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EXHIBIT 10.21
OPTION TO REPURCHASE TECHNOLOGY
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1. Parties. This option to repurchase the QuoteXpress Application Software
(the "Technology") dated this ___ day of June, 2000, is made and entered into by
and between Xxxxxxxx.xxx, Inc. ("Xxxxxxxx.xxx") whose principal offices are
located at 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxx, XX 00000, and 505804 New
Brunswick Inc., a corporation incorporated under the laws of the Province of
Ontario as 605285 Ontario Inc., and continued in New Brunswick as 505406 New
Brunswick Inc., and merged with another company to become 505804 New Brunswick
Inc. ("Owner").
2. Recitals
2.1 The Technology. Owner is the owner of that certain QuoteXpress
Application Software (the "Technology") described in Exhibit
"A", attached hereto and made a part hereof, (a) pursuant to
that certain Application Software Purchase Agreement (the
"Purchase Agreement") between Owner, as Purchaser, and
Xxxxxxxx.xxx, as Seller, and (b) as licensed to Xxxxxxxx.xxx,
pursuant to that certain Management and Marketing Agreement.
2.2 The Note. The Technology is encumbered by that certain 6%
Secured Term Note (the "Note") dated May 6, 1997, in the
original principal amount of $14,027,500 in favor of
Xxxxxxxx.xxx.
3. Grant and Exercise of Option.
3.1 Grant of Option. For valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Owner hereby grants
to Xxxxxxxx.xxx the right and option to repurchase the
Technology at the price and on the terms and conditions set
forth herein (the "Option").
3.2 Exercise of Option. The Option shall be exercisable upon Owner's
signature of this Agreement. On or after the Owner's signature
of this Agreement, Xxxxxxxx.xxx may exercise the Option at any
time by providing Owner with written notice (the "Notice of
Exercise") of Xxxxxxxx.xxx's election to exercise the Option
hereunder.
3.3 Extinguishment of Note and Termination of Certain Agreements
Upon Exercise of Option. Upon Xxxxxxxx.xxx's exercise of its
Option, the Note shall be extinguished and all of the agreements
between the parties related to the original purchase of the
Technology in 1997 are terminated, including, but not limited
to, the Purchase Agreement, the Management and Marketing
Agreement, the Assignments of Technology, Patents, Trademarks,
Copyrights and other Agreements, the Sublicense, and the
Proprietary Information and Inventions Agreement.
4. Purchase Price. The purchase price (the "Purchase Price") for the
Technology shall be four million dollars US (US $4,000,000), payable in
immediately available funds.
5. Owner's Representations and Warranties. Owner represents, warrants and
agrees that as of the date of this Agreement and continuing thereafter:
(a) Except for the existing agreements between Xxxxxxxx.xxx and
Owner, Owner is the sole and exclusive proprietor of the
Technology with full right and authority to grant the rights
granted herein.
(b) Except for the existing agreements between Xxxxxxxx.xxx and
Owner, no version of the Technology, or any part thereof has
been previously manufactured, copied, produced, presented,
exhibited, exploited or authorized and no written or oral
agreements or
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commitments whatsoever with respect to the Technology has
heretofore been made or entered into by or on behalf of Owner.
(c) None of the rights granted to Xxxxxxxx.xxx have been granted or
assigned by Owner, or any part acting under the authority of or
on behalf of Owner, to any party other than to Xxxxxxxx.xxx; and
no written or oral agreements or commitments whatsoever,
including an option to acquire the rights with respect to the
Technology or with respect to any rights of any kind and nature
therein, have heretofore been made or entered into by Owner or
any party acting under the authority of or on behalf of the
Owner, to any party other than to Xxxxxxxx.xxx.
(d) Except for the currently existing Agreements with Xxxxxxxx.xxx,
i) Owner has not assigned, licensed or in any manner encumbered,
diminished or impaired any rights in the Technology, ii) Owner
has not committed, or omitted to perform, any act by which such
could or will be encumbered, diminished or impaired or any act
necessary to prevent the rights from being encumbered,
diminished or impaired, and iii) insofar as Owner has knowledge
in the exercise of reasonable prudence, there is no claim or
litigation pending or threatened against or involving the
rights, including the title, ownership or copyright in the
Technology, or any party thereof. No attempt hereafter will be
made by Owner, or with Owner's authorization, to encumber,
diminish or impair any of the rights granted to Xxxxxxxx.xxx
herein.
(e) Except for the existing Agreements between Xxxxxxxx.xxx and
Owner, Owner is free and duly authorized to enter into this
agreement and is not under any disability that would prevent or
hamper any conveyance of the rights hereunder.
6. Arbitration. The parties agree that any and all disputes relating to, or
arising out of this Agreement, including, but not limited to, the
termination of this Agreement or the payments due hereunder shall be
submitted to the American Arbitration Association ("AAA") for
arbitration in accordance with the rules of AAA then in force and effect
as the sole and exclusive remedy for resolving such controversies. The
parties agree that the decision of the arbitrator shall be final and
binding and that a judgment may be entered on such arbitration award in
any court of competent jurisdiction. The parties agree that no damages
may be sought or awarded in any such arbitration other than specifically
set forth in this Agreement. The parties agree that any such arbitration
shall take place in California. In no event and under no circumstances
whatsoever shall Owner have any right to injunctive relief or to enjoin,
restrain or otherwise interfere with the production, distribution or
other exploitation of any production produced hereunder, or to
terminate, cancel or rescind this Agreement or the grant of any rights
hereunder, for any reason whatsoever, including, without limitation, any
claimed failure or breach on Xxxxxxxx.xxx's part.
7. Indemnification. Owner agrees to defend, indemnify and otherwise hold
Xxxxxxxx.xxx and its employees, officers, directors, agents,
representatives, successors, licensees and assigns free and harmless
from and against any and all liabilities, claims, demands (including
reasonable attorneys' fees and costs whether or not litigation is
commenced) arising out of or resulting from any breach or alleged breach
by Owner of any term or condition of this Agreement or the
representations and warranties of Owner.
8. Assignment. Xxxxxxxx.xxx may not assign or transfer this Agreement and
all or any part of Xxxxxxxx.xxx's rights or obligations hereunder
without the prior consent of Owner (which consent shall not be
unreasonably withheld), and this Agreement shall inure to the benefit of
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Xxxxxxxx.xxx's successors and assigns and shall be binding upon Owner's
successors and assigns. This Agreement is personal to Owner and may not
be assigned or transferred.
9. Successors and Assigns. It is agreed that each and every covenant,
agreement, term and condition herein contained will extend to and be
binding upon the respective successors, heirs, administrators, executors
and assigns of the parties hereto.
10. Invalidity of Provisions. If any term or provision of this Option or the
application thereof to any person or circumstance shall, to any extent,
be invalid or unenforceable, the remainder of this Option, or the
application of such term or provision to persons or circumstances other
than those as to which it is held invalid or unenforceable, shall not be
affected thereby.
11. Interpretation. This Option shall be governed by and interpreted in
accordance with the laws of the State of California.
12. Limitation of Liability. The liability of Owner hereunder shall be
limited to the interest now held by Owner in the Technology (pursuant to
the Purchase Agreement). This Option has been agreed to by Owner and
Xxxxxxxx.xxx with the expectation that the Purchase Agreement, the
Technology license and the Note will run their natural course without
defaults. Except as expressly provided in the next sentence,
Xxxxxxxx.xxx's rights hereunder shall be to pursue Owner's interest in
the Technology and Xxxxxxxx.xxx shall have no recourse personally
against Owner to enforce this Option. Notwithstanding the foregoing,
however, Owner warrants to Xxxxxxxx.xxx that Owner will take no action
without the written consent of Xxxxxxxx.xxx which would result in
further encumbering Owner's interest in the Technology.
13. Counterparts. This Option may be executed in one or more counterparts,
all of which are to be considered one and the same agreement, and shall
become effective when one or more counterparts have been signed by all
of the parties hereto and delivered to the other party.
14. Miscellaneous. Owner agrees to execute, acknowledge and deliver to
Xxxxxxxx.xxx, in a form approved by Xxxxxxxx.xxx, any additional
documents or instruments which Xxxxxxxx.xxx may deem necessary to fully
effectuate and carry out the intent and purposes of this Agreement. The
parties may enter into a more formal contract incorporating the terms
set forth in this Agreement
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and standard terms and conditions customary in technology option/purchase
agreements in the high tech industry in Silicon Valley, California, but unless
and until such more formal contract is prepared and executed, the terms and
conditions under which Xxxxxxxx.xxx is acquiring the option from Owner with
respect to the Technology is as set forth in this Agreement and in such standard
terms and conditions incorporated herein by this reference.
By signing and dating in the spaces indicated below, the parties acknowledge
that this agreement constitutes their complete understanding of their agreement
until such time as a more formal agreement may be signed. Facsimile signatures
shall be deemed original for all purposes.
IN WITNESS WHEREOF, the parties hereto have executed this Option as of the date
set forth by their respective signatures hereunder.
605285 ONTARIO INC.
By: Sworn and subscribed before me this ____
------------------------------- Day of __________, 2000
Name:
----------------------------- Notary Public
Title: (Affix Notarial Seal)
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Date: My Commission expires:
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505804 NEW BRUNSWICK INC.
By: Sworn and subscribed before me this ___
------------------------------- Day of __________ ,2000
Name:
----------------------------- Notary Public
Title: (Affix Notarial Seal)
----------------------------
Date: My Commission expires:
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505406 NEW BRUNSWICK INC.
By: Sworn and subscribed before me this ___
------------------------------- Day of __________ ,2000
Name:
----------------------------- Notary Public
Title: (Affix Notarial Seal)
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Date: My Commission expires:
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XXXXXXXX.XXX, INC.
By:
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Name:
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Title: Date:
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