Exhibit 10.41
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "Agreement") is made as of this 27 day of
June, 1997, by and between ProxyMed, Inc., a Florida corporation ("PROXYMED"),
and Walgreen Co., an Illinois corporation ("WALGREEN").
Background
WALGREEN desires to sell and PROXYMED desires to purchase the pharmacy
communications system, including computer software referred to as "PRE-SCRIBE"
and related documentation as described in the attached Schedule A (the
"Deliverables"), pursuant to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the representations, warranties, and
covenants set forth herein and for other good and valuable consideration, the
parties to this Agreement hereby agree as follows:
1. PURCHASE AND SALE.
1.1 Purchase and Sale. Upon the terms and subject to the conditions
set forth in this Agreement, WALGREEN agrees to sell, assign, transfer, convey,
and deliver to PROXYMED and PROXYMED agrees to purchase and accept from
WALGREEN, at the Closing, all rights, title, and interest in and to the
Deliverables, together with the PRE-SCRIBE trademarks set forth in the attached
Schedule B (the "Trademarks").
1.2 Delivery of Certificates and Other Instruments of Transfer. On
the Closing Date, WALGREEN shall deliver to PROXYMED: (a) such bills of sale,
and other good and sufficient instruments, conveyances and/or assignments
satisfactory to PROXYMED, as shall be effective to vest title in, and assign to,
PROXYMED all rights, title and interest in and to the Deliverables and the
Trademarks; and (b) originals or copies of all records relating to the
Trademarks.
1.3 Perfection of Title. WALGREEN shall execute and deliver at
Closing and thereafter, at PROXYMED's request, such other instruments of
conveyance and transfer and take such other action as PROXYMED may reasonably
require to vest title in PROXYMED and to put PROXYMED in possession of the
Deliverables and the Trademarks.
1.4 Purchase Price. Subject to the terms and conditions of this
Agreement, in consideration of the sale of the Deliverables and the Trademarks,
PROXYMED shall:
(i) pay WALGREEN Two Million Dollars ($2,000,000) cash at
Closing;
(ii) issue to WALGREEN, at closing, a warrant for a ten (10)
year term, exercisable commencing the fourth anniversary of the Closing Date,
for the purchase of 200,000 shares of common stock of ProxyMed, par value $.001
per share ("Common Stock"), at its fair market value defined as the average of
the closing price of the Common Stock as reported to have traded on the
Nasdaq/NMS system at the close of business on the seven (7) trading days
spanning the three (3) trading days prior and the three (3) trading days after
the date of the first public announcement issued by mutual agreement of the
parties Closing, provided, that such announcement shall occur in any event
within forty-eight (48) hours of Closing; and
(iii) pay Walgreen on a quarterly basis for a twelve (12) year
term commencing the date of Closing eight per cent (8%) of gross revenues paid
ProxyMed from any and all pharmacies, including Walgreen company owned and any
franchised pharmacies, for Network Transactions (defined below), not to exceed
One Hundred Million Dollars ($100,000,000)(hereinafter referred to as the
"Royalties"). "Network Transactions" shall be defined as each transmission of
original prescriptions, refill authorization requests, refill authorizations and
stop orders sent and received electronically over the PROXYMED network by
pharmacies, including WALGREEN company-owned and any franchised pharmacies, and
a "network transaction" shall have the same definition, except
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that it shall refer to a transmission over any electronic network. To verify the
proper and timely payment of Royalties, WALGREEN shall have the right from time
to time, but no more often than semi-annually, to audit the books and records of
ProxyMed which relate to any and all Network Transactions with pharmacies. In
the event such audit finds that Royalties in excess of 3% of the amount of total
Royalties due for any quarter have not been paid when due, PROXYMED shall
reimburse WALGREEN for its reasonable and actual out-of-pocket expenses incurred
in conducting such audit, using WALGREEN internal auditors and/or employees. Any
underpayment of Royalties or payments not made to WALGREEN when due shall bear
interest at the rate of 1.5% per month until paid.
If, after the three (3) year exclusivity period commencing the
date of Closing as provided for in the Network Services Agreement, the number of
Walgreen Network Transactions as a percentage of WALGREEN's total network
transactions decreases by ten percent (10%) during any subsequent annual period
during the remaining term of the Network Services Agreement (using the number of
Network Transactions in the immediately preceding year as the base year) for
reasons other than the failure of PROXYMED to adequately perform the network
services, the breach of the Network Services Agreement by PROXYMED, or the
termination of such agreement due to the failure of the parties to negotiate in
good faith a mutually acceptable fee after the expiration of the 3-year
exclusive period, then the eight percent (8%) Royalty for Network Transactions
to be paid WALGREEN under the terms of the Purchase Agreement entered into
between the parties hereto shall be reduced to seven and one-half percent
(7.5%), and for each ten percent (10%) decrease in WALGREEN Network Transactions
thereafter, the Royalty shall correspondingly decrease by one-half percent
(0.5%), up to a maximum of a four percent (4%) decrease, provided, however, that
if, subsequent to any such decrease in the Royalty, the number of WALGREEN
Network Transactions increases by 10% or more, the Royalty shall increase by
one-half percent (0.5%) for each such 10% increase, not to exceed eight percent
(8%). Notwithstanding the foregoing, if WALGREEN enters into an exclusive
network services agreement for the electronic network transmission of
prescriptions with any other provider during the term of the Network Services
Agreement, the Royalty payable to WALGREEN (as adjusted hereunder) shall
thereafter terminate; however, such termination shall not effect any payments
due WALGREEN which accrued prior to such termination.
1.5 Sale of PROXYMED or of the Deliverables. In the event PROXYMED
sells or otherwise divests a majority interest in PROXYMED or in all or any part
of the Deliverables to another party prior to PROXYMED having paid WALGREEN the
$100,000,000 total Royalties described in Section 1.4 above, PROXYMED shall, at
the time of the closing of such transaction, make a non-refundable payment of
the lesser of: (i) $10,000,000, or (ii) if, as of such date, PROXYMED has paid
to WALGREEN in excess of $90,000,000 in Royalties, but less than $100,000,000,
the difference between $100,000,000 and the amount theretofore paid by PROXYMED
to WALGREEN (over and above any Royalties theretofore paid to WALGREEN by
PROXYMED) to be applied against said $100,000,000. As a part of any such
transaction, PROXYMED shall assign to the acquiring party, and the acquiring
party shall assume responsibility for, the Purchase Agreement and the Network
Services Agreement, and all its rights and obligations thereunder. PROXYMED
shall provide WALGREEN with copies of the applicable portions of such documents
as may be executed between PROXYMED and the acquiring party evidencing such sale
and the assignment of said agreements. The acquiring party shall be entitled to
a credit against the Royalty payments due WALGREEN subsequent to the date of the
closing in an amount equal to the $ 10,000,000 prepayment made by PROXYMED.
1.6 Taxes. In the event that any taxes, except for taxes based upon
WALGREEN's income, including, but not limited to, federal, state, or local sales
taxes, franchise taxes, gross receipt taxes, property taxes, or value added
taxes, are imposed or incurred as a result of this sale, the same shall be paid
by PROXYMED.
2. REPRESENTATIONS AND WARRANTIES OF WALGREEN. WALGREEN represents and
warrants that:
2.1 Corporate Status. WALGREEN is a corporation duly organized,
validly existing, and in good standing under the laws of the state of Illinois
and has all requisite power to own or lease its properties and assets and to
carry on its business as it has been and is now conducted.
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2.2 Power and Authority. WALGREEN has the full right, power, legal
capacity, and authority to carry out the transactions contemplated by this
Agreement and all such actions have been duly authorized by all necessary
corporate proceedings on its part. This Agreement has been duly and validly
executed and delivered by WALGREEN and constitutes the legal, valid, and binding
obligation of its and is enforceable in accordance with its terms.
2.3 Condition of and Title to the Deliverables. WALGREEN has good
and marketable title to the Deliverables, free and clear of all liens and
encumbrances.
2.4 Conflicting Agreements and Other Matters. Neither the execution
and delivery of this Agreement, nor fulfillment or compliance with the terms and
provisions hereof will: (a) conflict with, or result in a breach of the terms,
conditions, or provisions of, or constitute a default under, or require consent
or notice under, or result in any violation of, the Articles of Incorporation or
Bylaws of WALGREEN, both as amended to date, or any term or provision of any
other agreement to which WALGREEN is a party, or result in the creation of any
lien upon the properties or assets of WALGREEN; or (b) require any consent,
approval, or other action by or any notice to or filing with any court or
administrative or governmental body pursuant to any award of any arbitrator or
any agreement, instrument, order, judgment, decree, statute, law, rule, or
regulation to which WALGREEN is subject.
2.5 Trademarks and Other Intellectual Property Rights.
(a) WALGREEN owns all rights, title and interest in and to the
Trademarks on a sole, exclusive, irrevocable basis free and clear of all liens
and encumbrances. The registrations, if any, for the Trademarks listed on
Schedule B are valid and subsisting and have not been canceled.
(b) No person or entity (other than WALGREEN) has the right to
use by license or to exercise any right in or to the Deliverables and the
Trademarks, and, to the best of WALGREEN's knowledge, there are no known
infringing uses thereof by any other person or entity.
(c) To the best of WALGREEN's knowledge, there is no claim
that the Deliverables or the Trademarks infringe on any intellectual property
rights of any other person or entity.
2.6 No Broker. WALGREEN has not engaged any corporation, firm, or
other person who is entitled to any fee or commission as a finder or a broker in
connection with the negotiation of this Agreement or the consummation of the
transactions contemplated hereby, and WALGREEN shall be responsible for all
liabilities and claims (including costs and expenses of defending against same)
arising in connection with any claim by a finder or broker that it acted on
behalf of WALGREEN in connection with the transactions contemplated hereby.
All representations and warranties of WALGREEN shall be true as of
the date of this Agreement and (except as otherwise specifically contemplated
herein) as of the Closing as if made on and as of such date and all such
representations and warranties, notwithstanding any investigation by PROXYMED,
shall survive Closing. Other than the warranties above described, all other
warranties of any nature, including, but not limited to, warranties of fitness,
warranties of fitness for a particular purpose, and warranties of
merchantability are hereby excluded.
2.7 Additional Representations. WALGREEN represents and warrants
that substantially all of its pharmacies are connected electronically with
WALGREEN's HOST system and, upon development of system interface software, will
be capable of sending and receiving Network Transactions. WALGREEN further
represents and warrants that after certification by PROXYMED and acceptance by
WALGREEN of the system interface between WALGREEN's HOST and the PROXYMED
network, upon request of PROXYMED, substantially all of WALGREEN's pharmacies
will not only be capable of sending and receiving Network Transactions, but also
will, in the ordinary course of business, send and receive network transactions
to and from participating providers. WALGREEN will create and maintain the
system interface between the PROXYMED network and WALGREEN's HOST system at its
costs, with reasonable amounts of assistance to be provided by PROXYMED at no
additional cost. WALGREEN shall own the system interface.
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2.8 Disclaimer. THE PARTIES HERETO ACKNOWLEDGE AND AGREE THAT THE DELIVERABLES
AND TRADEMARKS ARE BEING CONVEYED TO PROXYMED IN "AS IS" CONDITION, AND, EXCEPT
FOR THE WARRANTY OF TITLE AS SET FORTH IN SECTION 2.3 HEREIN, WALGREEN EXPRESSLY
DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES OF ANY KIND, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
3. REPRESENTATIONS AND WARRANTS OF PROXYMED. PROXYMED represents and
warrants that:
3.1 Corporate Status. PROXYMED is a corporation duly organized,
validly existing, and in good standing under the laws of the state of Florida
and has all requisite power to own or lease its properties and assets and to
carry on its business as it has been and is now conducted.
3.2 Power and Authority. PROXYMED has the full right, power, legal
capacity, and authority to carry out the transactions contemplated by this
Agreement and all such actions have been duly authorized by all necessary
corporate proceedings on its part. This Agreement has been duly and validly
executed and delivered by PROXYMED and constitutes the legal, valid, and binding
obligation of it and is enforceable in accordance with its terms.
3.3 Conflicting Agreements and Other Matters. Neither the execution
and delivery of this Agreement, nor fulfillment, nor compliance with the terms
and provisions hereof, will: (a) conflict with, or result in a breach of the
terms, conditions, or provisions of, or constitute a default under, or require
consent or notice under, or result in any violation of, the Certificate of
Incorporation or Bylaws of PROXYMED, both as amended to date, or any term or
provision of any other agreement to which PROXYMED is a party, or result in the
creation of any Lien upon the properties or assets of PROXYMED; or (b) require
any consent, approval, or other action by or any notice to or filing with any
court or administrative or governmental body pursuant to any award of any
arbitrator or any agreement, instrument, order, judgment, decree, statute, law,
rule, or regulation to which PROXYMED is subject.
3.4 No Broker. PROXYMED has not engaged any corporation, firm, or
other person who is entitled to any fee or commission as a finder or a broker in
connection with the negotiation of this Agreement or the consummation of the
transactions contemplated hereby, and PROXYMED shall be responsible for all
liabilities and claims (including costs and expenses of defending against same)
arising in connection with any claim by a finder or broker that it acted on
behalf of PROXYMED in connection with the transactions contemplated hereby.
All representations and warranties of PROXYMED shall be true as of
the date of this Agreement and (except as otherwise specifically contemplated
herein) as of the Closing as if made on and as of such date and all such
representations and warranties, notwithstanding any investigation by WALGREEN,
shall survive Closing. Other than the warranties above described, all other
warranties of any nature, including, but not limited to, warranties that any
specific sales volume will be achieved, are hereby excluded.
4. CONDITIONS TO OBLIGATIONS OF WALGREEN. The obligations of WALGREEN
hereunder are subject to the satisfaction, on or prior to Closing, of all of the
following conditions, unless waived by WALGREEN in writing:
4.1 Representations and Warranties and Performance. The truth and
correctness, in all material respects, of all representations and warranties by
PROXYMED contained in this Agreement, as of the date of this Agreement and as of
the Closing Date, and the performance by PROXYMED of all agreements and
conditions required by this Agreement to be performed by PROXYMED at or prior
to such time.
4.2 No Adverse Proceedings or Events. No suit, action, or other
proceeding against WALGREEN or PROXYMED, or their respective officers or
directors, shall be pending before any court or
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governmental agency in which it will be, or it is, sought to restrain or
prohibit any of the transactions contemplated by this Agreement or to obtain
damages or other relief in connection with this Agreement or the transactions
contemplated thereby.
5. CONDITIONS TO OBLIGATIONS OF PROXYMED. The obligations of PROXYMED
hereunder are subject to the satisfaction, on or prior to Closing, of all of the
following conditions, unless waived by PROXYMED in writing:
5.1 Representations and Warranties and Performance. The truth and
correctness, in all material respects, of all representations and warranties by
WALGREEN contained in this Agreement, as of the date of this Agreement and as of
the Closing date, and the performance by WALGREEN of all agreements and
conditions required by this Agreement to be performed by WALGREEN at or prior to
such time.
5.2 Closing Certificate. Delivery by WALGREEN to PROXYMED at Closing
of certificates dated as of the Closing date in form and substance satisfactory
to PROXYMED stating that the warranties and representations by WALGREEN set
forth in this Agreement are true as of the Closing date and that WALGREEN has
performed all agreements and conditions required to be performed by WALGREEN.
5.3 Transition Services. The execution by WALGREEN of an agreement
with Integrated Systems Solutions Corporation ("ISSC") to provide PROXYMED with
the Transition Services described in Section 6 herein.
5.4 No Adverse Proceedings or Events. No suit, action, or other
proceeding against WALGREEN or PROXYMED, or their respective officers or
directors, shall be pending before any court or governmental agency in which it
will be, or it is, sought to restrain or prohibit any of the transactions
contemplated by this Agreement or to obtain damages or other relief in
connection with this Agreement or the transactions contemplated thereby.
5.5 Network Services Agreement. The execution between the parties
hereto of the Network Services Agreement.
6. RELATED MATTERS.
6.1 Transition Services. WALGREEN will enter into an agreement with
ISSC, pursuant to which ISSC will provide for a ninety (90) day period after the
Closing, at no cost to PROXYMED, the transition services described on the
attached Exhibit C ("Transition Services"). Such agreement shall also provide
that, after said ninety (90) day period, ISSC shall continue to provide such
Transition Services for the period from the expiration of said 90-day period
until the earlier of the completion of the Transition Services or December 30,
1997 at a price payable by PROXYMED to ISSC not to exceed two hundred thousand
dollars ($200,000) per month, plus applicable taxes, provided PROXYMED has
executed a standard IBM service agreement for such services no later than August
31, 1997. WALGREEN shall provide PROXYMED with copies of the relevant portions
of the agreement with ISSC evidencing such transition services arrangement.
PROXYMED acknowledges and agrees that in connection with the Transition
Services, as of July 11, 1997, ISSC will terminate all customers of the
Pre-Scribe network, and PROXYMED shall be solely responsible for arranging with
such customers to continue on the PROXYMED network.
6.2 Trademarks. Except as specifically provided in this Agreement to
the contrary, this Agreement does not grant either party the right to use either
party's trademarks, trade names, or service marks, or ones that are confusingly
similar to the same.
7. INDEMNIFICATION.
7.1 Indemnification by WALGREEN. WALGREEN agrees to indemnify and
hold harmless PROXYMED and its officers, directors, employees and
representatives at all times after Closing from and against
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any claims, suits, causes of action, losses, liabilities, damages and expenses
(including attorney's fees and other costs and expenses of defending any claim
against PROXYMED and prosecuting any successful claim against WALGREEN pursuant
to this Section 7.1) incurred by PROXYMED which results, arises out of, or is
based upon: (i) any breach of any representation or warranty by WALGREEN in this
Agreement or in any schedule hereto, or any breach or default in performance by
WALGREEN of any covenant to be performed by WALGREEN hereunder or under any
agreement between the parties related hereto; or (ii) the ownership or operation
of WALGREEN of the Deliverables or the Trademarks prior to Closing Date.
7.2 Indemnification by PROXYMED. PROXYMED agrees to indemnify and
hold harmless WALGREEN and its officers, directors, employees and
representatives at all times after Closing from and against any claims, suits,
causes of action, losses, liabilities, damages and expenses (including
attorney's fees and other costs and expenses of defending any claim against
WALGREEN and prosecuting any successful claim against PROXYMED pursuant to this
Section 7.2) incurred by WALGREEN which results, arises out of, or is based
upon: (i) any breach of any representation or warranty by PROXYMED in this
Agreement or in any schedule hereto, or any breach or default in performance by
PROXYMED of any covenant to be performed by PROXYMED hereunder or under any
agreement between the parties related hereto; or (ii) the ownership or operation
of PROXYMED of the Deliverables or the Trademarks after the Closing Date, except
as may be otherwise specified herein.
7.3 Defense of Claims. After the receipt of any claim by, or the
commencement of any action or proceeding against the indemnified party, the
indemnified party will, if a claim with respect thereto is to be made against
any party obligated to provide indemnification pursuant to this Section 7, give
notice of such claim or the commencement of such addition or proceeding. In the
event of such notice, the indemnifying party shall be entitled to assume the
defense or settlement thereof with counsel of its own choosing, which counsel
shall be reasonably satisfactory to the indemnified party; provided, however,
that: (i) the indemnified party shall be entitled to participate, at its own
expense, in any such action or proceeding or in any negotiations or proceedings
to settle or otherwise eliminate any claim for which indemnification is being
sought; and (ii) the indemnifying party shall not be entitled to settle,
compromise, decline to appeal, or otherwise dispose of such claim, action, or
proceeding without the consent of the indemnified party if such claim, action,
or proceeding, in the reasonable judgment of the indemnified party either (A)
involves a request for relief other than money damages which the indemnifying
party would be required to completely indemnify against hereunder or (B) in the
event of an adverse ruling, could have a material adverse effect on the
indemnified party. In the event that the indemnifying party does not assume the
defense or settlement of any claim, action, or proceeding, the indemnified party
shall, at the expense of the indemnifying party, conduct the investigation,
defense, trial, and appeal of, and/or may settle any such claim, action, or
proceeding, and the indemnified party's good faith determination, in its sole
discretion, with respect to the conduct, settlement, judgment, order or other
disposition of any claim, action, or proceeding shall be final and binding upon
the indemnifying party for purposes of this Agreement. Any claims, legal fees,
or other reasonable and actual costs and expenses paid or incurred by the
indemnified party shall be paid to the indemnified party by the indemnifying
party within thirty (30) days after receipt by the indemnifying party of the
indemnified party's itemized invoice.
8. CLOSING.
8.1 Time and Place. The closing of this transaction (the "Closing")
shall take place at such time and place as may be mutually agreed upon in
writing between PROXYMED and WALGREEN on or before June 30, 1997, or such other
date as the parties may mutually agree to in writing.
9. TERM AND TERMINATION.
9.1 Term. This Agreement shall continue in full force and effect
until PROXYMED pays WALGREEN a total of $100,000,000 in Royalties as provided in
Section 1.4 herein, or until the Agreement is terminated as provided in Section
9.2.
9.2 Default. Either party may terminate this Agreement upon written
notice to the other party prior to the expiration of the Term in the event that
the other party materially breaches the Agreement and fails to
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cure that breach within thirty (30) days after such written notice. In the event
the breach involves the late payment or non-payment of Royalties or other monies
due hereunder, the breaching party shall pay interest on the amount owed from
the due date until paid at 1.5% per month of the total amount past due. If there
is a dispute as to any amount due, the party disputing the amount shall notify
the other party in writing giving the specific reason(s) for such dispute within
ten (10) days after the due date, and the parties will promptly seek to resolve
the dispute. If the parties are unable to resolve the dispute within thirty (30)
days after the original due date, the dispute will be arbitrated under the
commercial rules of the American Arbitration Association and, if the award of
the arbitrator(s) is in favor of the non-breaching party, interest thereunder
shall accrue from the initial due date until paid.
10. MISCELLANEOUS.
10.1 Publicity and Notice. All public announcements and other
disclosures to unaffiliated third parties relating to this Agreement or the
transactions contemplated hereby shall be made only upon the mutual consent of
the parties, except where a party shall determine, after consultation with its
counsel, in good faith that a public announcement is required as matter of law.
10.2 Notices. Any notice or other communication pursuant to this
Agreement shall be in writing and shall be deemed to have been duly given: (i)
when received if personally delivered; (ii) on the date of acknowledgment of
receipt if sent by telex, facsimile, or other wire transmission; or (iii) three
(3) days after being deposited in the United States mail, certified or
registered, postage prepaid, to the following addresses:
If to WALGREEN:
Walgreen Co.
200 S. Wilmot Road
Deerfield, Illinois 60015
Attention: Chief Information Officer
Telecopier Number: (847) 317-3652
With a copy to:
Walgreen Co.
200 S. Wilmot Road
Deerfield, Illinois 60015
Attention: Director, Law Department
Telecopier Number: (847)914-2825
If to PROXYMED:
ProxyMed, Inc.
2501 Davie Road, Suite 230
Ft. Lauderdale, FL 33317
Attention: President
Telecopier Number: (954)473-0620
With a copy to:
ProxyMed, Inc.
2501 Davie Road, Suite 230
Ft. Lauderdale, FL 33317
Attention: General Counsel
Telecopier Number: (954)473-0620
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10.3 Expenses. Except as specifically provided otherwise herein,
each party shall pay its own expenses and obligations incurred in connection
with this Agreement and the consummation thereof.
10.4 Entire Agreement. This Agreement: (i) constitutes the entire
agreement among the parties with respect to the subject matter hereof, and there
are no representations, warranties, or commitments except as set forth herein;
and (ii) supersedes all prior and contemporaneous agreements, understandings,
negotiations, and discussions, whether written or oral, of the parties hereto,
relating to the transactions contemplated by this Agreement. This Agreement may
be amended only in a writing executed by the parties hereto affected by such
amendment. Nothing in this Agreement is intended or shall be construed to confer
upon or to give any person other than the parties hereto, their successors and
assigns, any rights or remedies under or by reason of this Agreement except as
expressly provided herein. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective legal representatives,
successors, and assigns.
10.5 Enumeration and Headings. The enumeration and headings of the
sections of this Agreement are merely for convenience of reference and do not
constitute representations or warranties, do not impose any obligations
whatsoever, and have no substantive significance.
10.6 Tax Consequences. There shall be no recourse by any party
hereto against any other party hereto by reason of the fact that the execution
or consummation of this Agreement, or of any transaction completed hereby does
not have the tax consequences with regard to such party hereto as contemplated
by such party.
10.7 Construction. The parties hereto understand and agree that this
Agreement shall be construed without regard to any presumption or other rule
requiring construction against the party causing this document to be drafted.
10.8 Limitation of Liability. Neither WALGREEN nor PROXYMED shall
have any liability for any consequential, indirect, incidental, special,
punitive, or exemplary damages suffered by the other party, arising from or
related to this Agreement, even if such party has been advised of the
possibility of such losses or damages. Each party's entire liability for any
actual or direct damages resulting from such party's performance under this
Agreement (other than liability with respect to payments due under the terms of
this Agreement), regardless of the form of action, whether in contract, tort
(including, without limitation, negligence), warranty or other legal or
equitable grounds, will be limited in the aggregate to one million dollars
($1,000,000). Further, Walgreen's shall only have liability to PROXYMED in
connection with its performance under this Agreement to the extent that ISSC is
liable to WALGREEN under the terms of the agreement for the purchase of the
Deliverables and the Trademarks entered into between WALGREEN and ISSC.
10.9 Gender. All references herein to the masculine gender shall
include the feminine and neuter and vice versa.
10.10 Computation of Time. Whenever any determination is to be made
or action to be taken on a date specified in this Agreement, if such date shall
fall upon a Saturday, Sunday, or a legal holiday, the date for such
determination or action shall be extended to the first business day immediately
thereafter.
10.11 No Waiver. No exercise or waiver, in whole or in part, of any
right or remedy provided for in this Agreement shall operate as a waiver of any
other right or remedy. No delay on the party of any part in the exercise of any
right or remedy shall operate as a waiver thereof.
10.12 Counterparts. This Agreement may be executed in any number of
counterparts, each of which, taken together, shall constitute one and the same
instrument.
10.13 Survival. The terms of Sections 2, 3, 7, 10.4, 10.8, 10.11,
10.13 and 10.15 shall survive the expiration or termination of this Agreement
for any reason.
10.14 Force Majeure.
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a. Neither party hereunder shall be liable for any default or
delay in the performance of its obligations hereunder:
1. if and to the extent such default or delay is caused,
directly or indirectly, by fire, flood, earthquake, elements of nature or acts
of God, acts of war, terrorism, riots, civil disorders, rebellions or
revolutions in the United States, strikes, lockouts, or labor difficulties, or
any other similar cause beyond the reasonable control of such party hereto; and
2. provided such default or delay could not have been
prevented by reasonable precautions and cannot reasonably be circumvented by the
nonperforming party hereto through the use of alternative sources, work-around
plans, or other means.
b. In such event, the nonperforming party hereunder shall be
excused from any further performance or observance of the obligation(s) so
affected for as long as such circumstances prevail and such party continues to
use commercially reasonable efforts to recommence performance or observance
whenever and to whatever extent possible without delay. Any party so delayed in
its performance will immediately notify the other by telephone (to be confirmed
in writing within five [5] days of the inception of such delay) and describe at
a reasonable level of detail the circumstances causing such delay.
c. Notwithstanding the foregoing, interest on any amounts
past due shall continue to accrue in favor of the party entitled to receive any
payment hereunder during any period of force majeure.
10.15 Choice of Law, Jurisdiction and Venue. This agreement shall be
governed by the laws of the State of Illinois, excluding its conflict of law
provisions. PROXYMED and WALGREEN agree that any action or proceeding to enforce
or interpret the terms of the agreement shall be brought only in U.S. federal
courts located in Chicago, Illinois. The parties agree to submit to the
jurisdiction of such courts and waive and agree not to assert any defense
concerning jurisdiction or venue.
10.16 Closing Conditions. The Closing contemplated herein shall be
subject to WALGREEN's consummation of its purchase of the Deliverables from ISSC
on or before the closing date of this transaction. WALGREEN shall have no
liability or obligation to PROXYMED in the event such purchase from ISSC is not
completed.
IN WITNESS WHEREOF, the undersigned have executed this Agreement under
seal as of the day and year first above written.
WITNESS: PROXYMED, INC.
/s/ Frank M. Puthoff By: /s/ Jack A. Guinan (SEAL)
- ------------------------ ----------------------------
Name: JACK A. GUINAN
Title: PRESIDENT
WALGREEN CO.
/s/ Robert R. Delaney By: /s/ John A. Rubino (SEAL)
- ------------------------ ----------------------------
Name: JOHN A. RUBINO
Title: SR. V.P.
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