Exhibit 2.13
JOINT VENTURE AGREEMENT
THIS JOINT VENTURE AGREEMENT is made as of February 20, 2002 by and
between Semotus Solutions, Inc. ("Semotus"), a corporation organized under the
laws of the State of Nevada, and Outercurve Technologies, Inc., a company
organized under the laws of the State of Delaware ("Outercurve").
RECITALS
A. Outercurve currently provides a wireless service. Outercurve has
exclusive worldwide rights to certain technology and knowhow used in providing
such service. Outercurve is interested in continuing, maintaining and growing
its business, but in a more operationally efficient and better supported way,
through a joint venture with Semotus.
B. Semotus is interested in participating with Outercurve in the joint
venture, and has various knowledge, experience and resources which would be of
benefit to the joint venture.
NOW, THEREFORE, the parties to this Agreement hereby agree as follows:
1. INCORPORATION OF Semotus/Outercurve Joint Venture, Inc. As promptly
as possible after the execution of this Agreement, the parties shall cause a
company to be incorporated under the laws of the State of Delaware (the
"Company") as follows:
1.1 NAME. The name of the Company shall be "Semotus/Outercurve
Joint Venture, Inc.".
1.2 AUTHORIZED CAPITAL. The authorized capital of the Company
shall be [***] consisting of one common class of shares, and the Company shall
be authorized to issue 100 shares of $0.01 par value per share (collectively,
the "Stock") at the time of establishment.
1.3 SUBSCRIPTION. At the time of establishment of the Company,
Semotus shall subscribe for 60 shares of Stock having an aggregate par value of
[***], and Outercurve shall subscribe for 40 shares of Stock having an aggregate
par value of [***], for a total subscription of 100 shares of Stock having an
aggregate par value of [***].
1.4 LEGENDS ON SHARE CERTIFICATES. Any share certificate issued
by the Company to evidence any shares of stock of the Company issued to Semotus
or Outercurve shall bear the following legend:
"TRANSFER OF THE SHARES OF STOCK REPRESENTED BY THIS
CERTIFICATE IS SUBJECT TO THE JOINT VENTURE AGREEMENT
BETWEEN SEMOTUS SOLUTIONS, INC. AND OUTERCURVE TECHNOLOGIES,
INC. DATED February 20, 2002, AND TO THE SHAREHOLDERS
AGREEMENT BETWEEN SEMOTUS SOLUTIONS, INC. AND OUTERCURVE
TECHNOLOGIES, INC. DATED February 20, 2002, COPIES OF WHICH
ARE ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY IN
ISELIN, N.J."
1.5 INITIAL DIRECTORS AND OFFICERS. The initial directors and
officers of the Company shall be as follows:
(a) Directors:
Anthony N. LaPine
Charles K. Dargan, II
Tali Durant
Larry Rubin
Derek Roga
(b) Officers:
CEO: Anthony N. LaPine
CFO: Charles K. Dargan, II
President: Larry Rubin
Corp. Sec.: Tali Durant
COO: Derek Roga
1.6 ADDRESS OF REGISTERED OFFICE. The address of the registered
office of the Company shall be initially as follows:
100 Wood Ave. South
Suite 405
Iselin, N. J. 07760
1.7 FISCAL YEAR. The fiscal year of the Company shall end on
March 31st, and the initial fiscal year shall be the stub period from the date
of incorporation of the Company through March 31, 2002.
1.8 ACCOUNTING AND BOOKS AND RECORDS. The Company shall keep
accurate books of account and financial and related records in accordance with
generally accepted accounting principles, standards and procedures, consistently
applied. Upon reasonable prior notice and during normal business hours, the
Company shall make available at its principal office for inspection by Semotus
and Outercurve, and their designated representatives, the books of account and
records of the Company.
1.9 ARTICLES. The Articles of Incorporation of the Company shall
be in the form of the attached EXHIBIT A.
1.10 COSTS AND EXPENSES. The Company shall bear all costs and
expenses directly relating to the incorporation of the Company, including
without limitation registration fees, notary fees, stamp duties and the like,
and, to the extent permitted by law, attorneys' fees. Outercurve shall advance
any such expenses when and as required.
1.11 ASSISTANCE. Semotus shall provide such reasonable assistance
in connection with the incorporation of the Company as may be required,
including without limitation assistance in connection with the preparation or
filing of any reports, notices or other filings required to be made in the State
of Delaware by the Company to or with any governmental authority.
2. TECHNOLOGY LICENSES.
2.1 LICENSING AGREEMENTS. As promptly as possible after the
incorporation of the Company, Outercurve shall enter into license agreements
with the Company in the forms attached as EXHIBITS B-1 AND B-2 (the "License
Agreements"). The rights of the Company under the License Agreements shall
continue in accordance with the terms thereof notwithstanding any change in the
ownership of Outercurve, any transfer of the assets or business of Outercurve,
or any merger, consolidation, reorganization or recapitalization affecting
Outercurve.
2.2 ADDITIONAL TECHNOLOGIES. Outercurve shall from time to time
enter into good faith negotiations with the Company regarding the licensing by
Outercurve to the Company of additional technologies used by Outercurve and not
covered by the License Agreements, to the extent such additional technologies
are required to maintain the services offered by the Company. The licensing of
any such additional technologies by Outercurve to the Company shall be subject
to the execution of a definitive agreement on mutually acceptable terms and
conditions, which may include provision for reasonable compensation to
Outercurve.
3. SHAREHOLDER AGREEMENT. In connection with the issuance of Stock to
Semotus and Outercurve, Semotus and Outercurve shall enter into a shareholder
agreement in the form of the attached EXHIBIT C (the "Shareholder Agreement").
4. IN-KIND CONTRIBUTIONS.
4.1 In addition to the Technology Licenses, as described in
Section 2 of this Agreement, Outercurve shall contribute to the Company, free
and clear of all liens, security interests, mortgages or other encumbrances,
certain tangible and intangible assets necessary to the conduct of the Business,
including the following: (a) certain customers, as set forth on Schedule 4.1(a)
(the "Customers"), (b) certain employees (the "Employees"), and (c) the
underlying subscriptions and/or licenses necessary to provide the services to
the Customers, as set forth on Schedule 4.1(c).
4.2 Semotus shall contribute to the Company, certain tangible and
intangible assets, as follows: (a) use of Semotus' National Operations Center
("NOC"), located in Vancouver, Canada, in order to support the Services, (b) use
of a commercially reasonable number of man hours from Semotus' employees located
in Vancouver, Canada, for consulting services necessary to support the Services
being provided to the Customers, (c) certain data feed and other services from
third parties necessary to provide the Services to the Customers, as set forth
in Schedule 4.2(c), and (d) a potential contingent employee bonus compensation
pool to be given to certain employees of the Company.
4.3 Each Shareholder shall pay all sales, use, transfer, real
property transfer, recording, gains, stock transfer and other similar taxes and
fees ("Transfer Taxes") incurred in connection with their respective in-kind
capital contributions to the Company and shall be responsible for filing all
necessary documentation and tax returns with respect to such Transfer Taxes.
5. CAPITAL CONTRIBUTIONS; LOANS and ENCUMBRANCES.
5.1 CAPITAL CONTRIBUTIONS. Neither party to this Agreement shall
have any obligation to make capital contributions to the Company other than the
[***] to be contributed as capital by Semotus and the [***] contributed as
capital by Outercurve (for a total aggregate capital contribution of [***]) in
connection with the incorporation of the Company.
5.2 LOANS. Neither party to this Agreement shall have any
obligation to make loans to the Company.
5.3 No Encumbrances on the Company or a Joint Venture Interest.
Neither Party shall pledge, mortgage, charge or otherwise encumber the Company
or its Joint Venture Interest, including the Shares held by such Shareholder,
without the prior written consent of the other Shareholder.
6. MANAGEMENT.
6.1 DIRECTORS. The Company shall have five directors. Semotus
shall have three individuals on the board of directors of the Company, and
Outercurve shall have two individuals on the board of directors. The parties
shall cooperate in the election of directors, as more specifically provided in
the Shareholder Agreement.
6.2 REPRESENTATIVE DIRECTOR. There shall be one representative
director, who shall be Larry Rubin.
6.3 MEETINGS OF DIRECTORS. The Company shall bear all reasonable
expenses of directors in connection with their attendance at meetings of
directors, including without limitation travel, lodging and meals.
7. BUSINESS OBJECTIVES AND BUSINESS GOALS.
7.1 BUSINESS OBJECTIVES. The business objectives of the Company
shall include, without limitation, the following:
(a) provide wireless services (the "Service");
(b) generate revenue from the Service;
(c) engage in all business activities relating to the
development, maintenance, support, enhancement and promotion of the Service,
including without limitation the development and acquisition of new customers
and the development and expansion of distribution channels for the Service; and
(d) engage in all business activities ancillary or
incidental to the foregoing.
7.2 BUSINESS GOALS. Set forth on the attached EXHIBIT D are
specific business goals for the Company for the period from the date of this
Agreement through _________, 2005. Not less than three (3) months prior to the
end of such period and each consecutive three (3) year period thereafter, the
parties shall agree on specific business goals for the three (3) year period
immediately following the current period. Such business goals, as from time to
time in effect, are referred to as the "Business Goals."
7.3 BUDGET. Set forth on the attached EXHIBIT E is the budget for
the Company for the period from the date of this Agreement through ________,
2003. Each twelve-month period, the Board of Directors and Shareholders shall
approve the Company's operating and capital expenditure budget with respect to
the projected expenditures for the following 12 month period (the "Budget") and
the Company (including its officer, directors or agents) shall not without the
prior written approval of the Board of Directors and Shareholders, make or
approve an expenditure which would change, alter or
modify the Budget or make or approve an expenditure which would result in: (i)
an increase of greater than 5% of the total amount of the Budget; or (ii) an
increase of greater than 5% of the amount of a respective line item described in
the Budget. The Company shall provide the Board and the Shareholders with a
proposed operating and capital expenditure budget no later than 30 days prior to
the first day of the 12 month period related thereto. The Board and Shareholders
shall review the Budget on a monthly basis thereafter, to determine whether any
modifications to the Budget are required or desired. The Budget must be
structured such that the Company will maintain cash flow neutrality. In other
words, the Company must maintain its operations such that its cash balance in
the bank is either positive or, at a minimum, zero. This requirement must be
delineated in the Budget, and this requirement will also be in force for the
Company's actual operations.
8. START UP, OPERATION AND ADDITIONAL TECHNOLOGIES.
8.1 START UP. Initially, the sales and engineering work for the
Service shall be operated and maintained at 100 Wood Ave. South, Iselin, New
Jersey 07760. The technical support for the Service shall be done out of the
Operations Center of Semotus located in Vancouver, Canada. The corporate and
accounting work for the Service shall be operated and maintained at the
headquarters of Semotus, located in San Jose, CA.
8.2 PERSONNEL. Outercurve shall be responsible for assuring that
the Company is adequately staffed with properly skilled personnel as required to
enable the Company to meet its business objectives and the applicable Business
Goals. The Company shall require each of its employees to sign written
undertakings with the Company not to disclose any Confidential Information.
8.3 OPERATION. Both Outercurve and Semotus shall be responsible
for assuring that the Service is operated in a way that is satisfactory to the
Customers.
8.4 COOPERATION. The parties shall in good faith cooperate with
each other to enable the Company to maximize the success of the Company's
business.
8.5 DURATION. The term of this Joint Venture Agreement shall
commence on the full execution of this Agreement and shall continue in effect
until terminated upon:
(a) The mutual agreement of all Shareholders; or all
directors in the event that Semotus is the only
shareholder
(b) The election of a non-breaching party to terminate the
Agreement within the terms of Section 12: Material
Defaults; or
(c) The election of Semotus to terminate the Agreement due
to the Company not maintaining its Budget, as set forth
in Section 7.3.
9. REPRESENTATIONS AND WARRANTIES OF SEMOTUS. Semotus hereby
represents and warrants to Outercurve as follows:
9.1 ORGANIZATION, POWER AND AUTHORITY. Semotus is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Nevada. Semotus has all requisite power and authority to execute,
deliver and perform its obligations under this Agreement.
9.2 AUTHORIZATION AND BINDING OBLIGATIONS. Semotus has taken all
requisite corporate action to authorize and approve the execution, delivery and
performance of this Agreement by Semotus. This Agreement has been duly executed
and delivered by Semotus, and constitutes the legal, valid and binding
obligations of Semotus, enforceable against Semotus in accordance with its
terms.
9.3 NO CONFLICTS. The execution, delivery and performance of this
Agreement by Semotus, and the consummation of the transactions contemplated
hereby, will not (a) violate any provision of the Certificate of Incorporation
or Bylaws of Semotus, (b) violate, conflict with or result in (or with notice or
lapse of time or both result in) a breach of or default under any term or
provision of any contract or agreement to which Semotus is a party or by which
Semotus or any of its assets or properties is or may be bound, or (c) violate
any order, judgment, injunction, award or decree of any court or arbitration
body, or any governmental, administrative or regulatory authority, by which
Semotus or any of its assets or properties is or may be bound.
9.4 NO PENDING LITIGATION. No action, suit or proceeding which
seeks to prevent the consummation of the transactions contemplated by this
Agreement, or would impair the ability of Semotus to consummate the transactions
contemplated by this Agreement, is pending against Semotus, its properties or
any of its officers, directors or employees, and no such action, suit or
proceeding has been threatened.
9.5 OTHER APPROVALS. Semotus represents and warrants that it will
use all commercially reasonable efforts to obtain all other consents and/or
approvals of any third parties necessary for Semotus to enter into this Joint
Venture Agreement and for the Company to conduct its Business as contemplated
hereby; provided, that if, notwithstanding all commercially reasonable efforts
of Semotus hereto, any of such consents and/or approvals are not granted, with
the result that the purposes of this Joint Venture Agreement are substantially
frustrated, the Parties shall enter into good faith negotiations with the
objective of restructuring the relationship between them such that the effects
of such nonoccurrence shall be minimized.
9.6 COMPLIANCE WITH APPLICABLE LAW. Semotus shall comply with all
applicable laws, regulations, rules and orders of governmental authorities the
non-compliance with which could have a material adverse effect on the business
affairs or financial condition of the Company.
9.7 NO RESTRICTIVE COVENANTS. Semotus shall not enter into or
become subject to any contract, agreement, restriction or covenant which would
apply to the Company so as to impair or inhibit the Company's ability to conduct
its business as contemplated herein or otherwise frustrate the Business of the
Joint Venture.
9.8 DISCLOSURE. Semotus has fully provided Outercurve with all
the information that has been requested for deciding whether to enter into this
transaction and all information that Semotus believes is reasonably necessary to
enable Outercurve to make such a decision. No representation or
warranty of Semotus contained in this Agreement and the Schedules attached
hereto, contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained herein or
therein not misleading in light of the circumstances under which they were made.
10. REPRESENTATIONS AND WARRANTIES OF OUTERCURVE. Outercurve hereby
represents and warrants to Semotus as follows:
10.1 ORGANIZATION, POWER AND AUTHORITY. Outercurve is a
corporation duly organized and validly existing under the laws of the State of
Delaware. Outercurve has all requisite power and authority to execute, deliver
and perform its obligations under this Agreement.
10.2 AUTHORIZATION AND BINDING OBLIGATIONS. Outercurve has taken
all requisite corporate action to authorize and approve the execution, delivery
and performance of this Agreement by Outercurve. This Agreement has been duly
executed and delivered by Outercurve, and constitutes the legal, valid and
binding obligations of Outercurve, enforceable against Outercurve in accordance
with its terms.
10.3 NO CONFLICTS. The execution, delivery and performance of
this Agreement by Outercurve, and the consummation of the transactions
contemplated hereby, will not (a) violate any provision of the charter documents
of Outercurve, (b) violate, conflict with or result in (or with notice or lapse
of time or both result in) a breach of or default under any term or provision of
any contract or agreement to which Outercurve is a party or by which Outercurve
or any of its assets or properties is or may be bound, or (c) violate any order,
judgment, injunction, award or decree of any court or arbitration body, or any
governmental, administrative or regulatory authority, by which Outercurve or any
of its assets or properties is or may be bound.
10.4 NO PENDING LITIGATION. No action, suit or proceeding which
seeks to prevent the consummation of the transactions contemplated by this
Agreement, or would impair the ability of Outercurve to consummate the
transactions contemplated by this Agreement, is pending against Outercurve, its
properties or any of its officers, directors or employees, and no such action,
suit or proceeding has been threatened. Not withstanding the foregoing, Semotus
recognizes that Outercurve is presently seeking to restructure its debts which
may include filing a petition for relief under the United States Bankruptcy
code.
10.5 OTHER APPROVALS. Outercurve represents and warrants that it
will use all commercially reasonable efforts to obtain all other consents and/or
approvals of any third parties necessary for Outercurve to enter into this Joint
Venture Agreement and for the Company to conduct its Business as contemplated
hereby; provided, that if, notwithstanding all commercially reasonable efforts
of Outercurve hereto, any of such consents and/or approvals are not granted,
with the result that the purposes of this Joint Venture Agreement are
substantially frustrated, the Parties shall enter into good faith negotiations
with the objective of restructuring the relationship between them such that the
effects of such nonoccurrence shall be minimized.
10.6 COMPLIANCE WITH APPLICABLE LAW. Outercurve shall comply with
all applicable laws, regulations, rules and orders of governmental
authorities the non-compliance with which could have a material adverse effect
on the business affairs or financial condition of the Company.
10.7 NO RESTRICTIVE COVENANTS. Outercurve shall not enter into or
become subject to any contract, agreement, restriction or covenant which would
apply to the Company so as to impair or inhibit the Company's ability to conduct
its business as contemplated herein or otherwise frustrate the Business of the
Joint Venture.
10.8 DISCLOSURE. Outercurve has fully provided Semotus with all
the information that has been requested for deciding whether to enter into this
transaction and all information that Outercurve believes is reasonably necessary
to enable Semotus to make such a decision, including Outercurve's projections
regarding the Services. No representation or warranty of Outercurve contained in
this Agreement and the Schedules attached hereto, contains any untrue statement
of a material fact or omits to state a material fact necessary in order to make
the statements contained herein or therein not misleading in light of the
circumstances under which they were made.
10.9 CUSTOMERS, DISTRIBUTORS AND SUPPLIERS. Schedule 4.1(a) sets
forth a complete and accurate list of the names and addresses of all of the
customers of Outercurve's services. To the knowledge of Outercurve, after
thorough inquiry of all sales people and other relevant personnel since February
15, 2002, there has been no material adverse change in the business relationship
with any customer named on Schedule 4.1(a). Outercurve has not received any
communication from any customer of any intention to terminate or materially
reduce the services currently being provided to the customer.
11. CONFIDENTIALITY. For so long as this Agreement remains in effect
and for a period of three (3) years after any termination of this Agreement,
each party shall keep strictly confidential, and shall not disclose, use,
divulge, publish or otherwise reveal, directly or through any third party
(including without limitation the Company), any confidential or proprietary
information of the other party which was disclosed by or received pursuant to
this Agreement, or in connection with the preparation and negotiation of this
Agreement, or by reason of the performance by the parties of their obligations
hereunder or their involvement in activities of the Company, including, but not
limited to, documents and/or information regarding customers, costs, profits,
markets, sales, products, product development, key personnel, pricing policies,
operational methods, technology, know-how, technical processes, formulae or
plans for future development (collectively, "Confidential Information"), except
as may be necessary in connection with filings with governmental agencies as
required under applicable law, including the rules and regulations promulgated
under the Securities Exchange Act of 1934, provided, however, that neither party
shall make any disclosure required under applicable law before providing the
other party with a reasonable opportunity to seek a protective order. Upon
termination of this Agreement, each party shall either destroy or return to the
other all memoranda, notes, records, reports and other documents (including all
copies thereof) relating to the Confidential Information of the other party
which such party may then possess or have under its control. Notwithstanding the
foregoing, Confidential Information of a party shall not include (a) information
which was already known to the recipient at the time of its receipt, (b)
information which is or becomes freely and generally available to the public
through no wrongful act of the recipient, (c) information which is rightfully
received by the recipient from a third party legally entitled to disclose such
information free of confidentiality restrictions, or (d) information disclosed
in
connection with legal action initiated by a party to enforce rights under this
Agreement, or any agreement executed pursuant to this Agreement, PROVIDED that
adequate safeguards (such as protective orders) are maintained.
12. MATERIAL DEFAULTS. In the event that (a) Outercurve materially
breaches or defaults in the performance of its obligations under this Agreement,
the License Agreements or the Shareholder Agreement, or (b) Semotus materially
breaches or defaults in the performance of its obligations under this Agreement,
the Shareholder Agreement, and any such breach or default is not cured within
ninety (90) days after written notice of such default is given to the breaching
party by the other party, then such other party shall have the right, at its
option and without prejudice to any other rights and remedies it may have, to:
12.1 elect to dissolve the Company by giving written notice
thereof to the breaching party, in which case the breaching party agrees to
cooperate with the other party to take all such steps as may be necessary to
dissolve the Company, it being agreed between Outercurve and Semotus that such
other party shall have the right to vote the shares of the breaching party in
favor of dissolution if the breaching party fails to take action as required
under this paragraph (a); and/or
12.2 elect to terminate this Agreement by written notice thereof
to the breaching party and the Company, in which case this Agreement, the
License Agreements, and the Shareholder Agreement shall automatically terminate
notwithstanding any provision to the contrary in this Agreement, the License
Agreements, or the Shareholder Agreement.
13. INDEMNIFICATION.
13.1 From and after the Closing, each Shareholder shall indemnify and
hold harmless, the Company and each other Shareholder(the "Indemnitees") from
and against any and all costs, losses (including without limitation diminution
in value), liabilities, obligations, damages, lawsuits, deficiencies, claims,
demands, and expenses (whether or not arising out of third-party claims),
reasonable attorneys' fees and all amounts paid in investigation, defense or
settlement of any of the foregoing, incurred in connection with, arising out of,
resulting from or incident to
(a) any Tax (i) of such Shareholder or any Subsidiary of such
Shareholder (other than the Company and its Subsidiaries for any
period beginning after the Closing date) or (ii) relating to the
income, business, assets, property or operation of the Contributed
Assets of such Shareholder, prior to and on the date of Closing and
with respect to any Contributed Assets, the date on which the
contribution of such Contributed Asset is effected to the Company.
(b) any and all Losses incurred or suffered by an Indemnitee
arising out of, based on or resulting from the ownership and operation
of the Contributed Assets prior to and on the date which the
contribution of such Contributed Asset is effected to the Company.
(c) any material breach of any representation or warranty or the
inaccuracy of any representation made by a Shareholder in or pursuant
to this Agreement, or any material breach of any covenant or agreement
made by a Shareholder in or pursuant to this Agreement
13.2 An Indemnitee shall notify the indemnifying Shareholder of any
claim in writing, and in reasonable detail, as promptly as reasonably possible
after receipt by such Indemnitee of notice of such claim; provided, however,
that failure to give such notification on a timely basis shall not affect the
indemnification provided hereunder except to the extent that such Indemnifying
Shareholder shall have been actually materially prejudiced as a result of such
failure. Thereafter, the Indemnitee shall promptly deliver to the Indemnifying
Shareholder copies of all notices and documents received by the Indemnitee
relating to such claim.
13.3 If a Tax Indemnitee receives a refund or credit of Taxes for
which it has been indemnified pursuant to this Section 9.1 such Tax Indemnitee
agrees to pay the indemnifying Shareholder the amount of such refund or credit
(including any interest received thereon).
14. LIMITATION ON DAMAGES.
14.1 No Shareholder shall be liable for any indirect, special,
incidental or consequential loss or damage (including, without limitation, loss
of profits or loss of use) suffered by any other Shareholder arising from or
relating to a Shareholder's performance, non-performance, breach of or default
under a covenant, warranty, representation, term or condition hereof; each
Shareholder, other than with respect to a claim arising from such other
Shareholder's gross negligence, willful misconduct or fraudulent actions, waives
and relinquishes claims for indirect, special, incidental or consequential
damages.
14.2 The limitations on liability and damages set out in Section 14.1
apply to all causes of action that may be asserted hereunder, other than a cause
of action resulting from indemnification, or a Shareholder's grossly negligent,
willful misconduct or fraudulent actions, whether sounding in breach of
contract, breach of warranty, tort, product liability, negligence or otherwise.
15. MISCELLANEOUS.
15.1 BROKERS. Each party shall hold the other party harmless from
any claims, liabilities or damages relating to any commissions or fees claimed
by any broker or finder by reason of any engagement or relationship of such
broker or finder by or with such party.
15.2 NOTICES. Any notice, request, demand, approval or consent
required or permitted under this Agreement shall be in writing and shall be
effective upon actual receipt when delivered by (a) registered mail, postage
prepaid, return receipt requested, (b) personal delivery, (c) an overnight
courier of recognized reputation (such as DHL or Federal Express), or (d)
transmission by facsimile (with confirmation by mail), in each case addressed as
follows:
If to Semotus: Semotus Solutions, Inc.
1735 Technology Drive,
Suite 790
San Jose, CA 95110
Attention: General Counsel
Telephone: (408) 367-1700
Facsimile: (408) 367-1701
If to Outercurve: Outercurve Technologies, Inc.
100 Wood Ave., Suite 405
Iselin, N. J. 07760
Attention: Larry Rubin
Telephone: 732-906-6638
Facsimile: 732-906-7839
Either party may change its address or facsimile number for notice purposes by
notice given to the other party in accordance with this Section 19.2.
15.3 ASSIGNMENT. Neither party's rights, duties or
responsibilities under this Agreement may be assigned, delegated or otherwise
transferred in any manner, without the prior written consent of the other party.
15.4 ENTIRE AGREEMENT. This Agreement, including the exhibits
referred to herein, which are hereby incorporated in and made a part of this
Agreement, constitutes the entire contract between the parties with respect to
the subject matter covered by this Agreement. This Agreement supersedes all
previous letters of intent, agreements and understandings, if any, by and
between the parties with respect to the subject matter covered by this
Agreement. This Agreement may not be amended, changed or modified except by a
writing duly executed by the parties hereto.
15.5 SEVERABILITY AND SURVIVAL. If any provision of this
Agreement is held by a court of competent jurisdiction to be unenforceable,
invalid or void in any respect, no other provision of this Agreement shall be
affected thereby, all other provisions of this Agreement shall nevertheless be
carried into effect and the parties shall amend this Agreement to modify the
unenforceable, invalid or void provision to give effect to the intentions of the
parties to the extent possible in a manner which is valid and enforceable. All
representations and warranties herein shall survive until the dissolution of the
Company, except to the extent that a specific provision provides otherwise. In
addition, Sections 14( Confidentiality), 18 (Indemnification and Limitation of
Damages), and 19 (Miscellaneous) shall survive the expiration or earlier
termination of this Agreement.
15.6 REMEDIES AND WAIVERS. All rights and remedies of the parties
are separate and cumulative, and no one of them, whether exercised or not, shall
be deemed to be to the exclusion of or to limit or prejudice any other rights or
remedies which the parties may have. The parties shall not be deemed to waive
any of their rights or remedies under this Agreement, unless such waiver is in
writing and signed by the party to be bound. No delay or omission on the part of
either party in exercising any right or remedy shall operate as a waiver of such
right or remedy or any other right or remedy. A waiver on any one occasion shall
not be construed as a bar to or waiver of any right or remedy on any future
occasion.
15.7 MEDIATION AND ARBITRATION. No party to this Agreement may
initiate arbitration with regard to any dispute with respect to this Agreement
until after all remedies set forth in this Section have been exhausted. In the
event of any dispute arising over this Agreement, any party shall have the right
by giving written notice to the other parties hereto (the
"Mediation Notice") to initiate non-binding mediation to be conducted by a
mediator mutually agreed to by the parties or, in the event the parties are
unable to reach such agreement within thirty (30) days following the delivery of
the Mediation Notice, by a mediator appointed by the American Arbitration
Association ("Arbitration Association") in accordance with the rules and
regulations of the Arbitration Association, or by any other body mutually agreed
upon by the parties. Mediation shall take place at San Jose, California or any
other location mutually agreeable to the parties. In the event the parties
resolve their dispute in mediation, they shall enter into a written agreement,
which shall be binding on all parties thereto. In the event such dispute has not
been resolved within ninety (90) days after the selection of the mediator
pursuant to this Section, then, any dispute or controversy arising out of or
relating to this Agreement shall be settled by final and binding arbitration.
Such arbitration shall be conducted before a single arbitrator and, except as
otherwise set forth herein, shall be conducted in accordance with the
then-existing rules of the Arbitration Association and judgment upon the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof; provided, however, that the law applicable to any such controversy
shall be the law of California, regardless of its or any jurisdiction's choice
of law principle. The arbitration award shall be specifically enforceable;
judgment upon any arbitration award may be entered in any court with personal
jurisdiction over the parties and subject matter of the disputes. By entering
into this provision, it is the parties' intention to expedite, and limit the
costs involved in, resolution of any future dispute, and therefore pre-hearing
discovery shall be limited to production of key documents and, if appropriate,
subpoena of not more than two key witnesses, as determined by the arbitrator,
and shall not extend to depositions of parties. No arbitrator shall be empowered
to award any other damages, including, but not limited to, consequential,
compensatory, or punitive damages.
15.8 CHOICE OF LAW. This Agreement shall be construed,
interpreted and the rights of the parties determined in accordance with the laws
of the State of California (without reference to the choice of law provisions of
California law), except with respect to matters of law concerning the internal
corporate affairs of any corporate entity which is a party to or the subject of
this Agreement, and as to those matters the law of the jurisdiction under which
the respective entity derives its powers shall govern.
15.9 ATTORNEYS' FEES. In the event any action or proceeding is
initiated for any breach of or default in any of the terms or conditions of this
Agreement, then the party or parties in whose favor judgment shall be entered or
an arbitration award shall be made, shall be entitled to have and recover from
the other parties all costs and expenses (including reasonable attorneys' fees)
incurred in such action or proceeding and any appeal therefrom.
15.10 HEADINGS. The headings contained in this Agreement are for
convenience only and are not a part of this Agreement, and do not in any way
interpret, limit or amplify the scope, extent or intent of this Agreement, or
any of the provisions of this Agreement.
15.11 COUNTERPARTS AND FACSIMILE. This Agreement may be executed
in counterparts, each of which shall constitute an original, but all of which
together shall constitute one and the same agreement. Transmission of
facsimile copies of signed original signature pages of this Agreement shall have
the same effect as delivery of the signed originals.
15.13 PRESS RELEASES. Neither party shall issue any press
releases or publicity statements relating to this Agreement, the transactions
contemplated by this Agreement or the business of the Company without the prior
written approval of the other party, which approval shall not be unreasonably
withheld or delayed, except that each party shall be permitted to issue any
press releases or publicity statements (whether or not approved by the other
party) to the extent required by any securities laws or regulations applicable
to such party.
15.14 THIRD PARTY BENEFICIARY. The Company is a third party
beneficiary under this Agreement. Except as to the Company, this Agreement is
not intended to and does not confer any rights on any third party, and no such
third party shall be a third party beneficiary under or in respect of this
Agreement.
15.15 BINDING EFFECT. Subject to Section 19.3, this Agreement
shall be binding upon and shall inure to the benefit of the parties and their
respective successors and assigns.
15.16 ENFORCEMENT OF RIGHTS UNDER RELATED AGREEMENTS. The Company
shall enforce its rights under each of the Related Agreements as though each
such agreement were a comparable arm's length transaction with an unrelated
Person.
15.17 NO AGENCY. Nothing in this Joint Venture Agreement or the
Schedules hereto shall be deemed to create any partnership or agency
relationship between the Parties. The Shareholders and the Company are each
independent companies who shall operate with each other in arm's length
transactions. Outercurve, Semotus nor the Company shall be entitled to act on
behalf of and/or bind any one or more of the others without prior written
authorization establishing its authority to do so.
15.18 FURTHER DOCUMENTS. The Shareholders hereto agree to execute
and deliver to each other and/or to the Company, as the case may be, all such
additional instruments, to provide all such information, and to do or refrain
from doing all such further acts and things as may be necessary or as my be
reasonably requested by any Shareholder hereto, more fully to vest in, and to
assure each Shareholder of, all rights, powers, privileges, and remedies, herein
intended to be granted or conferred upon such Shareholder or the Company.
15.19 SEVERAL LIABILITY. The obligations of each of the
Shareholders under this Joint Venture Agreement are several and not joint.
15.20 FEES AND EXPENSES. Each party will pay its own fees and
expenses in connection with the formation of the Company and the preparation and
negotiation of this Joint Venture Agreement and the Related Agreements.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
SEMOTUS SOLUTIONS, INC.,
BY: /s/ Anthony N. LaPine
----------------------------
By: Anthony N. LaPine
Its: President and CEO
OUTERCURVE TECHNOLOGIES, INC
BY: /s/ Lawrence Rubin
----------------------------
By: Lawrence Rubin
Its: CEO