ASSET PURCHASE AND INTELLECTUAL PROPERTY ASSIGNMENT AGREEMENT
ASSET PURCHASE AND
INTELLECTUAL
PROPERTY ASSIGNMENT
AGREEMENT
This
Asset Purchase and Assignment Agreement (this “Agreement”) dated as
of July 10, 2009 (the “Effective Date”) is
by and between MyoCardioCare, Inc., a Delaware corporation (“MCC”), and Biophan
Technologies, Inc., a Nevada corporation (“BIOPHAN”). MCC and BIOPHAN
are individually a “Party”, and together
are the “Parties,” to this
Agreement.
WHEREAS,
MCC has determined that it is in its business interest to acquire certain Assets
and Intellectual Property of BIOPHAN and BIOPHAN has determined it is in its
business interest to sell such Assets and Intellectual Property to
MCC.
NOW
THEREFORE, in consideration of the mutual covenants and agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as
follows:
1. DEFINITIONS. As
used herein, the following terms will have the following meanings:
“Action” means any
Claim, action, cause of action or suit (whether in contract or tort or
otherwise), litigation (whether at law or in equity, whether civil or criminal),
controversy, assessment, arbitration, investigation, hearing, charge, complaint,
demand, patent interference, opposition, Third Party requested patent
re-examination, notice or proceeding, in each case, to, from, by or before any
Governmental Authority.
“Affiliate” of a
specified person (natural or juridical) means a person that now or hereafter
directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, the person
specified. “Control” shall mean ownership of more than 50% of the
shares of stock entitled to vote for the election of directors in the case of a
corporation, and more than 50% of the voting power in the case of a business
entity other than a corporation.
“Ancillary Agreements”
means any agreements, certificates, instruments and documents executed and
delivered pursuant to any of Sections 3.3 of this Agreement.
“Assigned Assets”
means the Tangible Assets, Tangible Materials, Books and Records, and Assigned
Intellectual Property Rights.
“Assigned Intellectual
Property Rights” means all Intellectual Property of BIOPHAN as
of the Closing date which are necessary to practice the Technology,
including, but not limited to, the Assigned Patent Rights.
“Assigned Patent
Rights” means (a) the Patent Rights related to the patents set forth on
Schedule 1 hereto; and (b) all counterpart Patent Rights of any of the Patent
Rights in subpart (a).
“BIOPHAN” is defined
in the Preamble to this Agreement.
“BIOPHAN Disclosure
Schedule” is defined in the Preamble to Article 4 of this
Agreement.
"BIOPHAN Field" means
any technology related to the direct mechanical ventricular actuation
technology for mechanical support of the heart.
“Books and Records”
means all records and lists of BIOPHAN related solely to the Assigned Assets
including: all analysis reports, marketing reports and creative material
pertaining to the Assigned Assets, all records relating to past or present
customers, suppliers or personnel of BIOPHAN (including potential customers
lists, mailing address lists, e-mail address lists, recipient lists,
correspondence with potential customers, supply lists and records of purchases
from and correspondence with suppliers and any other written or electronic
identifiable data relating to past or present customers or suppliers of BIOPHAN
with regard to the Assigned Assets which has been created by BIOPHAN or its
representatives, agents or employees), all records relating to all product,
business and marketing plans of BIOPHAN as they related to the
Technology.
“Business Day” means
any weekday other than a weekday on which banks located in Rochester, New York
are authorized or required to be closed.
“Claim” means any
assertion of right whatsoever (including those arising from debts, bonds,
promises, damages, equitable claims and judgments), whether liquidated or
unliquidated, known or unknown, fixed or contingent, direct or indirect, or
imputed.
“Closing” is defined
in Section 3.3 (Closing Time and Place).
“Code” is defined in
Section 3.1 (Payments).
“Confidential
Information” means (i) the non-public information in this Agreement, and
the Ancillary Agreements; (ii) the details of the discussions and drafts leading
up to the execution of this Agreement or the Ancillary Agreements; and (iii) any
information or compilation of information of one of the Parties hereto (the
“Disclosing
Party”) which becomes known to another Party (the “Receiving Party”)
that is not generally known to the public, including trade secrets, whether
disclosed before or after the date of this Agreement, excluding information
which:
(a) was
already in the possession of the Receiving Party prior to the Receiving Party’s
receipt from the Disclosing Party (provided that the Receiving Party is able to
provide the Disclosing Party with reasonable documentary proof thereof and, if
received from a third party, that such information was acquired without breach
of a confidentiality or non-disclosure obligation related to such
information);
(b) is
or becomes a matter of public knowledge through no act of the Receiving Party or
its Affiliates or Representatives in violation of this Agreement;
(c) is
disclosed to the Receiving Party or its Affiliates on a nonconfidential basis by
a Third Party who lawfully obtained such information and is under no obligation
to maintain the confidentiality of such information; or
(d) has
been independently developed by the Receiving Party without breach of this
Agreement or use of any Confidential Information of the Disclosing Party
(provided that the Receiving Party is able to provide the Disclosing Party with
reasonable documentary proof thereof).
Information
meeting the above definition shall be treated as Confidential Information
regardless of its source, and all information identified as being “confidential”
or “trade secret” or labeled with words of similar import shall be presumed to
be Confidential Information. Confidential Information includes
information being held in confidence by a Disclosing Party for the benefit of a
third party.
“Consents” is defined
in Section 4.3 (Consents).
“Contractual
Obligation” means, with respect to any Person, any legal, valid and
binding contract, agreement, deed, note, debenture, warrant, option, mortgage,
lease, license, commitment, promise, undertaking, arrangement or understanding,
whether written or oral, or other document or instrument to which or by which
such Person is a party or otherwise subject or bound or to which or by which any
property, business, operation or right of such Person is subject or bound, in
each case as amended or otherwise modified and in effect.
“Disclosing Party” is
defined in “Confidential Information.”
“Dispute” means any
dispute, controversy, Action, or other issue relating to or arising under or in
connection with this Agreement or any of the Ancillary Agreements, their subject
matter, or their formation, interpretation, performance or breach, including
fraud in the inducement and the validity, scope and enforceability of the
Agreement.
“Effective Date” is
defined in the Preamble.
“Encumbrance” means
any interest relating to or arising out any lien, license, covenant not to xxx,
option, pledge, security interest, mortgage, right of first offer or first
refusal, buy/sell agreement and any other restriction or covenant with respect
to, or condition governing the use, construction, transfer, receipt of income or
exercise of any other attribute of legal or equitable ownership.
“Exploit” means make,
have made, use, import, export, offer to sell, sell or otherwise dispose
of. “Exploited,” “Exploitation” and
other variants or variations of the word “Exploit” shall have correlative
meanings.
“Field” means use of
Technology in or for any product or application.
“Filings” is defined
in Section 4.3 (Consents).
“Governmental
Authority” means any United States federal, state or local or any foreign
government, or political subdivision thereof, or any multinational governmental
organization or authority or any governmental authority, agency or commission in
each case entitled to exercise any administrative, executive, judicial,
legislative, police, regulatory or taxing authority or power, any court or
tribunal (or any department, bureau or division thereof), or any arbitrator or
arbitral body.
“Governmental Order”
means any order, writ, judgment, injunction, decree, stipulation, ruling,
determination or award entered by or with any Governmental Authority, but
excluding any action or inaction in the course of the ex parte preparation or
prosecution of any Patent Right and any order, writ, judgment, injunction,
decree, stipulation, ruling, determination or award of general
applicability.
“Indemnified Party”
means a Person to whom indemnification is provided under this
Agreement.
“Indemnifying Party”
means a Person providing indemnification under this Agreement.
“Intellectual
Property” means all forms of intellectual property in any jurisdiction
and under any law, whether now or hereafter existing, including (a) inventions,
discoveries, patent applications, patents (including letters patent, industrial
designs, and inventor’s certificates), design registrations, invention
disclosures, and applications to register industrial designs, and any and all
rights to any of the foregoing anywhere in the world, including any
provisionals, substitutions, extensions, supplementary patent certificates,
reissues, re-exams, renewals, divisions, continuations, continuations in part,
continued prosecution applications, and other similar filings or notices
provided for under the laws of the United States or of any other country; and
(b) trade secrets and other confidential or non-public technical information,
including ideas, formulas, compositions, inventor’s notes, discoveries,
improvements, concepts, know-how, manufacturing and development information,
data resulting or derived from research activities, Inventions, invention
disclosures, unpatented blue prints, drawings, specifications designs, plans,
proposals and technical data.
“Invention” means any
invention, discovery, know-how, trade secret, data, information, technology,
process or concept, whether or not patented or patentable, and whether or not
memorialized in writing.
“Instruments of
Assignment” means those documents and instruments necessary for Biophan
to effect the sale, conveyance, assignment, transfer and delivery of the
Acquired Assets to MCC or its designees, including assignment and assumption
agreements, bills of sale and other documents of assignment and transfer, all in
form and substance reasonably satisfactory to MCC, each in recordable form to
the extent necessary to duly assign such rights to MCC.
“Legal Requirement”
means any United States federal, state or local or foreign law, statute,
standard, ordinance, code, rule, regulation, resolution or promulgation, or any
Governmental Order, or any license, franchise, permit or similar right granted
under any of the foregoing, or any similar provision having the force or effect
of law.
“Liability” means,
with respect to any Person, any liability or obligation of such Person whether
known or unknown, whether asserted or unasserted, whether determined,
determinable or otherwise, whether strict, absolute or contingent, whether
accrued or unaccrued, whether liquidated or unliquidated, whether incurred or
consequential, whether due or to become due and whether or not required under
U.S. generally accepted accounting principles to be accrued on the financial
statements of such Person.
“Losses” means all
Actions, Claims, Liabilities, damages, judgments, amounts paid in settlement,
assessments, Taxes, losses, fines, penalties, expenses, costs and fees
(including reasonable attorneys’ fees), and amounts, costs and reasonable
attorneys’ fees associated with seeking indemnification hereunder.
“MCC” is defined in
the Preamble.
“Notices” is defined
in Section 4.3 (Consents).
“Organizational
Documents” means, with respect to any Person (other than an individual),
(a) the certificate or articles of incorporation or organization and any joint
venture, limited liability company, operating or partnership agreement, trust
agreement and instrument and other similar documents adopted or filed in
connection with the creation, formation or organization of such Person and (b)
all by laws, voting, agreements and similar documents, instruments or agreements
relating to the organization or governance of such Person, in each case as
amended or supplemented.
“Party” and “Parties” are defined
in the Preamble.
“Patent Rights” means
(i) any and all U.S. and foreign: (a) patents (including utility and
design patents); (b) patent applications (including utility and design patent
applications), including all provisional applications, substitutions,
continuations, continuations-in-part, divisions, renewals, and all patents
granted thereon; and (c) patents-of-addition, reissues, reexaminations and
extensions or restorations by existing or future extension or restoration
mechanisms, including supplementary protection certificates or the equivalent
thereof, (d) patent rights obtained from Third Parties through an interference
proceeding based upon any patent or application in (a)-(c),and (ii) any other
form of government-issued right substantially equivalent to any of the foregoing
now or hereafter recognized including, for example, statutory invention
disclosures or the like.
“Payment” is defined
in Section 3.1 (Payments).
“Person” means any
individual or corporation, association, partnership, limited liability company,
joint venture, joint stock or other company, business trust, trust,
organization, Governmental Authority or other entity of any kind.
“Receiving Party” is
defined in “Confidential Information.”
“Representative”
means, with respect to any Person, any director, officer, employee, agent,
consultant, advisor, partner, trustee or other representative of such Person,
including legal counsel, accountants and financial advisors.
“Tangible Assets”
means the assets set forth on Schedule 2.
“Tangible Materials”
means documents, files (including electronic files), diagrams, drawings, plans,
specifications, designs, schematics, records, reports, lab or research
notebooks, drawings, flow charts, specifications, written descriptions,
invention disclosures, source code, data, photographs of three-dimensional
prototypes and models, or other written, graphic or tangible materials or
embodiments (other than three-dimensional prototypes and models) relating to the
Assigned Patents, and all correspondence and files relating to the prosecution
of the Assigned Patents, in each case, within the possession, custody or control
of BIOPHAN or its Affiliates.
“Tax” or “Taxes” means any and
all federal, state, local or foreign income, gross receipts, license, payroll,
employment, excise, severance, stamp, occupation, premium, windfall profits,
capital stock, franchise, profits, withholding, social security (or similar,
including FICA), unemployment, disability, real property, personal property,
sales, use, transfer, registration, value added, alternative or add-on minimum,
estimated or other tax of any kind, including any interest, penalty or addition
thereto, whether disputed or not.
“Technology” means any
technology related to the direct mechanical ventricular actuation technology for
mechanical support of the heart.
“Third Party” means
any Person other than the Parties and their Affiliates.
“Third Party Claim”
means any Claim by a Third Party with respect to any matter that may give rise
to a Claim for indemnification under this Agreement.
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2.
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ASSIGNMENT,
LICENSES AND COVENANTS NOT TO XXX.
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2.1 Assigned
Assets. Effective as of the Closing, subject to the terms of
this Agreement, BIOPHAN hereby sells, conveys, assigns and transfers to MCC all
its interests in and to the Assigned Assets, together with the right to xxx and
collect for past infringement. MCC accepts the Assigned Assets, provided, that MCC does not
assume any liabilities or obligations of BIOPHAN related to the Assigned Assets
except as set forth in this Agreement.
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3.
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PAYMENTS;
CLOSING.
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3.1 Payments. MCC
shall pay the following to BIOPHAN in exchange for the rights granted
hereunder:
(a) In
exchange for the Assigned Assets MCC shall pay BIOPHAN as follows (the “ Cash
Consideration”):
(i) at
the Closing, MCC shall pay BIOPHAN One Hundred Thousand Dollars ($100,000) (the
“Closing Payment”);
(ii) on
the date that is the earlier of either (y) twelve (12) months from
the date from Closing or (z) upon MCC’s closing of a financing that is in the
aggregated in amount equal to or greater than $3 million, MCC shall pay BIOPHAN
One Hundred Fifty Thousand Dollars ($150,000).
(b) BIOPHAN
shall be issued 3,000,000 shares of MCC common stock with a par value of $.001,
which is equal to a 20% equity position in MCC.
(c) BIOPHAN
and MCC shall also enter into a Stock Holder Rights agreement whereby BIOPHAN
shall have certain rights relating to participation in future financing and sale
of its shares in an initial public offering.
3.2 Method of
Payment. Payments of the Cash Consideration shall be made by
wire transfer to an account designated by BIOPHAN. The amounts
payable hereunder shall be paid in United States dollars.
3.3 Closing Time and
Place. The Closing of the purchase and sale of the Assigned
Assets and the transactions contemplated by the Ancillary Agreements (the “Closing”) shall take
place within three (3) Business Days after all of the conditions to closing set
forth in this Section 3.3 shall have been satisfied or waived by MCC in
writing. At the Closing, MCC shall make the Closing
Payment. Notwithstanding anything to the contrary herein, MCC’s
obligation to proceed to the Closing shall be conditioned on the
following:
(a) All
permissions, releases, Consents or approvals, governmental or otherwise,
necessary on the part of BIOPHAN to consummate the transactions contemplated
this Agreement shall have been obtained;
(b) There
shall not have been issued and be in effect any order, decree or judgment of or
in any court or tribunal of competent jurisdiction which makes the consummation
of the transactions contemplated hereby illegal;
(c) BIOPHAN
has agreed provide advisory and consulting services to MCC related to the
Technology. These advisory and consulting services shall be at no cost to MCC
for a period of thirty (30) Business Days following Closing;
(d) MCC
shall have received from BIOPHAN such Instruments of Assignment and other
instruments sufficient to convey, transfer and assign to MCC all right, title
and interest in the Assigned Assets, free and clear of all Encumbrances, all in
form and substance reasonably satisfactory to MCC and its counsel;
3.4 Termination of
Closing. The respective obligations of the Parties to consummate the
Closing may be terminated and abandoned at any time at or before the Closing
only as follows:
(a) By
and at the option of MCC if the Closing shall not have occurred within 30 days
from the date hereof; provided that MCC shall not have breached in any material
respect its obligations under this Agreement in any manner that shall have been
the proximate cause of, or resulted in, the failure to consummate the
Closing.
(b) By
and at the option of BIOPHAN if the Closing shall not have occurred within 30
days from the date hereof; provided that BIOPHAN shall not have breached in any
material respect its obligations under this Agreement in any manner that shall
have been the proximate cause of, or resulted in, the failure to consummate the
Closing.
(c) At
any time, without liability of any party to the others, upon the mutual written
consent of BIOPHAN and MCC.
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4.
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BIOPHAN’S
REPRESENTATIONS AND WARRANTIES.
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BIOPHAN
represents and warrants to MCC that the statements contained in this Section 4
are true, correct and complete as of the date hereof and as of the Closing,
except as set forth in the BIOPHAN’s disclosure schedule accompanying this
Agreement (the “BIOPHAN Disclosure Schedule”). The BIOPHAN Disclosure
Schedule will be arranged in paragraphs corresponding to the lettered and
numbered paragraphs contained in this Section 4.
4.1 Authorization. BIOPHAN
is a Nevada company duly organized, validly existing and in good standing under
the laws of the State of Nevada. BIOPHAN has the full corporate power
and authority to execute and deliver this Agreement and each Ancillary Agreement
to which it is a party and to perform its respective obligations under this
Agreement and under each such Ancillary Agreement. All corporate
actions or proceedings to be taken by or on the part of BIOPHAN to authorize and
permit the execution and delivery by BIOPHAN of this Agreement and each of the
Ancillary Agreements to which it is a party and to perform its respective
obligations under this Agreement and under such Ancillary Agreements have been
duly taken. This Agreement has been duly executed and delivered by
BIOPHAN and constitutes the legal, valid and binding obligation of BIOPHAN,
enforceable in accordance with its terms and conditions subject to bankruptcy,
insolvency, reorganization, moratorium and other similar laws of general
application affecting the rights and remedies of creditors and to general
principles of equity. Each of the Ancillary Agreements to which
BIOPHAN is a party will be, as of the Closing, duly executed and delivered by
BIOPHAN and will constitute, as of the Closing, the legal, valid and binding
obligation of BIOPHAN, enforceable in accordance with its terms and conditions
subject to bankruptcy, insolvency, reorganization, moratorium and other similar
laws of general application affecting the rights and remedies of creditors and
to general principles of equity.
4.2 Noncontravention. Neither
the execution and delivery of this Agreement and the Ancillary Agreements nor
the consummation of the transactions contemplated hereby and thereby by BIOPHAN
will (i) conflict with or result in a breach of or default under the
Organizational Documents of BIOPHAN, (ii) violate any material Legal Requirement
to which any of BIOPHAN or its Affiliates or any of their assets or property is
subject, (iii) conflict with or result in a breach of, default under, right to
accelerate payment under or obligation to make any payment pursuant to or loss
of material rights under, or modify or terminate any material Contractual
Obligation by which BIOPHAN or its Affiliates or any of their assets or property
is bound or subject, (iv) result in the creation or imposition of any
Encumbrance upon or forfeiture of any of the Assigned Patent Rights, or (v)
result in the creation of any Claim that could result in the creation or
imposition of any Encumbrance upon or forfeiture of any of the Assigned Patent
Rights.
4.3 Consents. No
approval, authorization, permit, license, waiver or consent is required from any
Third Party (including any Governmental Authority) (collectively, the “Consents”) and no
filing or notice is required to be made with or given to any Third Party
(including any Governmental Authority) (respectively, the “Filings” and the
“Notices”) for
BIOPHAN and its Affiliates to accomplish the transactions contemplated by this
Agreement and the Ancillary Agreements.
4.4 Litigation. There is
no Action pending or, to the Knowledge of BIOPHAN, threatened against or
involving any of BIOPHAN or its Affiliates that could adversely affect (i) the
Assigned Intellectual Property Rights or (ii) the ability of BIOPHAN or its
Affiliates to consummate the Closing or perform any obligations under this
Agreement or the Ancillary Agreements. For purposes of this Section 4.4,
threatened Actions shall include requests for interference, Third Party requests
for re-examination and requests for oppositions.
4.5 Title. BIOPHAN
owns, and as of the Closing shall own, all rights, title and interests in and to
the Assigned Assets and has the full right and power to assign good title to the
Assigned Assets, in each case free and clear of all Encumbrances and all
Claims. There is no agreement granting rights under the Assigned
Assets or imposing obligations with respect to the Assigned Assets.
4.6 Intellectual
Property.
(a) Completeness. The
Assigned Intellectual Property Rights listed on Schedule 1 include all Patent
Rights in which BIOPHAN or any of its Affiliates has any right, title or
interest in the Technology, including without limitation any rights under
licenses. BIOPHAN has provided MCC with correct and complete copies
of all such Patent Rights.
(b) Representations Regarding
Intellectual Property. With respect to each patent and
patent application included within the Assigned Intellectual Property
Rights:
(i) each
issued, unexpired patent: (a) is, to the knowledge of BIOPHAN, valid and
enforceable; and (b) has been properly obtained in accordance with
all applicable rules and regulations governing the prosecution of applications
for such patent, and BIOPHAN and its Affiliates and their Representatives have
not engaged in any fraud or other misconduct with regard to the prosecution or
procurement of such patent;
(ii) no
claim has been asserted or threatened by any person, with respect to the use of
the Assigned Intellectual Property Rights or challenging or questioning the
validity or effectiveness of any license or agreement with respect thereto, and,
to the knowledge of BIOPHAN, no valid basis for any such claim
exists;
(iii) to
the knowledge of BIOPHAN, no person, business or products has infringed, misused
or misappropriated the Assigned Intellectual Property Rights or currently is
infringing, misusing or misappropriating any such rights, and to the knowledge
BIOPHAN, neither the use of the Assigned Intellectual Property Rights, nor the
manufacture, marketing, distribution, use or sale of any product or service
currently under development by BIOPHAN, infringes on the Intellectual Property
of any person in a manner;
(iv) for
each issued, unexpired patent or pending patent application, in all material
respects, (A) all necessary application, annuity, maintenance and renewal fees
in connection with all patent and patent applications have been paid and (B) all
necessary documents and certificates in connection therewith have been filed
with the relevant authority for the purpose of maintaining the patent
registrations or applications; and
(v) no
issued, unexpired patent is undergoing cancellation, re-examination, termination
or withdrawal proceedings.
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5.
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MCC’S
REPRESENTATIONS AND WARRANTIES.
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MCC
represents and warrants to BIOPHAN that the statements contained in this Section
5 are true and correct as of the date hereof and on the Closing
date.
5.1 Organization. MCC
is a Delaware corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware.
5.2 Authorization. MCC
has the full corporate power and authority to execute and deliver this Agreement
and each Ancillary Agreement to which it is a party and to perform its
respective obligations under this Agreement and under each such Ancillary
Agreement. All corporate actions or proceedings to be taken by or on
the part of MCC to authorize and permit the execution and delivery by MCC of
this Agreement and each of the Ancillary Agreements to which it is a party and
to perform its respective obligations under this Agreement and under such
Ancillary Agreements have been duly taken. This Agreement has been
duly executed and delivered by MCC and constitutes the legal, valid and binding
obligation of MCC, enforceable in accordance with its terms and conditions
subject to bankruptcy, insolvency, reorganization, moratorium and other similar
laws of general application affecting the rights and remedies of creditors and
to general principles of equity. Each of the Ancillary Agreements to
which MCC is a party will be, as of the Closing, duly executed and delivered by
MCC and will constitute, as of the Closing, the legal, valid and binding
obligation of MCC, enforceable in accordance with its terms and conditions
subject to bankruptcy, insolvency, reorganization, moratorium and other similar
laws of general application affecting the rights and remedies of creditors and
to general principles of equity.
5.3 Noncontravention. Neither
the execution and delivery of this Agreement and the Ancillary Agreements nor
the consummation of the transactions contemplated hereby and thereby by MCC will
(i) conflict with or result in a breach of or default under the Organizational
Documents of MCC, or (ii) violate any material Legal Requirement to which MCC or
any of its assets or property is subject.
5.4 Consents. No
Consents, Filings or Notices are required for MCC to accomplish the transactions
contemplated by this Agreement and the Ancillary Agreements.
5.5 No Other Representations and
Warranties. Except as expressly set forth in Section 5 of this
Agreement, MCC makes no representation or warranty, express or implied, at law
or in equity with respect to this Agreement, or otherwise.
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6.
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COVENANTS.
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6.1 Closing. Subject
to the terms and conditions of this Agreement, each of the Parties will use its
commercially reasonable efforts to take, or cause to be taken, all actions and
to do, or cause to be done, all things necessary, proper or advisable in order
to consummate and make effective the transactions contemplated by this
Agreement.
6.2 Protection of the Subject
Intellectual Property. From the Effective Date until the
Closing, BIOPHAN shall, and shall cause its Affiliates and Representatives
to:
(i) use
commercially reasonable efforts to preserve and to maintain and protect their
rights, title and interests in and to the Assigned Intellectual Property
Rights;
(ii) use
commercially reasonable efforts to pay or otherwise satisfy all of its and their
respective Liabilities in respect of the Assigned Intellectual Property Rights;
and
(iii) comply
with all Legal Requirements applicable to the Assigned Intellectual Property
Rights.
6.3 Further
Assurances. From time to time upon request by MCC, BIOPHAN
will, and will cause its Affiliates to, execute, acknowledge and deliver, or
will cause to be done, executed, acknowledged and delivered, all such further
acts, deeds, assignments, transfers, license grants, conveyances, powers of
attorney, and assurances that may be required to carry out the purposes of this
Agreement. Without limiting the foregoing, following the Closing,
BIOPHAN shall take such further actions that are reasonably necessary to
accomplish the complete transfer and assignment of BIOPHAN’s rights, title and
interests in and to the Assigned Intellectual Property Rights to MCC. During the
period between the Effective Date and the Closing, BIOPHAN will notify MCC in
writing within five (5) Business Days after BIOPHAN becomes aware that any
interference is declared involving any of the Assigned Patent
Rights.
6.4 Third Party
Actions. Except as agreed to by the Parties in writing,
following the Closing, MCC will have the sole and exclusive right and discretion
to enforce the rights, title and interests in and to the Assigned Intellectual
Property Rights against Third Parties. Following the Closing, MCC
will decide whether or not to institute any proceeding against any Third Party
with respect to any alleged infringement or misappropriation of the rights,
title and interests in and to the Assigned Intellectual Property Rights in its
sole and absolute discretion and will keep all proceeds of any such
proceedings. If MCC is unable to enforce any obligation or other
right without BIOPHAN being party to an Action, then BIOPHAN shall voluntarily
join as a party in such Action as necessary to enforce any such obligation or
other right; provided, that MCC
agrees in advance to reimburse BIOPHAN for its reasonable fees, costs and
expenses relating thereto. Following the Closing, BIOPHAN shall not
testify (whether by declaration, affidavit, or in person) and BIOPHAN shall not
challenge or assist any Third Party in challenging the validity, enforceability
or value of the Assigned Intellectual Property Rights, in each case other than
under subpoena or similar legal order. BIOPHAN shall not, and shall
cause its Affiliates not to, assist any Third Party in the assertion of any
Patent Rights in the Field against MCC or its Affiliates, other than under
subpoena or other legal process.
6.5 Confidentiality. The
Receiving Party agrees to maintain the confidentiality of the Confidential
Information of the Disclosing Party and agrees not to disclose or use (except as
permitted or required for performance by the Receiving Party of its rights or
duties hereunder or under the Ancillary Agreements) any Confidential Information
of the Disclosing Party. The Receiving Party further agrees to cause
its and its Affiliates’ present and future employees, officers, agents and
consultants to comply with the foregoing. If the Receiving Party is
requested or required to disclose any Confidential Information of the Disclosing
Party pursuant to any order or decree of a court of competent jurisdiction or
any applicable law, the Receiving Party shall endeavor to provide the Disclosing
Party with advance written notice of any such request or requirement (to the
extent practicable) and shall provide reasonable assistance to the Disclosing
Party if the Disclosing Party desires to seek a protective order or other
appropriate remedy. If, in the absence of a protective order or other
remedy, the Receiving Party is nonetheless legally compelled to disclose
Confidential Information, the Receiving Party may, without liability hereunder,
disclose that portion of the Disclosing Party’s Confidential Information that
the Receiving Party’s legal counsel advises is legally required to be
disclosed.
6.6 Public
Statements. The Parties acknowledge and agree that no Party or
its Affiliate shall publicly disclose information regarding the terms of this
Agreement or the Ancillary Agreements or the transactions contemplated hereunder
or thereunder. Notwithstanding the foregoing provision, the Parties
and their respective Affiliates shall not be prohibited from making any
disclosure or release that is required by law, court order, or applicable
regulation or that is required to protect any intellectual property right in any
territory; provided, however, that prior to any such disclosure or release, the
party proposing to so disclose or release information regarding the terms of
this Agreement or the Ancillary Agreements shall notify the other parties, and
the parties shall cooperate to seek applicable limitations on the public
availability of any information that either MCC or BIOPHAN considers sensitive
or confidential.
6.7 Patent
Prosecution. Except as specifically agreed to by the Parties
in writing, following the Closing, BIOPHAN will have no right or obligation to
file, prosecute or maintain any Patent Rights included in the Assigned Patent
Rights. MCC will have no obligation to file, prosecute or maintain
any Patent Rights included in the Assigned Patent
Rights. Notwithstanding the foregoing, the Parties agree as
follows:
(a) BIOPHAN Field
Covenant. BIOPHAN hereby irrevocably and perpetually
covenants, agrees and warrants that BIOPHAN shall not, and shall cause its
Affiliates not to, amend any patent application owned or controlled by it to
include a claim that covers the Field (“Field
Claim”). The covenant in this Section 6.7(a) shall inure to
the benefit of the respective permitted successors and assigns of MCC and its
Affiliates, and may be extended by MCC and its Affiliates with respect to any
product line, to any Third Party that acquires substantially all the assets
relating to such product line. In the event that BIOPHAN or its
Affiliates breaches its covenant in this Section 6.8(a), then BIOPHAN agrees to
grant (and to cause its Affiliate to grant), and hereby grants, to MCC and its
Affiliates an irrevocable, perpetual, paid-up, worldwide, transferable and
assignable, exclusive license, with the right to sublicense, to practice methods
falling within the scope of the Field Claim in the Field and to Exploit products
falling within the scope of the Field Claim in the Field.
(b) Promptly
after Closing the Biophan agrees to assist MCC in transfer and delivery of all
documents related to the patent applications associated with the Assigned Patent
Rights to legal counsel designated by MCC.
6.8 Tangible
Materials. BIOPHAN shall, as soon as reasonably practicable
deliver any Tangible Materials related to the Technology that are in the
possession of BIOPHAN or its Affiliates or Representatives.
6.9 Books and
Records. BIOPHAN shall, as soon as reasonably practicable
deliver any Books and Records that are in the possession of BIOPHAN or its
Affiliates or Representatives that related to the Technology.
|
7.
|
INDEMNIFICATION.
|
7.1 Indemnification by
BIOPHAN. BIOPHAN and its Affiliates shall jointly and
severally indemnify, defend and hold harmless MCC and its Affiliates and
Representatives, whether or not involving a Third Party Claim, against all
Losses relating to or arising out of:
(a) (i)
the breach of any representation or warranty of BIOPHAN under Section 4 of this
Agreement or (ii) the breach of any covenant or obligation of BIOPHAN or its
Affiliates in this Agreement or any of the Ancillary Agreements;
(b) any
Third Party Claim arising under or relating to a right to assign title to the
Assigned Patent Rights, including any ability of BIOPHAN or its Affiliates to
grant any license or make assignments hereunder or any restriction on BIOPHAN’s
or its Affiliates’ rights to or make assignments of right, title and interest in
and to the Assigned Patent Rights; or
(c) any
Contractual Obligation of BIOPHAN or its Affiliates to make any payments to any
Third Party arising out of or relating to the payment of the Closing
Payments.
7.2 Indemnification by
MCC. MCC shall indemnify, defend and hold harmless BIOPHAN and
its Affiliates and Representatives, whether or not involving a Third Party
Claim, against all Losses relating to or arising out of:
(a) the
breach of any representation or warranty of MCC in Section 5 of this Agreement
or the breach of any covenant or obligation of MCC in this Agreement or any of
the Ancillary Agreements;
(b) any
Claims or Actions by any Third Party arising out of or relating to the
Exploitation by MCC or its Affiliates of or relating to products, product
systems or procedures derived from or based on the Assigned Intellectual
Property Rights.
7.3 Survival. The
terms of this Agreement and all provisions hereof, including all
representations, warranties, promises, agreements and covenants, are contractual
and not mere recitals and shall survive the execution and delivery of this
Agreement and the Closing under this Agreement for a period of 12 months;
provided that nothing in this Section 7.3 shall be interpreted as requiring that
the representations and warranties set forth in Article 4 be and remain true and
correct at times after the Closing subject to MCC’s right pursuant to Section
7.1 to make Claims based on the breach or inaccuracy of such representations and
warranties as of the Closing and times prior thereto.
7.4 Notice of
Claims. If an Indemnified Party intends to seek
indemnification pursuant to this Agreement, such Indemnified Party shall
promptly notify the Indemnifying Party in writing of the Claim for which
indemnification is sought, including any Third Party Claims in respect of which
indemnification is sought under this Agreement. Any such notice shall
set forth in reasonable detail, in light of the circumstances then known to the
Indemnified Party, the facts, circumstances and basis of the Claim and, if the
Claim relates to a Third Party Claim, shall include copies of all papers served
upon or received by the Indemnified Party relating thereto. Any delay
in the provision of such notice and accompanying materials shall not affect any
rights under this Agreement except to the extent that the Indemnifying Party is
actually and materially prejudiced thereby (and except that the Indemnifying
Party shall not be liable for any expenses incurred during the period in which
the Indemnified Party failed to give such notice).
7.5 Third Party
Claims. The Indemnified Party shall have the sole and
exclusive right to control of the defense of any Third Party Claim with counsel
of its choice, and the Indemnified Party’s reasonable legal fees and expenses
shall constitute part of the Losses indemnified under this
Agreement. The Indemnified Party may consent to the entry of any
judgment or enter into any compromise or settlement with respect to, the Third
Party Claim; provided, that the Indemnifying Party will not be bound by the
entry of any such judgment consented to, or any such compromise or settlement
effected, without its prior written consent (which consent will not be
unreasonably withheld or delayed)
7.6 Knowledge and
Investigation. The right of any Indemnified Party to
indemnification pursuant to this Section 7 will not be affected by any
investigation conducted or knowledge acquired (or capable of being acquired) at
any time, whether before or after the execution and delivery of this Agreement
or the Closing, with respect to the accuracy of any representation or warranty,
or performance of or compliance with any covenant or agreement under this
Agreement.
7.7 Equitable
Remedies. In addition to any other relief or remedies afforded
by law or in equity, if either Party or any of its Affiliates breaches its
obligations under this Agreement, the other Party shall be entitled, as a matter
of right and without posting any bond or other security, to injunctive relief in
any court of competent jurisdiction. This shall not preclude the
granting of any other appropriate relief including, without limitation, money
damages against the breaching Party for breach of this Agreement.
|
8.
|
MISCELLANEOUS.
|
8.1 Interpretation. Except
as otherwise explicitly specified to the contrary, (a) references to a Section,
Exhibit or Schedule means a Section of or Schedule or Exhibit to this Agreement,
unless another agreement is specified, (b) the word “including” will be
construed as “including but not limited to,” and will not be construed as
limiting the general language to which it relates, and the items or matters that
follow the word “including” or the words “including but not limited to” or
“including without limitation” or similar words in this Agreement shall be
construed as illustrative, but not exclusive or complete, examples of what is
intended to be so included, (c) the term “or” is not limiting and means
“and/or,” (d) references to a particular statute or regulation include all rules
and regulations thereunder and any predecessor or successor statute, rules or
regulation, in each case as amended or otherwise modified from time to time, (e)
words in the singular or plural form include the plural and singular form,
respectively, (f) references to a particular Person include such Person’s
successors and assigns to the extent not prohibited by this Agreement and (g)
references to “Dollars” or “$” shall be to U.S. Dollars. The Parties
have participated jointly in the negotiation and drafting of this
Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the Parties and no presumption or burden of proof shall arise favoring or
disfavoring any Party by virtue of the authorship of any of the provisions of
this Agreement.
8.2 No Third Party
Beneficiaries. Except as specifically provided in this
Agreement, this Agreement shall not confer any rights or remedies upon any
Person other than the Parties and their respective successors and permitted
assigns.
8.3 Entire
Agreement. Except as agreed to by the parties in writing, this
Agreement, the Schedules and Exhibits hereto, and the Ancillary Agreements
constitute the entire agreement among the Parties and supersedes any prior
understandings, agreements or representations by or among the Parties, whether
written or oral, with respect to the subject matter hereof.
8.4 Assignment. No
Party may assign either this Agreement or any of its rights, interests or
obligations under this Agreement without the prior written approval of the other
Parties; provided, however,
that MCC may, without notice to or consent of BIOPHAN, (i) assign all of its
rights and interests and delegate all of its obligations under this Agreement to
a Third Party in connection with the sale of all or substantially all of the
capital stock of MCC or all or substantially all of the assets to which this
Agreement relates (whether by merger, consolidation or otherwise) to such Third
Party, provided that such Third Party executes a counterpart to this Agreement
acknowledging and agreeing to assume all such obligations of MCC and its
Affiliates under this Agreement; (ii) assign all of its rights and interests to
one or more of its Affiliates; (iii) assign right, title and interest in and to
any of the Assigned Intellectual Property Rights to any party; and (iv)
designate one or more of its Affiliates to perform its obligations under this
Agreement provided that such designation shall not relieve MCC from its
obligations under this Agreement. Subject to the foregoing, this
Agreement shall be binding upon and inure to the benefit of the Parties named
herein and their respective successors and permitted assigns.
8.5 Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same
instrument.
8.6 Headings. The
Section headings contained in this Agreement are inserted for convenience only
and shall not affect in any way the meaning or interpretation of this
Agreement.
8.7 Notices. All
communications between BIOPHAN and MCC relating to this Agreement and the
subject matter hereof shall be directed to the persons designated to receive
notices set forth in this Section 8.7 or such other individuals as they may
designate. All notices, requests, demands, Claims and other
communications under this Agreement shall be in writing. Any notice,
request, demand, Claim or other communication under this Agreement shall be
deemed duly given (i) when delivered personally to the recipient, (ii) upon
confirmation of facsimile (with a confirmation copy to be sent by overnight
delivery) or (iii) one Business Day following the date sent when sent by
overnight delivery, at the following address:
If to
BIOPHAN:
BIOPHAN
Technologies, Inc.
00 Xxxxxx
Xxxxx
Xxxxxxxxx,
XX 00000
Attention: Xxxx
Xxxxxxxxx
If to
MCC:
MyoCardioCare,
Inc.
0000
Xxxxxxxx Xxx
Xxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxx
X. Xxxxxxxx
Any Party
may change the named party and address to which notices, requests, demands,
Claims and other communications under this Agreement are to be delivered by
giving the other Party notice in the manner herein set forth.
8.8 Governing
Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of New York without giving effect
to any choice or conflict of law provision or rule (whether of the State of New
York or any other jurisdiction) that would cause the application of the laws of
any jurisdiction other than the State of New York. The parties hereto
submit to the exclusive jurisdiction of the State and Federal courts in the
State of New York and Monroe County with respect to any dispute.
8.9 Amendments and
Waivers. No amendment of any provision of this Agreement shall
be valid unless the same shall be in writing and signed by MCC and
BIOPHAN. No waiver by any Party of any provision of this Agreement or
any default, misrepresentation or breach of warranty or covenant under this
Agreement, whether intentional or not, shall be valid unless the same shall be
in writing and signed by the Party making such waiver nor shall such wavier be
deemed to extend to any prior or subsequent default, misrepresentation or breach
of warranty or covenant under this Agreement or affect in any way any rights
arising by virtue of any prior or subsequent such occurrence. Any
consent, waiver or amendment signed by BIOPHAN shall be deemed the consent,
waiver or amendment of BIOPHAN and its Affiliates and any consent, waiver or
amendment signed by MCC shall be deemed the consent, waiver or amendment of
MCC’s and its Affiliates pursuant hereto.
8.10 Severability. Any
term or provision of this Agreement that is invalid or unenforceable in any
situation in any jurisdiction shall not affect the validity or enforceability of
the remaining terms and provisions hereof or the validity or enforceability of
the offending term or provision in any other situation or in any other
jurisdiction. In the event that any term or provision of this
Agreement would, under applicable law, be invalid or unenforceable in any
respect, each Party intends that such provision will be construed by modifying
or limiting it so as to be valid and enforceable to the maximum extent
compatible with, and possible under, applicable law. For any such
invalid or unenforceable provision, the Parties shall use commercially
reasonable efforts to negotiate a substitute valid and enforceable provision
while preserving to the fullest extent possible the intent and agreements of the
Parties set forth herein.
8.11 Expenses. Except
as expressly stated otherwise, each of the Parties will bear his or its own
costs and expenses (including legal and accounting fees and expenses) incurred
in connection with this Agreement, the Ancillary Agreements and the transactions
contemplated hereby and thereby.
[Signature
Page Follows]
IN WITNESS WHEREOF, each of the
undersigned has executed this Agreement as an agreement under seal as of the
date first above written.
|
MYOCARDIOCARE,
INC.
|
|||
|
|
|||
|
By:
|
/s/Xxxxx X. Xxxxxxxx | ||
|
Name:
Xxxxx X. Xxxxxxxx
|
|||
|
Title:
President
|
|||
|
BIOPHAN
TECHNOLOGIES, INC
|
|||
|
|
|||
|
By:
|
/s/ Xxxx Xxxxxxxxx | ||
|
Name:
Xxxx Xxxxxxxxx
|
|||
|
Title:
Chief Executive Officer
|
|||
Schedule
1 - Patents
|
IMATTER
NO
|
COUN-
TRY
ID
|
TYPE
|
SERIAL
NO
|
PATENT
NO
|
PUBL
NO
|
TITLE
|
STATUS
|
FILE
|
PUBL
|
ISSUE
|
|
1034448-000016
|
CA
|
UTL
|
2,530,574
|
Sensor-Equipped
and Algorithm Controlled Direct Mechanical Ventricular Assist
Device
|
ABANDONED
|
6
/25/2004
|
||||
|
1034448-000019
|
CN
|
UTL
|
200480023755.8
|
1838971
|
Sensor-Equipped
and Algorithm Controlled Direct Mechanical Ventricular Assist
Device
|
PUBLISHED
|
6
/25/2004
|
9
/27/2006
|
||
|
1034448-000017
|
EP
|
UTL
|
04777156.3
|
1644060
|
Sensor-Equipped
and Algorithm Controlled Direct Mechanical Ventricular Assist
Device
|
PUBLISHED
|
6
/25/2004
|
4
/12/2006
|
||
|
1034448-000025
|
EP
|
UTL
|
05713894.3
|
1748807
|
Method
and Apparatus for Direct Mechanical Ventricular Actuation with Favorable
Conditioning and Minimal Heart Stress
|
PUBLISHED
|
2
/22/2005
|
2
/7 /2007
|
||
|
1034448-000018
|
IN
|
UTL
|
89/DELNP/2006
|
Sensor-Equipped
and Algorithm Controlled Direct Mechanical Ventricular Assist
Device
|
ABANDONED
|
6
/25/2004
|
8
/24/2007
|
|||
|
1034448-000020
|
JP
|
UTL
|
2006-517710
|
2007-524464
|
Sensor-Equipped
and Algorithm Controlled Direct Mechanical Ventricular Assist
Device
|
PUBLISHED
|
6
/25/2004
|
8
/30/2007
|
||
|
1034448-000007
|
US
|
UTL
|
10/607,434
|
7,494,459
|
US-2004-0267086-A1
|
Sensor-Equipped
and Algorithm-Controlled Direct Mechanical Ventricular Assist
Device
|
ISSUED
|
6
/26/2003
|
12/30/2004
|
2
/24/2009
|
|
1034448-000009
|
US
|
UTL
|
10/795,098
|
US
2006-0167334 A1
|
Method
and Apparatus for Direct Mechanical Ventricular Actuation with Favorable
Conditioning and Minimal Heart Stress
|
ABANDONED
|
3
/5 /2004
|
7
/27/2006
|
||
|
1034448-000011
|
US
|
UTL
|
11/143,542
|
US
2005-0234289 A1
|
Therapeutic
Agent Delivery Apparatus with Direct Mechanical Ventricular Assistance
Capability
|
ABANDONED
|
6
/2 /2005
|
10/20/2005
|
||
|
1034448-000021
|
US
|
UTL
|
11/302,322
|
US
2006-0211909 A1
|
Method
and Apparatus for Direct Mechanical Ventricular Actuation with Favorable
Conditioning and Minimal Heart Stress
|
ABANDONED
|
12/14/2005
|
9
/21/2006
|
||
|
1034448-000013
|
US
|
UTL
|
11/359,542
|
US
2006-0142634 A1
|
Sensor-Equipped
and Algorithm Controlled Direct Mechanical Ventricular Assist
Device
|
ABANDONED
|
2
/23/2006
|
6
/29/2006
|
||
|
1034448-000008
|
WO
|
UTL
|
PCT/US2004/020605
|
Sensor-Equipped
and Algorithm Controlled Direct Mechanical Ventricular Assist
Device
|
NAT
PHASE
|
6
/25/2004
|
||||
|
1034448-000010
|
WO
|
UTL
|
US2005/005497
|
WO
2005/091860
|
Method
and Apparatus for Direct Mechanical Ventricular Actuation with Favorable
Conditioning and Minimal Heart Stress
|
NAT
PHASE
|
2
/22/2005
|
12/7
/2006
|
||
|
1034448-000027
|
CA
|
UTL
|
2,631,227
|
Method
and Apparatus for Minimally Invasive Direct Mechanical Ventricular
Actuation
|
PENDING
|
11/28/2006
|
||||
|
1034448-000028
|
CN
|
UTL
|
200680051933.7
|
101336119
|
Method
and Apparatus for Minimally Invasive Direct Mechanical Ventricular
Actuation
|
PUBLISHED
|
11/28/2006
|
12/31/2008
|
||
|
1034448-000029
|
EP
|
UTL
|
06838453.6
|
1957160
|
Method
and Apparatus for Minimally Invasive Direct Mechanical Ventricular
Actuation
|
PUBLISHED
|
11/28/2006
|
8
/20/2008
|
||
|
1034448-000030
|
IN
|
UTL
|
4945/DELNP/2008
|
Method
and Apparatus for Minimally Invasive Direct Mechanical Ventricular
Actuation
|
PUBLISHED
|
11/28/2006
|
8
/8 /2008
|
|||
|
1034448-000031
|
JP
|
UTL
|
2008-543377
|
2009-517183
|
Method
and Apparatus for Minimally Invasive Direct Mechanical Ventricular
Actuation
|
PUBLISHED
|
11/28/2006
|
4
/30/2009
|
||
|
1034448-000012
|
US
|
PRV
|
60/739,945
|
Method
and Apparatus for Minimally Invasive Direct Mechanical Ventricular
Actuation
|
EXPIRED
|
11/28/2005
|
||||
|
1034448-000032
|
US
|
UTL
|
12/085,547
|
Method
and Apparatus for Minimally Invasive Direct Mechanical Ventricular
Actuation
|
PENDING
|
5
/27/2008
|
||||
|
1034448-000026
|
WO
|
UTL
|
US2006/045492
|
WO/2007/062239
|
Method
and Apparatus for Minimally Invasive Direct Mechanical Ventricular
Actuation
|
NAT
PHASE
|
11/28/2006
|
5
/31/2007
|
||
|
1034448-000023
|
US
|
UTL
|
Algorithm-Controlled
Direct Mechanical Ventricular Assist Devices
|
CLOSED
|
||||||
|
MYO102
|
US
|
UTL
|
12/484,190
|
Direct
Mechanical Ventricular Actuation Device and Methods for Controlling
Same
|
PENDING
|
06/13/2009
|
Schedule
2 – Tangible Assets
Other
Assets
Four (4)
prototype drive units, including software, Dell computers and related sensors
(including Xxxxxx transducers, Xxxxxx pressure control units, and Transonic flow
probes and meters)
Dell
desktop computer, duplicate of the four included in the drive units
Transonic
Systems, Inc. 3 Channel mod-flow meter
All
Myotech cup prototypes
All
Myotech legacy drive unit prototypes
LabView
Application Builder software package
Heart
model and closed loop pumping circuit for in vitro testing
MYO-VAD
tooling for injection molding cups
Copy of
all electronic and hardcopy files associated with the design of Drive
Units, Cups, Cup mold tooling, Cup assembly tooling, and Cup sizing
devices.
All
laboratory data and records in the possession of Biophan associated with testing
and designs of Myotech cups and drive units
Copy of
invention notebooks a) of current employees and consultants and b) of past
employees, consultants and Founders related to the Technology
All
electronic files associated with the Myotech regulatory documents, marketing
materials, customer lists, videos and presentation
Copy of
all grant applications related to the Technology by Myotech and by
Biophan
Copy of
Consulting Agreements for all people associated with Myotech
-1-
Biophan
Disclosure Schedule
Article
4
Article
4.5 – The Assigned Patent Rights are subject to a royalty obligation to Advanced
Resuscitation, LLC, as stated in the Patent Assignment Agreement between
Advanced Resuscitation, LLC and Myotech, LLC, executed December 20,
2005. This obligation was assigned with the patents to Biophan
Technologies, Inc. and will be assumed by MCC upon the assignment of
the patents to MCC.
-2-
