00 p.m. closing price of the Common
2
Stock as reported on the Nasdaq National Market but in no case less than $1.94.
For each six-month period that this Agreement is renewed, the Company shall
grant Employee an additional option to purchase 7,500 shares of Common Stock,
such options being fully vested. The Company shall issue a stock option
agreement to Employee for each grant within a reasonable time after the
effective date of such grant.
2.5 Benefits.
(a) Benefits Package. Employee, during the term of the Agreement, will be
eligible to participate in the Company's standard benefit package for salaried
employees, in accordance with the terms and condition of such standard benefit
package, including without limitation, such medical plans as may be established
by the Company. The Company will pay 100% of the insurance premium for its
medical plans for the coverage of Employee (but no portion of cost for any of
Employee's dependents). To the extent Employee participates in such standard
benefit package, Employee shall be subject to the terms and conditions set forth
therein.
(b) Business Expenses. Employee shall be entitled to reimbursement for all
reasonable business-related expenses incurred by Employee at the request of or
on behalf of the Company, provided that Employee shall not incur cumulative
business expenses in excess of $2,000.00 in any month without prior approval by
the Company.
2.6 Termination. This Agreement, and Employee's employment by the Company,
will be terminated early (i) as a result of Employee's death; (ii) as a result
of a disability by reason of which Employee is unable to perform (even with
reasonable accommodation) the essential functions of his job; or (iii) upon the
mutual agreement of Employee and the Company.
2.7 Outside Interests. During Employee's employment with the Company,
Employee may also be employed by any company and engage in any professional
activities. Employee may create and publish books of any type and description;
provided, however, that during the term of this Agreement, Employee shall ensure
that (a) each such publication shall identify Employee as the "Chief Medical
Officer" of the Company, and (b) no publication is co-developed with a
competitor of the Company.
Section III. Trade Secrets and Confidential Information.
3.1 Trade Secrets of the Company. Employee shall hold in confidence all
Trade Secrets of the Company or any of the Associated Companies that came into
Employee's knowledge during his employment by the Company and shall not
disclose, publish or make use of such Trade Secrets at any time after the date
hereof, on behalf of Employee or any other person or entity, without the prior
written consent of the Company for as long as the information remains a Trade
Secret. Employee further acknowledges that theft of Trade Secrets is a crime
under the federal Economic Espionage Act of 1996, 18 U.S.C. xx.xx. 1831-1839,
and California Penal Code ss. 499, and that persons engaging in such
misappropriation may be subject to imprisonment and/or fines.
3
3.2 Confidential Information of the Company. During the Nondisclosure
Period, Employee will hold in confidence all Confidential Information of the
Company or any of the Associated Companies that came into Employee's knowledge
during his employment by the Company and will not disclose, publish or make use
of such Confidential Information, on behalf of Employee or any other person or
entity, without the prior written consent of the Company. The restrictions
contained in this Paragraph 3.2 will not apply in the event that the information
becomes available to the general public other than through the act or omission
of Employee.
3.3 Return of the Company's Materials. Upon the request of the Company
and, in any event, upon the termination of Employee's employment with the
Company, Employee shall deliver to the Company all memoranda, notes, records,
manuals or other documents (including, but not limited to, written instruments,
voice or data recordings, or computer tapes, disks or files of any nature),
including all copies of such materials and all documentation prepared or
produced in connection therewith, pertaining to the performance of Employee's
services for the Company, the business of the Company or of the Associated
Companies, or containing Trade Secrets or Confidential Information regarding the
Company's business or the Associated Companies' business, whether made or
compiled by Employee or furnished to Employee by virtue of his employment with
the Company. Employee shall also deliver to the Company all computers, credit
cards, telephones, office equipment, software, and other property the Company
furnished to Employee by virtue of his employment with the Company.
3.4 Trade Secrets of Employee. The Company shall hold in confidence all
Trade Secrets of Employee that came into the Company's knowledge during
Employee's employment by the Company and shall not disclose, publish or make use
of such Trade Secrets at any time after the date hereof, on behalf of Employee
or any other person or entity, without the prior written consent of Employee for
as long as the information remains a Trade Secret. The Company further
acknowledges that theft of Trade Secrets is a crime under the federal Economic
Espionage Act of 1996, 18 U.S.C. xx.xx. 1831-1839, and California Penal Code ss.
499, and that persons engaging in such misappropriation may be subject to
imprisonment and/or fines.
3.5 Confidential Information of Employee. During the Nondisclosure Period,
the Company will hold in confidence all Confidential Information of Employee
that came into the Company's knowledge during Employee's employment by the
Company and will not disclose, publish or make use of such Confidential
Information, on behalf of the Company or any other person or entity, without the
prior written consent of Employee. The restrictions contained in this Paragraph
3.5 will not apply in the event that the information becomes available to the
general public other than through the act or omission of the Company.
3.6 Return of Employee's Materials. Upon the request of Employee and, in
any event, upon the termination of Employee's employment with the Company, the
Company shall deliver to Employee all memoranda, notes, records, manuals or
other documents, including all copies of such materials and all documentation,
provided to the Company by Employee containing Trade Secrets or Confidential
Information of Employee; provided, however, the Company is not required to
return any materials or documentation that it is entitled to keep under
Paragraph 3.3.
3.7 Interpretation. The restrictions stated in Paragraphs 3.1, 3.2, 3.4
and 3.5 are in addition to and not in lieu of protections afforded to trade
secrets and confidential information
4
under applicable state law. Nothing in this Agreement is intended to or shall be
interpreted as diminishing or otherwise limiting the right of either party under
applicable state law to protect its Trade Secrets and Confidential Information.
Section IV. Nonsolicitation.
4.1 Nonsolicitation of Customers. Employee hereby covenants and agrees
that he will not, during the Nonsolicitation Period, without the prior written
consent of the Company, solicit, directly or indirectly, any business related to
the publication of health, medical, wellness or other health related information
via a web site or the Internet from any of the Company's customers, including
actively sought prospective customers, with whom Employee had personal business
contact during his employment with the Company. Employee agrees and acknowledges
that the identity of such customers and lists of such customers are Trade
Secrets of the Company.
4.2 Nonsolicitation of Employees. Employee hereby covenants that he will
not, during the Nonsolicitation Period, without the prior written consent of the
Company, solicit or attempt to solicit for employment for or on behalf of any
corporation, partnership, venture or other business entity any person who, on
the last day of Employee's employment with the Company, was employed by the
Company and with whom Employee had personal business contact during the course
of his employment with the Company (whether or not such person would commit a
breach of contract by accepting such employment).
4.3 Exceptions to Restrictive Covenants. The restrictive covenants in this
Section IV will not apply to any solicitation specifically related to the
XxXxxxxx.xxx Web site located at xxx.xxxxxxxx.xxx, and will not apply to those
persons listed in Schedule C.
Section V. Inventions and Prior Relationships.
5.1 Inventions. Employee has disclosed on Schedule A a complete list of
all inventions relating to the Company's business and proprietary to Employee
that were made or first reduced to practice by Employee prior to his employment
with the Company. The Company agrees to hold all such disclosures in confidence.
5.2 Prior Commitments. Employee has no other agreements, relationships, or
commitments to any other person or entity that conflict with Employee's
obligations to the Company under this Agreement.
5
Section VI. Ownership of Employee Developments.
6.1 Ownership of Work Product.
(a) Employee agrees to promptly report and disclose to the Company in
writing all developments, discoveries, methods, processes, designs, inventions,
ideas, or improvements conceived, made, implemented, or reduced to practice by
Employee, whether alone or acting with others, whether or not patentable or
registerable under copyright or similar statutes, during Employee's period of
employment by the Company, that are developed while utilizing, directly or
indirectly, the Company's equipment, supplies, facilities, or trade secret
information (hereinafter collectively called "Work Product"). Employee
acknowledges and agrees that all Work Product is the sole and exclusive property
of the Company. Employee agrees to assign, and hereby automatically assigns,
without further consideration, to the Company any and all rights, title, and
interest in and to all Work Product; provided however, that this Paragraph
6.1(a) shall not apply to any Work Product for which no equipment, supplies,
facilities, or trade secret information of the Company was used and which was
developed entirely on Employee's own time, unless the Work Product results from
any work performed by Employee for the Company. Employee shall execute the
attached Schedule B, which acknowledges that Employee has received written
notification of his rights relating to inventions developed by Employee.
(b) The Company, its successors and assigns, shall have the right to
obtain and hold in its or their own name copyright registrations, trademark
registrations, patents and any other protection available to the Company with
respect to the Work Product. Additionally, any works of authorship that Employee
prepares primarily for publication, and is published, on a web site for the
Company will be deemed "works made for hire" within the meaning of 17 U.S.C. ss.
101 (Section 101 of the Copyright Act), the copyright of which will be owned
solely and exclusively by the Company. If any such work of authorship that
Employee produces is protectible by copyright but does not constitute a "work
made for hire" within the meaning of 17 U.S.C. ss. 101 (Section 101 of the
Copyright Act), then that work will be deemed assigned to Company, and Employee
hereby assigns all right, title and interest, including worldwide copyright, in
and to that work to the Company. Employee hereby irrevocably relinquishes for
the benefit of the Company and its assigns any moral rights recognized by
applicable law in such works of authorship that Employee produces.
6.2 Cooperation. Employee agrees to perform, upon the reasonable request
of the Company, during and after employment, such further acts as may be
necessary or desirable to transfer, perfect, and defend the Company's ownership
of the Work Product, including but not limited to: (a) executing, acknowledging,
and delivering any requested affidavits and documents of assignment and
conveyance; (b) assisting in the preparation, prosecution, procurement,
maintenance and enforcement of all copyrights and/or patents with respect to the
Work Product in any countries; (c) providing truthful testimony in connection
with any proceeding affecting the right, title, or interest of the Company in
any Work Product; and (d) performing any other acts deemed necessary or
desirable to carry out the purposes of this Agreement. The Company shall
reimburse all reasonable out-of-pocket expenses incurred by Employee at the
Company's request in connection with the foregoing.
6
Section VII. Reasonable and Necessary Restrictions.
7.1 Employee acknowledges that during the course of his employment with
the Company Employee has received or may receive and has had or may have access
to Confidential Information and Trade Secrets of the Company and of the
Associated Companies, possibly including but not limited to confidential and
secret business and marketing plans, strategies, and studies, detailed product
information or product development information, detailed client/customer lists,
and information relating to the operations and business requirements of those
clients/customers. Accordingly, Employee is willing to enter into the covenants
contained in this Agreement in order to provide the Company with what Employee
considers to be reasonable protection for its interests.
7.2 Employee acknowledges that the restrictions, prohibitions and other
provisions in this Agreement are reasonable, fair, and equitable in scope,
terms, and duration; are necessary to protect the legitimate business interests
of the Company; and are a material inducement to the Company to employ or
continue to employ Employee.
Section VIII. Restricted Business Practices.
It is the policy of the Company not to receive any confidential or
proprietary information from any employee arising in connection with the former
employment of said employee (except for self-employment), irrespective of
whether such information was received purposely or inadvertently. Employee is
expressly prohibited from having said confidential or proprietary information on
any Company property. Employee warrants that he has no information, whether
written, oral, tangible, or intangible, which can be construed as the property
of a former employer (excluding himself), and further that Employee will make no
use of any such information in the performance of Employee's duties on behalf of
the Company.
Section IX. Severability.
In the event that any provision of this Agreement is held invalid or
unenforceable in any circumstances by a court of competent jurisdiction, the
remainder of this Agreement, and the application of such provision in any other
circumstances, shall not be affected thereby. In such event, the affected
provision will be deemed modified to the extent necessary to render such
provision enforceable, and the rights and obligations of the parties will be
construed and enforced accordingly, preserving to the fullest permissible extent
the intent of the parties.
Section X. Governing Law.
This Agreement, the rights and obligations of the parties hereto, and any
claims or disputes relating to this Agreement, shall be governed by and
construed in accordance with the laws of the State of California, not including
the choice-of-law rules thereof.
7
Section XI. Assignment.
Employee acknowledges that the services to be rendered by him are unique
and personal. Accordingly, Employee may not assign any of his rights or delegate
any of his duties or obligations under this Agreement. The rights and
obligations of the Company shall inure to the benefit of and shall be binding
upon the successors and assigns of the Company.
Section XII. Amendment; Waiver.
No amendment, modification, or discharge of this Agreement shall be valid
or binding unless set forth in writing and duly executed by each of the parties
hereto. Any waiver by any party or consent by any party to any breach of or any
variation from any provision of this Agreement shall be valid only if in writing
and only in the specific instance in which it is given, and such waiver or
consent shall not be construed as a waiver of any subsequent breach or any other
provision or as a consent with respect to any similar instance or circumstance.
Section XIII. Arbitration.
Except as provided below, any disputes or claims of any kind or nature,
including as to arbitrability under this Agreement, between Employee and the
Company arising out of, related to, or in connection with any aspect of
Employee's employment with the Company or its termination, including all claims
arising out of this Agreement and claims for alleged discrimination, harassment,
or retaliation in violation of Title VII of the Civil Rights Act of 1964, the
Civil Rights Act of 1991, 42 U.S.C. ss. 1981, the Age Discrimination in
Employment Act of 1967, the Americans with Disabilities Act of 1990, the Family
and Medical Leave Act of 1993, the Fair Labor Standards Act, the Employee
Retirement Income Security Act of 1974, or any other federal, state, or local
law, shall be settled by final and binding arbitration in San Francisco,
California. Either party may file a written demand for arbitration with the
American Arbitration Association pursuant to its National Rules for the
Resolution of Employment Disputes. The arbitration shall be conducted by a
single neutral arbitrator who is a member of the Bar of the State of California,
has been actively engaged in the practice of law for at least fifteen (15)
years, and has substantial experience in connection with employment law and
interpretation of contracts. In considering the relevancy, materiality,
discoverability, and admissibility of evidence, the arbitrator shall take into
account, among other things, applicable principles of legal privilege, including
the attorney-client privilege, the work product doctrine, and appropriate
protection of the Company's Trade Secrets and Confidential Information. Upon the
request of either party, the arbitrator's award shall be written and include
findings of fact and conclusions of law. Judgment on the award rendered by the
arbitrator may be entered by any court having jurisdiction. Any arbitration of
any claim by Employee may not be joined or consolidated with any other
arbitration(s) by or against the Company, including through class arbitration.
The prevailing party in any such arbitration, or in any action to enforce this
Section XIII or any arbitration award hereunder, shall be entitled to recover
that party's attendant attorneys' fees and related expenses from the other party
to the maximum extent permitted by law. Except as may otherwise be required by
law for this Agreement to be enforceable, each party shall be responsible for
payment of one-half (1/2) of arbitration filing and administrative fees, and
one-half (1/2) of fees and expenses of the arbitrator, irrespective of the
outcome.
8
Notwithstanding any other provision of this Agreement, the Company may seek
temporary, preliminary, or permanent injunctive relief against Employee at any
time without resort to arbitration. The parties agree that this Agreement
involves interstate commerce and that this arbitration provision is therefore
subject to and governed by the Federal Arbitration Act. The parties confirm
their agreement to this Section XIII by initialing below:
/s/ RSC, Jr. /s/ AG
------------- --------
The Company Employee
Section XIV. Entire Agreement.
This Agreement, including Schedule A, Schedule B, and Schedule C,
constitutes and expresses the entire agreement of the parties hereto concerning
its subject matter. There are no agreements, written or oral, express or
implied, between the parties hereto, concerning the subject matter hereof,
except the agreement set forth in this Agreement.
CAUTION: THIS AGREEMENT AFFECTS YOUR RIGHTS TO INVENTIONS YOU DEVELOP DURING
YOUR EMPLOYMENT AND RESTRICTS YOUR RIGHT TO DISCLOSE OR USE THE COMPANY'S
CONFIDENTIAL INFORMATION DURING OR SUBSEQUENT TO YOUR EMPLOYMENT.
EMPLOYEE HAS READ THIS AGREEMENT CAREFULLY AND UNDERSTANDS ITS TERMS. EMPLOYEE
HAS COMPLETELY FILLED OUT SCHEDULE A TO THIS AGREEMENT AND HAS RECEIVED WRITTEN
NOTIFICATION OF HIS RIGHTS TO INVENTIONS UNDER CALIFORNIA LABOR CODE SECTION
2870.
9
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
earliest date written below.
Date: 01/31/01 xxxx.xxx, Inc.
By: /s/ XXXXXX X. XXXXXX, XX.
--------------------------------
Name:
Title:
EMPLOYEE
Date: 01/29/01 /s/ XXXX XXXXXX, M.D.
-----------------------------------
Signature
XXXX XXXXXX, M.D.
-------------------------------------
Print Name
XXX-XX-XXXX
-------------------------------------
Social Security Number
10
SCHEDULE A
1. Prior Inventions. Except as set forth below, I acknowledge at this time
that I have not, prior to my employment with the Company, made or reduced to
practice (alone or jointly with others) any inventions relating to the Company's
business (if none, so state):
None
------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
2. Conflicting Relationships. Except as set forth below, I acknowledge
that I have no current or prior agreements, relationships, or commitments that
conflict with my relationship with the Company under this Agreement (if none, so
state):
None
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
DATE: 01/29/01 /s/ XXXX XXXXXX, M.D.
------------------------------- ------------------------------
Signature
XXXX XXXXXX, M.D.
------------------------------
Print Name
XXX-XX-XXXX
------------------------------
Social Security Number
SCHEDULE B
WRITTEN NOTIFICATION TO EMPLOYEE
In accordance with California Labor Code Section 2872, you are hereby
notified that your Agreement on Confidentiality, Work Product, and
Nonsolicitation does not require you to assign to the Company any invention for
which no equipment, supplies, facility, or trade secret information of the
Company was used, that was developed entirely on your own time, that does not
relate to the business of the Company or to the Company's actual or demonstrably
anticipated research or development, and that does not result from any work
performed by you for the Company.
The following is the text of California Labor Code Section 2870:
(a) Any provision in an employment agreement which provides that an
employee shall assign or offer to assign any of his or her rights in
an invention to his or her employer shall not apply to an invention
that the employee developed on his or her own time, without using
the employer's equipment, supplies, facilities, or trade secret
information except for those inventions that either:
(1) relate at the time of conception or reduction to practice
of the invention to the employer's business, or actual or
demonstrably anticipated research or development of the
employer, or
(2) result from any work performed by the employee
for the employer.
(b) To the extent a provision in an employment agreement purports to
require an employee to assign an invention otherwise excluded from
being required to be signed under subdivision (1), the provision is
against the public policy of this state and is unenforceable.
I hereby acknowledge receipt of this written notification.
/s/ XXXX XXXXXX, M.D.
------------------------------------------
Signature
XXXX XXXXXX, M.D.
------------------------------------------
Printed Name
01/29/01
------------------------------------------
Date
SCHEDULE C
EXCLUDED PERSONS
1. Xxxxx Xxxxx
2. All Community Manager and Host Consultants
EXHIBIT C
LIMITED LICENSE AGREEMENT
This Limited License Agreement (the "Agreement") is made this 31st day of
January 2001, (the "Effective Date") by and between xxxx.xxx, Inc. (hereinafter
referred to as "Xxxx") and Xxxxxx Ink, Inc., a California corporation
(hereinafter referred to as "Licensee").
Background
Xxxx provides health and wellness content, through co-branding licenses,
to other medical information service providers. Licensee maintains an internet
web site at xxx.xxxxxxxx.xxx (the "Licensee Web Site") available for use by the
general public (each such person being a "User"). Xxxx and Purchasers (as
defined therein) are parties to that certain Asset Purchase and Sale Agreement
dated as of January 31, 2001 ("Purchase Agreement") pursuant to which Xxxx will
sell certain Assets (as defined therein) to the Purchasers. As a condition of
the Purchase Agreement, Xxxx and Licensee will enter into a license agreement
whereby Xxxx will license Xxxx-created health and wellness content to Licensee
for display on the Licensee Web Site and other Web sites wholly owned and
operated by Licensee for direct access by Users.
Xxxx and Licensee agree as follows:
1. Definitions. Capitalized terms not otherwise defined in this Agreement
are used herein as defined below:
"Implementation Date" means the first to occur of (a) the date on
which the Content Pages are visible and available for Users through
the Licensee Web Site, or (b) the date that is sixty (60) days after
the Effective Date.
"Term" means the Initial Term and any Renewal Terms, collectively.
The following capitalized terms are defined in the Sections of this Agreement
referenced below:
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Capitalized Terms Section
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Xxxx Preamble
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Xxxx Logo 3.2
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Agreement Preamble
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Content Pages 2.2
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Effective Date Preamble
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Health Images and Exhibit 1, Section
Presentations 1(b)
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Initial Term 6.1
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Licensed Content 2.1
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Licensee Preamble
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Licensee Content 2.2(c)
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Licensee Logo 3.1
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Licensee Web Site Background
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Pediatric Illustrated Exhibit 1, Section
Encyclopedia 1(a)
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Renewal Term 6.1
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Termination Date 6.4
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User Background
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2. License Grant; Content Pages.
2.1 Creation and Use. Xxxx grants to Licensee a non-exclusive,
non-transferable, world-wide license to use and display the Xxxx
proprietary content set forth on Exhibit 1 (the "Licensed Content") on the
Licensee Web Site and other Web sites wholly owned and operated by
Licensee subject to the terms and conditions of this Agreement. Licensee
may not use, copy, modify, repackage, distribute or create derivative
works from the Licensed Content in any manner not licensed by this
Agreement.
2.2 Development and Support.
(a) Xxxx will create and provide to Licensee in HTML format
the Pediatric Illustrated Encyclopedia (the "Content Pages").
(b) Each Content Page will have at least one Xxxx icon with an
appropriate Xxxx trademark or Xxxx Logo, as specified for appearance
and placement according to Exhibit 2. During the Term, Licensee will
identify Xxxx as the provider of the Pediatric Illustrated
Encyclopedia and shall post the Xxxx Logo on the home page of the
Licensee Web Site, which icon will include a link to the Content
Pages.
(c) Xxxx will provide to Licensee access to the Health Images
and Presentations. Licensee may select and use items from the Health
Images and Presentations to annotate the content owned by Licensee
and provided on the Licensee Web Site ("Licensee Content"). During
the Term, Licensee will identify Xxxx as the provider of any portion
of the Health Images and Presentations used by Licensee in the
Licensee Content.
2.3 Restrictions.
(a) Licensee may not use the Licensed Content, or authorize or
permit any third person to use the Licensed Content, for any purpose
other than those expressly authorized in this Section 2.
(b) Licensee may not re-license or distribute any portion of
the Licensed Content to any third person other than as expressly
authorized in this Section 2 or assign its rights in the Licensed
Content to any third person except under a separate agreement
between Xxxx and Licensee. Any sublicense or distribution of
Licensee Content containing any Licensed Content will be subject to
terms, including a royalty payable to Xxxx, of a reseller or
distribution agreement between Xxxx and Licensee.
(c) Except as permitted by this Agreement, Licensee may not
authorize any party to co-brand the Content Pages. For purposes of
this Agreement, the terms "co-brand" or "co-branding" mean to
display a name, logo, trademark, or other means of attribution or
identification of any party in such a
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manner reasonably likely to give a User the impression that such
other party has the right to display, publish, or distribute the
Licensed Content.
(d) Licensee may modify the formatting, look and feel of the
Licensed Content. Except as provided in the foregoing sentence,
Licensee may not make any changes or modifications to the Licensed
Content. Licensee may not translate the Licensed Content into any
other language.
(e) Licensee may not authorize any party to link to, copy, or
frame the Content Pages (whereby the Content Pages will appear on
the same screen with a portion of another web site) or otherwise
co-brand or re-package the Content Pages. Licensee will cause any
unauthorized framing to cease immediately.
(f) Neither Party shall make any public statements or issue
any press releases relating to this Agreement without the prior
approval of the other Party. Xxxx xxx issue a press release
announcing the signing of this Agreement and will obtain the prior
approval of Licensee, which shall not be unreasonably withheld.
(g) Licensee may sell and serve advertising opportunities on
the Content Pages without obligation to share revenues from such
sales with Xxxx.
(h) Licensee will be required to incorporate the updates Xxxx
provides to the Licensed Content on the Licensee Web Site within
thirty (30) days of receipt of such updates. If Xxxx provides an
update to Licensee for the Licensed Content, Licensee shall (a) use
commercially reasonable efforts to incorporate the update on the
Licensee Web Site and other Web sites wholly owned and operated by
Licensee that are displaying the Licensed Content, (b) use
commercially reasonable efforts to distribute such update to third
parties to whom Licensee has distributed the Licensed Content at the
earliest possible date, and (c) use reasonable efforts to request
third parties to whom Licensee has distributed the Licensed Content
to substitute and use such update at the earliest possible date.
3. Logo License.
3.1 Licensee. Licensee grants Xxxx a limited, non-exclusive,
non-transferable license to use the Licensee logo and trademarks set forth
on Exhibit 2 (the "Licensee Logo") solely in connection with (i) their
display on Adam's standard marketing material, listing users and licensees
of Adam's content and (ii) such other uses as Licensee may permit. Xxxx
xxx not use, copy or display the Licensee Logo in any manner except as
provided in this Agreement.
3.2 Xxxx. Xxxx grants Licensee a limited, non-exclusive,
non-transferable license to use the Xxxx logo set forth on Exhibit 2 (the
"Xxxx Logo") solely (i) to the extent the Xxxx Logo is apparent on the
Licensee Web Site, (ii) to the extent the Xxxx Logo is apparent on the
Content Pages, (iii) to display on Licensee's standard marketing material,
listing content providers and (iv) otherwise as required by this
Agreement. Licensee may not use, copy or display the Xxxx Logo in any
manner except as provided in this Agreement.
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4. Confidentiality.
4.1 Confidential Information. Licensee and Xxxx agree to hold the
terms and pricing of this Agreement confidential, except that both Xxxx
and Licensee may disclose the fact that this Agreement exists for the
Licensed Content, the Content Pages, and the Licensee Web Site, and both
parties may disclose such pricing as necessary to comply with legal
disclosure requirements (but will first use good faith efforts to obtain
confidential treatment of pricing information in connection with any
required filings or other disclosures). In addition, either party may
disclose the terms and pricing of this Agreement to its affiliates, and to
its business, financial, and legal representatives and consultants
(provided such individuals owe a duty of confidentiality to the disclosing
party) as necessary for such party to perform its obligations under this
Agreement.
4.2 Exceptions. The obligation of confidentiality in Section 4.1
will not extend to documents or things which:
(a) are in or fall into the public domain through no fault of
the receiving party;
(b) are publicly disclosed by the party owning any
confidential information contained therein prior to any disclosure
by the other party; or
(c) must be disclosed by legal or governmental action, rule or
regulation.
5. Ownership
5.1 Xxxx. Except for the license rights provided in this Agreement,
Xxxx retains ownership of, and all right, title and interest in and to:
(a) the Xxxx Logo; (b) any trademark, trade name, patent, copyright,
technology, trade secret or know-how affixed to, incorporated in or
relating to the Licensed Content and (c) any Xxxx created or owned patent,
copyright, technology, trade secret or know-how affixed to, incorporated
into the Content Pages. Licensee will use good faith efforts to cooperate
with Xxxx in the protection of Adam's intellectual property rights, at
Adam's reasonable request. Licensee will not remove, alter or conceal any
Xxxx proprietary notice displayed on the Licensed Content or the Content
Pages, nor will Licensee authorize others to do so.
5.2 Licensee. Except for the license rights provided in this
Agreement, Licensee retains ownership of, and all right, title and
interest in and to the Licensee Content and any trademark, trade name,
patent, copyright, technology, trade secret or know-how affixed to,
incorporated in or relating to the Licensee Web Site. Licensee is not
acquiring any right, title or interest of any nature whatsoever in the
Licensed Content, the Content Pages, or the Xxxx Logo except the license
rights provided in this Agreement.
6. Term and Termination
6.1 Term. The term of this Agreement shall commence on the Effective
Date and expire on the second anniversary of the Effective Date (the
"Initial Term"), unless earlier terminated. The Term of this Agreement
shall be automatically renewed for
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successive one (1) year terms (each a "Renewal Term") unless earlier
terminated as provided herein or unless either party gives the other party
written notice of its intent not to renew at least sixty (60) days prior
to the end of the then-current term.
6.2 Termination for Breach. Xxxx and Licensee each will have the
right to terminate this Agreement upon written notice to the other party
in the event that the other party commits a material breach of its
warranties or obligations under this Agreement which has not been cured or
corrected within 30 days following written notice given by the
non-breaching party.
6.3 Automatic Termination. This Agreement will terminate
automatically if: (a) either party becomes the subject of any voluntary
petition in bankruptcy or any voluntary proceeding relating to insolvency,
receivership, liquidation or composition for the benefit of creditors; or
(b) either party becomes the subject of an involuntary petition in
bankruptcy or any involuntary proceeding relating to insolvency,
receivership, liquidation or composition for the benefit of creditors, if
such petition or proceeding is not dismissed within sixty (60) days of
filing.
6.4 Effect of Termination. Upon and after the termination of this
Agreement for any reason upon any effective date of termination (the
"Termination Date"):
(a) Licensee will immediately cease to display the Licensed
Content and the Content Pages; and
(b) Within five (5) business days after the Termination Date,
Licensee will either delete or return to Xxxx any copies it may have
(in any form or format) of the Licensed Content and certify to Xxxx
in writing that it has done so.
7. Indemnification
7.1 Licensee. Licensee will indemnify, defend and hold Xxxx harmless
from any loss, damage or cost (including reasonable attorneys fees and
court costs should Licensee breach its obligation to defend) arising out
of any third-party claim relating to (i) the Licensee Web Site, (ii) the
Licensee Content, (iii) any notices posted on, or changes made to, the
Licensed Content or the Content Pages by Licensee, (iv) any claim,
investigation or cause of action initiated by an U.S. governmental entity
or regulatory agency arising out of the use of the Licensed Content or the
Content Pages on the Licensee Web Site, or (v) any breach of this
Agreement. Xxxx shall promptly notify Licensee of any such claim (unless
the failure to notify Licensee promptly does not materially and adversely
affect Licensee's ability to defend the claim), and shall permit Licensee
to exercise sole control over the defense and settlement of such claim and
shall cooperate with Licensee in the defense of the claim (at the expense
of Licensee). Licensee will have the sole right to defend or settle any
claim subject to indemnification by Licensee under this Section 7,
provided that (i) counsel appointed by Licensee to defend Xxxx will not
take any position which if sustained would cause Xxxx not to be
indemnified by Licensee and (ii) Licensee may control the settlement of
the action in its sole discretion so long as any such settlement imposes
no obligations or liabilities on Xxxx. Xxxx will have the right to
participate with Licensee in the defense or appeal of any such claim or
judgment, at Adam's option and at Adam's own expense (such expense
5
not being indemnified by Licensee), but Licensee will have sole control
and authority with respect to any such defense, compromise, settlement,
appeal or similar action.
7.2 Xxxx. Xxxx will indemnify, defend and hold Licensee harmless
from any loss, damage or cost (including reasonable attorneys fees and
court costs should Xxxx breach its obligation to defend) arising out of
any third-party claim relating to the Licensed Content asserted against
Licensee and based upon the assertion that the Licensed Content, in the
form provided by Xxxx, infringes the U.S. copyright interests of such
third party. Licensee shall promptly notify Xxxx of any such claim (unless
the failure to notify Xxxx promptly does not materially and adversely
affect Adam's ability to defend the claim), and shall permit Xxxx to
exercise sole control over the defense and settlement of such claim and
shall cooperate with Xxxx in the defense of the claim (at the expense of
Xxxx). Xxxx will have the sole right to defend or settle any claim subject
to indemnification by Xxxx under this Section 7, provided that (i) counsel
appointed by Xxxx to defend Licensee will not take any position which if
sustained would cause Licensee not to be indemnified by Xxxx and (ii) Xxxx
xxx control the settlement of the action in its sole discretion so long as
any such settlement imposes no obligations or liabilities on Licensee.
Licensee will have the right to participate with Xxxx in the defense or
appeal of any such claim or judgment, at Licensee's option and at
Licensee's own expense (such expense not being indemnified by Xxxx), but
Xxxx will have sole control and authority with respect to any such
defense, compromise, settlement, appeal or similar action.
8. Warranties/Disclaimers
8.1 Warranties.
(a) Each party represents and warrants that it has the full
right and authority to enter into this Agreement and perform its
obligations under this Agreement and grant the rights and licenses
granted in this Agreement.
(b) Xxxx warrants that the authorized use of the Licensed
Content (i) will not infringe any copyright, trademark, patent,
trade secret, or other proprietary right of any third party and (ii)
will not violate any applicable law or regulation. Xxxx warrants
that it has taken commercially reasonable steps to ensure the
accuracy of the Licensed Content.
(c) Licensee warrants that the Licensee Web Site and the
content accessible therein (other than the Licensed Content) (i)
will not infringe any copyright, trademark, patent, trade secret, or
other proprietary right of any third party, and (ii) will not
violate any applicable law or regulation.
8.2 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.1, EACH
PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED,
INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. XXXX DOES NOT WARRANT THAT THE LICENSED CONTENT OR THE
CONTENT PAGES WILL BE ERROR-FREE OR WILL MEET LICENSEE'S SPECIFIC NEEDS.
XXXX MAKES NO WARRANTY WHATSOEVER REGARDING THE ACCURACY OF THE MEDICAL
INFORMATION CONTAINED IN THE LICENSED CONTENT.
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LICENSEE DOES NOT WARRANT THAT THE LICENSEE WEB SITE WILL BE ERROR FREE OR
WILL MEET ADAM'S SPECIFIC NEEDS.
8.3 Adam's Disclaimers. Xxxx will prepare appropriate disclaimers
for display on the Content Pages to notify Users that the Licensed Content
(i) is not intended to be medically accurate; (ii) is not intended to be
used as a source of medical advice; and (iii) is not intended to be relied
upon by any person or entity for purposes of medical diagnosis or
treatment and will include reasonable and appropriate disclaimers and
provisions for limitation of liability in agreements with Users of the
Content Pages, or in terms and conditions applicable to Users of the
Content Pages.
9. Limitation on Liability. NEITHER LICENSEE NOR XXXX SHALL HAVE ANY
LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL OR
PUNITIVE DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA, OR USE INCURRED BY
ANY PARTY, WHETHER IN AN ACTION IN CONTRACT, BREACH OF WARRANTY OR TORT, EVEN IF
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT
SHALL EITHER PARTY'S LIABILITY TO THE OTHER FOR ANY CAUSE OF ACTION, WHETHER IN
CONTRACT OR IN TORT, EXCEED $50,000.
10. General Provisions.
10.1 No Waiver. The failure on the part of either party to exercise
any right or remedy hereunder will not operate as further waiver of such
right or remedy in the future or any other right or remedy.
10.2 Entire Agreement/No Modification/Counterparts. This Agreement
constitutes the complete understanding between the parties with respect to
the terms and conditions set forth in this Agreement and supersedes all
previous written or oral agreements and representations. The terms and
conditions of this Agreement will control over any terms and conditions in
any solicitation, request for proposal, proposal, purchase order,
acknowledgment or other written form. This Agreement may be modified only
in a writing that expressly references this Agreement and is executed by
both of the parties to this Agreement. This Agreement may be executed in
several counterparts, all of which taken together will constitute one
single Agreement between the parties.
10.3 Binding Intent/Assignment. The provisions of this Agreement
will be binding upon and inure the benefit of the heirs, executors,
successors and assignees of the Licensee and Xxxx. Neither party may
assign this agreement or any of its rights or obligations hereunder
without the other party's prior written consent, except that either party
may assign this Agreement in its entirety in the event of a merger,
corporate reorganization or a sale of all or substantially all of the
assets of the assigning party without obtaining the other party's consent.
10.4 Survival. Sections 2.3 and 6 through 10 will survive
termination or expiration of this Agreement.
10.5 Force Majeure. Neither party will be liable to the other for
any cause beyond its reasonable control, and the party's performance will
be excused if such party's performance is prevented by any cause or causes
beyond its reasonable control without
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the fault or negligence of such party. Such causes may include, but are
not necessarily restricted to, acts of God, of the public enemy,
insurrection, civil disturbance, acts of the government in either its
sovereign or contractual capacity, fires, epidemics, quarantine
restrictions, strikes or labor disturbance, acts or omissions of carriers,
transmitters, phone companies, Internet service providers, Internet
backbone providers, vandals, or hackers.
10.6 Severability. If any provision in this Agreement is found to be
invalid, void, or unenforceable, the remaining provisions will
nevertheless continue in full force and effect provided the original
intent of the parties can be fulfilled.
10.7 Governing Law/Venue. The laws of the State of Georgia will
govern this Agreement without reference to Georgia's choice of law
provisions. Licensee may only commence legal proceedings against Xxxx in a
state court located in the County of Xxxxxx, State of Georgia or a federal
court located in the Northern District of Georgia, and Xxxx xxx only
commence legal proceedings against Licensee in a state court located in
the County of San Francisco, State of California or a federal court
located in the Northern District of California.
10.8 Arbitration. Any controversy or claim arising out of or
relating to this Agreement, or any breach thereof, (excluding only the
collection of license fees where the amounts of fees owed is not in
dispute) will be settled by arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration Association and judgment
upon the award rendered by the arbitrators may be entered in any court
having jurisdiction thereof. Any such arbitration will be held in the
offices of the American Arbitration Association located closest to the
city in which the chief executive offices of the respondent to the demand
for arbitration are located.
10.9 Attorneys' Fees. In the event any obligation of this Agreement
must be enforced, through litigation or otherwise, the prevailing party
will be entitled to reasonable attorneys' fees.
10.10 Notices. Any notices required to be given hereunder by either
party or the other may be effected by either personal delivery thereof or
by U.S. certified or registered mail, postage prepaid, recognized
overnight commercial carrier, or facsimile. Mailed notices will be
addressed to the parties at the addresses appearing beneath their
signatures hereafter or to such other place as the respective parties may
designate in writing.
10.11 Independent Contractors. The parties have entered into this
Agreement solely as independent contractors. Nothing in this Agreement
will be construed as creating an agency relationship, partnership, joint
venture, or any similar relationship between the parties. Licensee agrees
that it will have no right or authority, at any time, to make any
representation or commitment on behalf of Xxxx, or to make any
representations or warranties, guarantees or commitments with respect to
the Licensed Content, except as expressly authorized by Xxxx in writing.
10.12 Headings/Interpretation. The following rules of interpretation
must be applied in interpreting this Agreement: (1) the section and
subsection headings used in this Agreement are for reference and
convenience only, and will not enter into the interpretation of this
Agreement, (2) all references to Sections and Exhibits are to Sections in
this Agreement and Exhibits to this Agreement, as the case may be, (3) the
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provisions of the Exhibits are incorporated in this Agreement, and (4) as
used in this Agreement, the term "including" will always be deemed to mean
"including without limitation."
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XXXX.XXX, INC. XXXXXX INK, INC.
By: /s/ XXXXXX X. XXXXXX, XX. By: /s/ XXXX XXXXXX, M.D.
--------------------------- ---------------------------
Name: Xxxxxx X. Xxxxxx, Xx. Name: Xxxx Xxxxxx, M.D.
-------------------------
Title: Chairman and CEO Title: CEO
-------------------------
Address: 0000 XxxxxXxxx Xxxxxxx Address: 000 Xxxx Xxxxxx Xxxx
Xxxxx 000 Xxxxx X000
Xxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Fax: (000) 000-0000 Fax: 000-000-0000
Telephone: (000) 000-0000 Telephone: 000-000-0000
with a copy to:
--------------
King & Spalding
000 Xxxxxxxxx Xx.
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Fax: (000) 000-0000
Attachments
Exhibit 1 Licensed Content
Exhibit 2 Authorized Logos and Other Marks
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EXHIBIT 1
LICENSED CONTENT
1. Licensed Content The Licensed Content includes the following:
(a) Xxxx Health Illustrated Encyclopedia - Pediatric Version
The Xxxx Health Illustrated Encyclopedia (U.S. English Language version)
contains articles supplying information on diseases, conditions, symptoms,
injuries, surgeries, tests, nutrition and other preventive health topics. The
Xxxx Health Illustrated Encyclopedia consists of approximately 4,000 articles
covering over 30 medical specialties. The articles are written in
consumer-friendly language. Content updates are provided on a quarterly basis.
The Pediatric version consists of the Xxxx Health Illustrated Encyclopedia
related specifically to Pediatrics (the "Pediatric Illustrated Encyclopedia").
(b) Selected Items from the Xxxx Health Images and Presentations Library
The Xxxx Health Images and Presentations Library consists of a wide
variety of imagery, pictures, text and presentations ("Health Images and
Presentations") in CD-ROM format and/or HTML format including the Health
Presentations: Surgeries and Procedures (U.S. English Language version) (the
"Health Presentations"). The Health Presentations includes 144 web-enabled
presentations, containing over 600 medical images, which provide a frame by
frame explanation of common medical procedures, surgeries and tests.
Xxxx xxx modify or alter the Licensed Content at any time in its sole
discretion.
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EXHIBIT 2
AUTHORIZED LOGOS AND OTHER MARKS
1. Xxxx Logo.
(a) Content Pages. Xxxx will display the Xxxx Logo, in 108 x 17 pixel
format, above the fold in the top right-hand corner, on all Content Pages. When
it appears on the Content Pages, the Xxxx Logo will contain a hypertext link to
the "About Xxxx.xxx" section on the Xxxx web site, and to the corporate overview
and product description areas of the Xxxx web site.
(b) Electronic Files. Xxxx will provide Licensee with an electronic file
containing the Xxxx Logo for usage as an icon for the hypertext link to the
Content Pages on the Licensee Web Site.
(c) Appearance. The Xxxx Logo should appear substantially as follows::
[Logo] xxxx.xxx(TM)
(d) Changes. Xxxx xxx change the appearance of the Xxxx Logo at any time
in its sole discretion, subject to the size and placement specifications
indicated in this Exhibit 2.
2. Licensee Logo.
To be provided by Licensee.
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EXHIBIT D
LICENSING AND DISTRIBUTION AGREEMENT
This Agreement is made effective as of January 31, 2001 (the "Effective
Date") by and between Xxxxxx Ink, Inc., a California corporation ("Licensor"),
and xxxx.xxx, Inc., a Georgia corporation ("Xxxx").
RECITALS
Xxxx, Xxxx Xxxxxx, M.D. and Xxxxxx Xxxxxxxx Xxxxxx are parties to that
certain Asset Purchase and Sale Agreement dated January 31, 2001 ("Purchase
Agreement"), pursuant to which Xxxx will sell and the Purchasers (as defined
therein) will purchase Assets (as defined therein). As a condition to the
Purchase Agreement, the Purchasers will cause Licensor to enter into a
distribution agreement with Xxxx whereby Licensor will grant certain
distribution rights in the Licensor Content (as defined below) to Xxxx.
The parties agree as follows:
Section 1
DEFINITIONS
The following definitions shall apply throughout this Agreement:
1.1 "Licensor Content" means Licensor's proprietary content set forth on
Exhibit A.
1.2 "Trademarks" means Licensor's trademarks or trade names set forth on
Exhibit A and as amended from time to time by Licensor.
1.3 "Term" means the Initial Term and any Renewal Terms, collectively.
1.4 "Updates" means revisions, modifications, updates, corrections, new
versions, and new editions which may be developed by Licensor during the term of
this Agreement.
1.5 "Licensor Logo" means the XxXxxxxx.xxx logo set forth on Exhibit B
hereto and as amended from time to time by Licensor.
1.6 "Licensor Web Site" means the Web site with the URL
xxxx://xxx.xxxxxxxx.xxx.
Section 2
RIGHTS GRANTED TO XXXX
2.1 Grant. In accordance with the terms and conditions of this Agreement,
Licensor hereby grants to Xxxx the following license and related rights with
respect to the Licensor Content:
(a) a non-exclusive, royalty-free, worldwide license to (1)
sublicense and distribute the Licensor Content during the Term to any
third party solely for display on the third party's Web site and (2)
grants such third parties the right to sublicense and subdistribute the
Licensor Content solely for display on the subdistributees' Web sites. All
rights not granted to Xxxx are retained by Licensor. Without limiting the
generality of the foregoing, Licensor expressly retains the right to
license the Licensor Content to third parties in any manner that Licensor
deems appropriate; and
(b) a non-exclusive, royalty-free, worldwide license to use the
Trademarks during the Term in the use and distribution of the Licensor
Content pursuant to subsection (a) above; provided that Xxxx complies in
all respects with any guidelines or directions provided by Licensor with
respect to proper usage of the Trademarks.
2.2 Conditions of Grant. The rights and license granted to Xxxx under
section 2.1 are subject to the following limitations and conditions:
(a) Xxxx shall only sublicense and distribute the Licensor Content
to, and allow subdistributees of the Licensor Content by, third parties as
part of a bundle with other Xxxx provided content;
(b) Xxxx shall not reproduce or display the Licensor Content in any
manner or in conjunction with any other material which has the effect of
disparaging or misrepresenting the Licensor Content;
(c) Xxxx xxx abridge the Licensor Content, translate the Licensor
Content into other languages, and modify the formatting, look and feel of
the Licensor Content. All abridgements and translations of the Licensor
Content shall be subject to review and approval by Licensor, which
approval shall not be unreasonably withheld. Except as provided in the
first sentence, Xxxx xxx not make any changes or modifications to the
Licensor Content or create any other derivative works from the Licensor
Content. Licensor shall own all derivative works including translations
and upon development, such derivative works shall be deemed Licensor
Content as provide in this Agreement;
(d) Each page that contains any Licensor Content will (a) display
the Licensor Logo, in accordance with Licensor's reasonable guidelines for
use, and (b) will identify Xxxx Xxxxxx, M.D. as the author of the Licensor
Content; and
(e) All distribution by Xxxx of the Licensor Content to a third
party shall be pursuant to a written agreement between Xxxx and the third
party which grants the third party no greater rights, and imposes on the
third party no lesser obligations, with respect to the Licensor Content
than are granted to and imposed upon Xxxx.
2.3 No Implied Rights. Except as specifically set forth in this Agreement,
no express or implied license or right of any kind is granted to Xxxx regarding
the Licensor Content or the Trademarks, including, but not limited to, any right
to know, use, produce, receive, reproduce, copy, market, sell, distribute,
transfer, translate, modify, adapt, disassemble, decompile, or reverse-engineer
the Licensor Content or create derivative works based on the Licensor Content
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or any portions thereof. Licensor expressly retains the right to license the
Licensor Content to third parties in any manner that Licensor deems appropriate.
Section 3
OBLIGATIONS OF THE PARTIES
3.1 Updates. From time to time during the Term, Licensor may create, at
its own expense, Updates for the Licensor Content. Licensor shall provide Xxxx
with any Updates created. Nothing contained in this Agreement shall be construed
to obligate Licensor to create any Updates.
3.2 Delivery of Licensor Content and Updates. Simultaneously with the
execution of this Agreement, Licensor shall prepare and deliver to Xxxx, at a
location specified by Xxxx, a copy of the most recent version of the Licensor
Content. As Updates are developed from time to time by Licensor, Licensor shall
provide Xxxx with the most recent version of such Updates.
3.3 Support. Licensor will provide Xxxx with reasonable support and
assistance related to the Licensor Content throughout the term of this
Agreement. Licensor further agrees to inform Xxxx, and Xxxx agrees to inform
Licensor, promptly of any known defects, errors or inaccuracies in the Licensor
Content.
3.4 Most Recent Version. Xxxx will use commercially reasonable efforts to
use the most recent version of the Licensor Content and provide Updates to all
third parties to whom Xxxx sublicenses and distributes the Licensor Content.
Xxxx will bear the cost of all distribution of the Licensor Content. If Licensor
provides an Update to Xxxx for the purpose of correcting an error in the
Licensor Content, which error may, in the exclusive determination of Licensor,
create a health risk to a viewer of user of the Licensor Content, Xxxx shall (a)
use commercially reasonable efforts to incorporate that Update in its inventory
of the Licensor Content at the earliest possible date, (b) use commercially
reasonable efforts to distribute such Update to third parties to whom Xxxx has
distributed the Licensed Content at the earliest possible date, and (c) use
reasonable efforts to require third parties to whom Xxxx has distributed the
Licensor Content to substitute and use such Update at the earliest possible
date.
3.5 Announcements. Neither party shall make any public statements or issue
any press releases relating to this Agreement without the prior approval of the
other party. Licensor may issue a press release announcing the signing of this
Agreement and will obtain the prior approval of Xxxx, which shall not be
unreasonably withheld.
3.6 No Authority to Bind Licensor. Xxxx has, and will exercise, no
authority to make statements, warranties or representations concerning the
Licensor Content. Xxxx has, and will exercise, no authority to bind Licensor to
any undertaking or performance with respect to the Licensor Content.
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Section 4
PROPRIETARY RIGHTS
4.1 Ownership. Except for the license rights provided in this Agreement,
Licensor retains ownership of, and all right, title and interest in and to: (a)
the Licensor Content; and (b) the Trademarks and any patent, copyright,
technology, trade secret or know-how affixed to, incorporated in or relating to
the Licensor Content. Xxxx will use good faith efforts to cooperate with
Licensor in the protection of Licensor's intellectual property rights, at
Licensor's reasonable request. Xxxx will not remove, alter or conceal any
Licensor proprietary notice displayed on the Licensor Content, nor will Xxxx
authorize others to do so.
Section 5
CONFIDENTIALITY
5.1 Confidential Information. Licensor and Xxxx agree to hold the terms
and pricing of this Agreement confidential, except that both Xxxx and Licensor
may disclose the fact that this Agreement exists for the Licensor Content, and
both parties may disclose such pricing as necessary to comply with legal
disclosure requirements (but will first use good faith efforts to obtain
confidential treatment of pricing information in connection with any required
filings or other disclosures). In addition, either party may disclose the terms
and pricing of this Agreement to its affiliates, and to its business, financial,
and legal representatives and consultants (provided such individuals owe a duty
of confidentiality to the disclosing party) as necessary for such party to
perform its obligations under this Agreement.
5.2 Limitations. The obligation of confidentiality in Section 5.1 will not
extend to documents or things which:
(a) are in or fall into the public domain through no fault of the
receiving party;
(b) are publicly disclosed by the party owning any confidential
information contained therein prior to any disclosure by the other party;
or
(c) must be disclosed by legal or governmental action, rule or
regulation.
Section 6
WARRANTIES AND DISCLAIMERS
6.1 Warranties.
(a) Each party represents and warrants that it has the full right
and authority to enter into this Agreement and perform its obligations
under this Agreement and grant the rights and licenses granted in this
Agreement.
(b) Licensor warrants that the authorized use of the Licensor
Content (i) will not infringe any copyright, trademark, patent, trade
secret, or other proprietary right of any third party and (ii) will not
violate any applicable law or regulation. Licensor warrants
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that it has taken commercially reasonable steps to ensure the accuracy of
the Licensor Content.
(c) Licensor's performance of the terms of this Agreement and of
Licensor's obligations hereunder shall not breach any separate agreement
by which Licensor or any officer, director or stockholder is bound.
6.2 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.1, LICENSOR
EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
LICENSOR DOES NOT WARRANT THAT THE LICENSOR CONTENT WILL BE ERROR-FREE OR WILL
MEET ADAM'S SPECIFIC NEEDS. LICENSOR MAKES NO WARRANTY WHATSOEVER REGARDING THE
ACCURACY OF THE MEDICAL INFORMATION CONTAINED IN THE LICENSOR CONTENT.
6.3 Adam's Obligation. Xxxx will provide appropriate disclaimers for
display with the Licensor Content to notify users that the Licensor Content (i)
is not intended to be medically accurate; (ii) is not intended to be used as a
source of medical advice; and (iii) is not intended to be relied upon by any
person or entity for purposes of medical diagnosis or treatment and will include
reasonable and appropriate disclaimers and provisions for limitation of
liability in agreements with users of the Licensor Content, and in terms and
conditions applicable to users of the Licensor Content.
Section 7
LIMITATION ON LIABILITY
NEITHER LICENSOR NOR XXXX SHALL HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY
INDIRECT, SPECIAL OR CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF
PROFITS, REVENUE, DATA, OR USE INCURRED BY ANY PARTY, WHETHER IN AN ACTION IN
CONTRACT, BREACH OF WARRANTY OR TORT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY'S LIABILITY TO THE
OTHER FOR ANY CAUSE OF ACTION, WHETHER IN CONTRACT OR IN TORT, EXCEED $50,000.
Section 8
INDEMNIFICATION
8.1 Xxxx. Xxxx will indemnify, defend and hold Licensor harmless from any
loss, damage or cost (including reasonable attorneys fees and court costs should
Xxxx breach its obligation to defend) arising out of any third-party claim
relating to (i) any notices posted on, or changes made to, the Licensor Content
by Xxxx, or (ii) any breach of this Agreement. Licensor shall promptly notify
Xxxx of any such claim (unless the failure to notify Xxxx promptly does not
materially and adversely affect Adam's ability to defend the claim), and shall
permit Xxxx to exercise sole control over the defense and settlement of such
claim and shall cooperate with
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Xxxx in the defense of the claim (at the expense of Xxxx). Xxxx will have the
sole right to defend or settle any claim subject to indemnification by Xxxx
under this Section 8, provided that (i) counsel appointed by Xxxx to defend
Licensor will not take any position which if sustained would cause Licensor not
to be indemnified by Xxxx and (ii) Xxxx xxx control the settlement of the action
in its sole discretion so long as any such settlement imposes no obligations or
liabilities on Licensor. Licensor will have the right to participate with Xxxx
in the defense or appeal of any such claim or judgment, at Licensor's option and
at Licensor's own expense (such expense not being indemnified by Xxxx), but Xxxx
will have sole control and authority with respect to any such defense,
compromise, settlement, appeal or similar action.
8.2 Licensor. Licensor will indemnify, defend and hold Xxxx harmless from
any loss, damage or cost (including reasonable attorneys fees and court costs
should Licensor breach its obligation to defend) arising out of any third-party
claim relating to the Licensor Content asserted against Xxxx and based upon the
assertion that the Licensor Content, in the form provided by Licensor, infringes
the U.S. copyright interests of such third party. Xxxx shall promptly notify
Licensor of any such claim (unless the failure to notify Licensor promptly does
not materially and adversely affect Licensor's ability to defend the claim), and
shall permit Licensor to exercise sole control over the defense and settlement
of such claim and shall cooperate with Licensor in the defense of the claim (at
the expense of Licensor). Licensor will have the sole right to defend or settle
any claim subject to indemnification by Licensor under this Section 8, provided
that (i) counsel appointed by Licensor to defend Xxxx will not take any position
which if sustained would cause Xxxx not to be indemnified by Licensor and (ii)
Licensor may control the settlement of the action in its sole discretion so long
as any such settlement imposes no obligations or liabilities on Xxxx. Xxxx will
have the right to participate with Licensor in the defense or appeal of any such
claim or judgment, at Adam's option and at Adam's own expense (such expense not
being indemnified by Licensor), but Licensor will have sole control and
authority with respect to any such defense, compromise, settlement, appeal or
similar action.
Section 9
TERM; TERMINATION
9.1 Term. The term of this Agreement shall commence on the Effective Date
and expire on the second anniversary of the Effective Date (the "Initial Term"),
unless earlier terminated. The Term of this Agreement shall be automatically
renewed for successive one (1) year terms (each a "Renewal Term") unless earlier
terminated as provided herein, or unless either party gives the other party
written notice of its intent not to renew at least sixty (60) days prior to the
end of the then-current term.
9.2 Termination for Breach. Xxxx and Licensor each will have the right to
terminate this Agreement upon written notice to the other party in the event
that the other party commits a material breach of its warranties or obligations
under this Agreement which has not been cured or corrected within 30 days
following written notice given by the non-breaching party.
9.3 Automatic Termination. This Agreement will terminate automatically if:
(a) either party becomes the subject of any voluntary petition in bankruptcy or
any voluntary proceeding
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relating to insolvency, receivership, liquidation or composition for the benefit
of creditors; or (b) either party becomes the subject of an involuntary petition
in bankruptcy or any involuntary proceeding relating to insolvency,
receivership, liquidation or composition for the benefit of creditors, if such
petition or proceeding is not dismissed within sixty (60) days of filing.
9.4 Effect of Termination. Upon and after the termination of this
Agreement for any reason upon any effective date of termination (the
"Termination Date"):
(a) Xxxx will immediately cease to display the Licensor Content; and
(b) Within five (5) business days after the Termination Date, Xxxx
will either delete or return to Licensor any copies it may have (in any
form or format) of the Licensor Content and certify to Licensor in writing
that it has done so.
Section 10
MISCELLANEOUS PROVISIONS
10.1 No Waiver. The failure on the part of either party to exercise any
right or remedy hereunder will not operate as further waiver of such right or
remedy in the future or any other right or remedy.
10.2 Entire Agreement/No Modification/Counterparts. This Agreement
constitutes the complete understanding between the parties with respect to the
terms and conditions set forth in this Agreement and supersedes all previous
written or oral agreements and representations. The terms and conditions of this
Agreement will control over any terms and conditions in any solicitation,
request for proposal, proposal, purchase order, acknowledgment or other written
form. This Agreement may be modified only in a writing that expressly references
this Agreement and is executed by both of the parties to this Agreement. This
Agreement may be executed in several counterparts, all of which taken together
will constitute one single Agreement between the parties.
10.3 Binding Intent/Assignment. The provisions of this Agreement will be
binding upon and inure the benefit of the heirs, executors, successors and
assignees of the Licensee and Xxxx. Neither party may assign this agreement or
any of its rights or obligations hereunder without the other party's prior
written consent, except that either party may assign this Agreement in its
entirety in the event of a merger, corporate reorganization or a sale of all or
substantially all of the assets of the assigning party without obtaining the
other party's consent.
10.4 Survival. Sections 4 through 10 will survive termination or
expiration of this Agreement.
10.5 Force Majeure. Neither party will be liable to the other for any
cause beyond its reasonable control, and the party's performance will be excused
if such party's performance is prevented by any cause or causes beyond its
reasonable control without the fault or negligence of such party. Such causes
may include, but are not necessarily restricted to, acts of God, of the public
enemy, insurrection, civil disturbance, acts of the government in either its
sovereign or contractual capacity, fires, epidemics, quarantine restrictions,
strikes or labor disturbance, acts or
-7-
omissions of carriers, transmitters, phone companies, Internet service
providers, Internet backbone providers, vandals, or hackers.
10.6 Severability. If any provision in this Agreement is found to be
invalid, void, or unenforceable, the remaining provisions will nevertheless
continue in full force and effect provided the original intent of the parties
can be fulfilled.
10.7 Governing Law/Venue. The laws of the State of Georgia will govern
this Agreement without reference to Georgia's choice of law provisions. Licensor
may only commence legal proceedings against Xxxx in a state court located in the
County of Xxxxxx, State of Georgia or a federal court located in the Northern
District of Georgia, and Xxxx xxx only commence legal proceedings against
Licensee in a state court located in the County of San Francisco, State of
California or a federal court located in the Northern District of California.
10.8 Arbitration. Any controversy or claim arising out of or relating to
this Agreement, or any breach thereof, (excluding only the collection of license
fees where the amounts of fees owed is not in dispute) will be settled by
arbitration in accordance with the Commercial Arbitration Rules of the American
Arbitration Association and judgment upon the award rendered by the arbitrators
may be entered in any court having jurisdiction thereof. Any such arbitration
will be held in the offices of the American Arbitration Association located
closest to the city in which the chief executive offices of the respondent to
the demand for arbitration are located.
10.9 Attorneys' Fees. In the event any obligation of this Agreement must
be enforced, through litigation or otherwise, the prevailing party will be
entitled to reasonable attorneys' fees.
10.10 Notices. Any notices required to be given hereunder by either party
or the other may be effected by either personal delivery thereof or by U.S.
certified or registered mail, postage prepaid, recognized overnight commercial
carrier, or facsimile. Mailed notices will be addressed to the parties at the
addresses appearing beneath their signatures hereafter or to such other place as
the respective parties may designate in writing.
10.11 Independent Contractors. The parties have entered into this
Agreement solely as independent contractors. Nothing in this Agreement will be
construed as creating an agency relationship, partnership, joint venture, or any
similar relationship between the parties. Licensee agrees that it will have no
right or authority, at any time, to make any representation or commitment on
behalf of Xxxx, or to make any representations or warranties, guarantees or
commitments with respect to the Licensed Content, except as expressly authorized
by Xxxx in writing.
10.12 Headings/Interpretation. The following rules of interpretation must
be applied in interpreting this Agreement: (1) the section and subsection
headings used in this Agreement are for reference and convenience only, and will
not enter into the interpretation of this Agreement, (2) all references to
Sections and Exhibits are to Sections in this Agreement and Exhibits to this
Agreement, as the case may be, (3) the provisions of the Exhibits are
incorporated in this Agreement, and (4) as used in this Agreement, the term
"including" will always be deemed to mean "including without limitation."
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IN WITNESS WHEREOF, this Agreement is executed as of the Effective Date
set forth above.
XXXX.XXX, INC. XXXXXX INK, INC.
By: /s/ XXXXXX X. XXXXXX, XX. By: /s/ XXXX XXXXXX, M.D.
--------------------------- ---------------------------
Name: Xxxxxx X. Xxxxxx, Xx. Name: Xxxx Xxxxxx, M.D.
-------------------------
Title: Chairman and CEO Title: CEO
-------------------------
Address: 0000 XxxxxXxxx Xxxxxxx
Xxxxx 000 Address: 000 Xxxx Xxxxxx Xxxx
Xxxxxxx, XX 00000 --------------------
Fax: (000) 000-0000
Telephone: (000) 000-0000 Xxxxx X000
Xxxxxxxx, XX 00000
Fax: 000-000-0000
Telephone: 000-000-0000
with a copy to:
--------------
King & Spalding
000 Xxxxxxxxx Xx.
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Fax: (000) 000-0000
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EXHIBIT A
LICENSOR CONTENT
1. Licensor Content. The Licensed Content includes the following:
(a) Xx. Xxxxxx'x Q&A
(b) Daily Dose of Xx. Xxxxxx
TRADEMARKS
To be provided
EXHIBIT B
LICENSOR LOGO
1. Licensor Logo
To be provided
2. Licensor Logo Use Guidelines
To be provided
EXHIBIT E
GENERAL XXXX OF SALE AND ASSIGNMENT
THIS XXXX OF SALE AND ASSIGNMENT is executed and delivered as of this
31st day of January, 2001, by and among Xxxx Xxxxxx, M.D., an individual
resident of California ("AG"), Xxxxxx Xxxxxxxx Xxxxxx, an individual resident of
California ("CLG;" together with AG collectively, the "PURCHASERS"), and
xxxx.xxx, Inc., a Georgia corporation ("SELLER").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Asset Purchase Agreement dated as of
January 31, 2001 by and among Purchasers and Seller (the "PURCHASE AGREEMENT"),
Seller has agreed to sell, transfer, and assign the Assets (as defined therein)
to Purchasers;
WHEREAS, unless otherwise defined herein, the capitalized terms used
herein shall have the meanings ascribed to them in the Purchase Agreement; and
WHEREAS, the parties now desire to carry out the intent and purpose of
the Purchase Agreement by Seller's execution and delivery to Purchasers of this
General Xxxx of Sale and Assignment, in addition to such other instruments as
Purchasers shall have otherwise received or may hereafter request in accordance
with the terms hereof and the Purchase Agreement, evidencing the vesting in
Purchasers of the Assets of Seller hereafter described.
NOW, THEREFORE, for and in consideration of the premises and the
consideration provided in the Purchase Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged:
1. Seller hereby conveys, grants, bargains, sells, transfers, sets
over, delivers and assigns unto Purchasers and their successors and assigns,
forever, all of the Seller's rights, title and interests in and to the Assets,
including without limitation domain name and Internet protocol address of the
Site, Copyright Interests, Trademark Interests, and certain of the Seller's
contracts as set forth on SCHEDULE 1.1(A) to the Purchase Agreement, Personal
Property, Inventory, and Books and Records, all free and clear of all mortgages,
liens, pledges, security interests, charges, claims, restrictions, encumbrances,
and equities whatsoever.
2. Seller shall execute, acknowledge, deliver and perform, or cause to
be executed, acknowledged, delivered and performed, all such further acts,
deeds, assignments, transfers, assumptions, conveyances, receipts,
acknowledgments, acceptances, and assurances and take all such further actions
as may be reasonably necessary or otherwise reasonably required to procure for
Purchasers, or for aiding and assisting in collecting and reducing to
possession, any and all of the Assets.
3. This General Xxxx of Sale and Assignment shall be binding upon
Seller and Purchasers and their respective heirs, executors, legal
representatives, successors and assigns.
4. The assignments made hereunder are made in accordance with and
subject to the representations, warranties, covenants, limitations and
provisions contained in the Purchase Agreement and the exhibits and schedules
thereto.
5. This General Xxxx of Sale and Assignment shall be governed by and construed
and enforced in accordance with the laws of the State of Georgia excluding
its principles of conflicts of law.
IN WITNESS WHEREOF, the parties hereto have caused this General Xxxx of
Sale and Assignment to be executed by their duly authorized representatives as
of the date first provided above.
PURCHASERS:
XXXX XXXXXX, M.D.
/s/ XXXX XXXXXX, M.D.
-----------------------------------
XXXXXX XXXXXXXX XXXXXX
/s/ XXXXXX XXXXXXXX XXXXXX
-----------------------------------
SELLER:
By: /s/ XXXXXX X. XXXXXX, XX.
--------------------------------
Xxxxxx X. Xxxxxx, Xx.
Chairman and CEO
2
