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EXHIBIT 6.6
OPTION ACQUISITION AGREEMENT BETWEEN OMICRON TECHNOLOGIES INC.
AND VIASPACE TECHNOLOGIES, LLC
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Exhibit 6.6
OPTION ACQUISITION AGREEMENT
Dated this 12th day of October, 1999
BETWEEN:
OMICRON TECHNOLOGIES, INC., a corporation incorporated under the laws
of the State of Florida, whose head office is located at Suite 2202 -
000 Xxxxxx Xx., Xxxxxxxxx, X.X. Xxxxxx X0X 0X0
(Hereinafter referred to as "Omicron")
OF THE FIRST PART
-AND-
VIASPACE TECHNOLOGIES, LLC., a corporation incorporated under the laws
of the State of Delaware whose head office is located at 0000 Xxxxxxx
Xxx. Xxxxxxxx, XX.
(Hereinafter referred to as "ViaSpace")
OF THE SECOND PART
SUBJECT MATTER
WHEREAS, ViaSpace has secured from Caltech an option to acquire the
APS and APS Wireless Technology("the Technology");
WHEREAS, ViaSpace has the right to sell and/or assign such option to
the Technology;
AND WHEREAS, Omicron is desirous of purchasing the option for such
Technology;
NOW THEREFORE THIS AGREEMENT WITNESSES THAT, in consideration of the
foregoing premises, the mutual covenants, agreements, representations,
warranties and indemnities of the parties herein set forth, and for other good
and valuable consideration (the receipt and sufficiency of which are hereby
acknowledged by each party), the parties hereto agree as follows:
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ARTICLE ONE-PURCHASE PRICE
1.01 Omicron agrees to pay $3,000,000 for the Technology more particularly
described in Schedule "A" attached hereto and forming a part of this
Agreement;
ARTICLE TWO - TERMS OF PAYMENT
2.01 Omicron will pay in cash a total of $750,000 which ViaSpace hereby
acknowledges having received previously.
2.02 Further, Omicron agrees to transfer at closing 1,500,000 shares of
restricted common shares at a price of $2.25 per share to ViaSpace in
order to fulfill its obligations under this Agreement for the balance of
the Purchase Price;
2.03 Within five(5) days of the signing and execution of this Agreement,
ViaSpace will deliver to Omicron a properly endorsed and acknowledged
assignment of its option for the Technology from Caltech properly endorsed
and executed into the name of ViaSpace.
2.04 Simultaneously with (or not later that 5 working days) the signing and
execution of this Agreement, Omicron will deliver to ViaSpace, a duly
executed authorization addressed to the Fidelity Stock Transfer Company,
Salt Lake, Utah such form as set out in Exhibit "A" to this Agreement.
Fidelity Stock Transfer Company will be further advised that the shares of
stock will be delivered to ViaSpace pursuant to the terms of this
Agreement.
2.05 Both ViaSpace and Omicron will deliver to a mutually agreeable escrow
agent duly authorized and executed stock powers with signature guaranteed
by a local bank which the escrow agent will utilize for the purpose of
returning the stock to the original owners as necessary under the terms
and conditions of this Agreement.
2.06 Omicron will register all shares under this Agreement with the Securities
and Exchange Commission.
2.07 All shares delivered and deposited with the escrow agent shall have a
legend placed upon them that "these shares are subject to an Option
Acquisition Agreement between Omicron and ViaSpace, dated October 12,
1999. Anyone purchasing these shares takes them subject to the rights
afforded the parties in this Agreement".
2.08 will act as escrow agent for both the Purchaser and the Vendor
and will hold all shares transferred in escrow pursuant to this Agreement
until closing.
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ARTICLE THREE-REPRESENTATIONS AND WARRANTIES OF VIASPACE
3.01 Authorization
This Agreement has been duly authorized, executed and delivered by ViaSpace and
is a legal, valid and binding obligation of ViaSpace, enforceable against
ViaSpace by the Omicron in accordance with its terms.
3.02 No Other Agreements to Purchase
No Person other than Omicron has any written or oral agreement or option or any
right or privilege (whether by law, pre-emptive or contractual) capable of
becoming an agreement or option for the purchase or acquisition from ViaSpace of
any of the Technology
3.03 No Violation
The execution, delivery and performance of this Agreement by ViaSpace and the
consummation of the transactions herein provided for will not, to the best of
the knowledge ViaSpace, result in:
(a) the breach or violation in any material respect of any of the provisions
of, or constitute a default under, or conflict with or cause the
acceleration of any obligation of ViaSpace under:
(i) any Contract to which ViaSpace is a party or by which it is or its
Technology is bound;
(ii) any provision of the constating documents or by-laws or resolutions of the
board of directors (or any committee thereof) of ViaSpace;
(iii) any judgment, decree, order or award of any court, governmental body or
arbitrator having jurisdiction over ViaSpace;
(iv) any licence, permit, approval, consent or authorization held by ViaSpace;
or
(v) any applicable law, statute, ordinance, regulation or rule; nor
(b) the creation or imposition of any Encumbrance on the option in respect of
the Technology offered by Caltech.
(c) that ViaSpace will obtain from Caltech approval of the sale of the option
in connection with the Technology.
ARTICLE FOUR-REPRESENTATIONS AND WARRANTIES OF OMICRON
The Purchaser hereby represents and warrants to the Vendor and the Shareholder
as follows and acknowledges and confirms that the Vendor and the Shareholder are
relying on such representations and warranties in connection with the sale of
the Purchased Assets.
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4.01 Organization
The Purchaser is a corporation duly incorporated and organized and validly
subsisting under the laws of the State of Florida and has the corporate power to
enter into this Agreement and to perform its obligations hereunder.
4.02 Authorization
This Agreement has been duly authorized, executed and delivered by Omicron and
is a legal, valid and binding obligation of the Omicron, enforceable against
Omicron by ViaSpace in accordance with its terms.
4.03 No Violation
The execution and delivery of this Agreement by Omicron and the consummation of
the transactions herein provided for will not result in the violation of, or
constitute a default under, or conflict with or cause the acceleration of any
obligation of Omicron under:
(a) any Contract to which Omicron is a party or by which it is bound;
(b) any provision of the constating documents or by-laws or resolutions of the
board of directors (or any committee thereof) or shareholders of Omicron;
(c) any judgment decree, order or award of any court, governmental body or
arbitrator having jurisdiction over Omicron; or
(d) any applicable law, statute, ordinance, regulation or rule.
4.04 Consents and Approvals
There is no requirement for Omicron to make any filing with, give any notice to
or obtain any licence, permit, certificate, registration, authorization, consent
or approval of, any government or regulatory authority as a condition to the
lawful consummation of the transactions contemplated by this Agreement.
ARTICLE FIVE-MISCELLANEOUS
5.01 Currency
Unless otherwise indicated, all dollar amounts referred to in this Agreement or
the use of the symbol "S" shall be deemed to refer to United States dollars.
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5.02 Sections, Headings and Party Drafting
The division of this Agreement into Articles, Sections and Paragraphs and the
insertion of headings are for convenience of reference only and shall not affect
the interpretation or construction of this Agreement. Unless otherwise
indicated, any reference in this Agreement to an Article, Section, Paragraph or
Schedule refers to the specified Article, Section or Paragraph of or Schedule to
this Agreement. Each party hereto acknowledges that it and its legal advisors
have reviewed and participated in settling the terms of this Agreement. Each of
the parties hereto agree that any rule of construction or doctrine of
interpretation which has the result of construing or interpreting any ambiguity
against the drafting party shall not be applicable in the interpretations of
this Agreement.
5.03 Number, Gender and Person
In this Agreement, words imparting the singular number shall include the plural
and vice versa, and words importing the use of any gender shall include all
genders.
5.04 Entire Agreement
This Agreement (including the Schedules and Exhibits referred to herein, which
are hereby incorporated by reference) constitutes the entire agreement between
the parties with respect to the subject matter hereof and supersedes all prior
agreements, prior drafts of this Agreement, understandings, negotiations and
discussions, whether written or oral, between the parties with respect to the
subject matter of this Agreement. There are no conditions, covenants,
agreements, representations, warranties or other provisions, express or implied,
collateral, statutory or otherwise, relating to the subject matter hereof except
as herein provided. Without limiting the generality of the foregoing, the
memorandum of understanding dated August 7, 1998 together with the addendum
dated September 23,1998 are hereby superceded by this Agreement. Neither this
Agreement nor any provisions hereof is intended to confer upon any Person other
than the parties hereto any rights or remedies hereunder.
5.05 Time of the Essence
Time shall be of the essence of this Agreement and of every part hereof and no
extension or variation to this Agreement shall operate as a waiver of this
provision.
5.06 Applicable Law
This Agreement shall be construed, interpreted and enforced in accordance with,
and the respective rights and obligations of the parties shall be governed by,
the laws of the State of Florida and the federal laws of the United States of
America applicable therein without reference to any principles of conflicts of
laws, and each party irrevocably and unconditionally attorns to the
non-exclusive jurisdiction of the Courts of Florida and all courts competent to
hear appeals therefrom with respect to any matter arising hereunder or related
hereto.
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5.07 ENUREMENT
This Agreement shall enure to the benefit of and shall be binding on and
enforceable by the parties hereto and, where the context so permits, their
respective heirs, executors, legal personal representatives and successors.
5.08 ASSIGNMENT
No party hereto may assign either this Agreement or any of its rights, interests
or obligations hereunder without the prior written consent of each other party,
which consent shall not be unreasonably withheld.
5.09 AMENDMENTS; NO WAIVERS
(a) Any provision of this Agreement may be amended or waived if, and only if,
such amendment or waiver is in writing and signed, in the case of any
amendment, by all parties hereto, or in the case of a waiver, by the party
against whom the waiver is to be effective.
(b) No waiver by a party of any default, misrepresentation or breach of
warranty or covenant hereunder, whether intentional or not, shall be
deemed to extend to any prior or subsequent default, misrepresentation or
breach of warranty or covenant hereunder or affect in any way any rights
arising by virtue of any prior or subsequent occurrence. No failure or
delay by a party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of
any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
5.10 NOTICES
All notices, requests, demands, claims and other communications hereunder shall
be in writing. Any notice, request, demand, claim, or other communications
hereunder shall be deemed duly given (i) if personally delivered, when so
delivered, (ii) if mailed, two Business Days after having been sent by
registered or certified mail, return receipt requested, postage prepaid and
addressed to the intended recipient as set forth below, (iii) if given by telex
or telecopier, once such notice or other communication is transmitted to the
telex or telecopier number specified below and the appropriate answer back or
telephonic confirmation is received, provided that such notice or other
communication is promptly thereafter mailed in accordance with the provisions of
clause (ii) above or (iv) if sent through an overnight delivery service in
circumstances under which such service guarantees next day delivery, the day
following being so sent:
If to Omicron: Xxxxx 0000 - 000 Xxxxxx Xx., Xxxxxxxxx,
X.X. Xxxxxx X0X 2112
If to Viaspace: 0000 Xxxxxxx Xxx., Xxxxxxxx, XX, XXX
Any party may give any notice, request, demand, claim or other communication
hereunder using any other means (including ordinary mail or electronic mail),
but no such notice, request, demand, claim
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or other communication shall be deemed to have been duly given unless and until
it actually is received by the individual for whom it is intended. Any party may
change the address to which notices, requests, demands, claims and other
communications hereunder are to be delivered by giving the other parties notice
in the manner herein set forth.
5.11 Closing Date
The date of closing of this transaction shall be taken as the aforementioned
date of this Agreement as indicated on Page 1.
5.12 Facsimile Copy
A facsimile copy of this Agreement duly signed and executed can be taken as an
original by the parties of this Agreement hereto.
IN WITNESS WHEREOF the parties to this Agreement have executed this Agreement.
)
) Omicron Technologies, Inc.
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________________________ )per:_____________________________
Witness ) Sak Xxxxxx, CFO
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) ViaSpace Technologies LLC
)
)
________________________ )per:_____________________________
Witness ) Xxx Xxxxxxxx, CFO
