THIS AGREEMENT made in triplicate on the 31st day of March 1999
BY AND BETWEEN:
XXXX TECHNOLOGIES INC. a body corporate incorporated under the laws
of the Province of British Columbia, Canada
(hereinafter referred to as "the Vendor")
OF THE FIRST PART
AND
XXXX TECHNOLOGIES INTERNATIONAL, INC. a body corporate incorporated
under the laws of the State of Delaware, USA
(hereinafter referred to as "the Purchaser")
OF THE SECOND PART
WHEREAS the Vendor operates and carries on a photoluminescent sign,
photoluminescent product design and emergency wayfinding systems business.
AND WHEREAS the Vendor has incurred significant research and development
expenditures on the invention hereinafter referred to and is the assignee of all
the exclusive right, title and interest, pursuant to an assignment in writing
dated the 19th day of November 1997 made between the Vendor as assignee and
Xxxxxxx Xxxxxxxx and Xxxxxxxx Xxxxxx (hereinafter called the "Inventors") as
assignors, of proprietary technology for a new photoluminescence illumination
invention and process known as a "PHOTOLUMINESCENT LIGHT EMITTER WITH ENHANCED
PHOTOMETRIC BRIGHTNESS CHARACTERISTICS" (hereinafter referred to as "the
invention"):
AND WHEREAS the Vendor is desirous of selling, assigning and transferring all
its right, title and interest in the said invention and patent application based
thereon to the Purchaser.
AND WHEREAS the Purchaser is desirous of purchasing the exclusive right, title
and interest of the Vendor in the invention and patent application based thereon
and having the following assigned from the Vendor to the Purchaser on the terms
and conditions herein set forth:
o the patent application dated the 19th day of November 1997 made by
Xxxxxxxx Xxxxxx and Xxxxxxx Xxxxxxxx and assigned to the Vendor on the
19th day of November 1997(a copy of which is attached hereto as
Schedule "A"), and
WITNESSETH THEREFORE IN CONSIDERATION OF THE MUTUAL PROMISES, COVENANTS, AND
REPRESENTATIONS CONTAINED HEREIN, THE PARTIES AGREE AS FOLLOWS:
ARTICLE I DEFINITIONS:
1.01 In this agreement unless there is something in the subject matter or
context inconsistent therewith:
(a)"Closing Date" shall mean:
(i) The 3Oth day of April 1999
(ii) Such other earlier date as the Parties hereto may mutually agree
(b) "Effective Date" shall mean the 31st day of March 1999
ARTICLE II - SALE OF TECHNOLOGY
2.01 The Vendor agrees to sell and the Purchaser agrees to purchase as at the
Effective Date, at and for the price of Ninety Thousand Dollars USD ($90,000
USD), all of the Vendor's right, title and interest in the invention and which
for greater clarity but without in any way restricting the foregoing definition,
shall include:
(i) that certain patent application dated the 19th day of November 1997 made by
Xxxxxxx Xxxxxxxx and Xxxxxxxx Xxxxxx and assigned to the Vendor on the 19th
day of November 1997 for the proprietary technology known as a
PHOTOLUMINESCENT LIGHT EMITTER WITH ENHANCED PHOTOMETRIC BRIGHTNESS
CHARACTERISTICS including all research and development expended on such
technology to the date hereof. The said Xxxxxxx Xxxxxxxx and Xxxxxxxx
Xxxxxx having developed the proprietary technology and having applied for a
patent pursuant to application number 08/979,094 filed with United States
Patent and Trademark Office, a copy of which is appended hereto as Schedule
"A".
The Purchaser hereby acknowledges that the invention herein purchased and the
patent application based thereon is being purchased without any warranty or
representation from the Vendor or the Inventors that a patent will issue for
such invention IN THE UNITED STATES PATENT AND TRADEMARK OFFICE or in any other
country or jurisdiction and further that such invention has any commercial
viability or fitness for any particular purpose.
2.03 The Vendor's right, title and interest in the invention at the Effective
Date and on the Closing Date shall be free and clear of all claims,
encumbrances, charges and other third party rights or interests.
2.04 The Purchaser shall not be deemed by this agreement to have accepted any
obligation or assumed any obligation or responsibility for the payment of any
debt, obligation, liability, claim or demand of whatsoever nature of or against
the Vendor in respect of the invention or patent application.
ARTICLE III UNDERTAKING BY THE VENDOR
The Vendor undertakes that it will not, prior to the Closing Date sell or
otherwise in any way assign, transfer, alienate, hypothecate or dispose of to
any person, firm or corporation its right, title, and interest in the invention
or the patent application sold to the Purchaser.
ARTICLE IV EXAMINATION AND VERIFICATION
The Purchaser shall have the right during the period from the date hereof to the
date of closing to verify or cause to be verified the representations and
warranties set out herein below, and to examine all the technical documents,
records, reports and files of the Vendor so as to satisfy the Purchaser of the
technical and financial viability of such invention. Any such examination shall
not prejudice the Purchaser's right with respect to any of the Purchaser's
rights with respect to any claims for breach of any such representations and
warranties.
ARTICLE V INTERIM OPERATION
(a) During the period from and including the Effective Date to and
including the Closing Date, the Vendor shall not undertake any activity
or do anything which will result in the reduction of the value of the
invention or impair the patent application process based thereon.
ARTICLE VI TERMINATION
If prior to the Closing Date:
(a) The examination and verification by the Purchaser or on its behalf shall
reveal that the representations and warranties set out herein are not
accurate or true, or
(b) Any condition which is to be fulfilled by the Vendor before the Closing
Date is not so fulfilled and the Purchaser has not waived its fulfillment,
The Purchaser shall give the Vendor immediate notice in writing of such fact,
giving the pertinent details known to the Purchaser in respect thereof, and the
Closing Date shall then be postponed for a period of Seven (7) days and if such
breach or failure complained of is not remedied within Five (5) days of such
notice, the Purchaser, at its option, within Two (2) days from the expiry of
said delay of Five (5) days, may terminate the Agreement by notice in writing to
the Vendor, whereupon the transaction contemplated by this agreement shall be
cancelled ab initio and the Parties hereto will be reinstated to the same
position in which they were prior to the date hereof; Provided however, that in
the event the Purchaser does not then so terminate the Agreement, the decision
not to terminate the Agreement shall not prejudice the Purchaser's right with
respect to any claims for breach of the said representations and warranties.
ARTICLE VII DELIVERY AT CLOSING DATE
Unless the Agreement shall have been terminated by the Purchaser prior to the
Closing Date pursuant to ARTICLE VI hereof:
(a) The Purchaser shall:
(i) deliver to the Vendor on the date for closing at the place for
closing, a promissory note in the sum of Ninety Thousand Dollars USD
($90,000 USD), which sum shall be due and payable without interest on
or before the 30th day of June 2000. The Purchaser shall have the right
to prepay any or the entire said sum without notice or bonus.
(ii) deliver to the Vendor on the date for closing at the place for
closing a certificate signed by the Directors that all necessary
corporate action has been taken to approve, confirm, and adopt this
agreement and to authorize the execution and delivery of all documents
herein and the performance of acts and consummation of all transactions
on the part of Purchaser to be done or performed hereunder.
(a) The Vendor shall:
(i) have taken all necessary corporate action by the Directors to
approve, ratify, confirm and adopt this agreement, and to authorize the
execution and delivery of all documents herein and the performance of
all acts and consummation of all transactions on the part of the Vendor
to be done or performed hereunder.
(ii) deliver to the Purchaser at the Closing Date a certificate signed
by the Directors to the effect that the following representations and
warranties which the Vendor is hereby making to the Purchaser, are true
and correct as at the Closing Date.
(iii) deliver to the Purchaser an assignment in registerable form of
Patent Application 08/979,094 satisfactory to the Purchaser, which
assignment has been acknowledged, approved and consented to by the
Inventors.
ARTICLE VIII THE DIRECTORS OF THE VENDOR WARRANT AND REPRESENT:
(a) That the Vendor was duly incorporated and is a valid and subsisting company
(b) That the Vendor has the corporate power to sell the invention and assign
the patent application based thereon set out in Schedule "A" herein.
(c) That no other person, firm or company has any right, title or interest in
the patent application filed by Xxxxxxx Xxxxxxxx and Xxxxxxxx Xxxxxx, for
the proprietary technology and invention known as a PHOTOLUMINESCENT LIGHT
EMITTER WITH ENHANCED PHOTOMETRIC BRIGHTNESS CHARACTERISTICS and the Vendor
is currently the developer and exclusive owner of the aforesaid invention
which is more particularly described in Schedule "A".
ARTICLE IX REPRESENTATIONS FOR PURCHASER'S BENEFIT
All of the representations and warranties hereby made by the Vendor and to be
made by the Vendor at the Closing Date and all of conditions contained herein to
be performed by the Vendor shall be for the Purchaser's benefit and the
Purchaser shall have the right at any time to waive the same without prejudice
to any of its recourses with respect to any other breaches by the Vendor. All of
the representations and warranties contained herein and made by the Vendor shall
survive the Closing Date.
ARTICLE X REDUCTION IN PURCHASE PRICE FOR BREACH
It is understood and agreed that any recourse in favor of the Purchaser arising
from:
(a) Any loss and claims the cause of which originated prior or that might
be sustained after the Closing Date, as a result of undisclosed claims,
charges and liabilities generally, to the extent that said loss is not
covered by insurance, and as a result of any misrepresentations or
warranties by the Vendor herein,
shall be exercised against but not limited to the balance (if any) of the
purchase price and shall operate in reduction of same provided that, in the
event any such claim shall be made or any loss shall be sustained, then the
Purchaser shall give the Vendor notice in writing of such claim or loss, and the
Vendor shall be afforded reasonable facilities for investigating such claim or
loss, and the Purchaser shall act in accordance with the Vendors instructions,
if the Vendors instructions are communicated to the Purchaser in ample time to
enable the Purchaser to take appropriate action, or, failing receipt of such
instructions, as the Purchaser may deem expedient in the circumstances; and if
the Purchaser then pays any amount in settlement, including penalties and
interest, if any, and for legal and accounting services in respect of
negotiations for settlement thereof or by way of costs upon or in respect of the
contestation thereof, and the Vendor shall not have paid the Purchaser, upon
demand, the purchase price to be paid to the Vendor shall be reduced
proportionately by the amount that the sum paid by the Purchaser bears to the
value of the invention and patent application sold, transferred or assigned at
the date of this agreement.
ARTICLE XI CLOSING
The closing shall take place at the Vendor's offices at Vancouver, British
Columbia, at 10:00 a.m. on April 30th, 1999 or such other date as may be agreed
upon by the Parties.
ARTICLE XII NOTICE
Any notice to be given hereunder shall be deemed to have been duly given if
reduced to writing, signed by or on behalf of the Party giving such notice and
delivered by hand or mailed by registered mail, postage prepaid and addressed as
follows:
(a) If for the Purchaser, at: 0000 Xxxxxxx Xxxxxx XX #000 Xxxxxxx, Xxxxxxxxxx
XXX
(b) If for the Vendor, at: #0 - 0000 Xxxxxx Xxxxxxx, Xxxxxxxxx XX, Xxxxxx
and if mailed, such notice shall be deemed to have been received on the fifth
business day next following the date of mailing. Any Party may, by notice given
in accordance with the foregoing, change their address for the purposes of this
clause.
ARTICLE XIII SUCCESSORS AND ASSIGNS
This agreement shall inure to the benefit of and be binding upon the Parties
hereto and their respective legal representatives, successors and assigns.
ARTICLE XIV LAWS
This Agreement shall be governed by and interpreted in accordance with the laws
of the State of Washington, USA.
ARTICLE XVI CONFIDENTIALITY
In the event the transaction contemplated hereby, for any reason whatsoever is
cancelled, the Purchaser shall then be under the obligation to treat all
information that the Purchaser might then have acquired in relation to the
Vendor's proprietary technology, invention and patent application as strictly
confidential.
ARTICLE XVII COSTS
It is understood and agreed that each of the Parties hereto shall pay their own
costs and expenses relating to the transaction contemplated herein including all
fees and expenses of their accountants and counsel.
IN WITNESS WHEREOF THE PARTIES HERETO HAVE AFFIXED THEIR RESPECTIVE CORPORATE
SEALS BY THEIR OFFICERS PROPERLY AUTHORIZED IN THAT BEHALF, THE DAY AND YEAR
FIRST ABOVE WRITTEN.
XXXX TECHNOLOGIES INTERNATIONAL, INC.
Per:
---------------------------------------
XXXX TECHNOLOGIES INC.
Per:
----------------------------------------
