EXHIBIT 10.1
QBIT COMMERCIALIZATION AGREEMENT
This Agreement is made and entered into this 18th day of January, 2000
(EFFECTIVE DATE), by and between CytoGenix, Inc. (CYGS) and Quantum Bit
Induction Technology, Inc. (QBIT), both Nevada corporations.
RECITALS
CYGS desires the tight to commercialize products, services or business methods
developed by QBIT. QBIT desires to commercialize certain products, services or
business methods.
DEFINITIONS
1. QBIT interests, rights, and property for purposes of this agreement
includes the intellectual property, technology and research product
of all officers, employees, consultants, and associates to the extent
that their product accrues to the benefit of QBIT (QBIT TECHNOLOGY)
2. FIELD OF INTEREST includes biology and chemistry and the respective
sub-disciplines and business methods which have been disclosed as of
the effective date of this agreement as defined in FIELD OF INTEREST,
Exhibit A attached hereto.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual terms, covenants and conditions
hereinafter set forth, the patties hereto do hereby agree as follows.
I. CYGS and QBIT hereby agree to intellectual property transfer and
consideration exchange therefor as set forth herein, the value of
which is acknowledged. There shall be no pro-rata refund or return of
consideration resulting from the termination, cancellation, or
suspension of this agreement.
2. Term. The term of this Agreement shall be for a period of three (3)
years commencing on the EFFECTIVE DATE hereof, unless terminated
earlier as provided herein
3 Intellectual Property Acquisition; Exclusion; Consideration;
Reimbursement
3.1 Acquisition. QBIT hereby assigns all rights to intellectual property
in the areas of biology or chemistry including the respective
sub-disciplines and business methods (FIELD OF INTEREST) to which QBIT
has rights, title, interest, or license which have been disclosed as
of the effective date of this Agreement as identified in Exhibit B
attached hereto.
3.2 Exclusion. After the effective date of this Agreement, Quantum Control
of any process, including biological, biochemical or chemical
processes, and any novel business methods developed are specifically
excluded from this rights transfer and the FIELD OF INTEREST. Such
specific exclusion shall not imply any limit on areas that are beyond
the scope of the FIELD OF INTEREST.
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3.3 Consideration. QBIT hereby grants CYGS first right to commercialize
any intellectual property developed by QBIT, subject to the provisions
of this agreement. In consideration thereof, CYGS will immediately
issue or cause to be issued 1,000,000 unrestricted CYGS common shares
and 2,000,000 one year restricted CYGS common shares pursuant to
written instructions from QBIT. CYGS agrees to timely file such
statements and documents as required under SEC regulations to maintain
"unrestricted" status on the aforementioned 1,000,000 CYGS common
shares and to register for sale, if necessary and requested by QBIT,
the remaining 2,000,000 CYGS common shares or any portion thereof as
allowed under SEC Rule 144.
3.4 Future Compensation. The consideration described in 3.1 above shall be
full and complete compensation for all services rendered by QBIT under
this Agreement as of the effective date of this Agreement.
Compensation for commercialization rights on properties beyond the
scope of the FIELDS OF INTEREST shall be negotiated on an individual
basis and contemplated in addenda to this Agreement, such addenda to
be executed by CYGS and QBIT as appropriate. Compensation for other
services not comprehended by this agreement and provided by QBIT for
CYGS or CYGS to QBIT win be defined by a separate agreement.
3.5 Reimbursement. QBIT shall be reimbursed for all reasonable
"out-of-pocket" business expenses for business travel and business
entertainment incurred in connection with the performance of the
duties under this Agreement (1) as long as such expenses constitute
business deductions from taxable income for CYGS and are excludable
from taxable income to QBIT under the governing laws and regulations
of the Internal Revenue Code (Provided, however, that QBIT shall be
entitled to full reimbursement in any case where the Internal Revenue
Service may, under Section 274(n) of the Internal Revenue Code,
disallow to CYGS 20% of meals and entertainment expenses); and (2) to
the extent such expenses do not exceed the amounts allocable for such
expenses in budgets that are approved from time to time by CYGS. The
reimbursement of QBIT's business expenses shall be upon monthly
presentation to and approval by CYGS of valid receipts and other
appropriate documentation for such expenses.
3.6 Distribution of QBIT common stock. QBIT shall issue three million
(3,000,000) shares of QBIT common stock to CYGS. QBIT may direct CYGS
to distribute said QBIT stock to all CYGS shareholders pursuant to
policy established by CYGS's board of directors and to file all
required paperwork with the appropriate regulatory authorities so that
QBIT may establish its common stock public market listing with NASDAQ
or other securities market that QBIT specifies. It is agreed that
QBIT's right hereunder shall not present an undue burden on CYGS in
terms of personnel, time, or financial expense, as determined by the
CYGS board of directors. QBIT reserves the right to overcome such
objection by reimbursing CYGS for any costs incurred in the process.
Both parties agree that the completeness and accuracy of QBIT's
records are requisite, and financial audits are entirely the
responsibility of QBIT.
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3.7 Duties. QBIT shall be responsible for further conceptualizing and
researching intellectual property for CYGS within the FIELD OF
INTEREST. QBIT shall provide written descriptions of such intellectual
property as appropriate. QBIT shall provide follow-up discussion and
documentation to CYGS for intellectual property within the FIELD OF
INTEREST at the request of CYGS. Both patties agree that conceptual
conveyance is QBIT's only obligation under this provision. There shall
be no incumbency on QBIT regarding time, resources, or work product to
be developed under this provision.
4 QBIT shall not be limited to research and development of intellectual
property within the scope of the FIELD OF INTEREST. QBIT may present
intellectual property with commercial potential that is beyond the scope of
the FIELD OF INTEREST when deemed appropriate. Such presentation shall
include a definitive description of the property and proposed
commercialization terms and consideration. CYGS shall respond to QBIT with a
declaration of intent to commercialize, in writing within 60 days of CYGS's
receipt of such intellectual property description and summary. Said
declaration shall describe its acceptance and commercialization intentions
regarding said property, or shall define a counter offer regarding
commercialization terms and consideration. In the event CYGS declines to
commercialize a property or does not intend to begin commercialization for
120 days or more, QBIT shall be free to pursue alternative commercialization
opportunities however, CYGS shall maintain first right of refusal to
commercialize any property developed by QBIT at terms comparable to terms
offered any third party, provided CYGS can demonstrate capabilities
comparable to such third party to the satisfaction of QBIT. QBIT will notify
CYGS of any impending commercialization agreements between QBIT and third
parties and the specified terms. CYGS may exercise its first right of
refusal to commercialize hereunder within 30 days of such notice from QBIT.
The first right of refusal to commercialize shall not extend to property
that QBJT intends to commercialize itself It is agreed that QBIT shall be
obligated to provide conceptual technical detail about any intellectual
property under discussion for the purposes set forth herein which is
adequate to allow CYGS personnel to understand the intellectual property.
Such conceptualization and research may include business and commercial
aspects of the aforementioned FIELD OF INTEREST.
5 Conflicting Activities: QBIT shall not, during the term of this Agreement,
be engaged in any other business activity which conflicts with or is a
competitor to CYGS within the FIELD OF INTEREST without the prior written
consent of the Board of Directors of CYGS. However, this restriction shall
not be construed as preventing QBIT from investing its assets in passive
investments in business entities that are in competition with CYGS or its
affiliates, or from pursuing business opportunities which do not operate
within the FIELD OF INTEREST.
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6 Confidentiality of Trade Secrets and Other Materials.
6.1 TRADE SECRETS. QBIT agrees not to disclose to any person, firm,
entity, or corporation any information concerning the business
affairs, the TRADE SECRETS or the customer lists or similar
information of CYGS. Any technique, method, process or technology used
by CYGS within the FIELD OF INTEREST shall be considered a TRADE
SECRET for the purposes of this Agreement. CYGS agrees not to disclose
any information concerning the business affairs, the TRADE SECRETS or
the customer lists or similar information of QBIT. Any technique,
method, process or technology described or disclosed by QBIT to CYGS
which is beyond the FIELD OF INTEREST shall be considered a TRADE
SECRET for the purposes of this Agreement.
6.2 Ownership of TRADE SECRETS; Assignment of Rights. QBIT hereby agrees
that all know-how, documents, reports, plans, proposals, software,
computer programs, graphic presentations, and videos developed 'by
CYGS, marketing and sales plans, client lists, client files and
materials made by CYGS are the property of CYGS and shall not be used
by QBIT in any way adverse to CYGS'S interests. QBIT shall not
deliver, reproduce or in any way allow such documents or things to be
delivered or used by any third party without specific direction or
consent of the Board of Directors of CYGS or its Chief Executive
Officer. QBIT hereby assigns to CYGS any rights that it may have in
any such trade secret or proprietary information. CYGS and QBIT agree
that the scope and meaning of Section 6.2 shall apply only to items
within the FIELD OF INTEREST defined in Section 3.1.
7 QBIT and CYGS further agree that in addition to compensation for damages
caused by breach of this Agreement, CYGS and QBIT shall be entitled to
injunctive relief by a court of competent jurisdiction to prevent
irreparable harm and injury to CYGS or QBIT by said breach or potential
breach.
8 Injunctive Relief CYGS and QBIT hereby acknowledge and agree that any
default under Section 7 above will cause damage to CYGS and QBIT in an
amount difficult to ascertain. Accordingly, in addition to any other relief
to which CYGS and QBIT may be entitled, CYGS and QBIT shall be entitled to
such injunctive relief as may be ordered by any court of competent
jurisdiction including, but not limited to, an injunction restraining any
violation of Section 7 above and without the proof of actual damages.
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9 Termination.
9.1 This Agreement may be terminated at any time by mutual agreement of
the parties.
9.2 This Agreement shall automatically terminate on the last day of the
month in which either party dissolves or winds up its affairs.
9.3 QBIT may terminate its engagement hereunder by giving CYGS 60 days
prior written notice, which termination shall be effective on the 6Oth
day following such notice.
9.4 Payment Upon Termination. Upon termination both parties shall pay any
and all amounts due the other party within 30 days of such
termination.
9.5 Dismissal from Premises. At CYGS's option, QBIT and QBIT personnel
shall immediately leave CYGS's premises on the date notice of
termination is given by either QBIT or CYGS. QBIT shall be permitted
to remove any items from CYGS's premises which are not specifically
related to the FIELD OF INTEREST, personal possessions of QBIT
personnel, and any items relating to intellectual property beyond the
scope of the FIELD OF INTEREST for which an intent to commercialize
has been tendered by CYGS and accepted by QBIT.
10. Miscellaneous.
10.1 Transfer and Assignment. This Agreement shall not be assigned or
transferred by QBIT without the prior written consent of CYGS. This
Agreement shall be binding upon and inure to the benefit of all of
the parties hereto and their respective permitted heirs, personal
representatives, successors and assigns.
10.2 Severability. Nothing contained herein shall be construed to require
the commission of any act contrary to law. Should there be any
conflict between any provisions hereof and any present or future
statute, law, ordinance, regulation, or other pronouncement having
the force of law, the latter shall prevail, but the provision of this
Agreement affected thereby shall be curtailed and limited only to the
extent necessary to bring it within the requirements of the law, and
the remaining provisions of this Agreement shall remain in full force
and effect.
10.3 Governing Law. This Agreement is made under and shall be construed
pursuant to the laws of the State of Nevada.
10.4 Counterparts. This Agreement may be executed in several counterparts
and all documents so executed shall constitute one agreement, binding
on all of the parties hereto, notwithstanding that all of the parties
did not sign the original or the same counterparts.
10.5 Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties with respect to the subject matter
hereof and supersedes all prior oral or written agreements,
arrangements, and un4erstandings with respect thereto. No
representation, promise, inducement, statement or intention has been
made by any party hereto that is not embodied herein, and no party
shall be bound by or liable for any alleged representation, promise,
inducement, or statement not so set forth herein.
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10.6 Modification. This Agreement may be modified, amended, superseded, or
canceled, and any of the terms, covenants, representations,
warranties or conditions hereof may be waived, only by a written
instrument executed by the party or parties to be bound by any such
modification, amendment, supersession, cancellation, or waiver.
10.7 Attorneys' Fees and Costs. In the event of any dispute arising out of
the subject matter of this Agreement, the prevailing party shall
recover, in addition to any other damages assessed, its attorneys'
fees and court costs incurred in litigating or otherwise settling or
resolving such dispute whether or not an action is brought or
prosecuted to judgment. In construing this Agreement, none of the
parties hereto shall have any term or provision construed against
such party solely by reason of such party having drafted the same.
10.8 Waiver. The waiver by either of the parties, express or implied, of
any right under this Agreement or any failure to perform under this
Agreement by the other party, shall not constitute or be deemed as a
waiver of any other right under this Agreement or of any other
failure to perform under this Agreement by the other party, whether
of a similar or dissimilar nature.
10.9 Cumulative Remedies. Each and all of the several rights and remedies
provided in this Agreement, or by law or in equity, shall be
cumulative, and no one of them shall be exclusive of any other right
or remedy, and the exercise of any one or such rights or remedies
shall not be deemed a waiver of, or an election to exercise, any
other such right or remedy.
10.10 Headings. The section and other headings contained in this Agreement
are for reference purposes only and shall not in any way affect the
meaning and interpretation of this Agreement.
10.11 Notices. Any notice under this Agreement must be in writing, may be
telecopied, sent by express 24-hour guaranteed courier, or
hand-delivered, or may be served by depositing the same in the
United States mail, addressed to the party to be notified,
postage-prepaid and registered or certified with a return receipt
requested. The addresses of the parties for the receipt of notice
shall be as follows:
If to CYGS:
9881 5. Wilcrest Xxxxxxx, Xxxxx 00000
If to QBIT:
0000 Xxx Xxxxxx #000
Xxxxxxx, Xxxxx 00000
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Each notice given by registered or certified mail shall be deemed delivered and
effective on the date of delivery as shown on the return receipt, and each
notice delivered in any other manner shall be deemed to be effective as of the
time of actual delivery thereof Each party may change its address for notice by
giving notice thereof in the manner provided above,
10.12 Survival. Any provision of this Agreement which imposes an
obligation after termination or expiration of this Agreement shall
survive the termination or expiration of this Agreement and be
binding on QBIT and CYGS.
10.13 Right of Set-Off Upon termination or expiration of this Agreement,
CYGS shall have the right to set-off against the amounts due QBI'T
hereunder the amount of any outstanding loan or advance from CYGS to
QBIT provided CYGS delivers to QBIT written documentation of such
loan or advance. Such documentation must bear a QBIT officer's
signed acknowledgment of said debt. In no event shall termination or
expiration of this Agreement obligate QBIT to reimburse CYGS
"out-of-pocket" for any advances or repay any loans.
10.14 Effective Date. This Agreement shall become effective as of the date
set forth on page 1 when signed by QBIT and CYGS.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date first set forth above
CYGS QBIT
Xxxxxxx Xxxxxxxx, President - (Date)
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EXHIBIT A FIELD OF INTEREST
Intellectual property with application in the area of biology or chemistry and
their respective sub-disciplines and business methods for the commercialization
or deployment of such property which have been disclosed as of the effective
date of this agreement. FIELD OF INTEREST shall include but is limited to ssDNA
expression techniques, DNA data compression I decompression techniques, DNA
synthesis and purification techniques, and any intellectual property for which
patent applications have been prepared or are in preparation which operate in
the areas of biology or chemistry.
EXHIBIT B - Scope of Intellectual property
Intellectual property in the areas of biology or chemistry including the
respective sub-disciplines and business methods to which QBIT has rights, title,
interest, or license which have been disclosed as of the effective date of this
Agreement.
EXHIBIT C
Assignment of Rights to Intellectual Property
For value and consideration received, Xxxx Xxxxxxxx hereby assigns and transfers
all rights to intellectual property in the areas of biology or chemistry
including the respective sub-disciplines and business methods which have been
disclosed to Quantum Bit Induction Technology, Inc. ("QBIT") or CytoGenix, Inc.
("CYGS") as of the effective date of this Agreement to QBIT. QBIT shall have the
right to assign, transfer, or otherwise dispose of such property at its sole
discretion.
AGREED AND ACCEPTED:
Xxxx Xxxxxxxx, individually
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