EXHIBIT 10.7
Service Agreement, dated as of September 7, 1999, between Pharma
Marketing, LLC, a Delaware limited liability company ("Service Provider"), and
Mediconsult.com, Ltd, a Bermuda corporation ("Customer").
Background
Customer wishes to retain the services of Service Provider in
connection with dealings with certain healthcare segments.
Service Provider desires to provide Customer the services described in
this Agreement on an exclusive basis and to the exclusion of all other activity
in which Service Provider might otherwise engage.
Now, therefore, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Customer and Service Provider agree
as follows:
1. Services
1.1 Scope of Services. (a) During the Term (as defined), Service
Provider shall provide Customer (including entities ("Affiliates") controlled
by, controlling or under common control with Customer), on an exclusive,
worldwide basis, with those services described on Exhibit A (the "Services").
During the Term, Service Provider will undertake no activities other than
providing the Services to Customer (and Affiliates). Service Provider and
Customer may from time to time mutually agree to expand the services provided by
Service Provider hereunder.
(b) In performing the Services, Service Provider shall act in a
professional manner and in the best interests of Customer and shall not, without
the prior consent of Customer, take any action that could reasonably be expected
to lead to any liability of Customer. Without limiting the generality of the
foregoing, Service Provider shall comply with all laws, statutes, regulations,
rules, ordinances, orders or other legal requirements.
(c) Customer and Service Provider will work together in good faith
to agree on the pricing (including gross margin determination) for all Service
Provider Contracts (as defined). Service Provider shall prepare and present
preliminary pricing models and schedules to Customer, and the parties shall work
in good faith to agree on final pricing models prior to presentation of
contracts to potential clients. If such an agreement cannot be reached with
respect to any Service Provider Contract, the pricing for such contract shall be
as reasonably determined in good faith by Customer.
1.2 Term. Unless earlier terminated in accordance with this
Agreement, this Agreement shall be in effect for an initial term commencing on
the date hereof and ending on December 31, 2003, and thereafter will be
automatically extended for successive periods of one year (the initial term and
all such successive periods being referred to herein as the "Term"), each on the
same terms and conditions as expressed herein, unless either party gives the
other
party written notice of termination at least 270 days prior to the next
scheduled expiration of the term.
1.3 Personnel. Service Provider agrees that Timothy J. McIntyre
("McIntyre") shall be the individual principally responsible for providing the
Services on its behalf to Customer. The individuals listed in Exhibit B also
shall assist, on or about the commencement of the Term, in providing the
Services. During the Term, Service Provider (through Timothy J. McIntyre) shall
have the right to identify other people, reasonably acceptable to Customer, in
addition to or in lieu of the personnel listed in Exhibit B to assist in
providing the Services. Service Provider shall promptly give notice to Customer
when any of McIntyre or such other individuals shall not be available to provide
the Services or when McIntyre or any of such other individuals plans to be away
from his office for a period exceeding five business days.
2. Compensation
2.1 Retainer. On the last business day of each calendar month during
the Term, Customer shall pay Service Provider a monthly fee for its performance
of the Services in an amount equal to $95,384 plus, for the first two years of
the Term, $100,000 per annum. Payments for partial months shall be prorated
accordingly. At Customer's or Service Provider's request, Customer and Service
Provider may agree on adjustments in the amount of the monthly retainer fee
payable under this Section 2.1, based on Service Provider's actual costs (but
exclusive of meals, entertainment expenses, club dues and similar expenses)
incurred in performing the Services. The monthly retainer payable under this
Section 2.1 shall be in addition to amounts payable under Section 2.2.
2.2 Commissions. (a) Customer shall pay Service Provider a
commission equal to 20% of gross revenue recognized by Customer (or its
Affiliates) during the Term under each contract (a "Service Provider Contract")
entered into during the Term with a client that Service Provider is principally
responsible for obtaining as a client of Customer (or its Affiliates); provided,
that the gross margin under such Service Provider Contract shall equal at least
60% (before commissions). The parties acknowledge that Service Provider is
primarily responsible for all clients of the Company and its Affiliates in the
pharmaceutical industry. As used in this Agreement (i) "gross revenue" means,
with respect to any Service Provider Contract, the amount of revenue recognized
by Customer (or its Affiliates) under such contract during the Term and (ii)
"gross margin" means, with respect to any Service Provider Contract, gross
revenue on such contract less the cost of revenue associated with such contract,
expressed as a percentage. "Cost of revenue" means (i) sales commissions and
finders fees paid with respect to such contract (other than to Employee), (ii)
direct labor costs for development of web sites and content associated with
completing such contract, including customary employee benefits, (iii) fees paid
to contractors (including applicable non-recoverable taxes), (iv) travel,
entertainment and professional costs incurred to implement and maintain such
contract, (v) travel, entertainment and professional costs incurred to obtain
such contract, exclusive of expenses related to general selling and marketing
activities, and (vi) other disbursements made specifically to secure or carry
out such contract. Customer shall pay such commission within 60
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days of the end of the quarter in which the revenue to which such commission
relates is recognized by Customer. Such payment shall be accompanied by a
certificate, signed by an officer of Customer, certifying the amount of gross
revenue recognized and attributable to Service Provider Contracts for such
quarter.
(b) Customer shall pay Service Provider a commission equal to 10% of
the gross profit realized by Customer (or its Affiliates) during the Term under
each contract (a "Renewal Contract") entered into during the Term that renews a
Service Provider Contract. A Renewal Contract may not also be a Service
Provider Contract. As used in this Agreement "gross profit" means, with respect
to any Renewal Contract, the amount of revenue recognized and collected by
Customer (or its Affiliates) under such contract during the Term, less
Customer's (or its Affiliates') costs with respect to such Renewal Contract.
Customer shall pay such commission within 60 days of the end of the quarter in
which the revenue to which such commission relates is recognized and collected
by Customer. Such payment shall be accompanied by a certificate, signed by an
officer of Customer, certifying the amount of gross profit recognized and
attributable to Renewal Contracts for such quarter.
(c) For any Service Provider Contract providing a gross margin less
than 60% (before commissions), Customer shall pay Service Provider a commission
with respect to gross revenue recognized by Customer (or its Affiliates) during
the Term under such Service Provider Contract. The commission payable under
this Section 2.2(c) shall equal the product of (i) the quotient of the gross
margin under such Service Provider Contract divided by 60 multiplied by (ii) 20.
Customer shall pay such commission within 60 days of the end of the quarter in
which the revenue to which such commission relates is recognized by Customer.
Such payment shall be accompanied by a certificate, signed by an officer of
Customer, certifying the amount of gross revenue recognized and attributable to
Service Provider Contracts for such quarter.
(d) Service Provider and Customer acknowledge that the gross margin
under any Service Provider Contract may vary from time to time, and Service
Provider and Customer agree to work in good faith to make such adjustments to
the commissions payable under this Section 2.2 as are appropriate to reflect
such variances from time to time, which may include reimbursing or crediting
Customer for overpayments.
(e) The fees and commissions described in Sections 2.1 and 2.2 shall
be the sole compensation payable to Service Provider for the Services, and
Service Provider shall not be entitled to receive any additional compensation or
reimbursement for any other charges or expenses, including out-of-pocket
expenses, incurred in connection with the performance of the Services.
2.3 Interest on Overdue Amounts. Any amounts owed to Service
Provider hereunder and not paid when due shall bear interest at an annual rate
of 7.0% from and including the date due until and including the date paid.
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3. Representations and Warranties
3.1 Representations and Warranties of Service Provider. Service
Provider represents and warrants to Customer that:
(a) Service Provider has full power and authority to enter into and
perform its obligations under this Agreement. This Agreement has been
duly and validly executed and delivered by Service Provider. This
Agreement constitutes a legal, valid and binding obligation of Service
Provider, enforceable against Service Provider in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization and other laws of general applicability relating to or
affecting creditors' rights.
(b) Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated hereby, will violate or
breach, result in the termination or require the modification,
amendment or renegotiation, of any agreement or obligation to which
Service Provider is a party or by which Service Provider or any of
Service Provider's assets are bound. Service Provider will perform its
obligations under this Agreement in a manner that complies with
applicable laws, orders, judgments, regulations and rules.
(c) No consent, waiver, approval, order or authorization of, or
registration, qualification, designation, declaration or filing with,
any federal, state or local government authority, instrumentality,
agency or commission, or any third party on the part of Service
Provider is required in connection with the consummation of the
transactions contemplated by this Agreement.
3.2 Representations and Warranties of Customer. Customer
represents and warrants to Service Provider that:
(a) Customer has full power and authority to enter into and perform
its obligations under this Agreement. This Agreement has been duly and validly
executed and delivered by Customer. This Agreement constitutes a legal, valid
and binding obligation of Customer, enforceable against Customer in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization and other laws of general applicability relating to or affecting
creditors' rights.
(b) Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated hereby, will violate or breach,
result in the termination or require the modification, amendment or
renegotiation, of any agreement or obligation to which Customer is a party or by
which Customer or any of Customer's assets are bound. Customer will perform its
obligations under this Agreement in a manner that complies with applicable laws,
orders, judgments, regulations and rules.
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(c) No consent, waiver, approval, order or authorization of, or
registration, qualification, designation, declaration or filing with, any
federal, state or local government authority, instrumentality, agency or
commission, or any third party on the part of Customer is required in connection
with the consummation of the transactions contemplated by this Agreement.
4. Proprietary Matters
4.1 Non-Disclosure. Service Provider shall not disclose any
proprietary information to any person, firm, corporation or other entity for any
reason or purpose whatsoever, nor shall Service Provider make use of any such
proprietary information for its own purpose or for the benefit of any person,
firm corporation or other entity, except Consultant; provided that Service
Provider shall be entitled to disclose such proprietary information to McIntyre
and the individuals listed on Exhibit B as necessary to enable them to perform
the Services on Service Provider's behalf, so long as such individuals are
informed of the proprietary nature of such information and agree to be bound by
the provisions of this Section 4.1 with respect thereto. For purposes of this
Agreement, "proprietary information" means all information which is or becomes
known to Service Provider or to employees, consultants or others in a
confidential relationship with Service Provider from Customer, its Affiliates or
the representatives or agents of Customer or its Affiliates and relates to
matters such as trade secrets, research and development activities, draft or
final contracts, books and records, budgets, cost estimates, pro forma
calculations, client or prospective client lists, suppliers, vendors, pricing
information and private processes as they may exist from time to time. Service
Provider's obligations under this Section 4.1 shall not apply to any information
(a) that was known to Service Provider prior to the disclosure by Customer, (b)
that is or becomes generally available to the public other than by breach of
this Agreement, (c) that otherwise becomes lawfully available on a non-
confidential basis from a third party who is not under an obligation of
confidence to Customer, (d) that is independently developed by Service Provider
or (e) to the extent Service Provider is required by applicable law or court
process to disclose such information. For purposes of this Section 4.1, any
knowledge or action of Mediconsult.com, Inc. shall not, by virtue of its being a
member of Service Provider, be attributed to Service Provider.
4.2 Non-Competition. (a) Competitive Business. In view of the fact
that activity of Service Provider in violation of the terms hereof is likely to
adversely affect Customer and its subsidiaries and Affiliates and would deprive
Customer of the benefits of its bargain hereunder, and to preserve the goodwill
associated with Customer's business, Service Provider hereby agrees that during
the period commencing on the date hereof and ending on the third (3rd)
anniversary of the date on which this Agreement terminates for any reason (the
"Non-Compete Period"), Service Provider will not, without the express written
consent of Customer, directly or indirectly, anywhere in the United States or
Canada, engage in any activity which is, or participate or invest in, or provide
or facilitate the provision of financing to, or assist (whether as owner, part-
owner, shareholder, member, partner, director, officer, trustee, employee, agent
or consultant, or in any other capacity), any business, organization or person
other than Customer (or
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any of its subsidiaries or Affiliates), whose business, activities, products or
services are competitive with any of the business, activities, products or
services conducted by Customer (or any of its subsidiaries or Affiliates) on the
date this Agreement terminates and which are in Customer's Field of Interest
(each a "Competitive Business"); provided that, subject to Section 1.1(a),
Service Provider shall be permitted to provide services to an entity which
operates an ancillary business in Customer's Field of Interest so long as
Service Provider is not involved in such ancillary business. For purposes of
this Section 4.2, Customer's "Field of Interest" shall include, without
limitation, the development, implementation, sale or maintenance of on-line
marketing or advertising programs to pharmaceutical and other healthcare
organizations, the acquisition, preparation or display of content relating to
pharmaceutical or other healthcare information on the Internet and any other
business activity engaged in, or conducted by Customer or its subsidiaries or
Affiliates on the date this Agreement terminates. Notwithstanding anything in
this Section 4.2 to the contrary, subject to Section 1.1(a), Service Provider
shall not be prohibited from participating, directly or indirectly, in any
activity or business with Internet operations, including companies providing
goods or services through or providing e-commerce and content or otherwise, that
is not a Competitive Business. The activities of Mediconsult.com, Inc. shall
not, by virtue of its being a member of Service Provider, cause Service Provider
to be in violation of this Section.
(b) Non-Solicitation. In addition to the restrictions in Section
4.2(a), Service Provider also agrees that it will not during the Non-Compete
Period: (i) hire, attempt to hire, or participate in any way in any effort by
any person or entity (other than Customer or any of its direct and/or indirect
subsidiaries or Affiliates) to hire or attempt to hire any person who is at the
time (or was within the immediately preceding six (6) months) an officer or
employee of Customer or its direct and/or indirect subsidiaries or Affiliates;
(ii) encourage any officer or employee of Customer or its direct or indirect
subsidiaries or Affiliates to terminate his or her relationship or employment
with such entity; or (iii) on behalf of himself or any persons or entity, other
than Customer or any of its direct or indirect subsidiaries or Affiliates,
solicit or accept business from any client of Customer or its direct or indirect
subsidiaries or Affiliates in the Consultant's Field of Interest; provided, that
the foregoing provision will not prevent Service Provider from employing or
offering to employ any such person who has been terminated by Customer or its
subsidiaries or Affiliates prior to the commencement of employment discussions
between Service Provider and such employee, and Service Provider will be
permitted to hire and offer to hire employees of Customer or its subsidiaries or
Affiliates who are contacted as a result of the use of general newspaper or
electronic advertisement and other general non-targeted recruitment techniques
in the ordinary course of business and consistent with past practices as opposed
to targeted solicitations of any one or more of the employees of Customer or its
subsidiaries or Affiliates. The activities of Mediconsult.com, Inc. shall not,
by virtue of its being a member of Service Provider, cause Service Provider to
be in violation of this Section.
(c) Scope of Agreement. The parties acknowledge that the time,
scope, geographic area and other provisions of this Section 4.2 have been
specifically negotiated by the sophisticated commercial parties and agree that
(i) all such provisions are reasonable under the circumstances of this
Agreement, (ii) are given as an integral and essential part of this Agreement
and (iii) but for the covenants of Service Provider contained in this Section
4.2, Customer would not have entered into this Agreement. Service Provider has
independently consulted with its counsel and has been advised in all respects
concerning the reasonableness and propriety of the
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covenants contained herein, with specific regard to the business to be conducted
by Customer and its Affiliates, and represents that this Agreement is intended
to be, and shall be, fully enforceable and effective in accordance with its
terms.
(d) Severability. If any covenant contained in this Agreement shall
be determined by any court of competent jurisdiction to be unenforceable by
reason of its extending for too great a period of time or over too great a
geographical area or by reason of its being too extensive in any other respect,
it shall be interpreted to extend only over the maximum period of time for which
it may be enforceable and/or over the maximum geographical area as to which it
may be enforceable and/or to the maximum extent in all other respects as to
which it may be enforceable, all as determined by such court in such action.
4.3 Materials. Service Provider shall promptly disclose to Customer
and provide copies to Customer of all written or other materials, including
reports, brochures, manuals, tapes, listings and other documentation, created or
composed by Service Provider or by Service Provider's employees or affiliates in
connection with the Services, and all such materials shall be deemed to be the
property of Customer, to the exclusion of Service Provider. Customer shall have
the sole right to obtain and hold in its own name and for its sole benefit any
copyrights, trademarks, registrations or other similar protections with respect
to any such materials. Service Provider agrees to give Customer all assistance
reasonably required to give effect to Customer's rights described in this
Section 4.3.
5. Termination
5.1 Termination by Customer. (a) Customer shall have the right to
terminate this Agreement (i) upon Service Provider's failure to perform, in any
material respect, its obligations under this Agreement, if (and only if) such
failure is primarily attributable to McIntyre's failure (for any reason or no
reason) to perform, or cause to be performed, such obligations and such failure
shall have continued for at least 30 days after notice thereof to Service
Provider or (ii) if McIntyre commits a felony or offense involving moral
turpitude, engages in theft, embezzlement, fraud, obtaining funds or property of
Customer or any of its employees, stockholders, Affiliates, customers,
licensees, licensers or suppliers. In conjunction with a termination of this
Agreement pursuant to this Section 5.1(a), Customer shall have the right (but
not the obligation) to purchase all or a portion of the shares of common stock,
par value $.001 per share, of Mediconsult.com, Inc. (the "Common Stock") issued
to Service Provider (whether or not held by Service Provider at the time of such
termination) pursuant to the Membership Investment Agreement dated as of
September 7, 1999 between Service Provider and Mediconsult.com, Inc. that have
not, as of such termination date, been registered pursuant to a registration
statement declared effective under the Securities Act of 1933, as amended, or
sold pursuant to Rule 144 under such Act; provided that if such termination
arises from McIntyre's disability or death, an event described in Section 5.1(b)
or the termination "without cause" by Service Provider of McIntyre's employment,
Customer shall not have such right to purchase the Common Stock. Any such
purchase shall be made at a price per share equal to the lower of (A) the
average closing sale price of the Common Stock as reported by the Nasdaq Market
for the 30 trading days ending three days before such termination date (or, if
the Common Stock no longer
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is traded on such Market, the average closing price or average high/low price as
reported by such market on which the Common Stock may then be traded for the 30
trading days ending three days before such termination date) and (B) the last
reported sale price for the Common Stock as reported by the Nasdaq Market on the
last trading day preceding the date of this Agreement. Service Provider agrees
to cause any transferee of any such shares (other than a transferee pursuant to
a sale under an effective registration statement or pursuant to Rule 144) to
acknowledge Customer's rights under this Section and to agree, in a writing
addressed to Customer, to be bound by the provisions of this Section 5.1.
(b) Customer shall have the right to terminate this Agreement if (i)
at September 30, 2000 it does not have in effect at such date duly executed and
enforceable Service Provider Contracts pursuant to which Customer will recognize
at least $5,000,000 in revenue during the term of such contracts or (ii) at
January 1, 2002 it does not have in effect duly executed and enforceable Service
Provider Contracts pursuant to which Customer will recognize at least
$20,000,000 in revenue during the term of such contracts. Customer shall give
Service Provider at least 10 business days' notice of such termination at any
time within the six-month period immediately succeeding September 30, 2000 or
January 1, 2002, as the case may be. Upon such a termination, Customer shall
pay to Service Provider, in addition to the amounts payable under Section
5.3(a), monthly cash payments (each, a "Termination Payment") equal to the
amount payable under Section 2.1 for the month ended immediately prior to such
termination; provided that on and after the second anniversary of this
Agreement, such amount shall be reduced by $8,333 per month. The Termination
Payment shall be paid to Service Provider each month through the end of the
then-scheduled Term on the fifteenth day of each calendar month commencing
during the month next following such termination. If the failure to have in
effect such contracts arises principally from the death or disability of any
employee of Service Provider, Customer shall not be obligated to make any
Termination Payment to the Service Provider. Without limiting any other rights
or remedies which the Company may have, it is understood that the Customer shall
be under no further obligation to make any Termination Payment and shall be
entitled to be reimbursed therefor by the Service Provider if the Service
Provider violates any of the covenants set forth in Section 4 of this Agreement.
5.2 Termination by Service Provider. Service Provider shall have the
right to terminate this Agreement upon at least 30 days' notice to Customer if
Customer shall have failed to pay any fees due in accordance with Section 2 and
such failure shall have continued for 30 days after notice thereof to Customer.
5.3 Effect of Termination. (a) Upon any termination of this
Agreement, all rights and obligations of the parties hereunder shall terminate,
except (i) Service Provider shall be entitled to all fees accrued and unpaid
prior to such termination date (except Service Provider shall not be entitled to
commissions otherwise payable under Section 2.2 upon a termination under Section
5.1 (unless such termination is attributable to a termination "without cause" of
McIntyre's employment with Service Provider)), (ii) in the case of a termination
under Section 5.1(b), Service Provider shall be entitled to receive the
Termination Payments, (iii) Service Provider's obligations under Section 4 shall
continue in full force and effect, and (iv) Customer
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shall be entitled to purchase (if it so elects), and Service Provider shall be
obligated to sell (or cause to be sold) to Customer (if Customer so elects), the
shares described in Section 5.1(a).
(b) In addition to its rights under Section 5.3(a), if this
Agreement terminates upon expiration of its then-scheduled Term, Service
Provider shall have the right to receive, and Customer shall pay to Service
Provider, with respect to gross revenue and gross profit recognized by Customer
during the three years following such termination of the Term on Service
Provider Contracts and Renewal Contracts entered into more than 18 months prior
to such termination, a commission equal to 75%, 50% and 25%, respectively, for
the first, second and third years following such termination, of the amount of
commissions that would have been payable under Section 2.2 with respect to such
gross revenue or gross profit if this Agreement had not been terminated.
Customer shall pay such commission within 60 days of the end of the quarter in
which the revenue or profit to which such commission relates is recognized by
Customer. Such payment shall be accompanied by a certificate, signed by an
officer of Customer, certifying the amount of gross revenue or gross profit, as
the case may be, attributable to Service Provider Contracts or Renewal Contracts
for such quarter. No commissions shall be payable after the expiration of the
Term with respect to Service Provider Contracts or Renewal Contracts entered
into less than 18 months prior to such expiration.
(c) In addition to its rights under Section 5.3(a), if the
termination of this Agreement is attributable to the termination "without cause"
by Service Provider of McIntyre's employment, Service Provider shall be entitled
to receive, and Customer shall pay Service Provider, the following (the "Service
Agreement Severance Amount"):
(i) with respect to gross revenue and gross profit recognized
by Customer following such termination on Service Provider Contracts
and Renewal Contracts entered into prior to such termination, the
amount of commissions that would have been payable under Section 2.2
with respect to such gross revenue or gross profit if this Agreement
had not been so terminated; and
(ii) with respect to gross revenue recognized by Customer on
Service Provider Contracts entered into within six months following
such termination based on written pricing proposals that had been
submitted to the respective clients prior to such termination, the
amount of commissions that would have been payable under Section 2.2
with respect to such gross revenue if this Agreement had not been so
terminated.
Customer shall pay the commissions payable under this Section 5.3(c) within 60
days of the end of the quarter in which the revenue or profit to which such
commission relates is recognized by Customer. Such payment shall be accompanied
by a certificate, signed by an officer of Customer, certifying the amount of
gross revenue or gross profit, as the case may be, attributable to such Service
Provider Contracts or Renewal Contracts for such quarter.
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6. Miscellaneous
6.1 Service Provider Not Employee. For all purposes, including tax
law, labor law and otherwise, Service Provider shall be an independent
contractor and shall not, whether by virtue of this Agreement or any Services
performed by it or any compensation paid to it hereunder or otherwise, be an
employee, partner or joint-venturer of, or have any other relationship with,
Customer.
6.2 Assignments. Neither party may assign this Agreement without the
prior written consent of the other; provided, that either party may assign this
Agreement to a successor corporation or partnership, a parent company or a
wholly-owned subsidiary corporation of such party; and provided further, that
Customer may assign this Agreement to any of its Affiliates or in connection
with the sale or other disposition of all or substantially all of its assets.
Each permitted assignee of this Agreement shall agree in writing personally to
assume, perform and be bound by all of the terms, covenants, conditions and
agreements contained in this Agreement, and thereafter the assignor of this
Agreement shall be relieved of all obligations under this Agreement, except
those which accrued before the effectiveness of such assignment.
6.3 Notices. All notices, requests, demands, and determinations under
this Agreement will be in writing and will be deemed duly given (i) when
delivered by hand, (ii) two business days after being given to an express
courier with a reliable system for tracking delivery and (iii) when sent by
facsimile or electronic mail (confirmed by the specific individual to whom the
facsimile or electronic mail is transmitted) with a copy sent by another means
specified in this Section 6.3, and addressed as follows:
if to Service Provider:
Pharma Marketing, LLC
c/o Timothy J. McIntyre
1735 York Avenue, Apt. 35C
New York, New York 10128
with a copy to:
Bruno W. Tabis, Esq.
Schwartz & Freeman
401 North Michigan Avenue
Suite 1900
Chicago, Illinois 60611
Telecopier: (312) 222-0818
if to Customer:
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Mediconsult.com, Ltd.
4th Floor, 33 Reid Street
Hamilton, Bermuda
HM 12
Attention: Robert Jennings, Chief Executive Officer
Telecopier: (441) 295-0560
with a copy to:
Mediconsult.com, Inc.
1330 Avenue of the Americas
New York, New York 10019
Attention: E. Michael Ingram, General Counsel and
Chief Financial Officer
Telecopier: (212) 841-7310
A party may from time to time change its address or designee for notification
purposes by giving the other party prior written notice in accordance with this
Section of the new address or designee and the date upon which it will be
effective.
6.4 Interpretation. The following rules of interpretation shall apply
to this Agreement:
(a) All references in this Agreement to "Sections" and other
subdivisions, unless otherwise expressly stated, are to the designated Sections
and other subdivisions of this Agreement.
(b) The words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement and not to any particular Section or
other subdivision.
(c) All references to "including" in this Agreement will mean
including without limitation and all references to "or" will not be exclusive.
(d) A reference to a law in this Agreement includes any amendment or
modification to such law and any rules or regulations issued thereunder as of
the time such reference is made.
(e) A reference to an entity in this Agreement includes its
successors and permitted assigns (if any).
(f) The singular includes the plural and vice versa; and the
masculine, feminine and neuter terms include each of the other forms.
6.5 Remedies; Waivers. Except as expressly stated herein, all
remedies available to either party for breach of this Agreement are cumulative
and may be exercised concurrently or separately, and the exercise of one remedy
will not be deemed an election of such
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remedy to the exclusion of other remedies. The parties agree that money damages
would not be a sufficient remedy for any breach of this Agreement by a party,
and that in addition to all other remedies the parties shall be entitled to
specific performance and injunctive or other equitable relief as a remedy for
any such breach, and the parties further agree to waive any requirement for the
securing or posting of any bond in connection with such remedy. A waiver of any
provision or any breach of a provision of this Agreement will not be binding
upon either party unless the waiver is in writing, signed by a duly authorized
representative of the party, as applicable, and such waiver will not affect the
rights of the party not in breach with respect to any other or future breach. No
course of conduct by a party will constitute a waiver of any provision or any
breach of a provision of this Agreement unless a written waiver is executed in
accordance with the provisions of this Section.
6.6 Entire Agreement; Amendments. This Agreement, as may only be
amended by written instrument of subsequent date signed by the duly authorized
representatives of Customer and Service Provider, together with all Exhibits
hereto, represents the full agreement of the parties and supersedes all
communications, negotiations, and agreements made prior to the date of this
Agreement.
6.7 Severability. It is the desire and intent of the parties that
the provisions of this Agreement shall be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, if any particular provision of this
Agreement shall be adjudicated to be invalid or unenforceable, such provision
shall be deemed amended to delete therefrom the portion thus adjudicated to be
invalid or unenforceable, such deletion to apply only with respect to the
operation of such provision in the particular jurisdiction in which such
adjudication is made.
6.8 Expenses. Irrespective of whether the transactions contemplated
by this Agreement are consummated, each party shall pay all costs and expenses
that such party incurs with respect to the negotiation, execution, delivery and
performance of this Agreement.
6.9 Governing Law. The construction, validity and performance of
this Agreement will be governed by, and construed in accordance with, the
substantive laws of the State of New York, without regard to choice of law
rules. In the case of any dispute or litigation arising out of, related to, or
regarding the validity of, this Agreement, the parties agree to submit to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York sitting in Manhattan and the nonexclusive jurisdiction of
the New York Supreme Court for New York County sitting in Manhattan, and to
waive all objections to venue therein.
6.10 No Third Party Beneficiaries. This Agreement is entered into
solely between, and may be enforced only by, Customer and Service Provider and
their permitted assigns, and this Agreement will not be deemed to create any
rights in third parties, including suppliers and clients of Customer or Service
Provider, or to create any obligations of Customer or Service Provider to any
such third parties.
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6.11 Headings. The Section headings are for convenience of reference
only and will not be considered in interpreting the text of this Agreement.
6.12 Counterparts. This Agreement may be executed in two or more
counterparts, which taken together constitute one single contract between the
parties hereto.
6.13 Effective Date. The parties have executed this Agreement on
August 20, 1999, to take effect on September 7, 1999. Except for this Section
6.13, no other provision of this Agreement shall be effective until September 7,
1999.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
described in Section 6.13.
MEDICONSULT.COM, LTD. PHARMA MARKETING, LLC
By: /s/ Robert A. Jennings By: /s/ Timothy J. McIntyre
--------------------------------- ---------------------------------
Robert A. Jennings Timothy J. McIntyre
Chief Executive Officer Managing Member
[Service Agreement]
Exhibit A
Services
Service Provider shall be primarily responsible for all marketing and sales
services for Customer in the pharmaceutical industry, including strategic
direction, product offerings, sales planning, presentations and client servicing
in the pharmaceutical industry.
To facilitate Service Provider in providing the Services, Timothy J. McIntyre
will hold the function of chief marketing and sales officer of Customer and
Customer will permit Service Provider (through Mr. McIntyre) full access to the
pharmaceutical industry.
Exhibit B
Additional Personnel
James T. McIntyre
Dave M. McCarty