ACQUISITION AND JOINT VENTURE AGREEMENT
This Acquisition and Joint Venture Agreement (hereinafter "Agreement") is
made and entered into as of this 18th day of March 2000 by and between
CypherComm, Inc., a Delaware corporation ("CypherComm "), and x-XxxXxxx.xxx, a
Nevada corporation ("e-Med").
RECITALS
CypherComm, an applied sciences firm, is in the business of developing
security solutions and technology which enable protection of networks,
multimedia, information and knowledge stockpiles, and electronic transactions.
CypherComm has developed its Cypher Linked Exchange System ("CypherLXS")
technology, which secures public and private communications infrastructure,
and all digital compatible processes, platforms and devices. In connection
therewith, CypherComm represents that it has applied for and been granted
eleven (11 ) federal patents identified in the attached License Agreement
(Exhibit "B" and referred to hereinafter as "License Agreement") and,
hereafter, the use of the term "CypherLXS" shall mean and refer to all
technology which is current owned by CypherComm including, without limitation,
that embodied in and by the eleven (11 ) federal patents identified and
attached hereto. e-Med is in the business of developing medical process and
practice management technology which seeks to provide comprehensive healthcare
solutions via the internet and other communications methods to physicians and
healthcare organizations. In connection therewith, e-Med has developed a wide
range of trade secret protected Internet software applications. In addition,
e-Med and certain subsidiaries of e-Med have expanded the application and
scope of its technologies beyond the healthcare industry.
e-Med and CypherSoft, Inc. ("CypherSoft"), a company affiliated to
CypherComm, entered into a memorandum of understanding dated October 7, 1999,
and a Joint Development Agreement dated December 16, 1999 (collectively, the
"Prior Agreements"), pursuant to which performance thereunder has been fully
rendered to date. In connection with the carrying out of these Prior
Agreements, e-Med and CypherComm have both satisfied themselves about the
efficacy of the other's technologies and solutions. Specifically, the parties
believe that the combination of (a) e-Med's Internet and computer software
technology and expertise, on the one hand, and (b) CypherComm's patented
security technology and proficiency in applying such to a broad range of
problems and outcomes, on the other hand, represent an enormous and long term
business opportunity for both companies. Because of these perceived synergies,
CypherComm and e-Med have been in discussions concerning the potential
applications of the CypherLXS technology. Exhibit A attached hereto lists
certain, but not necessarily all, of the vertical markets for which the
CypherLXS technology could enable a more advanced security solution than that
available in the current market place. CypherComm and e-Med are now desirous
of broadening their relationship beyond that established in the Prior
Agreements and into a permanent relationship whereby the CypherLXS technology
may be appropriately developed for such vertical markets. The primary
objectives of CypherComm and e-Med to be accomplished herewith, as listed more
fully in the body of the Agreement, are:
1. To exclusively license to a company newly formed by e-Med as a
wholly-owned subsidiary ("Newco Med") the CypherLXS technology to enable e-
Med, through Newco Med, to provide the CypherLXS enabled secure medical
information management system to the Medical Solutions vertical market listed
on Exhibit A attached hereto. In exchange for such license, CypherComm shall
receive (a) 25 percent of the net profits of Newco Med as long as Newco Med
remains a company that is wholly owned as a subsidiary of e-Med and, in
addition, (b) warrants priced at $.01 per share to purchase, in the event of a
sale of any Newco Med equity securities to others (whether in a private
offering or a public offering), up to an amount of such equity securities as
shall be equal to 25 percent of any such equity securities outstanding prior
to the sale of such securities. Upon the exercise of such warrants as a result
of the private or public offering of Newco Med securities, CypherComm's right
to receive 25 percent of the net profits of Newco Med shall terminate even if
CypherComm chooses to exercise an amount of such warrants less than 25 percent
of Newco Med's outstanding equity securities. It is the parties' intention and
understanding that the decision whether or not to engage Newco Med in a sale
of its equity securities shall be made at the sole discretion of e-Med, but
once e-Med decides to and does in fact sell any of Newco Med's equity
securities then and only then will CypherComm's right to receive up to a 25
percent equity interest in NewCo Med be triggered;
2. To sell to e-Med up to 15 percent of CypherComm common stock for a
combination of consideration including (i) e-Med common stock having an
aggregate market value as of a certain date equal to $25,000,000, (ii)
$15,000,000 of cash consideration, and (iii) certain office space. The sale of
such stock to e-Med is intended to provide to e-Med an opportunity to
participate in up to 15 percent of the revenues and other consideration
derived from providing the CypherLXS technology to all vertical markets listed
on Exhibit A attached hereto, other than the Medical Solutions vertical
market; and
3. To form a limited liability company ("Newco Labs") in which CypherComm
and e-Med shall each for all purposes have a 50 percent membership interest.
Newco Labs shall be the exclusive technology development and distribution
center for both CypherComm and e-Med as it pertains to the development of
security technology solutions using CypherLXS, and Newco Labs -- subject to
the License Agreement and also subject to CypherComm's outright ownership in
vertical markets other than the Medical Solutions vertical market as set out
in the License Agreement -- shall provide technical solutions and products
necessary to support all CypherLXS enabled vertical markets. Nothing in this
provision shall be construed to in any manner limit the rights of Newco Med,
under its License Agreement with CypherComm, to use those certain technologies
under the License Agreement without any further payment or consideration to
Newco Labs. Furthermore, CypherComm and Newco Med shall have unlimited rights
to use and exploit all products and solutions developed by Newco Labs in their
specific authorized vertical markets (i.e., Newco Med in the Medical Solutions
vertical market and CypherComm in all other markets). Nothing in this
Agreement shall entitle or be construed to permit or authorize or give Newco
Labs any right to distribute, sell or market to the public any security
solutions it may develop from time to time. The parties' intention is to form
and operate the limited liability company pursuant to the Operating Agreement
attached hereto as Exhibit "C."
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the sufficiency of which is hereby acknowledged, the
parties hereto hereby agree as follows:
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1. Newco Med
1.1 Formation. On or before March 31, 2000, e-Med shall form Newco Med as
a wholly-owned subsidiary of e-Med. All matters relating to formation
including, without limitation, state of incorporation and initial
capitalization shall be determined solely by e-Med; provided, however, that
e-Med shall obtain CypherComm's prior written consent to the selection of
Newco Med's name, which consent shall not be unreasonably withheld, and as
long as the warrants referred to in Section 1.3 hereof are outstanding, Newco
Med shall not create any class of stock other than a single class of common
stock without CypherComm's prior written consent, which consent shall not be
unreasonably withheld. The formation of Newco Med shall be an express
condition subsequent to the enforcement of this Agreement. Any commitments
made in this Agreement by e-Med "as incorporator of Newco Med" shall be fully
binding upon Newco Med and shall be deemed automatically and irrevocably
assigned and transferred to Newco Med the instant Newco Med is incorporated
without any further act by any party hereto.
1.2 License of CypherLXS Technology. Concurrently herewith, CypherComm as
licensor, and e-Med -- as the incorporator of Newco Med -- as licensee, shall
enter into an exclusive, worldwide license of CypherLXS technology for the
Medical Solutions vertical market pursuant to the License Agreement Exhibit B
hereto, in exchange for, subject to Section 1.3 hereof, a royalty equal to 25
percent of the "net profits" (as defined in the License Agreement) of Newco
Med during the term of the License Agreement.
1.3 Warrants. Concurrently herewith, e-Med shall and as incorporator of
Newco Med and by signing this Agreement hereby does, cause Newco Med to issue
to CypherComm warrants (the "Warrants"), which Warrants shall be
non-transferable and exercisable only by CypherComm at a price of $.01 per
share in the event of a sale of any Newco Med equity securities pursuant to a
private placement or public offering which results or would result in Newco
Med being anything other than a wholly owned subsidiary of e-Med. The Warrants
shall entitle CypherComm to purchase up to an amount of such equity securities
as shall be equal to 25 percent of the total outstanding equity securities of
Newco Med prior to any such private placement or public offering of Newco Med
securities Upon the exercise of the Warrants as a result of a private or
public offering of Newco Med equity securities, no further royalties provided
for under the License Agreement shall be due to CypherComm and the license of
CypherLXS technology thereunder shall be deemed to be a royalty free, fully
paid-up license and a material part of the consideration for the purchase of
such Newco Med securities by CypherComm pursuant to the Warrants.
1.4 Newco Med Business; Pricing to e-Med. The parties hereto hereby agree
that Newco Med's primary business shall be to facilitate the distribution of
CypherLXS enabled products and services throughout the Medical Solutions
vertical market. CypherComm and e-Med hereby agree that in order to maximize
market share of such CypherLXS enabled products and services, e-Med shall pay
prices to Newco Med no less than Newco Med established preferred customer
rates charged within the Medical Solutions vertical market when purchasing
such products and services for its own account from Newco Med.
2. Sale of CypherComm Stock
2.1 CypherComm Representation. CypherComm hereby represents and warrants
to e-Med that it is authorized to issue only a single class of common stock.
As long as the option set forth in this Section 2.2 hereof is outstanding,
CypherComm shall not create any additional class of stock without e-Med's
prior written consent, which consent shall not be unreasonably withheld.
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2.2 Grant of Option to Purchase CypherComm Stock. CypherComm hereby
grants to e-Med an option to purchase up to 15 percent of the outstanding
common stock of CypherComm, which option is irrevocable but non-transferable
and only exercisable by e-Med. The purchase price for such option shall be
payable (i) through the issuance to CypherComm of that number of shares of
e-Med common stock as shall have an aggregate market value of $25,000,000,
determined using the average closing price of e-Med common stock during the 21
trading days immediately preceding March 17, 2000; (ii) through the issuance
to CypherComm of a warrant to purchase one million (1,000,000) shares of
common stock of e-Med at an exercise price of $20.00 per share, to be issued
in the form set out in the Warrant Agreement attached hereto as Exhibit "D"
which warrant shall not be issued by e-Med until thirty days following the
announcement by e-Med or Newco Med of the completion into a Medical Solutions
vertical market of a commercially distributable product using the CypherLXS
technology (it shall be in the sole discretion of e-Med as to whether to
announce and begin distributing CypherLXS products); and (iii) in
consideration of e-Med's agreement to fund the cost of the rental obligations
of the office space referred to in Section 4 hereof, valued upon lease
execution at the net present value of such rental obligations over the term of
the lease for such office space.
2.3 Exercise of Option. The parties intend that this option may be
exercised by e-Med in whole, or from time to time on a direct pro rata basis
in part, through the quarterly payment by e-Med in immediately available funds
of not less than $750,000 per exercise up to a total payment of $15,000,000.00
and (assuming the payment of the full $15,000,000.00 as provided herein) the
total receipt of 15% of CypherComm. If e-Med intends to exercise this option
in part, e-Med shall pay to CypherComm an amount in immediately available
funds of not less than $750,000 concurrently with the execution of this
Agreement and after the payment of such funds e-Med shall be deemed to have
successfully exercised its option to purchase a total of five percent (5%) of
fifteen percent (15%) of CypherComm's equity securities (or a total of .0075
ownership of CypherComm) and CypherComm shall immediately issue to e-Med a
share certificate representing e-Med's ownership of such equity interest in
CypherComm. e-Med shall then have the right every quarter to purchase an
additional .0075 ownership percentage in CypherComm by paying an amount in
immediately available funds of not less than $750,000 on the last day of each
calendar quarter after execution of this Agreement to and including December
31, 2005 (the "Option Expiration Date"). The failure to make any such option
payment within thirty (30) business days of receiving written notice from
CypherComm of e-Med's failure to make the quarterly payment as provided
herein, shall result in the automatic termination of any unexercised portions
of this option in advance of the Option Expiration Date. e-Med shall have the
right to fully exercise this option at any time before the Option Expiration
Date by the payment in immediately available funds of $15,000,000, less the
aggregate amount of any payments which have been made to CypherComm through
the prior pro rata exercise of this option. Upon the initial exercise of this
option, e-Med shall execute that certain Buy-Sell agreement to which present
stockholders of CypherComm and CypherComm are parties.
2.4 Shares Acquired. Upon the exercise of this option from time to time,
e-Med shall be deemed to own by virtue of such exercise, and shall be entitled
to receive and CypherComm shall provide e-Med, the product of (i) 15 percent
of the outstanding shares of CypherComm common stock, and (ii) the percentage
derived from dividing $15,000,000 into the amount of any payment made on
account of such exercise. The number of shares of common stock to which e-Med
shall be entitled shall be delivered to e-Med within 10 business days of any
payment on account thereof.
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2.5 e-Med Restricted Stock. CypherComm acknowledges that the e-Med common
stock to be delivered to CypherComm pursuant to Section 2.2 hereof will not
have been registered with the Securities and Exchange Commission or issued
pursuant to a public offering and, therefore, will be "restricted securities."
e-Med hereby covenants that as long as CypherComm holds such stock as
"restricted securities," it will file all reports required to be filed by it
under the Securities Act of 1933 and the Securities Exchange Act of 1934 and
that it will take such further action as required and as CypherComm may
reasonably request, all to the extent necessary from time to time to enable
CypherComm to sell such stock without registration under the Securities Act of
1933 within the limitation of the exemptions provided by (i) Rule 144
thereunder, as such rule may be amended from time to time, or (ii) any
applicable rule or regulation hereafter adopted by the Securities and Exchange
Commission.
3. Newco Labs
3.1 Formation. CypherComm and e-Med shall form Newco Labs as a California
limited liability company and all matters appertaining to Newco Labs shall be
governed by the Operating Agreement appended hereto as Exhibit "C" and
executed by the parties concurrently herewith. The actual name of Newco Labs
shall be mutually acceptable to both CypherComm and e-Med.
3.2 Primary Business Purpose. Newco Labs shall be the technology
development center for both CypherComm and e-Med, and shall provide technical
solutions and products to all CypherLXS enabled vertical markets. In
furtherance of the foregoing, Newco Labs shall perform CypherLXS client and
server development, CypherLXS subsystem development, and shall provide
vertical market specific CypherLXS products and services for fees. Newco Labs
shall be solely responsible for certifying compliance with CypherLXS
processing, protocol, subsystem and interoperability requirements. Newco Labs
shall be the exclusive technology development center for both CypherComm and
e-Med as it pertains to the development of security technology solutions using
CypherLXS, and Newco Labs -- subject to the License Agreement and also subject
to CypherComm's outright ownership in vertical markets other than the Medical
Solutions vertical market as set out in the License Agreement ~ shall provide
technical solutions and products necessary to support all CypherLXS enabled
vertical markets. Nothing in this provision shall be construed to in any
manner limit the rights of Newco Med, under its License Agreement with
CypherComm, to use those certain technologies under the License Agreement
without any further payment or consideration to Newco Labs. Furthermore,
CypherComm and Newco Med shall have unlimited rights to use and exploit all
products and solutions developed by Newco Labs in their specific authorized
vertical markets (i.e., Newco Med in the Medical Solutions vertical market and
CypherComm in all other markets). Nothing in this Agreement shall entitle or
be construed to permit or authorize or give Newco Labs any right to
distribute, sell or market to the public any security solutions it may develop
from time to time.
3.3 Organization. Newco Labs shall have an office of the Chair of the
Board, occupied initially by W. Xxxxxx Xxxxxxx as co-chair, and Xxxx X.
Xxxxxxx as co-chair. The president of Newco Labs shall be a person selected
mutually by Messrs. Xxxxxxx and Xxxxxxx. Newco Labs shall be headquartered in
e-Med's Camarillo, California facility in separate space of up to 25,000
rentable square feet, as reasonably required, at no cost to Newco Labs for a
period of five years following the date that it takes occupancy of such space.
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3.4 Funding. CypherComm's capital contribution to Newco Labs shall be (a)
a transfer of a revocable license of the CypherLXS technology to enable Newco
Labs to perform its business function in the manner that the parties intend
and (b) CypherComm's agreement to fund to Newco Labs as capital contributions
at least seventeen percent (17%) of all monies funded by e-Med pursuant to
Section 2.3 above, all as more fully set forth in the Operating Agreement,
Exhibit "C" hereto. e-Med's capital contribution to Newco Labs shall be (a) a
transfer of a revocable license of certain e-Med technology to enable Newco
Labs to perform its business function in the manner that the parties intend,
(b) e-Med's agreement to fund to Newco Labs as capital contributions the same
amount of money as is funded by CypherComm pursuant to subsection b of the
CypherComm capital contribution section set out earlier in this paragraph 3.4
and (c) the space provided to Newco Labs pursuant to Section 3.3 hereof, all
as set forth in the Operating Agreement, Exhibit"C" hereto.
4. CypherComm Corporate Headquarters. As soon as reasonably practicable
following the Closing Date, CypherComm shall relocate its corporate offices
into office space in West Los Angeles, California that CypherComm deems
acceptable to it, for a term of not less than five years. CypherComm shall
have the responsibility of locating such space and negotiating all lease
terms, all of which shall be subject to the approval of e-Med (which approval
shall not be unreasonably withheld), and e-Med shall execute the lease and pay
the cost thereof in consideration of the grant of the option set forth in
Section 2 hereof.
5. Board Seats. As soon as practicable following the Closing Date, a
representative of CypherComm shall be appointed to the Board of Directors of
e-Med. As soon as practicable following the Closing Date, a representative of
e-Med shall be appointed to the Board of Directors of CypherComm. Each party
shall have the right to be represented on the other's board of directors until
such time as either party gives notice to the other that such board
representation is no longer desired.
6. Representations and Warranties of CypherComm. CypherComm hereby
represents and warrants to e-Med:
6.1 Organization and Corporate Authority. CypherComm is duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has all requisite corporate power and Authority to enter into this
Agreement and to consummate the transactions contemplated hereby. This
Agreement and all other agreements to be executed by CypherComm in connection
herewith have been (or upon execution will have been) duly executed and
delivered by CypherComm, have been effectively authorized by all necessary
action, corporate or otherwise, and constitute (or upon execution will
constitute) legal, valid and binding obligations of CypherComm.
6.2 Agreement Not in Breach of Other Instruments. The execution and
delivery of this Agreement by CypherComm and the consummation of the
transactions contemplated hereby and the fulfillment of the terms hereof will
not result in a breach of any of the terms or provisions of, or constitute a
default under, or conflict with, any judgment, decree, order or award of any
court, governmental body or arbitrator, or, to the best of CypherComm's
knowledge, any law, rule or regulation applicable to CypherComm.
6.3 Regulatory Approvals. To the best of CypherComm's knowledge, all
consents, approvals, authorizations and other requirements prescribed by any
law, rule or regulation which must be obtained or satisfied by CypherComm and
which are necessary for the execution and delivery by CypherComm of this
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Agreement and any documents to be executed and delivered by CypherComm in
connection herewith, and which are necessary for the consummation of the
transactions contemplated hereby, have been obtained and satisfied.
6.4 Investment Representation. CypherComm is acquiring e-Med common stock
pursuant to Section 2 hereof for investment purposes and not with a view to
the distribution thereof.
6.5 Material Litigation. There are no claims, actions or proceedings
pending against CypherComm, or to the best of its knowledge, threatened, which
are likely to have a material adverse affect on CypherComm or any of its
property.
6.6 Stockholders. W. Xxxxxx Xxxxxxx is the majority stockholder of
CypherComm. Xx. Xxxxxxx'x spouse is aware of this transaction and has
consented thereto. No actions or proceedings are pending or, to the best of
Xx. Xxxxxxx'x knowledge threatened, with respect to his shares of CypherComm
stock.
7. Representations and Warranties of e-Med. e-Med hereby represents and
warrants to CypherComm:
7.1 Organization and Corporate Authority. e-Med is duly organized,
validly existing and in good standing under the laws of the State of Nevada
and has all requisite corporate power and Authority to enter into this
Agreement and to consummate the transactions contemplated hereby. This
Agreement and all other agreements to be executed by e-Med in connection
herewith have been (or upon execution will have been) duly executed and
delivered by e-Med, have been effectively authorized by all necessary action,
corporate or otherwise, and constitute (or upon execution will constitute)
legal, valid and binding obligations of e-Med.
7.2 Agreement Not in Breach of Other Instruments. The execution and
delivery of this Agreement by e-Med and the consummation of the transactions
contemplated hereby and the fulfillment of the terms hereof will not result in
a breach of any of the terms or provisions of, or constitute a default under,
or conflict with, any judgment, decree, order or award of any court,
governmental body or arbitrator, or, to the best of e-Med's knowledge, any
law, rule or regulation applicable to e-Med.
7.3 Regulatory Approvals. To the best of e-Med's knowledge, all consents,
approvals, authorizations and other requirements prescribed by any law, rule
or regulation which must be obtained or satisfied by e-Med and which are
necessary for the execution and delivery by e-Med of this Agreement and any
documents to be executed and delivered by e-Med in connection herewith, and
which are necessary for the consummation of the transactions contemplated
hereby, have been obtained and satisfied.
7.4 Investment Representation. In the event of the exercise of the option
set forth in Section 2.2 hereof, e-Med will acquire CypherComm common stock
for investment purposes and not with a view to the distribution thereof.
7.5 Material Litigation. There are no claims, actions or proceedings
pending against e-Med, or to the best of its knowledge, threatened, which are
likely to have a material adverse affect on e-Med or any of its property.
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8. Conditions to Closing
There are no conditions precedent to closing of this Agreement, as the
Agreement shall be and hereby is closed upon execution hereof. Any conditions
subsequent to the parties' obligations hereunder are expressly identified in
the Agreement and in the absence of any such express identification there
shall be no conditions subsequent to this Agreement.
9. Miscellaneous
9.1 Publicity. Each of CypherComm and e-Med hereby agrees not to disclose
to any person or entity or to make any public statement concerning the
transactions contemplated herein without the prior written consent of the
other, except that the foregoing shall not apply to (i) any disclosure
required by law, (ii) any disclosure to the employees, agents and
representatives of either party hereto which such party deems to be reasonably
necessary, and (iii) any disclosure related to the structure of the business
relationship between the parties provided for herein but not quantitative
information. As it is the current intention of the parties that CypherComm
shall undergo a change in its corporate trade name, any public statement or
release appertaining or relating to this Agreement shall refer to CypherComm
using the trade name or trade names chosen by CypherComm (within its sole
discretion) after undergoing its corporate change of trade name.
9.2 Covenants Not to Compete.
(a) Without the prior written consent of e-Med, CypherComm will not,
directly or indirectly, engage in any business competitive with the business
of e-Med described in the Recitals of this Agreement in any county or other
political subdivision of any state of the United States of America (or part
thereof) or any other political subdivision of the World where such business
is conducted at any time during the term of this Agreement. Without the prior
written consent of CypherComm, e-Med will not, directly or indirectly, engage
in any business competitive with the business of CypherComm described in the
Recitals of this Agreement in any county or other political subdivision of any
state of the United States of America (or part thereof) or any other political
subdivision of the World where such business is conducted at any time during
the term of this Agreement;
(b) The covenants not to compete set forth herein shall extend during
the term of this Agreement and for an additional period of five years
thereafter, or until such earlier time as either party hereto, its successors
or assigns, shall cease to carry on or have an interest in its respective
business; and
(c) The parties hereto agree that the duration and area for which the
covenants not to compete set forth herein is to be effective are reasonable.
In the event that any court determines that the time period or the area, or
both of them, are unreasonable and that such covenant is to that extent
unenforceable, the parties hereto agree that the restriction shall remain in
full force and effect for the greatest time period and in the greatest area
that would not render it unenforceable. The parties intend that these
covenants shall be deemed to be a series of separate covenants, one for each
of the jurisdictions set forth above where these covenants are intended to be
effective. Each party agrees that damages are an inadequate remedy for any
breach of its covenant and that the non-breaching party shall, whether or not
it is pursuing any potential remedies at law, be entitled to equitable relief
in the form of preliminary and permanent injunctions upon any actual or
threatened breach of such covenant.
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9.3 Notices. All notices, requests, demands, and other communications
hereunder shall be in writing and shall be deemed given three (3) days after
delivery by certified mail, postage prepaid, return receipt requested, to the
parties or their successors in interest at the following addresses, or at such
other addresses as the parties may designate by written notice in the manner
aforesaid:
If to CypherComm: CypherComm, Inc.
0000 Xxxxxxx Xxx., Xxxxx 000
Xxxxxx Xxx Xxx, Xxxxxxxxxx 00000
Attention: W. Xxxxxx Xxxxxxx
With a Copy to: Rossi x. Xxxxxxx, Esq.
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
If to e-Med: x-XxxXxxx.xxx
0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxxxxxxxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
With a copy to: Xxxxxxxx X. Xxxxx, Esq.
00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000
9.4 Assignability and Parties in Interest. This Agreement shall not be
assignable by either of the parties hereto. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors.
9.5 Governing Law and Venue. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of
California; and dispute hereunder shall be exclusively litigated and tried in
the courts situated in Los Angeles, California.
9.6 Counterparts. This Agreement may be executed simultaneously in one or
more counterparts, each of which shall be deemed to be an original, but all of
which shall constitute but one and the same instrument.
9.7 Indemnification for Brokerage. CypherComm and e-Med each represents
and warrants to the other that no broker or finder has acted on its behalf in
connection with this Agreement or the transactions contemplated hereby.
CypherComm and e-Med each agree to indemnify and hold and save harmless the
other from any claim or demand for commissions or other compensation by any
other person or entity claiming to have been employed by or on behalf of any
such party.
9.8 Complete Agreement. This Agreement and the Exhibits hereto contain
the entire agreement between the parties hereto with respect to the
transactions contemplated herein and shall supersede all previous oral and
written and all contemporaneous oral negotiations, commitments, and
understandings, except that the confidentiality and nondisclosure provisions
of the Prior Agreements shall remain in full force and effect. There have been
no prior oral or written representations or understandings by or between the
parties hereto.
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9.9 Modifications Amendments and Waivers. At any time after execution of
this Agreement the parties hereto may, by written agreement but only if such
written agreement is signed by all parties hereto:
(a) Extend the time for the performance of any of the obligations or
other acts of the parties hereto;
(b) Waive any inaccuracies in the representations and warranties
contained in this Agreement or in any document delivered pursuant to this
Agreement;
(c) Waive compliance with any of the covenants or agreements
contained in this Agreement; and/or
(d) Amend or supplement or modify any of the provisions of this
Agreement.
9.10 Interpretation. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
9.11 Severability. Any provision of this Agreement which is invalid,
illegal, or unenforceable in any jurisdiction shall, as to that jurisdiction,
be ineffective to the extent of such invalidity, illegality, or
unenforceability, without affecting in any way the remaining provisions hereof
in such jurisdiction or rendering that or any other provision of this
Agreement invalid, illegal, or unenforceable in any other jurisdiction.
9.13 Dispute Resolution. In the event that a dispute shall arise between
the parties hereto with respect to this Agreement or any of the documents or
instruments to be delivered pursuant hereto, the parties shall meet and confer
for a period of ninety (90) days ("Mediation Period") in an effort to resolve
such dispute before the commencement of any legal action. The ninety day
period shall begin upon the providing by one party to the other of written
notification regarding its intention to begin the running of the Mediation
Period, and the parties agree that their respective Chief Executive Officers
shall meet in person at least six (6) times during the Mediation Period to
attempt to resolve any issues. Other than litigation commenced to obtain
injunctive relief for a violation of this Agreement, any litigation commenced
prior to the running of a Mediation Period shall be conclusively deemed by the
parties to have been initiated in bad faith and frivolously.
9.14 Term of this Agreement. This Agreement shall have a term which
commences upon the execution hereof and continues in effect as long as any
rights or obligations of the parties hereunder or under any document delivered
pursuant hereto are still in existence or are executory.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be signed in its corporate name by a duly authorized officer thereof as of
the date first above written.
CYPHERCOMM, INC. X-XXXXXXX.XXX
By:/s/ W. Xxxxxx Xxxxxxx By:/s/ Xxxx X. Xxxxxxx
Its: Chief Executive Officer Its: Chief Executive Officer
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