EXHIBIT 6.2
SECOND AMENDED AND RESTATED CONTRACT FOR PURCHASE OF TECHNOLOGY
THIS AMENDED AND RESTATED AGREEMENT, is made this the 28th day of December,
1994, by and between Interactive Gift Express, Inc., a Utah corporation ("IGE")
and Avedas, Inc., an Illinois corporation ("Avedas").
RECITALS:
A. Avedas, IGE and Xxxxxx Science Corp. previously entered into a Contract
for Purchase of Technology dated December 28, 1994 (the "Agreement").
X. Xxxxxx Science Corp. has waived all rights and interests under the
above-mentioned Agreement dated December 28, 1994 and Avedas and IGE
acknowledged and accept Xxxxxx'x waiver.
C. Avedas is the owner of patents, technology and trade secrets for point
of sale technology including those listed in Exhibit A (hereinafter referred to
collectively as the "Patents").
D. Avedas owns the trademark EDOS in the U.K. (hereinafter referred to as
the "Trademark").
E. IGE is willing and able to purchase said Patents and Trademark.
F. Avedas is also willing to act as a marketer for IGE in connection with
potential licenses of the Patents, and IGE desires to employ Avedas in this
capacity.
CLAUSES:
THE PARTIES HERETO AGREE AS FOLLOWS:
I. All Previous Contract to be Null and Void
The parties agree that any previous agreements between them are deemed null
and void and of no force and effect and are superseded by this Agreement.
II. Purchase Obligation/Purchase Price
1. IGE agrees to purchase and Avedas agrees to sell the Patents and
Trademark, for the price and upon the terms hereinafter provided.
2. The purchase price for the Patents and Trademark is as follows:
(a) IGE shall pay to Avedas 300,000 shares of common stock of IGE (the "IGE
Shares");
(b) IGE shall pay to Avedas the sum of Two Hundred Ninety Thousand Dollars
($290,000) payable as follows: (I) Forty Thousand Dollars ($40,000) receipt of
which is acknowledged; (ii) Ninety-five Thousand Dollars ($95,000) on or before
March 1, 1995; and (iii) One Hundred Fifty-five Thousand ($155,000) payable on
or before July 1, 1995; (iv) the payments for March 1, 1995 and July 1, 1995
shall be secured by a manner approved by Avedas.
(c) on a perpetual basis, IGE shall pay to Avedas ten percent (10%) of all
gross revenues, worldwide, earned by IGE or its subsidiaries and affiliates from
the exploitation of the Patent and Trademark, including licensing fees,
consulting fees associated with licensing and royalties, and ten percent (10%)
of all amounts received by IGE in connection with litigation or settlement of
claims relating to infringement on the Patents or penalties or sanctions in
favor of IGE, less the reasonable direct costs of such litigation or settlement
actually incurred by IGE. This shall not include operating businesses such as
retail, wholesale and manufacturing.
III. Representations by Avedas
Avedas makes the following representations to IGE. IGE specifically rely on
the representations of Avedas in making this Agreement, and the parties hereto
recognize that IGE will sustain substantial damage if the representations of
Avedas are found to be untrue:
1. Avedas is a corporation presently existing and in good standing in the
State of Illinois.
2. Avedas will not be rendered insolvent by the sale of the Patents
pursuant to this Agreement.
3. Avedas is the only owner of the Patents and the Patents have been
properly registered.
IV. Obligations of Avedas
1. Avedas shall deliver to IGE copies of the Patents and a description of
all technology being purchased by IGE.
2. Beginning on the effective date of this Agreement and for ten years
thereafter, Avedas shall maintain all information contained in the Patents in
strict confidentiality and shall not discuss such information with any third
parties except: (i) as necessary to discharge its duties as a marketer for IGE,
(ii) as may otherwise be required to be disclosed by law, however, IGE will be
provided prompt notice so that IGE may have the opportunity to oppose any
disclosure or to obtain a suitable protective order, (iii) as may be generally
known to the public, or (iv) which is disclosed in the course of any litigation
between the parties.
3. Avedas shall have no control over any aspect of the activities of IGE
concerning the Patents after the Closing Date, except pursuant to its duties as
marketer or as the parties may otherwise agree.
4. As marketer, Avedas shall assist IGE in identifying potential licenses
and infringers of the Patents and shall also assist IGE in promoting the
Patents.
V. Representations of IGE
IGE makes the following representations to Avedas. Avedas specifically
relies on the representations of IGE in making this Agreement, and the parties
recognize that Avedas will sustain substantial damage if the representations of
IGE are found to be untrue:
1. IGE is a corporation duly organized, validly existing and in good
standing under the laws of the State of Utah.
2. IGE currently has authorized and available, and at the closing will
continue to have authorized and available, sufficient shares of its common stock
to enable it to perform its obligations under this Agreement.
3. The authorized capital stock of IGE consists of 50,000,000 authorized
shares of common stock, $.002 par value, of which 4,665,589 will be issued and
outstanding as of the closing date. The IGE Shares are or will be validly
issued, fully paid and non-assessable.
VI. Obligations of IGE
1. IGE agrees that after the Closing they will use reasonable efforts to
(I) license the Patents; (ii) enforce the Patents; and (iii) otherwise exploit
the Patent for economic gain.
2. IGE agrees that they will reasonably consider all licenses proposed for
it by Avedas.
3. Effective on the Closing, IGE shall grant to Avedas a license to use the
Patents. The initial license shall be a royalty-free nonexclusive and
nontransferable two-year license. At the end of the two-year period, IGE and
Avedas agree to negotiate in good faith toward a new nonoexclusive,
nontransferable, perpetual license bearing a royalty consistent with the
royalties then being earned by IGE on the Patents.
4. IGE agrees that if at any time it intends to register any of its shares
of stock for public sale, it shall register all of the Shares then owned by
Avedas or its designees in such form as will enable such Shares. The cost of any
such registration shall be borne by IGE. In the event that IGE fails to register
the shares within one year from the date of the Closing, then immediately upon
the expiration of such one year period, IGE shall issue to Avedas or its
designee an additional 26,000 shares of its common stock (subject to any
adjustment for stock splits, recapitalizations or other changes in
capitalization of IGE). Avedas agrees to cooperate with IGE in connection with
the registration of the shares.
VII. Marketer
1. IGE shall retain Avedas as a non-exclusive marketer. Avedas shall
receive a commission on any license of the Patents which Avedas presents to IGE,
based on the following schedule. For purposes of this provision, the "first
year" shall refer to the first year in which license fees or royalties are
received:
50% of first year fees and royalties; 33% of fees and royalties for years
two and three; 25% of fees and royalties in each subsequent year;
A. A list of companies already contacted by Avedas for licensing the
Patents is shown in Exhibit VII.
2. In the event Avedas secures any other arrangement for IGE with respect
to the Patents, such as, but not limited to, a consulting arrangement or a joint
venture, then Avedas shall be entitled to such compensation as the parties shall
reasonably agree.
3. At Avedas' option, all royalties, fees or other amounts payable to
Avedas by IGE may be paid in common stock of IGE.
4. Avedas shall inform IGE promptly of companies being approached or
already approached for licensing the Patents.
5. IGE acknowledges that Avedas has contacted IBM, Fairway and New Leaf for
licensing the Patents and it will pay Avedas:
100% of first year fees and royalties; 50% of fees and royalties for years
two and three; 33% of fees and royalties in each subsequent year.
6. All fees payable in Article VII shall be in lieu of the amounts payable
in Article II, Section 2(c).
VIII. Closing
1. The Closing of the transactions contemplated by this Agreement (the
"Closing") shall be concurrent with the execution of this Agreement.
2. At the Closing:
(i) Avedas shall deliver to IGE all bills of sale, assignments, and other
instruments and documents as IGE may reasonably request to assign, sell,
transfer and deliver to IGE good title to the Patents, free and clear of any and
all liens;
(ii) IGE shall deliver to Avedas or its designees, stock certificates
representing the IGE shares;
(iii) IGE and Avedas shall deliver or cause to be delivered to one another
such other instruements and documents necessary or appropriate to consummate the
transactions contemplated by this Agreement.
IX. General Provisions
1. Nothing contained in this Agreement shall create or shall be construed
to create any relationship of partnership, any joint venture, or agency between
IGE and Avedas. Neither party hereto shall hold itself out as having any
authority to act on behalf of the other. Avedas is and shall be at all times an
independent contractor, and shall conduct itself accordingly.
2. Notices, requests, permissions, consents and approvals given or required
to be given to or by any party under this Agreement shall not be effective
unless they are given in writing, and all such notices and requests shall be (i)
personally delivered to the party or a duly designated officer or representative
of such party, in which case notice shall be deemed given on the date it is
sent; (ii) by facsimile, in which the notice shall be deemed given on the date
it is sent; (iii) delivered to the office of such party, officer or
representative at its address by registered or certified mail, in which case the
notice shall be deemed given four (4) days following the date it is deposited in
the mail; or (iv) by Federal Express or any other overnight carrier, in which
case notice shall be deemed given on the day following the date deposited with
such carrier. Until further notice, IGE hereby designates Xxxxxx Xxxxxxxx as its
representative upon whom notices and requests may be served, and Avedas
designates Xxxxx Xxxxxxxxx as its representative upon whom notices and requests
may be served. The corporate address for service of the parties are:
If to IGE:
Xxxxxx Xxxxxxxx
0000 Xxxxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Fax: 201/000-0000
With a copy to:
Xxxxx Xxxx, Esq.
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
If to Avedas:
Avedas, Inc.
c/o Xx. Xxxxx X. Xxxxxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Fax: 312/000-0000
With a copy to:
Xxxxxx Xxxxxxxx, Esq.
Much Shelist Freed Xxxxxxxxx & Xxxxx, P.C.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Fax: 312/000-0000
3. This Agreement contains the entire understanding between the parties
hereto, and no modification, supplement or alteration shall be effective unless
executed by both parties with the same formality of this Agreement.
4. Neither party to this Agreement shall have the right to assign it to a
third party without the consent of the other party to this Agreement.
5. This Agreement shall be governed by the laws of the State of Illinois.
Any disputes hereunder shall be resolved by judicial proceedings in the state or
federal courts located in the city of Chicago, Illinois.
6. This Agreement shall be binding upon and inure to the benefit of the
parties and their respective sucessors and assigns, to the extent permitted.
7. Each corporate officer whose signature appears below represents that he
executes this Agreement on behalf of his Corporation and that he has received
full authority to do so from its Board of Directors.
8. Any sale or transfer of the Patents shall be subject to the rights of
Avedas under Article II, Section 2 (c).
INTERACTIVE GIFT EXPRESS, INC., AVEDAS, INC.,
a Utah corporation an Illinois corporation
By: ____________________ By:______________________
Xxxxxx Xxxxxxxx, President Xxxxx Xxxxxxxxx, President
EXHIBIT A
Licensed Patents
Patent Registration
Particulars Jurisdiction Date of Patent
------------------- ------------ --------------
1. Registration Number 4,528,643 United States of America July 9, 1985
2. Registration Number 1,240,390 Canada August 9, 1988
3. Registration Number 0195098 European Countries as October 3, 1990
detailed below:
Austria
Belgium
Switzerland
Germany
France
Great Britian
Italy
Xxxxxxxxxxxx
Netherlands
Sweden
