EXHIBIT 10.10
[CERTAIN INFORMATION IN THIS DOCUMENT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.]
NETWORK LEASING AGREEMENT
This NETWORK LEASING AGREEMENT is made as of the 18th day of December,
between National Benefit Builders, Inc. (NBBI), Inc a New Jersey corporation
("NBBI"); located at 248 Columbia Turnpike, Florham Park, NJ 07932 and
International Health Partners, Inc. ("LESSEE") located at 120 Gibraltar Road,
Suite 107, Horsham, PA and provides as follows:
RECITALS
NBBI is a service and marketing organization engaged in the business of
providing certain products and services (hereinafter collectively referred to as
("Network(s)") to groups and consumers.
LESSEE, an independent contractor as to NBBI, markets programs and
services to utility companies, insurance companies, businesses, financial
institutions, marketing companies associations and individuals, which become
Clients of LESSEE ("Clients"). LESSEE desires to make certain NBBI Networks,
more particularly described in Schedule A, available to certain Clients of
LESSEE. Client's customers and employees who are eligible to access the Networks
are hereinafter referred to as "Member(s)".
NOW, THEREFORE, in consideration of the premises and the mutual
promises and covenants hereinafter contained, NBBI and LESSEE, each intending to
be legally bound hereby agree as follows:
I. OBLIGATIONS OF NBBI
NBBI agrees to render the services specified in this Agreement
regardless of whether the Networks are supplied by NBBI, an affiliate, or other
service company represented by NBBI. To this end, NBBI shall:
(A) Provide the Networks in the United States of America
where permitted by local, state and federal laws.
(B) Provide LESSEE with updated information regarding the
Networks in a timely manner whenever such information
is made available to NBBI. NBBI shall not be
responsible for providing such updated material
directly to Members or Clients. LESSEE shall use such
information only to print materials concerning
Networks for dissemination to Members or for an
Internet based search.
(C) Ensure that service for all aspects applicable to the
Networks is provided to the LESSEE during the term of
this Agreement commonly referred to as Level 2
service.
II. OBLIGATIONS OF LESSEE
LESSEE shall:
(A) Be responsible for notifying any Member in the event
the LESSEE or LESSEE's Client wishes to terminate the
Networks described herein for that Member.
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(B) Forward or cause to be forwarded immediately to NBBI
notice of complaints or correspondence arising
pursuant to any of the Networks described herein and
which are received by LESSEE.
(C) Assume responsibility for administration of any
inquiry that may occur in relation to the Networks as
may be applicable to this Agreement and which is
under the control and administration of LESSEE.
(D) Render customer service and general program
administration for complaints, notifications, updates
and other Member inquiries commonly referred to as
level 1 service.
(E) Promptly after enrollment of any new Members for the
Membership Services described herein, LESSEE shall
send to NBBI the appropriate documentation as
determined by NBBI as defined in Schedule (C). An
example of the file format that NBBI accepts is set
forth in Schedule (C).
(F) Provide or require its Clients to provide its Members
identification cards that display a mark or logo
identifying the Networks and prominently displays the
phrase "THIS IS NOT INSURANCE".
(G) LESSEE shall be responsible for complying with all
laws, rules and regulations applicable to the
marketing and use of the Networks.
III. FULFILLMENT AND PROMOTIONAL MATERIALS
(A) LESSEE shall use only those materials referencing the
Networks approved in writing by NBBI, which approval
shall not be unreasonably withheld, when describing
or making any reference to the Networks contained in
this Agreement.
(B) NBBI shall use its best efforts to respond to all
proposed printed materials within seven (7) business
days of NBBI's receipt of such materials.
(C) After making copy corrections, LESSEE shall promptly
forward to NBBI the final copy to be printed, for
NBBI's final approval.
(D) LESSEE shall insure that any name/phrase/symbol that
LESSEE elects or chooses to refer to the Networks is
approved by proper local, state and federal
authorities.
IV. COMPENSATION
(A) LESSEE shall pay to NBBI a monthly fee as set forth
in Schedule B attached hereto ("Access Fee"). The
Access Fee shall include coverage for the Member and
such Member's dependents, persons who reside in such
Member's household or others who are included within
the Member's plan as determined by NBBI. Such
payments shall be made by LESSEE to NBBI on or before
the fifteenth (15th) day of each month following the
month in which a Member is eligible for network
services, and shall be based on the total number of
new and renewal Members eligible as of the last day
of the previous month. No retroactive adjustments
shall be permitted with respect to any Members. Any
past due Access Fees shall be subject to a monthly
late payment fee equal to the greater of (i) 1.5% of
the past due amount or (ii)
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$50.00, provided that in no event shall such fee
exceed the maximum amount permitted under applicable
law.
(B) NBBI shall have the right to increase the per
membership unit fee on any renewal fee at the end of
the first Agreement term, or any time thereafter,
with not less than ninety (90) days notice to LESSEE
prior to the effective date of such increase. Such
increase shall be in effect for a period of at least
one (1) year from the effective date.
V. AUDIT
NBBI shall have the right for an independent third party
auditor to review the books and records of LESSEE for the
purpose of auditing the payments made or required to be made
to NBBI by LESSEE under this agreement. NBBI may exercise such
right of audit during normal business hours, upon reasonable
notice to LESSEE. LESSEE shall cooperate with NBBI's auditor
in the performance of any audit. NBBI shall be responsible for
the cost of the audit unless the audit reveals a discrepancy
of more than ten percent (10%) in the amount of fees owing
NBBI, in which case LESSEE shall be responsible for the cost
of such audit.
VI. TERM AND TERMINATION
(A) The initial term of this Agreement shall begin on the
1st day of March, 2004 (the "Commencement" date) and
continue for two (2) years or until terminated sooner
as provided herein (the "Initial Term"). Provided
NBBI or LESSEE, respectively, is not in default under
this Agreement, the Initial Term shall be
automatically renewed for additional terms of one (1)
year each, unless either party gives written notice
of its intention to terminate the Agreement at least
sixty (60) days prior to the expiration of the then
current term. Except as otherwise provided herein,
all the terms of this Agreement shall remain in full
force and effect during such renewal term(s).
(B) Either party may terminate this Agreement by giving
the other party at least sixty (60) days written
notice prior to the expiration of the current term of
this Agreement. This Agreement may only be amended
from time to time by a writing signed by authorized
officers of both parties.
(C) If either party shall fail to perform any of its
obligations hereunder, of if any warranty made by
either party is breached, and such status shall
continue to exist for thirty (30) days after the
other party has given written notice thereof, then
such other party may declare this Agreement
terminated.
(D) Either party may terminate this Agreement at any time
without advance written notice upon the occurrence of
a bankruptcy event. A bankruptcy event occurs if:
(i) the other party suspends or goes out of
business, substantially reduces business
operations, becomes insolvent or unable to
meet its debts as they mature, calls a
meeting of its creditors, sends notice of a
proposed bulk sale of all or a substantial
part of its business, makes any general
assignment for the benefit of its creditors,
or commits an act of bankruptcy; or
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(ii) any petition is filed by the other party
initiating a bankruptcy, arrangement,
reorganization, or other proceeding under
any provision of the U.S. Bankruptcy Code or
similar law or such a proceeding is filed
against such party and is not removed or
discharged within sixty (60) days after the
filing thereof; or
(iii) a receiver or trustee is appointed for the
other party or for any or all of its
property.
(E) The termination or modification of any Network shall
not affect nor prohibit the enforcement of this
Agreement as it applies to any remaining Networks.
(F) All obligations of LESSEE or NBBI incurred under this
Agreement as of the date of termination shall survive
such termination and shall not affect the rights of
the LESSEE or NBBI, as the case may be, in the
performance of this Agreement.
VII. INDEMNIFICATION
Each party shall hold harmless and indemnify the other party
against any and all claims, actions, proceedings, expenses,
damages, judgments and liabilities, including reasonable
attorney's fees and court costs, arising in connection with
this Agreement and/or the services to be provided hereunder
due to the other's negligence, breach of this Agreement or
failure to perform in accordance with the provisions of this
Agreement. The indemnity contained in this paragraph shall
survive the termination of this Agreement.
VIII. ASSIGNMENT
The rights and obligations of the assigning party under this
Agreement shall not be assigned to any other individual, firm,
corporation, association or other entity without the prior
written approval of the non-assigning party which consent
shall not be unreasonably withheld.
IX. INDEPENDENT CONTRACTOR STATUS
LESSEE hereby acknowledges that its relationship with NBBI is
that of an independent contractor and not that of an employee,
agent, joint venture or partner. With respect to the
performances covered by this Agreement, NBBI and LESSEE agree
that LESSEE, its employees, agents, sales representatives and
Clients shall not be treated as an employee for any purpose.
X. AUTHORITY OF LESSEE
LESSEE acknowledges that this Agreement does not constitute
LESSEE as an agent or legal representative of NBBI for any
purpose other than those express purposes contained in this
Agreement. Other than expressly provided herein, LESSEE is not
granted any right or authority to assume or create any
obligation or responsibility express or implied, on behalf of
or in the name of NBBI or to bind NBBI in any manner.
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XI. CONFIDENTIALITY
(A) The parties each acknowledge and agree that all
information revealed, obtained, or developed in the
course of or in connection with the performance of
this Agreement, which is designated in writing as
confidential or proprietary information, shall be
considered as confidential or proprietary information
which shall not be disclosed by either party to any
third party without the prior written consent of the
other party. Each party also agrees that any
dissemination of the aforementioned information shall
be restricted to a "need to know basis" within its
own business entity for the purpose of performance
hereunder.
(B) Each party further agrees to maintain and cause its
employees, agents, representatives and officers to
keep confidential the nature of each party's
obligations hereunder and not to disclose any
confidential or proprietary information with respect
thereto to any third party or entity. The foregoing
obligations of the parties shall not apply to any
information that is or becomes known in the public
domain other than as a consequence of a breach by one
of the parties of its obligations hereunder, is
independently developed by a party or is rightly
obtained by a party from third parties.
XII. COVENANT NOT TO DISCLOSE OR SOLICIT
(A) In performing its obligations pursuant to this
Agreement, each party may have access to and receive
disclosure from the other of certain proprietary and
confidential information, including, but not limited
to, financial records, technological developments,
marketing strategies, Member lists, Participating
Provider lists, employee lists, and other information
considered by the disclosing party to be confidential
and proprietary (herein collectively referred to as
"Confidential Information"). For purposes of this
Section, the financial terms of this Agreement are
Confidential Information of each party. Confidential
Information does not include: (i) information learned
from a third party entitled to disclose it and who is
not in violation of a contractual, legal or fiduciary
obligation to either party, (ii) information which is
or becomes known publicly through no fault of either
party or, (iii) information already known by either
party prior to disclosure from the other party, as
shown by the receiving party's records.
(B) Each party will receive Confidential Information in
confidence, will use it solely for the purpose of and
as necessary to fulfill its obligations under this
Agreement and will not reveal it to any third party,
other than a corporate affiliate, without the express
written consent of the other party. Each party will
take appropriate measures to prevent its agents,
employees and subcontractors from using or disclosing
any Confidential Information, except as is expressly
permitted under this Agreement.
(C) Injunctive Relief. NBBI hereby consents and agrees
that for any violation of any of the provisions of
this section of the Agreement, a restraining order
and/or an injunction may issue against it or its
Agents, employees, and independent contractors in
addition to any other rights that LESSEE may have. In
the event that LESSEE is successful on the verdict in
any suit or proceeding brought or instituted by
LESSEE to enforce any of the provisions of this
Agreement or on account of any damages sustained by
LESSEE by reason of violation by NBBI of any of the
terms and/or provisions of this Agreement to be
performed by NBBI, NBBI agrees to pay to LESSEE
reasonable attorneys' fees. Similarly, NBBI may
recover its
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reasonable attorneys' fees if it successfully defends
any lawsuit brought by LESSEE or if NBBI brings and
is successful on the verdict in any lawsuit it brings
against LESSEE.
LESSEE hereby consents and agrees that for any
violation of any of the provisions of this section of
this Agreement, a restraining order and/or an
injunction may issue against it or its Agents,
employees, Clients, and independent contractors in
addition to any other rights that NBBI may have. In
the event that NBBI is successful on the verdict in
any suit or proceeding brought or instituted by NBBI
to enforce any of the provisions of this Agreement or
on account of any damages sustained by NBBI by reason
of the violation of LESSEE of any of the terms and/or
provisions of this Agreement to be performed by
LESSEE, LESSEE agrees to pay to NBBI reasonable
attorneys' fees. Similarly, LESSEE may recover its
reasonable attorneys' fees if it successfully defends
any lawsuit brought by NBBI or if LESSEE brings and
is successful on the verdict in any lawsuit it brings
against NBBI.
XIII. NOTICES
(A) All notices under this Agreement shall be in writing
and shall be sufficiently given and served upon the
other party if given personally or mailed by
certified mail to the following addresses:
IF TO NBBI: IF TO THE LESSEE:
Barry Forester Dr. Dennis Bowers
National Benefit Builders, Inc. Int'l Health Partners, Inc.
248 Columbia Turnpike 120 Gibraltar Road, Suite 107
Florham Park, NJ 07932 Horsham, PA 19044
(B) Any notice mailed by certified mail or registered
mail, return receipt requested, postage prepaid to
the above addresses shall be effective forty eight
(48) hours after deposit in the United States mail,
duly addressed and with postage prepaid. Such
addresses may be changed from time to time upon
written notice to the other party.
XIV. CONTINUED RESPONSIBILITIES UPON TERMINATION
Notwithstanding any termination of this Agreement at LESSEE's
or NBBI's option, NBBI shall continue to honor Members
membership and provide the negotiated prices to LESSEE for
Members holding such membership after any expiration or
termination of the Agreement (unless such termination is for a
material breach, in which case, continuance shall be at the
option of the terminating party) until the expiration date of
the Members current contract period up to one year for those
Members covered prior to the termination date. All accounts of
this Agreement shall continue in effect with respect to those
Members for whom NBBI's services shall continue under this
section.
XV. EXCLUSIVE RIGHT TO MARKET
LESSEE acknowledges that during the term of this Agreement and
for a period of twelve (12) months after termination of this
Agreement for any reason, that it shall not provide the
Networks that have been obtained by any means, through any
source other than from NBBI to its Clients and Members.
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XVI. MISCELLANEOUS
(A) Section headings contained herein are for reference
purposes only and shall not in any way affect the
meaning or interpretation of this Agreement.
(B) This Agreement may be executed in counterparts, each
of which shall be deemed to be an original, all of
which together shall constitute one and the same
instrument.
(C) Whenever the singular number is used in this
Agreement and when required by the context, the same
shall include the feminine and neuter genders, and
the word "person" shall include corporations, firms
or associations.
(D) Both parties shall fully comply with all applicable
federal, state and local laws, ordinances and
regulations, as they may be applicable to this
Agreement.
(E) References herein to LESSEE and NBBI shall be deemed
to include its employees, agents, sales
representatives and sales force.
(F) This Agreement sets forth the entire Agreement and
understanding of the parties with respect to the
matters covered hereby and supersedes all prior
agreements, arrangements and understanding relating
to such matters.
(G) No representation, promise, inducement or statement
of intention has been made by NBBI or LESSEE that is
not embodied in this Agreement.
(H) This Agreement may be amended, modified, superseded
or canceled, and any of the terms, provisions and
conditions may be waived, only by a written
instrument executed by NBBI and LESSEE. Failure of
either party at any time or times to require
performance of any provision herein shall not be
construed to be a waiver of any succeeding breach of
such provision by such party.
(I) If any provision of this Agreement shall at any time
be deemed to be invalid or illegal by the entry of a
final judgment from a court of competent
jurisdiction, which judgment is not subject to
appeal, then, in that event, this Agreement shall
continue in full force and effect with respect to the
remaining provisions of this Agreement as if the
invalidated provision had not been contained herein.
(J) This Agreement has been negotiated and entered into
by each party with the independent advice of counsel
and shall not be construed against one party or the
other based on which party drafted any portion of
this Agreement.
(K) NBBI shall not be responsible for delays in
performance due to strikes, riots, acts of God,
shortages of labor or materials, war, governmental
laws, regulations, restrictions, transportation
conditions, products/service suppliers or any other
causes whatsoever that are beyond the reasonable
control of NBBI.
(L) NBBI and LESSEE are performing the services hereunder
as independent contractors and no joint venture,
partnership, employment, agency or any other
relationship is created by this Agreement. Neither
NBBI nor LESSEE is authorized to represent the other
for purpose, except as specifically provided in this
Agreement.
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(M) The parties hereby agree that this Agreement shall be
interpreted, construed and enforced exclusively
according to the laws of the State of New Jersey.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective duly authorized officers the day and year first written
above.
NATIONAL BENEFIT BUILDERS, INC.
Printed Name: Kevin Faherty
----------------------
By: /s/ Kevin Faherty
---------------------------------
Title: President
Date: 1/4/04
------------------------------
LESSEE Int'l Health Partners, Inc.
Printed Name: Dr. R. D. Bowers
-----------------------
By: /s/ R. D. Bowers
---------------------------------
Title: CEO
-------------------------------
Date: 12/18/03
-------------------------------
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SCHEDULE A - MEMBER SERVICES
NBBI shall make available to LESSEE the following Networks:
CIGNA Dental Network Access
A discounted dental network containing approximately
50,000 providers nationally, who have agreed to
provide their services at pre-determined, discounted
rates in consideration for a co-payment of 100% from
their patients.
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SCHEDULE B (REVISED 12/29/03)
NETWORK ACCESS FEES*
Total Number of Monthly Access Fee
Members Per Month CIGNA Dental Network Access Network
Up to 10,000 [**]
10,001 - 25,000 [**]
25,001- 50,000 [**]
50,001 - 100,000 [**]
100,001 - 250,000 [**]
250,001 - 500,000 [**]
over 500,000 [**]
THE MINIMUM MONTHLY PAYMENT SHALL BE [**]
In the event that LESSEE enrolls a total of 3,000 members after this contract is
in effect for ninety (90) days, NBBI shall issue a credit for the difference
between the actual amount billed and the amount that would have been billed had
the minimum monthly payment not been invoked for that period.
* MONTHLY ACCESS FEE PRICING EXCLUDES PRINTING AND FULFILLMENT.
** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
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Omitted Schedule
The following schedule to the Network Leasing Agreement has been
omitted:
Schedule Schedule Description
-------- --------------------
C Eligibility File Format
The Company agrees to furnish supplementally a copy of the foregoing
omitted schedule to the Securities and Exchange Commission upon request.