EX-10.2
TECHNOLOGY PURCHASE AGREEMENT
TECHNOLOGY PURCHASE AGREEMENT
This Technology Purchase Agreement (the "Agreement") dated July 3,
2006, is made by and between:
PANGEA INVESTMENTS GMBH,
a company formed according to the laws of the state of Switzerland
having its principal at 000x Xxxxxxxxxxxxx, XX-0000 Xx,xxxxxx / XX,
Xxxxxxxxxxx. (hereinafter "Pangea").
And
ANDAIN INC,
a company formed according to the laws of the State of Nevada, having
its principal at 0000 Xxxx Xxxx, Xxxxx 000, Xxxx, Xxxxxx 00000
(hereinafter "the Buyer").
WHEREAS Pangea is the legal owner of the intellectual properties,
potential patent rights, know-how and research and development in
process, and all related technical information whether tangible or
intangible, including without limitation any data, designs,
calculations, formulas (human readable format) and executables and
laboratory results (machine readable format), specifications,
reformulations of drug molecules of Polymyxins (B&E), lipid based
nano-particles, test of such molecules, formulation instructions,
medical care procedures related to the molecules including notes,
technical specifications, medical manuals if any, development and
user documentation, training materials, and other data, information,
know-how and all goodwill associated therewith, in each case which
are in the possession of, owned by or licensed to Pangea and are
necessary or desirable to enhance, develop, manufacture, assemble,
service, maintain, install, operate, use or test the technology as
described in a United Xxxxx patent application, filed on June 7, 2006
("Technology"); and
WHEREAS the Buyer is a public reporting issuer as a "Blank Check" and
wishes to acquire the Technologies for its own operation. And;
WHEREAS the Buyer is ready to register his shares for trading in a US
stock exchange. and;
WHERAS the Buyer is interested in acquiring the "Technology", in
order to further develop the Technology into a commercial product in
the filed of respiratory care of VAP and COPD patients.
NOW THEREFORE, in consideration of the representations, warranties,
covenants, and agreements of the parties hereinafter set forth, the
parties hereto, intending to be legally bound, do hereby agree as
follows:
1. SALE AND PURCHASE OF THE TECHNOLOGY
1.1. Sale and Purchase of the Technology
Pangea hereby sells, assigns and transfers all of its right,
title and interest in and to the Technology.
1.2. Consideration
In consideration, at the Closing, the Buyer will pay in a lump
sum a total of US $3 million (the "Purchase Price").
Nevertheless the parties agree to convert the Purchase Price to
be paid in cash into the Buyer's shares (the "Shares").
1.3 Transfer of the Buyers Shares
At the Closing the Buyer will issue Four Million Five Hundred
Thousand (4,500,000) restricted Shares of the Buyer's common
stock issued and outstanding shares clean of any lien to Pangea.
2. CLOSING
(a) Subject to satisfaction or waiver of the conditions
precedent to the obligations of the parties hereto and the
execution and delivery of this Agreement and all other documents
required by this Agreement, the purchase of the Technology
shall take place on or before June 30, 2006, or other time and
place as the Buyer and Pangea designate orally or in writing
(which time and place are designated as the "Closing") and the
payment shall take place on or before December 31, 2006.
(b) At the Closing Pangea shall deliver, (i) written technical
documentation of the Technology to be given at Closing to the
Buyer, and (ii) such assignments as shall reasonably be requested.
(c) Payment shall be made to Pangea by the Buyer in Buyer's
shares of its common stock registered under Pange's name.
3. REPRESENTATIONS AND WARRANTIES OF PANGEA
Pangea hereby represents and warrants that the representations and
warranties of Pangea in this Section 2 are correct and complete as of
the date of this Agreement.
3.1. Organization
Pangea is a corporation duly organized, validly existing and in
good standing under the laws of canton Xxxxxxx in Switzerland.
Pangea has all requisite power and authority to execute,
deliver, and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby and thereby, and
Pangea has all requisite power and authority to own. Lease or
otherwise use the Technology and to carry on its business as now
being conducted. Pangea is duly qualified or licensed to do
business as a foreign corporation and is in good standing in
each jurisdiction in wich the character of its business or asset
makes such qualification necessary, except where the failure to
be so qualifies or licensed would not have a material adverse
effect on the Technology or Pangea's ability to perform its
obligations hereunder.
3.2. Authorization
All corporate action on the part of Pangea directors and
shareholders necessary for the authorization, execution and
delivery of this Agreement, the performance of all obligations
of Pangea hereunder, and the sale and the assignment of the
Technology has taken or will have taken place prior to the
Closing. This Agreement constitutes a valid and legally binding
obligation of Pangea enforceable in accordance with its terms.
3.3. Litigation
To the best knowledge of Pangea, as of the date of signature of
this Agreement:
(a) There are no claims, actions, suits, proceedings or
investigations pending or currently threatened against Pangea
and/or its directors and officers, which question the validity
of this Agreement or the right to enter into it, or to
consummate the transaction contemplated hereby, or which might
result either individually or in the aggregate in any material
adverse right of the Buyer to the Technology, except as
described on the Disclosure Schedule, if any.
(b) The foregoing includes, without limitation, actions pending
or threatened involving the present or prior employment of
Pangea's employees and/or consultants, their use in connection
with its business of any information or techniques allegedly
proprietary to any of its former employers or consultancy
arrangements, or their obligations under any agreements with
prior employers or consultancy arrangements.
(c) The Technology is not subject to the provisions of any
order, writ, injunction, judgment or decree of any court or
government agency or instrumentality and there is no action,
suit, proceeding or investigation against Pangea with respect to
the Technology, by any government agency or instrumentality
currently pending or which any one of them intends to initiate.
3.4. Technology
(a) Pangea owns all right, title and interest in and to the
Technology, free and clear of any liens, encumbrances or claims
by third parties. Pangea has and will deliver to Buyer, at the
Closing, good and marketable title to the Technology. Pangea has
not infringed, and is not now infringing, on any trade secret or
copyright belonging to any other person or entity.
(b) Pangea has not distributed or divulged Confidential
Information constituting the Technology, and Pangea is not a
party to any license, agreement or arrangement, whether as
licensee, licensor or otherwise, with respect to the Technology.
Pangea has taken all reasonable security measures to protect the
secrecy, confidentiality and value of the Technology and any of
its employees and any other persons who, either alone or in
concert with others, developed, invented, discovered, derived,
programmed or designed these secrets, or who have knowledge of
or access to information relating to them, have entered into
agreements that these secrets are proprietary to Pangea and not
to be divulged or misused.
(c) No employee or subcontractor of Pangea is, or to the best
knowledge of Pangea. Is now expected to be, in default under any
term of any employment contract. nondisclosure obligation,
agreement or arrangement relating to the Technology or any
noncompetition agreement, contract or restrictive covenant
relating to the Technology or its development or exploitation.
The Technology (i) was developed by employees of Pangea in the
course of such employees employment by Pangea, (ii) constitutes"
works made for hire" of Pangea with in the meaning of the United
States Copyright Act of 1976, as amended, or (iii) has been
validly assigned to Pangea.
3.5. Compliance with Other Instruments and Laws
(a) Pangea is not in default of any provisions of its
respective company documents or Protocols, of any instrument,
judgment, order, writ, decree or contract to which it is a party
or by which it is bound or, of any provision of law applicable
to it, that would prevent it from executing and delivering the
Agreement.
(b) The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby
will not result in any such violation of applicable statutes,
laws and regulations.
3.6. Agreements; Default
(a) There are no agreements, understandings or proposed
transactions between Pangea and/or any of its officers,
directors, shareholders, affiliates, or any affiliate thereof,
except as identified in the Disclosure Schedule, if any, that
would effect the ownership by the Buyer of the Technology. There
is no default, or event that with notice or lapse of time, or
both, would constitute a default, by Pangea, or to the best
knowledge and belief of Pangea, of any other party to any of the
contracts, agreements or understandings listed in the Disclosure
Schedule.
(b) The consummation of the transactions contemplated by this
Agreement will not result in or constitute any of the following:
(i) a default, breach or violation or an event that, with notice
or lapse of time or both, would constitute a default, breach or
violation of the Memorandum and Articles of Association of
Pangea, or any contract, license, agreement or understanding to
which Pangea's property is bound; (ii) an event that would
permit any party to terminate any or to accelerate the maturity
of any indebtedness or other direct or indirect obligation of
Pangea; or (iii) the creation or imposition of any lien, charge
or encumbrance on any of the properties of Pangea.
3.7. NO INSOLVENCY
Pangea will not be rendered insolvent by the sale, transfer and
assignment of the Technology pursuant to the terms of this
agreement.
3.8. REPRESENTATIONS COMPLETE
None of the representations or warranties made by Pangea, nor any
statement made in any certificate furnished by Pangea pursuant to
this Agreement, contains any untrue statement of a material fact,
or, to the best knowledge of Pangea, omits any material fact
necessary in order to make the statements contained herein or
therein, in the light of the circumstances under which made not
misleading. There is no fact, circumstance or condition of any
kind or nature whatsoever known to Pangea which reasonably would
be expected to have a material adverse effect on Pangea or the
Technology that has not been set forth in this Agreement.
4. REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer represents and warrants to Pangea that:
4.1. Company Existence; Authorization
(a) The Buyer is duly organized and properly registered in the
jurisdiction of its organization. All action on the part of the
Buyer, its officers, directors and shareholders necessary for
the authorization, execution and delivery of this Agreement, and
the performance of all obligations hereunder has been taken or
will be taken prior to the Closing, and this Agreement
constitutes a valid and legally binding obligation of the Buyer
enforceable in accordance with its terms, subject only to laws
affecting the rights and remedies of creditors.
(b) The Buyer is not in default of any provisions of any
instrument, judgment, order, writ, decree or contract to which
it is a party or by which it is bound or, of any rovision of law
applicable to it, that would prevent it from executing and
delivering the Agreement.
(c) The Buyer agrees that it has been fully provided with all
the information which the Buyer has requested for deciding
whether or not to purchase the Technology and all information
which they believe is reasonably necessary to enable the Buyer to
make such a decision.
5. CONDITIONS PRECEDENT TO THE BUYER'S OBLIGATIONS AT CLOSING
The obligations of the Buyer to enter into the transaction
contemplated by this Agreement are subject to the satisfaction, or
waiver in writing by the Buyer, at or before the Closing of each of
the following conditions.
5.1. Representations and Warranties
The representations and warranties of Pangea contained in this
Agreement, shall be true and correct on the date hereof and on
and as of the Closing as though made on such date, except as
amended by Pangea at the Closing and which amendment shall be
specifically approved by the Buyer.
5.2. Performance
Pangea shall have performed and complied with all covenants,
agreements, obligations and conditions contained in this
Agreement that are required to be performed, satisfied or
complied with by it on or before the Closing.
5.3. Proceedings, Documents and Certificates
All corporate and other proceedings in connection with the
transactions contemplated at the Closing and all documents
incident thereto shall be reasonably satisfactory in form and
substance, and they shall have received all such counterpart,
original and certified or other copies of such documents as they
may reasonably request.
5.4. Covenant Not To Compete
In consideration of the sale of the goodwill associated with the
Technology, Pangea agrees that after the Closing for a period of
12 months, Pangea or its associates will not develop, market or
otherwise produce a product or technology that competes,
directly or indirectly, with the Technology.
6. INDEMNIFICATION
6.1. Pangea hereby agrees to indemnify and hold Buyer and its
affiliates and the officers, directors, employees, agents and
representatives of Buyer and its affiliates, and any person
claiming by or through any of them, harmless from, against and
in respect of the following:
6.1.1. Losses arising from or related to the ownership,
possession, operation or use of the Technology, by Pangea
at or prior to the Closing;
6.1.2. Losses arising from or related to any breach of
or inaccuracy in any representation or warranty made by
Pangea in this Agreement, whether or not such breach or
inaccuracy was or should have been known by Buyer.
6.1.3. Losses arising from or related to any breach or
violation by Pangea of any of its covenants and agreements
contained in this Agreement.
6.2. INDEMNIFICATION BY BUYER
Buyer hereby agrees to indemnify and hold Pangea and its
Affiliates and the officers, directors, employees, agents and
representatives of Pangea, and any person claiming by or through
any of them, harmless from, against and in respect of Losses
arising from or related to any breach of or inaccuracy in any
representation or warranty made by or behalf of buyer in this
Agreement, whether or not such breach or inaccuracy was or
should have been known by Pangea or Losses arising from or
related to any breach or violation by buyer of any of its
covenants and agreements contained in this Agreement.
6.3. SURVIVAL OF REPRESENTATION AND WARRANTIES
The representations and warranties of Pangea and Buyer contained
herein shell survive the closing for a period of two years from
the Closing Date, provided, however, that representations and
warranties with respect to which a claim is made within the
applicable survival period shell survive until such claim is
finally determined and paid.
6.4. NOTIFICATION OF CLAIMS
A party seeking indemnification under this Article 5 (an
"indemnified party") shall, promptly after the receipt of notice
of the assertion of any claim or commencement of any action,
suit, arbitration, inquiry, proceeding or investigation by or
before any governmental authority (an "action") (but in no event
later then 10 days prior to the date any response or answer is
due in any proceeding) in respect of which indemnity may be
sought from a party against whom an indemnity obligation is
asserted pursuant to this Article 5 (an "indemnifying party") on
account of the indemnity agreement contained above, notify the
indemnifying party in writing of the receipt of such claim or
the commencement of such action. The omission of an indemnified
party so to notify an indemnifying party of any such claim or
action shall not relieve the indemnifying party from any
liability in respect of such claim or action which it may have
to the indemnified party (except, however, that the Indemnifying
party shall be relieved of liability to the extent that the
failure so to notify
(a) shall have caused prejudice to the defense of such claim or
action or
(b) shall have increased the costs or liability of the
indemnifying party reason of the inability or failure of the
indemnifying party (because of the lack of prompt notice from
the indemnified party) to be involved in any investigations or
negotiations regarding any such claim or action), nor shall it
relieve the indemnifying party from any other liability which it
may have to the indemnified party. In case any such claim shall
be asserted or action commenced against an indemnified party and
shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate in the negotiation or
administration thereof and, to the extent it may wish, to assume
the defense thereof with counsel reasonably satisfactory to the
Indemnified party, and, after notice from the Indemnifying party
to the Indemnified party of its election so to assume the
defense thereof, which notice shall be given within 30 days of
its receipt of such notice from such indemnified party, the
Indemnified party shall not be liable to the indemnified party
hereunder for any legal or ther expenses subsequently incurred
by the indemnified party in connection with the defense thereof
other than reasonable costs of investigation. If an Indemnifying
party does not wish to assume the defense, conduct or settlement
of any claim or Action, the Indemnified party shall not settle
such claim or action without the written consent of the
Indemnifying party, which consent shall not be unreasonably
withheld or delayed.
6.5. LIMITATIONS ON INDEMNIFICATION
Each parties liability to other for indemnification payments
under this Article 5 shall be limited to aggregate
indemnification payments by either party to other equal to the
Purchase Price.
7. CONFIDENTIALITY
7.1. Each of the parties agree that with the respect to certain
Confidential Information (as defined below and without respect
to the date on which such Confidential Information was first
disclosed) furnished to it by the other party to this Agreement,
it will maintain such information in confidence in the same
manner, and to the same extent it protects its own confidential
and/or proprietary information of a similar nature. Each party
shall be responsible for any breach of this agreement by any and
all employees, agents, parents, subsidiaries, affiliates, or
similar persons or entities.
7.2. For the purposes of this Agreement, Confidential
Information shall include any trade secrets, knowledge, data, or
other proprietary or confidential information relating to
products, processes, know-how, designs, formulae, developmental
or experimental work, computer programs, databases, other
original works of authorship, customer lists, business plans,
marketing plans and strategies, financial information, or other
subject matter pertaining to any business of the parties hereto,
or any of its clients, consultant; or licensees that is defined
in writing or orally as Confidential Information.
7.3 The commitment as stated above shall not impose any
obligation with respect to any portion of the information that
(i) is now or hereafter becomes generally know or available or a
part of a public domain without direct or indirect fault of the
recipient of Confidential Information or otherwise by breach of
this Agreement or similar agreement; or (ii) is known to such
recipient at the time of the disclosure of such Confidential
Information as evidenced by prior written documentation in such
parties files; or (iii) is furnished to others by the owner of
the Confidential Information without restriction of further
disclosure; or (iv) is lawfully received by such recipient
without confidential or proprietary restriction from a source
other than the owner of the Confidential Information . Neither
party shall use any Confidential Information for the purposes of
unfair or improper competition, such as, by way of example only
and not limitation, soliciting accounts of employees of the other party.
8. TERMINATION PRIOR TO CLOSING
This Agreement may be terminated at any time prior to the Closing as
follows:
8.1. By the mutual consent of the Parties in writing.
8.2. Either party may terminate this agreement If the other
party breaches any warranty or fails to perform any material
obligation hereunder, and such breach is not remedied within
twenty one (21) days after written notice thereof to the party
in default or If prior to the completion of the payment by the
Buyer and/or of the transfer of Technology by Pangea, all in
accordance with this agreement, the other party shall become
insolvent or make an assignment for the benefit of creditors, or
if a receiver or similar officer shall be appointed to take
charge of all or part of that party's assets, and such status
and/or assignment and/or appointment has not been canceled
within sixty (60) days.
9. MISCELLANEOUS
9.1. Entire Agreement; Amendment
This Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof and
thereof. This Agreement supersedes all prior agreements and
understandings among the parties hereto with respect to the
subject matter hereof and thereof. There are no restrictions,
promises, warranties or undertakings, other than those set forth
or referred to herein and therein. This Agreement may be
amended, modified or supplemented only by a written instrument
duly executed by each of the parties hereto.
9.2. Benefits; Successors.
This Agreement shall be binding upon and inure to the benefit of
and be enforceable by the respective heirs, legal
representatives, successors and permitted assigns of the
parties. Nothing in this Agreement shall confer any rights upon
any person other than the Shareholder and Purchaser and their
respective heirs, legal representatives, successors and
permitted assigns.
9.3. Assignment; Waiver.
No party hereto shall assign this Agreement or any right,
benefit or obligation hereunder. Any term or provision of this
Agreement may be waived at any time by the party entitled to the
benefit thereof by a written instrument duly executed by such
party. However, failure of any party to exercise any right or
remedy under this Agreement or otherwise, or delay by a party in
exercising such right or remedy, shall not operate as a waiver thereof.
9.4. Further Assurances.
At and after the Closing, the Shareholder and Purchaser shall
execute and deliver any and all documents and take any and all
other actions that may be deemed reasonably necessary by their
respective counsel to complete the transactions.
9.5. Interpretation.
Unless the context of this Agreement clearly requires otherwise,
(a) references to the plural include the singular, the singular
the plural, the part the whole, (b) references to any gender
include all genders, (c) "or" has the inclusive meaning
frequently identified with the phrase "and/or," (d) "including"
has the inclusive meaning frequently identified with the phrase
"but not limited to" and (e) references to "hereunder" or
"herein" relate to this Agreement. The section and other
headings contained in this Agreement are for reference purposes
only and shall not control or affect the construction of this
Agreement or the interpretation thereof in any respect. Section,
subsection, Schedule and Exhibit references are to this
Agreement unless otherwise specified. Each accounting term used
herein that is not specifically defined herein shall have the
meaning given to it under GAAP. Any reference to a party's
being satisfied with any particular item or to a party's
determination of a particular item presumes that such standard
will not be achieved unless such party shall be satisfied or
shall have made such determination in its sole or complete discretion.
9.6. Severability.
If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability
of the remainder of this Agreement in that jurisdiction or the
validity or enforceability of any provision of this Agreement in
any other jurisdiction.
9.7. Counterparts.
This Agreement may be executed in two or more counterparts, each
of which shall be binding as of the date first written above,
and all of which shall constitute one and the same instrument.
Each such copy shall be deemed an original.
9.8. Schedules.
Any items listed or described on Schedules shall be listed or
described under a caption that identifies the Sections of this
Agreement to which the item relates.
9.9. Notices.
All notices that are required or permitted hereunder shall be in
writing and shall be sufficient if personally delivered or sent
by mail, facsimile message or Federal Express or other delivery
service. Any notices shall be deemed given upon the earlier of
the date when received at, or the third day after the date when
sent by registered or certified mail or the day after the date
when sent by Federal Express to, the address or fax number set
forth below, unless such address or fax number is changed by
notice to the other party hereto:
If to Pangea Investments GmbH:
000x Xxxxxxxxxxxxxx, Xxxxxxxxx XX 0000 Xxxxxxxxxxx
Attention: Xxxxx X. Xxxxxxxxx
Facsimile: x00(00) 000 0000
If to Purchaser:
Andain Inc.
0000 Xxxx Xxxx, Xxxxx 000
Xxxx, Xxxxxx 00000
Attention: Xxx Xxxxxxxxx
With copies to:
Xxxxx X. Xxxxxxxx, A Professional Law Corporation
00000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx Xxxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
9.10. Arbitration.
Any and all disputes relating to this Agreement or its breach
shall be settled by arbitration, by a single arbitrator, in
Reno, Nevada, in accordance with the then-current rules of
JAMS/Endispute; the parties waive any right they may have under
any statute or law to cause such proceeding to be transferred to
any other venue. Judgment upon the award entered by the
arbitrator may be entered in any court having jurisdiction
thereof. Costs of arbitration, including reasonable attorneys'
fees and costs incurred, as determined by the arbitrator,
together with reasonable attorneys' fees and costs incurred by
the prevailing party in court enforcement of the arbitration
award, must be paid to the prevailing party by the party
designated by the arbitrator or court. Service of the Petition
to Confirm Arbitration and written notice of the time and place
of the hearing thereon shall be in the same manner provided in
this Agreement.
Should one party either dismiss or abandon his claim or
counterclaim before hearing thereon, the other party shall be
deemed the "prevailing party" pursuant to this Agreement.
Should both parties receive judgment or award of their
respective claims, the party in whose favor the larger judgment
or award is rendered shall be deemed the "prevailing party"
pursuant to this Agreement.
9.11. Governing Law.
The laws of the State of Nevada shall govern all issues
concerning the relative rights of the Company and its
stockholders. All other questions shall be governed by and
interpreted in accordance with the laws of the State of Nevada
without regard to the principles of conflict of laws.
IN ATTESTING THERETO, THE PARTIES BELOW STATE THAT THEY ARE PROPERLY
EMPOWERED AND AUTHORIZED BY THEIR RESPECTIVE ENTITIES AND/OR AS
INDIVIDUALS, TO EXECUTE THIS AGREEMENT AND HAVE SIGNED THIS AGREEMENT
AS OF THE DATE SO INDICATED.
ANDAIN INC.
By: /s/ Xxx Xxxxxxxxx
Xxx Xxxxxxxxx, President
PANGEA INVESTMENTS GMBH
By: /s/ Xxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxxxx, President
Disclosure Schedule
Litigations
In January 2005 a legal proceeding was filed against Pangea
Investments GmbH in Israel as part of a legal proceeding against
other parties. The Israeli court has no jurisdiction in Switzerland.
After initial hearings at court, Pangea expects to be removed from
this legal proceeding. The company estimates a low probability to a
material effect on Pangea business and no effect on its intellectual
properties.
