EXHIBIT 10.41
TECHNOLOGY TRANSFER AGREEMENT
This Technology Transfer Agreement (the "Agreement") is made as of the
19th day of December, 2003 is by and between Xxx Communications, LLC, a Nevada
limited liability company ("Seller"), with its principal place of business at
000 X. 0xx Xxxxxx #000, Xxx Xxxxx, XX 00000, and Simulations Plus, Inc., a
California Corporation ("Buyer"), with its principal place of business at 0000
X. Xxxxxx X, Xxxxxxxxx, Xxxxxxxxxx 00000.
WITNESSETH
WHEREAS, Seller owns all right, title, and interest in and to the
Software Technology (as defined in Section 1 below), and the Hardware Technology
(as defined in Section 1 below) the functional specifications for which are set
forth in Exhibit "B" attached hereto;
WHEREAS, Seller owns the Marks (as defined in Section 1 below),
including, without limitation, "Say-it! XXX", and logo associated therewith;
WHEREAS, Seller owns the Domain Names (as defined in Section 1 below)
that use the Marks, including, without limitation, "xxxxxxxx.xxx"; and
WHEREAS, Buyer desires to purchase all rights, title, and interest of
Seller in and to the Software Technology, Hardware Technology, the Marks and the
Domain Names as well as ongoing support from Seller in accordance with the terms
and conditions of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Buyer, intending to be
legally bound, hereby agree as follows:
1. DEFINITIONS
Say-it! XXX Software. "Say-it! XXX Software" means all speech
output communication computer programs for personal digital assistants ("PDAs"),
palmtop computers, tablet computers, notebook computers and desktop computers
based on the Say-it! XXX software programs provided by Seller to Buyer for
evaluation, and the support software, including, but not limited to the
Installer and Layout Designer programs described in Exhibit B.
Software Technology. "Software Technology" means the Say-it!
XXX Software, including all source codes for all computer platforms and
operating systems and all intellectual property associated therewith developed
by Seller and known as Say-it! XXX as currently embodied in the operating
versions of such software provided by Seller to Buyer for evaluation, including
such additional modifications listed in Exhibit A which Seller agrees to perform
in a timely manner as part of this agreement, and all future enhancements to the
Software Technology that may be developed by Seller pursuant hereto, with the
consent of Buyer or pursuant to a separate written agreement between Buyer and
Seller.
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Hardware Technology. "Hardware Technology" means the modified
PDA sleeve for all Compaq iPAQ PDAs that are compatible with the CompactFlash
Expansion Pack for the iPAQ 3800, 3900, 5100 and 5500 series, including, but not
limited to all circuitry, design, manufacturing know-how and related
intellectual property that provides amplified sound output from a PDA running
the Say-it! XXX software or other sound-generating software. Nothing in this
Agreement shall preclude Buyer from developing its own hardware technology to
replace the Hardware Technology being acquired from Seller.
Support: "Support" means the ongoing maintenance of the
Software Technology to correct bugs or design flaws that may be discovered as
the product is used in the field or through in-house testing by Buyer.
Purchased Assets. "Purchased Assets" means, collectively, the
Software Technology, the Hardware Technology, the Marks and the Domain Names.
Marks. "Marks" means the trademarks, service marks, trade
names, brand names, logos, slogans and trade references, in each case whether
registered, under application or otherwise, owned by Seller that include the
sequential letters "sayitsam", together with (i) any licenses with respect
thereto; (ii) the goodwill and the business appurtenant thereto; (iii) any
rights, claims or chose in action, related to or deriving from any of the
foregoing; and (iv) any file histories, correspondence, application documents,
search reports, documents concerning the prosecution history, enforcement or
maintenance of rights, or restrictions on use, with respect to the trademarks,
service marks, trade names, brand names, logos, slogans and trade references set
forth in this Section, including without limitation any such documents with
respect to applications or registrations abandoned on or before the Acceptance
Date.
Development: "Development" means the addition of new
functionality or features to the Software Technology that extend or enhance its
utility and market appeal.
Domain Names. "Domain Names" means all Internet domain names
registered to Seller that include the sequential letters "sayitsam", including,
without limitation, "xxxxxxxx.xxx." "Domain Names" shall also be deemed to
include (i) all goodwill associated therewith and inhering therein, (ii)
originals of all files, correspondence and other records relating to or
reflecting Seller's registration of the Domain Names or any and all right and
interest therein, (iii) all claims of Seller against any third parties relating
to the Domain Names and all documentation and records relating to such claims,
(iv) any and all intellectual property and any other proprietary rights
associated therewith existing at any time under the laws of any jurisdiction
anywhere in the world, including, without limitation, any trademark, service
xxxx, trade name, brand name and/or copyright rights relating thereto, all
registration and pending applications to register such rights, together with all
such rights inhering in or protecting names and marks derivative of or similar
to the Domain Names and the right to register any of the foregoing anywhere in
the world, and (v) any and all rights of Seller pertaining to the Domain Names
arising under its agreements with any and all domain name registrars, including
without limitation Network Solutions, Inc.
Acceptance Date. "Acceptance Date" means December 23, 2003.
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2. CONVEYANCE OF RIGHTS
Subject to the following terms and conditions, Seller,
effective as of the Acceptance Date, hereby sells, transfers, and conveys to
Buyer all rights and title to the Purchased Assets, free and clear of all
claims, mortgages, pledges, liens, security interests, or other encumbrances of
any character.
3. DELIVERY OF PHYSICAL OBJECTS & OTHER ACTIONS
a. Seller, on or before the Acceptance Date, shall deliver to
Buyer (1) a master copy of the Software Technology in source code and executable
form for each computer platform and operating system, which shall be in a human
readable form suitable for copying; and (2) all system and user documentation
pertaining to the Software Technology and Hardware Technology, including design
or development specifications, technical papers, presentations, schematics,
specialized manufacturing instructions, error reports, and related
correspondence and memoranda. Seller shall retain a copy of the source code only
for the purposes of performing software maintenance and development of
enhancements under this Agreement.
b. Promptly following the date hereof, Seller shall, from time
to time, take all steps reasonably requested by Buyer, and execute such
documents as reasonably requested by Buyer, to promptly transfer the Domain
Names from Seller to Buyer.
4. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents, warrants and covenants to Buyer on
and as of the date hereof, unless stated to the contrary below, and on and as of
the Acceptance Date as follows:
a. Seller is a limited liability company duly organized and in
good standing under the laws of the State of Nevada. Seller has the power to own
or lease its properties and to carry on its business in the places where such
properties are now owned, leased or operated, and such business is now
conducted.
b. Seller has all requisite power and authority, and has
obtained the consents, approvals and authorizations necessary to enter into and
perform this Agreement and consummate the transactions contemplated hereunder.
All necessary notices, consents and actions by Seller (including any necessary
notices, consents or actions of the members of Seller) have been obtained. This
Agreement has been duly executed and delivered by Seller and is a valid and
binding obligation of Seller, enforceable in accordance with its terms.
c. Neither the execution and delivery of this Agreement, nor
the consummation of the transactions contemplated hereby, shall conflict with or
result in a breach of or constitute or result in (a) a default under any of the
terms, conditions or provisions of Seller's Articles of Organization or
Operating Agreement, (b) a violation under any law, rule, or governmental
regulation to which Seller is subject or result in a default under any judgment,
order, injunction, ruling or decree of any court or governmental authority by
which Seller is bound, or any regulation or ruling of any governmental body or
authority, (c) the breach or default of any contract or agreement to which
Seller is a party or by which it is bound or to which any of the Purchased
Assets is subject (or result in the imposition of any lien or encumbrance upon
any of the Purchased Assets); (d) the triggering of any rights of first refusal,
preferential purchase, or similar rights; or (e) the creation or imposition of
any lien, charge or encumbrance under any law, judgment, order or decree binding
on Seller.
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d. Seller has, good and indefeasible title to all of the
Purchased Assets, free and clear of all claims, mortgages, pledges, liens,
security interests, or other encumbrances of any character. The Software
Technology and Hardware Technology was developed internally by Seller or
acquired by Seller, and was not misappropriated from another. Upon delivery of
the Purchased Assets, good and valid title to the Purchased Assets, free and
clear of all mortgages, liens, claims, pledges, security interests or other
encumbrances, will pass to Buyer.
e. There are no actions at law or in equity, or arbitration
proceedings, or claims or investigations of which Seller has received notice,
pending or to Seller's knowledge threatened, or state of facts existing, which
gives Seller any reasonable basis to anticipate any such action, proceeding,
claim or investigation. There are no proceedings, pending or to Seller's
knowledge threatened, against Seller and related to the Purchased Assets by or
before any governmental board, department, commission, bureau, instrumentality
or agency, or state of facts existing which gives Seller any reasonable basis to
anticipate any such proceeding; and Seller is not subject to any judgment, order
or decree entered in any lawsuit or proceeding that has had, or that can be
reasonably be expected to have, an adverse effect on the Purchased Assets or on
its ability to enter into this Agreement.
f. All tax returns and reports of Seller required by law to
have been filed have been duly filed, and all taxes due and owing with respect
to the time periods for such returns, have been paid in full. There are no liens
for any taxes upon any of the Purchased Assets. Seller is not a party to any
pending action or proceeding, and to Seller's knowledge, there is no action or
proceeding threatened by any government or authority that subjects or might
subject Seller, or any of the Purchased Assets, to any claim or lien relating to
the payment of taxes.
g. No representation or warranty made by Seller in this
Agreement contains any untrue statements or a material fact or omits to state
any material fact necessary to make the statements herein not misleading.
h. Seller has the complete and unrestricted power and the
unqualified right to sell, transfer, convey, assign and deliver the Purchased
Assets to Buyer.
i. Seller has no knowledge of any third-party asserting common
law rights or any other rights to use in any of the Marks. Seller has not
granted any license or other right to use or interest in the Software Technology
or Hardware Technology to any third party.
j. Neither the use, manufacture, modification, copying,
disposition, marketing, license, sublicense, sale, advertising, furnishing,
distribution, performance, public display or intended use of any of the
Purchased Assets infringes or misappropriates any intellectual property right of
any other person. There is no pending, and to the knowledge of Seller, there is
no threatened, claim, demand, or litigation contesting the validity, ownership
or right of Buyer (or Seller) to use, possess, license, sublicense, copy,
modify, make derivative works of, sell, distribute, perform, display publicly,
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market, advertise or dispose of any Purchased Assets, nor has Seller received
any written notice asserting that any Purchased Assets or the proposed use,
possession, license, sublicense, copying, modifying, making derivative works of,
sale, distribution, performance, public display, marketing, advertising or
disposition thereof conflicts or will conflict with the rights of any other
party, nor, to Seller's knowledge, is there any reasonable basis for any such
assertion. Seller has not received notice from any person claiming that any of
the Purchased Assets or the use thereof constitutes unfair competition or trade
practices under any law, including notice of a third party patent or other
intellectual property rights from a potential licensor of such rights.
k. Without limiting the generality of any other representation
contained herein, all personnel, including employees, agents, consultants, and
contractors, who have at any time directly contributed to or participated in the
conception and development of the Purchased Assets (i) have been employees of
Seller, acting within the scope of their employment, or (ii) have been parties
to a "works-made-for-hire" arrangement or agreement with such Seller, in
accordance with applicable federal and state law, that has accorded Seller full,
effective, exclusive, and original ownership of all tangible and intangible
property and rights thereby arising, have executed appropriate instruments of
assignment, in favor of Seller as assignee that have conveyed to Seller full,
effective, and exclusive ownership of all tangible and intangible property and
rights thereby arising.
l. On and after the Acceptance Date, other than pursuant to
this Agreement, there are no and will be no royalties, honoraria, fees or other
payments payable by Buyer to any third person by reason of the ownership, use,
possession, license, sublicense, copying, modifying, making derivative works of,
sale, distribute, performance, public display, marketing, advertising or
disposition of any of the Purchased Assets by Buyer on or after the Acceptance
Date, except an agreement with Possum Controls, LTD, the terms of which are
described in Exhibit C.
m. No third party possesses any copy of any source code to any
Software Technology. Seller has taken commercially reasonable actions to protect
each item of Purchased Assets. The consummation of the transaction contemplated
hereby will not result in Buyer being bound by any non-compete or other
restriction on the operation of any business of Buyer or the granting by Buyer
of any rights or licenses to any of the Purchased Assets. Seller has not
disclosed the source code for any of the Purchased Assets or other confidential
information constituting, embodied in or pertaining to the Purchased Assets to
any person or entity, except pursuant to effective nondisclosure agreements, and
Seller has taken commercially reasonable measures to prevent disclosure of such
source code.
n. The Software Technology and Hardware Technology are fully
eligible for protection under applicable copyright law and have not been
forfeited to the public domain.
o. Seller is acquiring the Securities (as defined in Section
8.1) as principal for its own account for investment purposes only and not with
a view to or for distributing or reselling such Securities or any part thereof.
Seller is acquiring the Securities hereunder in the ordinary course of its
business. Seller does not have any agreement or understanding, directly or
indirectly, with any person to distribute the Securities.
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p. At the xxxx Xxxxxx was offered the Securities, it was, and
at the date hereof it is, an "accredited investor" as defined in Rule 501(a)
under the Securities Act. Seller has not been formed solely for the purpose of
acquiring the Securities.
q. Seller, either alone or together with its representatives,
has such knowledge, sophistication and experience in business and financial
matters so as to be capable of evaluating the merits and risks of the
prospective investment in the Securities, and has so evaluated the merits and
risks of such investment. Seller has a preexisting personal or business
relationship with Buyer or any of its officers, directors or controlling
persons, or by reason of Seller's business or financial experience has such
knowledge and experience in financial and business matters that Seller is
capable protecting its own interests in connection with this investment.
r. Seller is able to bear the economic risk of an investment
in the Securities and, at the present time, is able to afford a complete loss of
such investment.
s. Seller acknowledges that it has received and reviewed
Buyer's Form 10-KSB for the Fiscal Year ended August 31, 2003.
t. Seller is not acquiring the Securities as a result of or
subsequent to any advertisement, article, notice or other communication
regarding the Securities published in any newspaper, magazine or similar media
or broadcast over television or radio or presented at any seminar or any other
general solicitation or general advertisement.
u. Seller understands and acknowledges that (i) the Securities
are being offered and sold to it without registration under the Securities Act
in a transaction that is exempt from the registration provisions of the
Securities Act and (ii) the availability of such exemption, depends in part on,
and Buyer will rely upon the accuracy and truthfulness of, the foregoing
representations and Seller hereby consents to such reliance.
5. REPRESENTATIONS AND WARRANTIES OF BUYER
a. Buyer represents and warrants to Seller that it is a
corporation duly organized, validly existing and in good standing under the laws
of the State of California, and it has the corporate power and is authorized
under its Articles of Incorporation and its Bylaws to carry on its business as
now conducted;
b. Buyer represents and warrants to Seller that it has
performed all corporate actions and received all corporate authorizations
necessary to execute and deliver this Agreement and to perform its obligations
hereunder;
c. Buyer represents and warrants to Seller that the execution
of this Agreement will not result in any violation or default of or conflict
with: (i) Buyer's Articles of Incorporation or Bylaws; (ii) the provisions of
any other agreement to which it is a party or to which it is bound; or (iii) any
law, judgment, or regulation of any governmental authority; and
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d. Buyer represents and warrants to Seller that there are no
persons who are entitled to any notice of the transaction contemplated hereunder
or whose consent is required for the consummation of the transaction
contemplated hereunder.
6. WARRANTY
In addition to Seller's representations and warraties
contained in Section 4:
a. Seller represents and warrants to Buyer that the Software
Technology and Hardware Technology provided by Seller to Buyer conform in all
material respects to the functional specifications set forth in Exhibit B.
b. Among the remedies available to Buyer at law or in equity
for breach of the foregoing warranties, Buyer can require Seller to correct any
material nonconformance to such specifications within ten (10) days of Seller
receiving notice from Buyer.
7. CONFIDENTIALITY
a. Seller shall hold in confidence and not at any time
disclose (except on a confidential basis to their employees who need to know and
who have signed a confidentiality agreement) all Proprietary Information
received from Buyer in the same manner and to the same extent as it holds in
confidence its own Proprietary Information (but in no event shall Seller use
less than a reasonable degree of care), and shall not use any such Proprietary
Information except for the purposes contemplated by this Agreement. As used in
this Agreement, "Proprietary Information" shall mean all confidential and
proprietary information, including but without limitation, components, drawings,
data, plans, programs, specifications, techniques, processes, algorithms,
inventions or other information or material owned, possessed or used by Buyer
which is at any time so designated by such party in writing, whether by letter
or by the use of a proprietary stamp or legend, prior to the time any such
Proprietary Information is disclosed Seller, or which, under the circumstances
surrounding disclosure, should reasonably be considered by Seller to be
confidential. In addition, information which is orally disclosed to the other
party shall constitute Proprietary Information if identified as such at such
time to be confidential (or which, under the circumstances surrounding
disclosure, should reasonably be considered by Seller). "Proprietary
Information" includes "trade secrets" as defined in Uniform Trade Secrets Act,
if any, as adopted in the applicable jurisdiction. Proprietary Information may
take the form of documentation, drawings, specifications, software, technical or
engineering data, and other forms, and may be communicated orally, in writing,
by electronic or magnetic media, by visual observation and by other means.
b. Seller shall take all reasonable steps to safeguard the
Software Technology and Hardware Technology so as to insure that no unauthorized
person shall have access to them, and that no persons authorized to have access
shall make any unauthorized copy. Seller shall promptly report to Buyer any
unauthorized disclosure or any use of the Software Technology or Hardware
Technology of which it becomes aware and shall take such further steps as
reasonably may be requested by Buyer to prevent unauthorized use thereof.
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c. Notwithstanding the obligations herein, the obligations
herein shall not be applicable to information which: (i) was in the possession
of the receiving party free of any obligation of confidence or was in the public
domain at the time the furnishing party communicated it to the receiving party,
through no fault of the receiving party; (ii) was rightfully communicated to the
receiving party free of any obligation of confidence or entered the public
domain subsequent to the time the furnishing party communicated it to the
receiving party, through no fault of the receiving party; (iii) was developed by
employees or agents of the receiving party independently and without knowledge
of, or access to, any information which the furnishing party has disclosed in
confidence to the receiving party or to any third party, provided that the
receiving party shall have the burden of so establishing; (iv) is released from
confidential treatment by written consent of the disclosing party; (v) is
disclosed to the receiving party by a third party with the legal right to do so;
or (vi) is required to be disclosed pursuant to any legal proceeding.
8. PAYMENT
a. In consideration of the acquisition of all of the rights
and assets which make up the Software Technology and Hardware Technology
acquired pursuant to this Agreement, Buyer shall issue to Seller thirty-five
thousand (35,000) shares of Simulations Plus, Inc. restricted common stock (the
"Securities").
b. In consideration of the ongoing Support (as described in
Sections 10.2 and 10.3), Buyer shall pay to Seller a royalty (the "Royalty") of
XXX [Confidentiality requested] dollars (U.S.$XXX [Confidentiality requested])
for each copy of the Say-it! XXX speech output software sold, exclusive of
dealer demo units and units provided to assistive technology evaluation centers
at less than 80% of the customary retail price. The Royalty will be computed on
the calendar quarter basis, with the Royalty for each quarter payable in full
not later than 45 days following the close of that quarter. Subject to the
following, the Royalty shall be paid until such time, if any, as the Royalty is
terminated as provided in Section 13. Nothing herein shall require Buyer to use
any efforts to sell the Say-it! XXX speech output software sold, and Seller
expressly acknowledges that Buyer may cease selling the Say-it! XXX speech
output software at any time. Buyer disclaims that any level of sales will be
achieved or that any amount of Royalty will be payable by Buyer to Seller at any
time.
9. RECORDS AND AUDIT
Buyer shall maintain complete and accurate records relating to
the net revenues received by Buyer for the Software Technology and Hardware
Technology. Such records shall include information sufficient to determine the
royalties due to Seller. Buyer agrees to allow Seller's certified public
accountants to audit Buyer's records pertaining to the Software Technology and
Hardware Technology and verify the accuracy of the royalties due to Seller. Any
such audit shall be permitted by Buyer within twenty (20) days of Buyer's
receipt of Seller's written request to audit. Such audit shall be conducted
during normal business hours at a time mutually agreed upon by Buyer and Seller.
Buyer's accounting information shall be kept confidential by the auditors, and
Buyer may require that Seller's accountants enter into a written confidentiality
agreement reasonably acceptable to Buyer. Such audits will not exceed one (1)
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per twelve (12) month period. In the event that Buyer does not agree with the
results of the audit performed by Seller's certified public accountant, then
Seller and Buyer will mutually choose an independent third party certified
public accountant who will audit Buyer's records relating to the net revenues
received by Buyer. The determination of that third party certified public
accountant shall be conclusive and binding upon the Seller and the Buyer. If it
is determined that there was no underpayment by the Buyer of the Royalty for the
period subject to the audit, the Seller shall bear the entire expense of its
certified public accountant and, if applicable, the Buyer's certified public
accountant and the third party certified public accountant. If it is determined
that there was an underpayment of the Royalty for the period subject to the
audit but that the underpayment was equal to or less than five percent (5%) of
the total Royalty which should have been paid for such period, then each party
shall be responsible for the cost of its own certified public accountant and the
cost of the third party certified public accountant shall be borne in equal
shares by the Seller and the Buyer. If it is determined that there was an
underpayment of the Royalty for the period subject to the audit and if such
underpayment was more than five percent (5%) of the total Royalty which should
have been paid for such period, then the Buyer shall be responsible for the cost
of its certified public accountant, the Seller's certified public accountant,
and, if applicable, the third party certified public accountant.
10. DELIVERY, INSTALLATION AND SUPPORT
a. Technical Support. Seller will deliver and provide
installation instructions for the Software Technology and Hardware Technology
with the program documentation at a time mutually agreed upon by the parties.
Seller will provide ongoing technical support to Buyer relating to the
development of the Software Technology and Hardware Technology for a period of
five (5) years following the date of this Agreement.
b. Seller Maintenance Support. Seller agrees to provide
maintenance Support and enhancements for the Software Technology and Hardware
Technology. All revisions, updates, maintenance and Support of the Software
Technology and Hardware Technology shall be provided to Buyer when such products
or services are available. All such revisions, updates, maintenance and Support
shall be the property of Buyer, and Seller hereby assigns to Buyer all of its
interest, if any, in such revisions, updates, maintenance and Support. Without
limiting the generality of the foregoing, Seller agrees that Buyer shall be the
copyright owner of all copyrightable works of every kind and description
(hereinafter collectively referred to as "Works of Authorship") created,
authored, or developed by Seller during the course of its performance of its
obligations under Sections 10.1 and 10.2. Seller acknowledges that all Works of
Authorship created at the direction of or for Buyer, or relate to in any way to
the Purchased Assets (or the development thereof), are "works made for hire," as
that term is defined in the United States Copyright Act (17 U.S.C., ss.101). To
the extent that any such Works of Authorship are deemed not to fall within the
statutory definition of "works made for hire," Seller agrees and hereby does
assign all of its right, title and interest in and to the copyright, and related
intellectual property rights in such Works of Authorship. Seller hereby
irrevocably and forever waives, and agrees never to assert, any Moral Rights in
or to the Works of Authorship which Seller may now have or which may accrue to
Seller's benefit under U.S. or foreign copyright laws and any and all other
residual rights and benefits which arise under any other applicable law now in
force or hereafter enacted. The term "Moral Rights" shall mean any and all
rights of paternity or integrity of the Works of Authorship and the right to
object to any modification, translation or use of the Works of Authorship, and
any similar rights existing under the judicial or statutory law of any country
in the world or under any treaty, regardless of whether or not such right is
denominated or referred to as a moral right.
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10.3 Marketing and Consulting Services. (a) Seller will
provide reasonable assistance at mutually agreeable times and places in creating
worldwide visibility at national and international symposia and one-on-one
visibility with leaders within the field of augmentative communication and
assistive technology. Seller will provide engineering after-market support,
consulting and other related services to Buyer at mutually agreeable times.
10.4 Expense Reimbursement. Buyer will reimburse Seller for
all out-of-pocket expenses reasonably incurred by Seller, and approved in
advance by Buyer, in providing the marketing support and consulting services
described in Section 10.3.
11. INJUNCTIVE RELIEF
Seller agrees that in the event of a breach of this Agreement
as a result of the unauthorized use of the Software Technology, Hardware
Technology or dissemination of information regarding the Software Technology and
Hardware Technology, including disclosure of Proprietary Information, Seller
shall be irreparably injured and shall be without an adequate remedy at law.
Therefore, in the event of such a breach, or threatened or attempted breach of
any of the provisions hereof, Buyer shall be entitled to enforce the provisions
of this Agreement and shall be entitled, in addition to any other remedies which
are available to it at law or in equity, if any, to a temporary and/or permanent
injunction and a decree for the specific performance of the terms of this
Agreement, without the necessity of showing actual or threatened harm and
without being required to furnish a bond or other security.
12. Section 12. ASSIGNMENT
Seller shall not have the right to assign this Agreement
without the prior written consent of Buyer, which consent may be given or
withheld in Buyer's sole discretion. Buyer shall have the unrestricted right to
assign this Agreement, in whole or in part. When assigned as permitted herein,
the terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective permitted successors and assigns of the parties
hereto.
13. TERMINATION
Seller's right to receive the Royalty and Seller's agreement
to perform its obligations set forth in Sections 10.1, 10.2 and 10.3, may be
terminated by Buyer upon written notice to Seller in accordance with the
following:
i. if Seller breaches this Agreement and such breach
continues for a period of 10 days following written notice from Buyer to Seller;
ii. immediately upon the death or legal incapacity of
Xxxxxxx Xxx; or
iii. immediately if Seller breaches Section 7.
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14. INDEMNIFICATION; SURVIVAL OF REPRESENTATIONS AND WARRANTIES
a. Indemnifciation
i. Seller will indemnify, defend, and hold harmless
Buyer from any and all claims, actions, liabilities, damages, costs, and
expenses, including reasonable attorneys' fees and expenses, that Buyer may ever
suffer or incur as the result of (a) the material breach or inaccuracy of any
material representation or warranty made herein by Seller, (b) the failure or
refusal of Seller to comply with any of its obligations hereunder, or (c) any
claim based upon or arising out of any liability or obligation, contracted or
otherwise, of Seller in connection with the Purchased Assets.
ii. Seller will indemnify, defend, and hold harmless
Buyer from any and all claims, actions, liabilities, damages, costs, and
expenses, including reasonable attorneys' fees and expenses, arising out of any
third-party claims of infringement of any patents, copyrights, licenses,
trademarks, service marks, or any other property right.
iii. Seller will defend, indemnify, and save Buyer
harmless from any money judgement, costs, and attorneys' fees awarded or in
settlement to the extent such are due to a claim that the Purchased Assets as
provided by Seller infringe an intellectual property right, copyright or trade
secret right of any third party.
iv. Seller shall indemnify Buyer against all
liability, loss, damage, and expense (including but not limited to, reasonable
attorneys' fees and costs) resulting from injury or death of any person, or loss
of or damage to tangible real or tangible personal property, to the extent that
such liability, loss, damage, or expense was proximately caused by Seller's
negligent act or omission, or willful act or omission, or those of its agents,
employees, or subcontractors, in connection with the provision or use of the
Purchased Assets.
b. The representation and warranties of Seller contained
herein shall survive until the expiration of the applicable statute of
limitations.
15. FURTHER ASSURANCES
At any time and from time to time after the date hereof, at
Buyer's request and without further consideration, Seller shall execute and
deliver such other instruments of sale, transfer, conveyance, assignment and
confirmation and take such action as Buyer may reasonably deem necessary or
desirable in order more effectively to convey to Buyer, and to confirm Buyer's
title to, all of the Purchased Assets, to put Buyer in actual possession and
operating control thereof and to assist Buyer in exercising all rights with
respect thereto.
16. REFORMATION, SEVERABILITY AND SURVIVAL
The provisions of this Agreement have been negotiated by
sophisticated parties with equal bargaining power and the parties agree that
such provisions are fair, reasonable and necessary under the circumstances. The
provisions set forth herein are intended as separate covenants and if any of
these provisions should ever be adjudicated to exceed the limitations permitted
by applicable law in any jurisdiction, then such provisions shall be deemed
reformed in such jurisdiction to the maximum limitations permitted by applicable
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law. If any one of such provisions is declared invalid for any reason
whatsoever, and if any one of such provisions cannot be reformed as aforesaid,
such ruling shall not affect the validity of the remainder of the provisions.
The other provisions shall remain in effect as if the provisions had been
executed without the invalid provisions. The parties hereby declare that they
intend that the remaining provisions continue to be effective without any that
have been declared invalid and not reformed as aforesaid.
17. GOVERNING LAW AND VENUE
This Agreement shall be governed by, and construed in
accordance with, the internal substantive laws of the State of California,
without regard to choice of law or conflicts of law principles. Each of the
parties hereto recognizes and hereby irrevocably consents to the exclusive
jurisdiction over it or him, as the case may be, of the Federal District Court
for the Central District of California or the Superior Court of California,
County of Los Angeles, in connection with any action or proceeding (whether it
be for contract or tort, at law or in equity, or otherwise) arising out of or
relating in any way to this Agreement, or any other document relating hereto or
delivered in connection with the transactions contemplated hereby.
18. REPRESENTATION BY COUNSEL
Each party hereto represents and agrees with the others that
it has been represented by, or had the opportunity to be represented by,
independent counsel of its own choosing, and that it has had the full right and
opportunity to consult with its respective attorneys, that to the extent, if
any, that it desired, it availed itself of this right and opportunity, that each
party is fully aware of the contents thereof and its meaning, intent and legal
effect, and that its authorized officer is competent to execute this Agreement
and has executed this Agreement free from coercion, duress or undue influence.
19. NOTICES
All notices, requests, demands and other communications under
this Agreement shall be in writing and shall be deemed to have been delivered
three business days after having been mailed in a general or branch U.S. post
office and enclosed in a registered or certified postpaid envelope; one business
day after having been sent by overnight courier; when telecopied on a business
day, or otherwise on the next succeeding business day thereafter; and, in each
case, addressed to the respective parties at the addresses stated below or to
such other changed addresses the parties may have fixed by notice as provided
herein:
To the Seller: Xxx Communications, LLC
000 X. 0xx Xxxxxx #000
Xxx Xxxxx, XX 00000
Telephone (000) 000-0000
Facsimile (000) 000-0000
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To the Buyer: Simulations Plus, Inc.
0000 X. Xxxxxx X
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx,
Chairman and CEO
Telephone (000) 000-0000
Facsimile (000) 000-0000
With a copy to (not in lieu of notice to Buyer)
Xxxxxxx Xxxx, Esq.
Jenkens & Xxxxxxxxx, LLP
00000 Xxxxxxxx Xxxx.
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Telephone (000) 000-0000
Facsimile (000) 000-0000
20. FEES AND COSTS
Except as otherwise provided herein, in the event of any claim
or controversy relating to this Agreement or the breach of this Agreement and
any action or proceeding brought by Seller or Buyer against the other (whether
it be for contract or tort, at law or in equity, or otherwise) the substantially
prevailing party in such action or proceeding will be entitled to recover from
the other its reasonable costs and expenses incurred in taking or defending such
action or proceeding, including the appeal of such action, and including
reasonable fees of attorneys and other technical advisors.
21. CAPTIONS
The captions used in this Agreement are solely for the
convenience of the parties hereto and such captions do not constitute a part of
this Agreement.
22. COUNTERPARTS
This Agreement may be executed by the parties in two or more
counterparts, each of which together shall constitute one and the same
instrument.
23. ENTIRE AGREEMENT
a. This Agreement sets forth the entire agreement of the
parties hereto with respect to the transactions contemplated hereby. This
Agreement may not be amended except by an instrument in writing signed by the
parties hereto, and no claimed amendment, modification, termination or waiver
shall be binding unless in writing and signed by the party against whom or which
such claimed amendment, modification, termination or waiver is sought to be
enforced.
b. This Agreement merges and supersedes all prior and
contemporaneous agreements, assurances, representations, and communications
between the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date shown above.
Seller: Buyer:
XXX COMMUNICATIONS, LLC SIMULATIONS PLUS, INC.
By: /S/ Xxxxxxx Xxx By: /S/ Xxxxxx Xxxxxxx
----------------------------- --------------------
Name: Xxxxxxx Xxx Xxxxxx Xxxxxxx, Chairman & CEO
Title: President
---------------------------
Date: December 23, 2003 Date: December 23, 2003
---------------------------- ------------------------
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EXHIBIT A
SOFTWARE TECHNOLOGY MODIFICATIONS
The following modifications to the Software Technology will be made by Seller
and are incorporated into the Software Technology purchased by Buyer:
1. Single switch scanning: The Software Technology will be modified by Seller to
enable users to operate the speech output device by means of a single input
switch closure, following industry standard methods for:
Row-column interrupted and directed scanning
Linear interrupted and directed scanning
Group interrupted and directed scanning
2. Dedicated version: The Software Technology will be modified by Seller to
enable operating the speech output device as a dedicated unit, unable to execute
customary PDA functions, in accordance with requirements for funding by Medicare
and state Medicaid programs.
3. Other platforms: The Software Technology will be modified by Seller to
operate on Windows XP and Windows CE (Pocket PC) operating systems for larger
computers, including, but not limited to, notebook computers, desktop computers,
palmtop computers, and tablet computers. Changes to the software will include,
for example, modifications to take advantage of the larger displays on such
computers by allowing increased numbers of symbols per page.
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EXHIBIT B
FUNCTIONAL SPECIFICATION
PURPOSE
The purpose of the Say-it! XXX software is to provide speech output and other
sounds through a device consisting of a computer platform running the Say-it!
XXX software. The Say-it! XXX software provides the user with both
text-to-speech and recorded speech output which can be selected by graphic
symbols and/or text, using a variety of input methods. The computer platform can
be a handheld, tablet, palmtop, notebook, desktop, or other computer, running
Windows CE, PocketPC, Windows XP, or another operating system.
FUNCTIONS
In order to accomplish its purpose, the Say-it! XXX software performs the
following general functions:
LAYOUTS, PAGES AND CELLS
- Allows the user to select a screen display layout from a list. A
layout is a set of one or more pages. A page consists of one or more
cells. Multiple cells are arranged in rows and columns. Each cell is an
area of the screen which may contain graphics (symbols, photographs,
etc.), text, or both.
- Provides a means for the user to select a cell on a page. The user
can select a cell by touching a touch screen, or by other methods, such
as scanning with one or more switches.
- When a cell is selected, the device performs a programmable function
specific to that cell. Selecting the cell can result in speaking a
message on a voice synthesizer, playing a recorded sound file, jumping
to another page, jump to an on-screen keyboard, or a combination of
these and other programmable functions. Cells can also be used in
series to build messages from simpler message elements.
- Provides a textbox which displays spoken messages and other feedback
to the user.
- Provides a navigation bar whenever a page is shown, which contains a
number of cells that implement commonly-used functions, such as
speaking the contents of the textbox, clearing the textbox, jumping to
the home page or another page, and opening the setup menus.
- Allows the user to customize the look and feel of pages and cells
with respect to color, borders, font style, positioning of graphics and
letters, and other properties.
- Provides for pages to be password-protected.
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MEDIA
- Manages voice synthesizer software, and speaks messages associated
with selected cells or typing on a keyboard. Manages a list of
alternative spellings for words which the voice synthesizer would
mispronounce.
- Manages voice and sound recordings, in .wav and other formats, and
plays the recording associated with selecting cells.
- Provides a silent mode, for displaying textbox messages instead of
speaking them.
- Manages libraries of symbols and photographs, in .gif, .jpg, .bmp and
other formats, which can be placed on cells.
KEYBOARD AND TEXT
- Provides an on-screen keyboard. The keyboard can be used by the user
to create text messages, or can be used in the menus. Text messages can
be created in the textbox from a combination of cell selections and
keyboard selections.
- Provides text-based word prediction based on the user's selections.
Word prediction incorporates first-word prediction, next-word
prediction, and word completion algorithms. The user can accept or
ignore the predicted words.
- Provides text-based abbreviations based on the user's selections.
- Provides text-based phrase prediction based on the user's selections.
The user can accept or reject the predicted phrases.
- Provides text-based automatic insertion of punctuation.
MENUS
- Allows the user to build new layouts, or select from a list of
layouts.
- Allows the user to build new pages, or add pages to a layout from
libraries of layouts.
- Allows the user to create new cell contents, or place existing
graphic and text content onto cells.
- Allows the user to associate programmable functions with each cell.
- Allows the user to backup and restore layouts.
- Allows the user to manage lists of words, abbreviations, phrases, and
alternative pronunciations.
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- Allows the user to customize the cell-selection process, such as the
touch screen and single-switch parameters.
- Allows the user to selectively turn on and off or fine-tune the
various text features, such as word prediction, abbreviation expansion,
phrase prediction, and automatic punctuation.
- Allows the user to customize the programmable features of the
computing device, such as the hardware buttons.
- Provides for the user to be locked out from changing the layout or
the menu settings.
UTILITIES
- Provides a utility for installing and uninstalling the Say-it! XXX
software on a computer platform. Also provides for updates to the
Say-it! XXX software and media to be installed.
- Provides a layout designer utility for designing and testing layouts
on a secondary computer platform.
- Provides a layout manager utility for synchronizing and transferring
layouts between the primary and secondary platform.
- Provides a utility for generating license key files. The license key
file must be present on the computer platform in order for the Say-it!
XXX software to execute. Each license key file is specific to one
computer platform, and will not unlock the Say-it! XXX software on
another computer platform.
- Provides a limited-capability demonstration version
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EXHIBIT C
POSSUM CONTROLS, LTD DISTRIBUTION
In order to honor an agreement between Seller and Possum Controls, LTD
("Possum") of the United Kingdom, Buyer agrees to offer Possum an option
("Option") to purchase Say-it! XXX Communicator packages, less the PDA, for the
existing Compaq iPAQ PDAs (3900, 5100, and 5500 series) for a period of two (2)
years, at the following prices:
For orders of less than 10 units, USD$XXX [Confidentiality requested],
per unit
For orders of 10 or more units, USD$XXX [Confidentiality requested],
per unit
If Possum elects to accept the Option within 30 days, then Possum shall be
granted exclusive distribution rights within the U.K. for a period of five (5)
consecutive years, provided that reasonable sales goals, to be negotiated
between Buyer and Possum with 60 days of acceptance and that said are maintained
by Possum.
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