WHYTE LYON SOCRATIC INC. Suite 1600 New York, New York 10023
Exhibit
10.4
XXXXX
XXXX SOCRATIC INC.
0000
Xxxxxxxx
Xxxxx
0000
Xxx Xxxx,
Xxx Xxxx 00000
September
24, 2009
Vensure
Retirement Administration, Inc.
c/o
Vensure Employer Services, Inc.
0000
Xxxxx Xxx Xxxxx Xxxxx
Xxxxx
000
Xxxxxxx,
Xxxxxxx 00000
Attn: Xxxxxx
Xxxxxxx, President
Gentlemen:
The
following will serve to set forth our mutual agreement and understanding with
respect to certain educational products and services to be provided by XXXXX LYON SOCRATIC INC., a
Delaware corporation, d/b/a “The Institute of
Modern Economy” (hereinafter “IOME”) and its affiliate or
business associate XXXX.XXX
INC., a Delaware corporation (hereinafter “FNDM”) to VENSURE RETIREMENT ADMINISTRATION
INC., a Delaware corporation (“VRA”), VENSURE EMPLOYER SERVICES,
INC., an Arizona corporation (“Vensure”) and all of the other
members of the Vensure Group. IOME, FNDM, VRA and Vensure are
hereinafter sometimes collectively referred to as the “Parties.”
Unless
otherwise defined in this agreement, when used herein, all capitalized terms
shall have the same meaning as are defined in an investment agreement, dated
September 24, 2009 (the “Investment Agreement”), among
Vensure, certain stockholders of Vensure, the Persons who have executed such
Investment Agreement as the “Investors” and
FNDM. In addition, as used in this agreement, the term “Vensure Group” shall mean and
include Vensure, VRA, and all other existing and future Subsidiaries or
Affiliates of Vensure or VRA.
1. The
Content and Course Segments; License.
1.1 During
the “Term” (as defined
herein) of this agreement, IOME and FNDM (collectively, the “Content Providers”) shall
provide all of the existing and future employees, co-employees and other
associates of the Vensure Group (collectively, the “End Users”) with access to
on-line educational content (the “Content”) to be streamed to
such users from the website(s) of the Vensure Group. Such Content
shall:
(a) be
designated and branded as “The Vensure
University” and/or “The Institute of Modern Economy University” (or such
other brand name as shall be acceptable to the Parties hereto);
(b) include,
at the request of VRA, video content specifically produced for End Users for
designated purposes, including safety training and health care, as well as other
purpose designed for workplace education and other information;
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(c) shall
consist of (i) a number of five to seven minute educational course segments, and
(ii) longer educational course segments of up to one hour; in each case, on
financial and other related topics as shall be approved in advance by IOME and
VRA (the “Course
Segments”).
1.2 Each
of the Content Providers hereby grants to the Vensure Group an exclusive world
wide right and license during the Term of this agreement to (i) use and exhibit
the Content and the Course Segments on the Vensure Group websites or otherwise
in connection with the operation of the businesses of the Vensure Group, and
(ii) allow all End Users to use and have access to the Content and Course
Segments on the xxx.xxxxxxxxxxx.xxx
and xxx.xxxx.xxx websites
and on the websites of the Vensure Group.
2.
Additional
Agreements.
2.1 All
costs related to producing the Content and Course Segments and refreshing of
such Content and Course Segments shall be borne solely by the Content
Providers. In addition, such Content and related Course Segments
shall be refreshed and updated by IOME on a regular basis, at no additional
charge to the Vensure Group.
2.2 Vensure
shall promote the Content and Course Segments, as well as other additional
expanded subscriptions for Content and educational products provided by IOME,
FNDM and its subsidiaries (the “FNDM Additional Products”) to
the End Users and on the websites of the Vensure Group. In addition,
the Vensure Group shall encourage its End Users to access the Content and Course
Segments as well as information concerning the FNDM Additional Products on the
xxx.xxxxxxxxxxx.xxx
and xxx.xxxx.xxx
websites. The Vensure Group shall refer to FNDM all inquiries from
the End Users concerning the FNDM Additional Products. In the event
and to the extent that any End Users referred by the Vensure Group shall
purchase a FNDM Additional Product, VRA shall receive an amount equal to fifty
(50%) percent of the product of multiplying (a) the purchase price paid for such
FNDM Additional Product, by (b) the “Profit Margin Percentage” derived by FNDM
or any of its Affiliates from the sale of such FNDM Additional
Product. As used herein, the term “Profit Margin Percentage”
shall mean an amount, expressed as a percentage of the net revenue derived from
the sale of such FNDM Additional Product, equal to (i) such net revenue, less
(ii) the cost of producing such FNDM Additional Product.
2.3 The
Content Providers shall promote the Vensure Group and its businesses on the
xxx.xxxxxxxxxxx.xxx
and the xxx.xxxx.xxx
websites; in each case, for no additional charge.
2.4 The
Content Providers shall be solely responsible for the payment of the costs of
bandwidth and actual streaming of the Content and Course Segments on the xxx.xxxxxxxxxxx.xxx
and xxx.xxxx.xxx websites
and on the websites of the Vensure Group.
2.5 In
the event that, for any reason, the Content Providers shall, for any reason
other than the failure of the Vensure Group to make timely payments of the
applicable Monthly Access Fee, fail or refuse to provide the Content and Course
Segments, as contemplated by this agreement, the Vensure Group shall have the
right to terminate this agreement and cease making any further payments
hereunder, or, alternatively, may seek specific performance of the performance
obligations of the Content Providers under this agreement.
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3. Payment
of Monthly Access Fee.
3.1 As
a material inducement to cause FNDM and the Investors to enter into the
Investment Agreement, in consideration for the Content and Course Segments to be
provided by the Content Providers under this agreement, on behalf of itself and
other members of the Vensure Group, VRA and the Vensure Group shall pay to FNDM
(on behalf of the Content Providers) a fee, payable monthly (the “Monthly Access Fee”) which
shall be equal to the product of multiplying (a) $19.95, by (b) all End Users
who shall either directly access or shall have the ability to access such
Content and Course Segments either on the Vensure websites or on the xxx.xxxxxxxxxxx.xxx
and the xxx.xxxx.xxx
websites. In such connection, it is expressly understood and agreed
that such Monthly Access Fee shall be due and payable immediately upon the
Content and Course Segments being made available to End Users, irrespective of
whether or not the Content shall actually be accessed or used by any one or more
End Users.
3.2 Commencing
October 1, 2012, the Monthly Access Fee shall be subject to adjustment to an
amount mutually agreed upon among the Vensure Group, IOME and FNDM; such
adjustment to be determined by the number of End Users accessing or having the
ability to access such Content and Course Segments, and interest or dividend
income then available to the Vensure Group from the annuity and/or other
securities purchased by VRA with the Certificate of Deposit.
3.3 Not
later than 15 days after the end of each calendar quarter, VSA shall, on behalf
of the Vensure Group, remit the aggregate Monthly Access Fee payable for the
immediately proceeding calendar quarter to FNDM in cash, accompanied by a
statement as to the aggregate number of End Users in the Vensure Group as at the
end of the immediately preceding calendar quarter.
3.4 The
Content Providers shall have the right, during normal business hours and at its
own expense, to audit, on a semi-annual basis, the number of End Users and the
prior payments of the Monthly Access Fee.
3.5 In
the event that, for any reason, the Vensure Group shall fail or refuse to make
timely payments of the applicable Monthly Access Fee, the Content Providers
shall have the right to terminate this agreement and cease providing any further
Content or Course Segments, or, alternatively, may seek specific performance of
the payment obligations of the Vensure Group under this agreement.
4. Representations,
Warranties, Covenants and agreements of IOME and FNDM. Each of
IOME and FNDM hereby severally (not jointly and severally) represent and warrant
to the Vensure Group and do further covenant and agree as follows:
4.1 Ownership. IOME
owns and will own all intellectual property and other proprietary rights to all
Content and Course Segments to be provided to under this
agreement. IOME has granted to FNDM the exclusive right to use and
sell the Content and Course Segments to the Vensure Group hereunder, pursuant to
a separate agreement between IOME and FNDM, dated of even date
herewith.
4.2 Title. IOME and
FNDM shall deliver to the Vensure Group good and marketable title to all Content
and Course Segments, free and clear of all liens, claims, encumbrances or rights
of any third person, firm or corporation.
4.3 No
Violation. None of the Content or Course Segments
furnished by IOME and FNDM to the Vensure Group will (a) infringe and
intellectual property or other legal rights of any third person firm or
corporation, or (b) breach or violate any agreement, commitment or other
obligation on the part of IOME or FNDM. No third person, firm or
corporation shall assert or claim any rights against any of the parties to this
agreement or any of their Affiliates with respect to such Content and Course
Segments.
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4.4 Delivery
Schedule.
(a) IOME
and FNDM shall deliver finished Course Segments comprising the Content to the
Vensure Group in accordance with a delivery schedule to be mutually agreed upon
by the Parties; provided, that absent an alternative agreed upon schedule, the
Content Providers shall undertake to deliver Course Segments on a quarterly
basis during each calendar quarter commencing with the calendar quarter ending
March 31, 2010 through December 31, 2016.
(b) In
the event that, for any reason, IOME shall fail or be unable to deliver a
sufficient number of Course Segments in any one calendar quarter, it may remedy
such failure by making delivery of such number of additional Course Segments in
the next succeeding calendar quarter so that on a cumulative basis, it shall
have complied with the provisions of Section 4.4(a) above over a period of two
consecutive calendar quarters.
5. Indemnification
and Remedies.
(a) IOME
and FNDM shall indemnify, defend and hold harmless the Vensure Group from and
against any claims by any third party alleging that such third party owns or has
any rights to the Content and Course Segments sold to the Vensure Group pursuant
to this Agreement or that such Content or Course Segments infringe any prior
rights of such third party. In the event that any such third party
claim shall be asserted, IOME and FNDM shall defend such claim by counsel of its
own choosing, and my settle any such claim in such manner as IOME and FNDM shall
determine; provided,
that no such settlement may be consummated that would cause the Vensure Group to
incur any cost or expense unless the same shall be consented to by the Vensure
Group in advance in writing.
(b) In
the event that IOME or Fund shall, in any material respect, (i) breach any of
its representations and warranties set forth in Section 4 above, or (ii) default
in compliance with its covenants and agreements set forth in Section 4, and fail
to reasonably cure such breach or default within thirty (30) days of receipt of
written notice of breach or default from VSA, then and in such event, at any
time following such thirty (30) day cure period if such breach or default shall
then be continuing, VSA may terminate this agreement.
(b) Neither
FNDM nor IOME, on one hand, or the Vensure Group, on the other hand, shall be
liable to the other for consequential or other damages; it being expressly
understood that the sole remedies of the respective parties are (i) as to IOME
and FNDM, to xxx for payment of all accrued and unpaid Monthly Access Fees; and
(ii) as to the Vensure Group, as set forth in Section 5(b) above.
6. Term. The
“Term of this agreement” shall commence as of October 1, 2009 and shall continue
until December 31, 2016. This agreement may be renewed by the parties
after such Term, upon such terms and conditions as the parties may mutually
agree.
7. Miscellaneous.
(a) Waivers. The
waiver of a breach of this agreement or the failure of any party hereto to
exercise any right under this agreement shall in no way constitute waiver as to
future breach whether similar or dissimilar in nature or as to the exercise of
any further right under this agreement.
(b) Amendment. This
agreement may be amended or modified only by an instrument of equal formality
signed by the parties or the duly authorized representatives of the respective
parties.
(c) Assignment. This
agreement is not assignable except by operation of law.
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(d) Notice. Until
otherwise specified in writing, the mailing addresses and fax numbers of the
parties of this agreement shall be made to the addresses set forth
above. Any notice or statement given under this agreement shall be
deemed to have been given if sent by registered mail addressed to the other
party at the address indicated above or at such other address which shall have
been furnished in writing to the addressor.
(e) Governing
Law. This agreement shall be construed, and the legal
relations between the parties determined, in accordance with the laws of the
State of New York, thereby precluding any choice of law rules which may direct
the application of the laws of any other jurisdiction.
(f) Resolution of
Disputes. Except for an action seeking specific
performance of this agreement, which may be commenced in any federal or state
court of competent jurisdiction in Delaware or New York, any dispute involving
the interpretation or application of this agreement which cannot be resolved
among the parties, shall be resolved by final and binding arbitration before the
American Arbitration Association in New York, New York. Any such
arbitration shall be held in accordance with the then prevailing rules of the
AAA. The decision of the arbitrator(s) shall be final and binding
upon all parties hereto and may be enforced in any federal or state court of
competent jurisdiction in Delaware or New York.
(g) Publicity. No
publicity release or announcement concerning this agreement or the transactions
contemplated hereby shall be issued by either party hereto at any time from the
signing hereof without advance approval in writing of the form and substance by
the other party.
(h) Entire
agreement. This agreement contains the entire agreement among
the parties with respect to the transactions contemplated hereby, and supersedes
all prior agreements, written or oral, with respect hereof.
(i) Headings. The
headings in this agreement are for reference purposes only and shall not in any
way affect the meaning or interpretation of this agreement.
(j) Severability of
Provisions. The invalidity or unenforceability of any term,
phrase, clause, paragraph, restriction, covenant, agreement or provision of this
agreement shall in no way affect the validity or enforcement of any other
provision or any part thereof.
(k) Counterparts. This
agreement may be executed in any number of counterparts, each of which when so
executed, shall constitute an original copy hereof, but all of which together
shall consider but one and the same document.
(l) Binding
Effect. This agreement shall be binding upon the parties
hereto and inure to the benefit of the parties, their respective heirs,
administrators, executors, successors and assigns.
(m) Press
Releases. The parties will mutually agree as to the wording
and timing of any informational releases concerning this transaction prior to
and through Closing.
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If the
foregoing accurately represents the substance of our mutual agreement and
understanding, please so indicate by executing and returning a copy of this
agreement in the space provided below.
Very
truly yours,
XXXXX
LYON SOCRATIC INC.
(d/b/a
“The Institute of Modern Economy”)
By:________________________________
Xxxxxx X. Xxxxxx,
President
XXXX.XXX
INC.
By:_____________________________
Xxxxxxx Xxxxxxx
President and CEO
ACCEPTED
AND AGREED TO,
this
24th day
of September 2009:
VENSURE
RETIREMENT ADMINISTRATION, INC.
By:_____________________________
Xxxxxxx Xxxxxxx
President and CEO
VENSURE
EMPLOYER SERVICES, INC.
By:_____________________________
Xxxxxxx Xxxxxxx
President and CEO
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