Exhibit 10.5
TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT ("Termination Agreement") is made as of May
5, 2003 by and between the Estate of Xxxxx Xxxxxx, Deceased, by and through the
Estate's Personal Representative, Xxxxxx Xxxxxx, having an address at 0000 XX
000xx Xxxxxxx, Xxxxx Xxxxxxx, Xxxxxxx 00000 (hereinafter "Licensor"), P.D.C.
Innovative Industries, Inc., a Nevada corporation, with its principle place of
business located at 0000 XX 000xx Xxxxxx, Xxxxx Xxxxxxx, Xxxxxxx 00000
(hereinafter "Licensee"), Medical Marketing Innovations, Inc., a Florida
corporation and wholly -owned subsidiary of Global, defined below, having its
principle place of business located at 0000 Xxxx 00xx Xxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxx 00000 (hereinafter "MMI") and Global Medical Marketing, Inc., a
Florida corporation and the parent company of MMI, having its principle place of
business located at 0000 Xxxx 00xx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000
("Global")(the signatories to this Termination Agreement being referred to
individually as a "Party" hereto and collectively as "Parties" hereto).
W I T N E S S E T H:
WHEREAS, Licensor, Licensee and MMI previously entered into an
Exclusive Patent Sub- License and Royalty Agreement dated as of November 21,
2002 ("Agreement"); and
WHEREAS, Licensor, Licensee and MMI wish to terminate the Agreement and
their respective rights and obligations thereunder as of the date of execution
of this Termination Agreement;
NOW, THEREFORE, for and in consideration of the covenants, conditions
and undertakings hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency of which is acknowledged by the
Parties hereto, the Parties agree as follows (capitalized terms not defined
herein shall have the same meaning as set forth in the Agreement):
1. The Agreement and the respective rights and obligations of each of
the Licensor, Licensee, and MMI thereunder is hereby terminated.
2. Each of the Parties represents and warrants to the other Parties
hereto that such Party has not incurred, directly or indirectly, any obligation
or liability, contingent or otherwise, under the Agreement to any of the other
Parties, and agrees to indemnify and hold harmless each of such other Parties,
and their respective officers, directors, employees, agents, and personal
representatives, heirs, successors, and assigns, as the case may be, in
connection with any breach of the foregoing representation and warranty.
3. The Licensor and Licensee agree that Global and/or MMI, as may be
determined by Global, shall be afforded the opportunity on a non-exclusive basis
to sell and market the Hypo- Pro 2000 on such terms and conditions as the
Licensee and Global and/or MMI may later agree after such time if and when the
Hypo-Pro may receive approval by the U.S. Food and Drug Administration.
4. In consideration for Global agreeing to cause MMI to terminate the
Agreement and
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relinquish its exclusive rights thereunder, Licensee agrees to herewith transfer
to Global 10,000,000 shares of Global restricted common stock and relinquish all
of its right, title and interest thereto. Concurrent with the execution of this
Termination Agreement by all Parties hereto, Licensee shall deliver to Global
the share certificate(s) representing all of such shares, together with a stock
power for each such certificate executed in blank with signature medallion
guaranteed by a commercial bank, and a corporate resolution authorizing such
transfer.
5. Except for the prospective sales and marketing of the Hypo-Pro which
may be undertaken by Global and/or MMI as provided for in paragraph 3 above, and
as set forth below, the rights and obligations of each of the Licensor and
Licensee as to the Technology, Patent Rights, Improvements and Related
Technology and Components shall, upon execution hereof by all of the Parties
hereto, be as set forth in the June 8 Agreement, as amended. Notwithstanding the
foregoing, neither the: (a) royalty payment provisions set forth in the June 8
Agreement, as modified in the Amendment and Revision; or (b) anti-dilution
provisions contained in the June 8 Agreement shall be applicable or effective,
and the Licensor is not and shall not be entitled to any shares of the
Licensee's common stock pursuant to such anti-dilution provision, and waives any
and all claims, if any, arising from and pertaining to such provision.
6. Any notice, or other communication required or permitted to be given
to any Party hereto shall be deemed to have been properly given and to be
effective on the date of delivery if delivered in person or by courier or by
first-class certified mail, postage paid, or via telecopier (with a printed
transmission confirmation of receipt provided to the sender thereof) to the
respective address given below, or to such other address as it shall designate
by written notice given to the other party as follows:
In the case of the Licensor:
Xxxxxx Xxxxxx, Personal Representative for the Estate of Xxxxx Xxxxxx
0000 XX 000xx Xxxxxxx
Xxxxx Xxxxxxx, Xxxxxxx 00000
Telecopier No. (000) 000-0000
In the case of the Licensee:
P.D.C. Innovative Industries, Inc. 0000 XX 000xx Xxxxxx Xxxxx Xxxxxxx,
Xxxxxxx 00000
Attention: Xxxxxxx Xxxxx, Chief Executive Officer
Telecopier No. (000) 000-0000
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In the case of the MMI:
Medical Marketing Innovations, Inc.
0000 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: President
Telecopier No. (305-558-5977)
In the case of the Global:
Global Medical Marketing, Inc.
0000 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
Telecopier No. (305-558-5977)
7. This Termination Agreement shall be deemed made in, interpreted and
construed in accordance with the laws of the State of Florida without regard to
choice or conflict of law principles.
8. No amendment or modification hereof shall be valid or binding upon
the Parties unless made in writing and signed by each of the Licensor, Licensee,
MMI and Global.
9. This Termination Agreement embodies the entire understanding of the
Parties and shall supersede all previous communications, representations, or
understandings, either oral or written, between the Parties relating to the
subject matter hereof. This Termination Agreement is binding upon and shall
inure to the benefit of the Parties, their respective successors and permitted
assigns. This Termination Agreement and the Parties' respective rights and
obligations hereunder shall not be assigned by any of the Parties hereto without
the prior written consent of the other Parties hereto.
10. In the event any one or more of the provisions contained in this
Termination Agreement shall for any reason be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provisions hereof, but this Termination Agreement
shall be construed as if such invalid or illegal or unenforceable provisions had
never been contained herein.
11. Any controversy, claim, action and/or proceeding relating to or
arising out of this Termination Agreement, its interpretation, performance, or
termination, or the breach thereof, shall be brought solely in the federal
and/or state courts located in Broward County, Florida. The prevailing party in
any such action and/or proceeding shall be entitled to recover its reasonable
attorney's fees and costs from the other party/parties. Each of the Parties
hereto consents to the jurisdiction of such courts.
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12. As each of the Parties hereto have had the opportunity to review
this Termination Agreement with their own separate, distinct counsel, the rule
of construction that ambiguities shall be construed against the drafter shall
not be applicable.
13. This Termination Agreement may be executed in counterparts and via
telecopier.
IN WITNESS WHEREOF, each of the Parties hereto have executed this
Termination Agreement (in the case of each of the Licensee, MMI, and Global, by
their respective officers hereunto duly authorized), on the date first set forth
above.
ESTATE OF XXXXX XXXXXX
By: /s/ Xxxxxx Xxxxxx
--------------------------------------
Xxxxxx Xxxxxx, Personal Representative
for the Estate of Xxxxx Xxxxxx
STATE OF FLORIDA )
) SS:
COUNTY OF BROWARD )
The foregoing instrument was acknowledged before me this 5th day of May
2003 by Xxxxxx Xxxxxx as Personal Representative for the Estate of Xxxxx Xxxxxx,
who is personally known to me or has produced Florida driver's license as
identification and did/did not take an oath.
/s/ Xxxxx Xxxxx
------------------------------
My Commission Expires: Notary Public, State of Florida
P.D.C. INNOVATIVE INDUSTRIES, INC.
By: /s/ Xxxxxxx Xxxxx
-------------------------------------
Xxxxxxx Xxxxx, Chief Executive Officer
STATE OF FLORIDA )
) SS:
COUNTY OF BROWARD )
The foregoing instrument was acknowledged before me this 5th day of May
2003, by Xxxxxxx Xxxxx as Chief Executive Officer of P.D.C. Innovative
Industries, Inc., a Nevada corporation, on behalf of such corporation, who is
personally known to me or has produced Florida Driver's License as
identification and did/did not take an oath.
/s/ Xxxxx Xxxxx
-------------------------------
My Commission Expires: Notary Public, State of Florida
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MEDICAL MARKETING INNOVATIONS, INC.
By: /s/ Xxxx Xxxxxxx
-----------------------------
Xxxx Xxxxxxx, President
STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this 5th day of May
2003, by Xxxx Xxxxxxx as President of Medical Marketing Innovations, Inc., a
Florida corporation, on behalf of such corporation, who is personally known to
me or has produced ________________________ as identification and did/did not
tak an oath.
/s/ Xxxxx Warshopsky
-----------------------
My Commission Expires: Notary Public, State of Florida
GLOBAL MEDICAL MARKETING, INC.
By:/s/ Xxx Xxxxxxx
----------------------------
Xxx Xxxxxxx,
Chief Executive Officer
STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this 5th day of May 2003 by
Xxx Xxxxxxx as Chief Executive Officer of Global Medical Marketing, Inc., a
Florida corporation, on behalf of such corporation, who is personally known to
me or has produced __________________ as identification and did/did not take an
oath.
/s/ Xxxxx Warshopsky
--------------------------
My Commission Expires: Notary Public, State of Florida
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