Exhibit 10.59
TECHNOLOGY LICENSE AND OPERATIONS AGREEMENT
This AGREEMENT is dated as of January ___, 2002, and is by and between
Clandale Associated Limited, on the one hand ("Operator") and x-XxxXxxx.xxx, dba
Med Diversified, on the other hand ("MED").
WHEREAS, the parties entered into that certain Technology License
Agreement dated May 30, 2001 ("TLA");
WHEREAS, Operator is in full compliance with the TLA;
WHEREAS, through no fault of any party, MED has yet to sufficiently or
completely deliver the technologies outlined in the TLA and thus the license
payments have been deferred;
WHEREAS, Operator has identified and obtained long-term commitments
from numerous large health care clientele ("clientele") and has delivered pro
forma information containing estimated revenues of $340 million over the term of
the TLA;
WHEREAS, after conducting further due diligence, MED wishes not only to
secure the clientele for the term of the TLA but also to induce Operator -- in
addition to developing the commitments from the health care clientele -- to
assist in managing the facilities, operations and undertakings associated with
MED's growing operations in Europe; and
WHEREAS, Operator is willing on the terms and conditions set forth
herein to take on the responsibilities required by MED for the full fifteen (15)
year term hereof.
NOW, THEREFORE, in exchange for the mutual covenants and promises set
forth herein, the parties hereto agree as follows:
1. OPERATOR RIGHTS AND RESPONSIBILITIES. Operator shall report directly
to the President of MED on all matters appertaining or relating to MED's
International Division. Operator shall provide management facilities and
services for the International Division as necessary and appropriate with
respect to all clientele and with respect to the balance of MED's International
Division. Such services shall include, without limitation:
a. Site evaluation;
b. Technology fitness study;
c. Maintenance analysis;
d. Support desk analysis and implementation;
e. Contract negotiation;
f. Contract maintenance;
g. Public relations; and
h. Other services as requested by MED from time to time.
2. COST SHARING. All costs of technology arising hereunder shall be
borne by MED. MED agrees to provide staffing to include a President and Vice
President of International Operations. Otherwise, all costs and expenses shall
be borne by Operator.
3. FEES.
3.1 NON-REFUNDABLE AND EARNED FEE. In exchange for the consideration
already provided by Operator in the form of the development of clientele as well
as the implementation commitments of Operator over the term hereof, MED agrees
to provide Operator or Operator's designee with non-refundable, non-creditable
and fully earned consideration equal to (i) 14,100,000 shares of MED with full
registration rights such that said shares will be included in the next
registration statement filed by MED with the Securities and Exchange Commission
and (ii) 4,00,000 warrants to purchase stock of MED at exercise prices of $2.50
per share, with such warrants to be included in the next registration statement
filed by MED with the Securities and Exchange Commission. (Hereinafter
collectively "share and/or warrant consideration.") Subject to this paragraph,
Operator shall neither be obligated nor expected to return any of the share
and/or warrant consideration to MED under any circumstances whatsoever. The
share consideration shall be delivered to Operator on or before September 18,
2001 in individual share certificates as instructed by Operator; the warrant
consideration shall be delivered to Operator on or before September 18, 2001 in
8 warrants of 500,000 each.
3.2 ADDITIONAL FEES AND OVERRIDES. Operator shall receive four
percent (4%) of the audited net profits under GAAP generated by MED's
International Operations during the term hereof, payable annually within thirty
days after the filing of MED's annual statement.
4. COMPLIANCE AND TRADEABILITY OF SHARE AND/OR WARRANT CONSIDERATION.
Upon the share and/or warrant consideration becoming tradeable under this
Agreement and applicable securities laws, Operator shall assure that it and any
of its designees shall not (a) sell more than 50,000 shares of share and/or
warrant consideration per day into the public capital markets when the public
trading price of MED is under $10.00 per share, (b) sell more than 75,000 shares
of share and/or warrant consideration per day into the public capital markets
when the public trading price of MED is between $10.00 per share and $24.99 per
share, (c) under any circumstances sell more than three million (3,000,000)
shares of share and/or warrant consideration per quarter into the public capital
markets and (d) under any circumstances sell any shares of share consideration
into the public capital markets when the public trading price of MED is under
$2.00 per share. Operator agrees to fully comply with all federal securities
laws appertaining or relating to the share and/or warrant consideration.
5. ASSIGNABILITY OF AGREEMENT. Operator may not assign this Agreement
without the express written approval of MED. MED may assign this Agreement at
any time within its sole discretion. Notwithstanding anything in this Agreement
to the contrary, Operator may assign the share and/or warrant consideration
within its discretion so long as it assures the assignee complies with all
provisions set forth in paragraph 4 above.
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6. TERM OF AGREEMENT.
6.1 INITIAL TERM. The initial term of this Agreement began on May
30, 2001 and concludes on May 30, 2016.
6.2 RENEWAL TERMS. Without further action by either party, this
Agreement shall be renewed on May 30, 2016 and in each succeeding year until
terminated hereunder.
7. STANDARD OF PERFORMANCE. Operator agrees that it will at all times
faithfully and industriously perform all of the duties that may be required of
and from it pursuant to the terms of this Agreement. Such duties shall be
performed at such place or places as MED shall in good faith require, or as the
interests, needs, business and opportunities of MED shall require or render
advisable.
8. EXCLUSIVE SERVICE. During the term of this Agreement, Operator shall
not, without the prior written consent of MED, render to others any service of
any kind that is in the same or similar industry to that of MED. The parties
hereto agree and understand that Operator will have access to extraordinarily
confidential, proprietary and valuable information of MED and (b) Operator will
be in a fiduciary position in which any deviation from the normal loyalty and
fidelity of a fiduciary could seriously injure the business of MED. Thus, the
parties hereto stipulate and agree that it would be unfair and irreparably
damaging to MED if Operator were permitted to compete against MED or to assist
in competitors' efforts against MED, whether directly or indirectly. Therefore,
during the term of this Agreement, Operator shall not -- without the prior
written consent of MED -- directly or indirectly compete with or against, or
participate in the competition with or against, MED. Such prohibition against
Operator participating in competition against MED shall include, without
limitation:
8.1 PROHIBITION IN PRODUCT COMPETITIVE ACTIVITY. Operator agrees
that it shall not utilize the services or products of any provider engaged in
the business of providing technological or service solutions of the kind
utilized by MED from time to time or of any technological or service solutions
similar or related thereto, other than and with the sole exception of Operator's
utilization hereunder of MED's services and products; and
8.2 PROHIBITION AGAINST ENGAGING IN COMPETITIVE ACTIVITY. Operator
agrees that it shall not engage in any activity directly or indirectly
competitive with or adverse to the business or welfare of MED, whether alone, as
a partner, or as an officer, director, employee, consultant, or holder of more
than one percent (1%) of the capital stock of any other corporation.
9. ADDITIONAL MARKETING OBLIGATIONS. The parties hereto agree and
understand that a significant and compelling part of the consideration MED
expects to receive from this Agreement lies in the ability to fully and
effectively market its products and services to the vast network of clientele
and potential European customers that Operator has demonstrated it has access to
("overall network"). Accordingly, Operator agrees to actively endorse and
support MED's efforts to market all of MED's products and services so that MED
can achieve maximum penetration of its product and service offerings throughout
the overall network. Without limiting the generality of the foregoing, the
parties' rights and obligations with respect to this marketing obligation shall
be that Operator shall use its continuous, vigorous and best efforts in
assisting
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MED in distributing its offerings methodically throughout the overall network
assuring significant penetration of the European health care community thereby.
By way of example only:
(a) Operator shall sponsor a reasonable number of
reference inquiries and visits by customers and
potential customers of MED;
(b) Operator shall provide all members of the overall
network with a strong financial incentive to induce
those members to utilize the services provided by MED
such that any such members deciding to utilize MED's
services (hereinafter "participating members") would
receive inducement consideration from Operator.
10. OWNERSHIP OF INTELLECTUAL PROPERTY. Operator acknowledges that it
is not acquiring any ownership rights in any of the intellectual property of
MED, or any copyright, trade secret, patent and other intellectual property
rights therein (including those of third parties which MED has the right to use)
and that MED retains all right, title and interest in and to all of its
intellectual property licensed hereunder. With respect to any computer software
utilized in connection with this Agreement, physical copies of such software (in
diskette, tape or other form provided by MED) shall remain the property of MED,
and such copies shall be deemed to be licensed to Operator during the term of
the license granted pursuant to this Agreement and for the purposes of this
Agreement. Operator shall not alter or remove any copyright, trade secret,
patent, proprietary or other legal notices contained on any of MED's products or
service manuals and shall reproduce all such notices that are contained on MED's
materials for backup purposes only.
11. CONFIDENTIALITY OF DOCUMENTATION. All information, data, drawings,
specifications, documentation, software listings, source or object code,
manuals, service offerings or other written materials that MED has created in
connection with its business and/or that are created in the performance of the
terms of this Agreement or which may be created from time to time hereunder, are
proprietary or confidential. Operator agrees that it shall use the same solely
in accordance with the provisions of this Agreement and that it shall not at any
time during or after completion, expiration or termination of this Agreement
disclose the same, directly or indirectly, to any third party outside the terms
and scope of this Agreement.
12. WARRANTY OF MED. With respect to all non-service-related products
covered hereunder, including without limitation computer software, MED warrants
to Operator that the Software will substantially comply with all commercially
reasonable requirements for use. The warranty set forth in the preceding
sentence is the only warranty granted by Operator under this Agreement. MED
DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, AND ANY ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS OR
STATEMENTS MADE PRIOR TO THIS AGREEMENT. PROVIDER DOES NOT WARRANT THAT ANY
SOFTWARE OR INTELLECTUAL PROPERTY WILL MEET CUSTOMER'S NEEDS OR BE FREE FROM
ERRORS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED.
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13. LIMITATION OF LIABILITY. Operator's sole remedy under this limited
warranty is replacement of the technology solution to which `the warranty was
breached. Subject to Section 12 above, all technology solutions are provided on
an "as is" basis, and the entire risk as to the results and performance is
assumed by Operator or its clientele or customers. NEITHER MED NOR ITS
DISTRIBUTORS, SUPPLIERS, AGENTS, OFFICERS, AND DIRECTORS SHALL HAVE ANY
LIABILITY TO CUSTOMER OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT,
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING BUT NOT
LIMITED TO, LOSS OF REVENUE OR PROFIT, FAILURE TO REALIZE ANTICIPATED PROFITS OR
SAVINGS, LOST OR DAMAGED DATA, OR OTHER COMMERCIAL OR ECONOMIC LOSS, EVEN IF
PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THEY ARE
FORESEEABLE; OR FOR CLAIMS BY ANY OTHER PARTY. MED'S MAXIMUM AGGREGATE LIABILITY
TO OPERATOR OR ANY CUSTOMER, AND THAT OF MED'S DISTRIBUTORS, SUPPLIERS, AGENTS,
OFFICERS, AND DIRECTORS, SHALL NOT EXCEED THE AMOUNT PAID BY PROVIDER OR ITS
CUSTOMER FOR THE SOFTWARE OR TECHNOLOGY. THE LIMITATIONS IN THIS SECTION SHALL
APPLY WHETHER OR NOT THIS ALLEGED BREACH, DEFAULT, NONPERFORMANCE OR FAILURE IS
A BREACH OF FUNDAMENTAL CONDITION OR TERM, OR A FUNDAMENTAL BREACH.
14. TERMINATION.
14.1 EVENTS OF DEFAULT. The following events shall constitute a
"Default:"
(a) a Party fails to pay any amounts when due and does
not pay such amounts within fifteen (15) days of
receipt of written notice of such payment failure; or
(b) a Party has failed to comply with any obligation
herein (other than a payment default under subsection
(a)), the non-defaulting Party has exhausted all
specific contractual rights and remedies in the
precise manner set forth herein, and the remaining
lack of compliance of the defaulting Party remains
uncured for a period of ninety (90) days after notice
of such breach is sent by the non-defaulting Party to
the Party alleged to be in default in accordance with
this Agreement.
14.2 NOTICE OF DEFAULT. A Default shall not be deemed to have
occurred unless in the case of a Default set forth in Section 14.1(a) and (b)
the non-defaulting Party has complied with the escalation procedure set forth in
Section 10.1 and the non-defaulting Party has given written notice (a "Default
Notice") to the defaulting Party in accordance with the requirements of this
Section. A Default Notice shall specify in reasonable detail the events which
the non-defaulting Party believes have occurred and which constitute or evidence
a Default, the provisions of this Agreement (including any applicable provisions
of any Schedule) which have not been performed or complied with, and the actions
which, in the opinion of the non-defaulting Party, would be required to fulfill
the requirements of this Agreement and cure the Default. An
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immaterial failure to comply precisely with the foregoing notice requirements
shall not affect the validity of a Default Notice if the defaulting Party was
not prejudiced by such failure.
14.3 EXTENSION OF CURE PERIOD. The cure period provided for in
Section 14.1(b) shall be extended for sixty (60) days (or for such longer period
as the parties may agree in writing) if (a) the defaulting Party is making its
best efforts to promptly cure the nonperformance, (b) a cure cannot practically
be achieved within thirty (30) days, and (c) within the first thirty (30) days
of the initial cure period, the defaulting Party gives the non-defaulting Party
written notice of the defaulting Party's need for an extension and of the
actions it is taking to cure its breach or nonperformance and the number of days
which it will require to cure its breach or nonperformance. As used in the
preceding sentence, the term, "best efforts" shall mean the application of
diligence and resources reasonably necessary to cure the nonperformance in a
business like fashion with due regard for the seriousness of the nonperformance
and its impact upon the other Party and those to whom the other Party may have
legal or contractual obligations.
14.4 TERMINATION FOR DEFAULT. Only upon (a) the occurrence of any
Default which is not excused pursuant to this Agreement, (b) the inability to
resolve the dispute hereunder, (c) the delivery of a Default Notice to the
defaulting Party as provided above, (d) the circumstance where a specific remedy
for the Default is not set forth in this Agreement and/or such a specific remedy
is so set forth but compliance with such remedial procedure has not yielded a
resolution of the Default and (e) the defaulting Party's failure to cure the
Default set out in the Default Notice prior to the expiration of the cure period
specified in Section 14.2(b) as extended pursuant to Section 14.3, the
defaulting Party shall be deemed to be in Material Breach of this Agreement and
the non-defaulting Party shall have the right to terminate this Agreement or,
alternatively, to terminate the license to which the Default relates (at the
discretion of the non-defaulting Party), by delivering written notice of
termination to the defaulting Party.
14.5 EFFECT OF TERMINATION. Upon termination of this Agreement (and
irrespective of which Party terminates this Agreement), all of the following
shall apply:
a. Operator shall immediately cease use of the technologies and
services;
b. Operator shall, within 10 days of such termination, deliver
to MED all copies and portions of the technology and other MED-related materials
and documentation in its possession furnished by MED under this Agreement or the
license which has been terminated;
c. All amounts payable or accrued to MED under this Agreement
shall become immediately due and payable; and
d. All rights and licenses granted to Operator under this
Agreement or the applicable license shall immediately terminate.
15. DISPUTE ESCALATION. MED and Provider hereby agree that they will
use all reasonable efforts to resolve any disputes arising out of this Agreement
in a co-operative and expeditious manner. If the Account Managers are unable to
resolve the dispute within ten (10) days of its referral, either Party may
escalate the dispute to the Chief Executive of the parties
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hereto. Upon such escalation, the Chief Executive for each Party shall meet in
person to discuss the outstanding issues and attempt in good faith to reach a
resolution. If the foregoing procedure fails to resolve the dispute within five
(5) days of its referral, either Party may take further action in accordance
with this Agreement.
16. FURTHER ASSURANCES. Each of the parties hereto from time to time at
the request and expense of any other Party hereto and without further
consideration, shall execute and deliver such other instruments of transfer,
conveyance and assignment and take such further action as the other Party may
require to more effectively complete any matter provided for herein.
17. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
among the parties hereto and except as herein stated and in the instruments and
documents to be executed and delivered pursuant hereto, contains all of the
representations and warranties of the parties hereto. There are no oral
representations or warranties among the parties hereto of any kind, and indeed
the parties stipulate that no such representations or statements were in fact
made by either Party. This Agreement may not be amended or modified in any
respect except by written instrument signed by both Parties hereto.
18. APPLICABLE LAW AND VENUE. This Agreement shall be governed by and
construed in accordance with the laws of the State of California, without regard
to its choice or conflict of law rules. Any dispute hereunder shall be litigated
and tried in binding arbitration before the AAA in Los Angeles, California and
judgment thereon shall be binding and not subject to appeal.
19. SEVERABILITY. Any covenant or provision hereof determined to be
void or unenforceable in whole or in part shall not be deemed to affect or
impair the validity of any other covenant or provision hereof and the covenants
and provisions hereof are declared to be separate and distinct.
20. COUNTERPARTS AND FACSIMILE. This Agreement may be executed by the
Parties in any number of separate counterparts each of which, when so executed
and delivered, shall be an original, but all such counterparts shall together
constitute one and the same instrument. Counterparts may be executed either in
original or faxed form and the parties adopt any signatures received by a
receiving facsimile machine as original signatures of the Parties, provided,
however that any Party providing its signature in such manner shall promptly
forward to the other Party an original of the signed copy of this Agreement
which was so faxed.
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IN WITNESS WHEREOF, this Agreement has been executed by the Parties
hereto as of the date first written above.
X-XXXXXXX.XXX, DBA
MED DIVERSIFIED
By:
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Title:
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CLANDALE ASSOCIATED LIMITED
By:
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Title:
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TECHNOLOGY LICENSE AGREEMENT
This Technology License Agreement ("Agreement") is made and entered
into this 30th day of May, 2001, by and between Clandale Associated Limited and
Radinlen International, Inc., on the one hand (collectively hereinafter
"Licensee") and x-XxxXxxx.xxx, on the other hand ("MED").
By signing this Agreement and transferring to MED the sum of
$500,000.00 concurrently herewith, the Licensee shall and hereby does received a
fifteen-year license to the technologies identified on Schedule "A" attached
hereto.
Such license shall be for the territories set forth tan Schedule "B"
attached hereto.
The technologies art hereby warrantied by MED to be fit for the
purposes and scope of implementation chose by Licensee, and in the event this
warranty is breached in any way by MED, Licensee's sole remedy is to avoid
paying the $250,000 license fee per quarter to MED. Otherwise, Licensee shall
pay MED $250,000 per quarter for the full fifteen years hereunder.
Time is of the essence in this Agreement.
This Agreement is governed and construed in accordance with the law of
international Arbitration and any dispute hereunder shall be litigated and tried
in accordance with the rules promulgated by the International Arbitration
Associations, or, if no such rules exist, then in strict accordance with the
American Arbitration Association.
This Agreement is the only agreement between the parties, supersedes
all others, and no modification hereto is binding unless signed by all the
parties.
x-XxxXxxx.xxx Clandale Associated Limited
By: By:
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Its Authorized Signatory Its Authorized Signatory
Radinlen International Inc.
By:
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Its Authorized Signatory
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