Exhibit 10.28
PURCHASE AGREEMENT
This PURCHASE AGREEMENT ("Agreement") is made this 26th day of August,
2005 (the "Effective Date") by and between Delta Technologies, Inc. ("Buyer")
and Xxxxxxx X. Xxxxxx Xx., and Xxxx X. Xxxxx, collectively ("Seller"). The terms
and conditions under which Seller will sell, transfer and assign certain assets
to Buyer are set forth below.
W I T N E S S E T H:
WHEREAS, Seller has created certain Intellectual Property (as defined
below); and
WHEREAS, Buyer desires to purchase the Intellectual Property and Seller
desires to sell the Intellectual Property.
NOW, THEREFORE, the parties hereto, each intending to be legally bound
hereby, and each in consideration of the promises of the other hereinafter
contained, agree as follows:
1. The Intellectual Property. For purposes of this Agreement, the Intellectual
Property shall mean: all data, documentation, technology and all information
relating thereto that has been designed, developed, maintained or that has
otherwise been created by Seller or Seller's employees and agents relating to
Seller's system for the manufacture of insulated concrete form wall forming,
including, but not limited to all: design drawings; material specifications;
mould design; production equipment specifications and computer performance
analysis, all of which are incorporated herein by reference and form a part of
this Agreement.
2. Sale of Intellectual Property. Seller hereby sells, conveys, transfers,
assigns, grants and delivers, exclusively to Buyer, its legal representatives,
successors and assigns, free and clear of any encumbrance of any type
(including, but not limited to, any lien, restriction, liability or security
interest) all right, title and interest of every kind and nature whatsoever in
and to the Intellectual Property and all copies and versions thereof.
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3. Duties of Buyer. In consideration for the sale of the Intellectual Property,
Buyer shall pay the fees set forth in Exhibit A. Additionally, Buyer shall,
through its attorneys take commercially reasonable efforts to obtain a patent in
the United States and other countries as deemed desirable by Buyer for the
system for the manufacture of insulated concrete wall forming.
4. Warranties of Seller. Seller represents and warrants the following:
a. Seller is the owner of all rights, title and interest in and to the
Intellectual Property, free and clear of all encumbrances of any type, including
but not limited to any lien, restriction, liability or security interest and has
the right to enter into this Agreement, to grant to Buyer the rights set forth
herein and to perform all other obligations under this Agreement;
b. To the best of their knowledge, without right of recourse by Buyer, the
Intellectual Property, does not violate or infringe upon the rights of any third
party, including without limitation, any patent, copyright, trade secret,
trademark, contractual, proprietary or confidential information or
nondisclosure, or other proprietary rights;
c. To the best of their knowledge, without right of recourse by Buyer,
there have been no claims made by any third party alleging that the Intellectual
Property violates or infringes that party's rights or interests;
d. The assets, documents, technology, information and materials sold and
delivered to Buyer hereunder constitutes all of the assets, documents,
technology, information and material, tangible and intangible, of any nature
whatsoever, designed, developed, maintained or created by Seller or Seller's
employees or agents, relating to the Intellectual Property; and
e. Seller has taken all reasonable precautions to protect the secrecy,
confidentiality, and value of the Intellectual Property (including, if
applicable, the enforcement by Seller of a policy requiring each employees or
independent contractors to execute proprietary information and confidentiality
agreements and all current and former employees and independent contractors of
Seller have executed such an agreement).
5. Further Assurances. Seller shall cooperate reasonably with Buyer and Buyer's
employee, agents and representatives (including, but not limited to, Buyer's
attorneys) to (a) furnish upon request, such further information, (b) execute
(or obtain signatures as may be required) and deliver to Buyer such other
documents, including but not limited to the Assignment, attached hereto as
Exhibit B and the Declaration and Power Attorney attached hereto as Exhibit C,
and (c) do such other acts and things, all as Buyer may reasonably request for
the purpose of and in connection with any steps required to perfect and protect
Buyer's interests and rights in and to the Intellectual Property and assist
Buyer for any and all U.S. or foreign patent application(s) for the system for
the manufacture of insulated concrete form wall forming including any
improvements, divisional or continuation applications relating thereto.
6. No Indemnification. Seller and Buyer agree that Seller will not indemnify
Buyer, his respective directors, officers, employees, shareholders and agents
(collectively "Non-Indemnified Parties) for any claims, suits losses, diminution
of value of Intellectual Property, liabilities, damages, and expenses resulting
from or relating to (i) the breach by Seller of any representation, warranty or
covenant contained herein, (ii) a claim that the Intellectual Property violates
or infringes any third party's intellectual property rights, (iii) and expense
incurred by Buyer relating to (i) or (ii) above, and (iv) Sellers' ownership and
use of Intellectual Property prior to the Effective Date. In the event of a
third party claim that the Intellectual Property violates of infringes the third
party's intellectual property rights, Seller will use commercially reasonable
efforts to assist Buyer in obtaining the right to continue using the
Intellectual Property.
7. Confidentiality.
a. Seller acknowledges that information may be disclosed or made known or
available to Seller, as a consequence of its relationship with Buyer and/or in
the transaction contemplated hereunder, concerning Buyer, which information is
not generally known to the public (including, but not limited to, the
Intellectual Property) constitutes the confidential and proprietary business
information of Buyer. Seller shall not use such information for any reason
without the prior written consent of Buyer, and shall take every reasonable
precaution to safeguard all such information.
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b. Seller further acknowledges that the information referred to in Section
7 (a) above, constitutes the proprietary, trade secrets of Buyer and is of
unique and extraordinary character, and that, in the event of a breach by Seller
of its obligations under this Section, Buyer shall suffer irreparable harm,
Buyer's remedies at law shall be inadequate and Buyer shall have, in addition to
any other remedies it may have, the right to obtain injunctive relief to
restrain any breach or threatened breach thereof.
8. Publicity. Seller shall not issue any publicity or press release regarding
its contractual relations with Buyer or otherwise make any oral or written
reference regarding its activities hereunder, without obtaining Buyer's prior
written consent, and approval of the contents thereof.
9. General.
a. This Agreement and the Exhibits hereto constitute the entire agreement
between Seller and Buyer with respect to the subject matter hereof, and no
waiver, modification, alteration or amendment of any of the terms or conditions
hereof shall be effective unless and until set forth in writing duly signed by
Seller and Buyer.
b. Notwithstanding the existence of any employer/employee relationship
which may exist between one or more of the parties hereto, and solely in
connection with this Agreement, each party shall be construed to be an
independent contractor. This Agreement does not, and shall not be construed to,
create an employer-employee, agency, joint venture or partnership relationship
between the parties. Neither party shall have any authority to act for or to
bind the other party in any way, to alter any of the terms or conditions of any
of the other party's standard forms of invoices, sales agreements, warranties or
otherwise, or to warrant or to execute agreements on behalf of the other or to
represent that it is in any way responsible for the acts, debts, liabilities or
omissions of the other parties in connection with this Agreement.
c. If any provision of this Agreement, or the application thereof under
certain circumstances, is held to be invalid or unenforceable, the remaining
provisions of this Agreement, or the application of such provision under other
circumstances, shall remain in full force and effect to be read and construed as
if the invalid or unenforceable provisions were deleted.
d. This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Pennsylvania, as such laws are applied to
agreements made and to be wholly performed within Pennsylvania. Seller and Buyer
hereby consent to the exclusive jurisdiction of the state courts of the
Commonwealth of Pennsylvania, and the United States District Court for the
Eastern District of Pennsylvania in connection with any dispute based on or
arising out of or in connection with this Agreement or the Intellectual
Property. Process in any legal proceeding based on or arising out of or in
connection with this Agreement or the Intellectual Property may be served on any
party anywhere in the world.
e. This Agreement was negotiated by the parties with the benefit of legal
representation and any rule of construction or interpretation otherwise
requiring this Agreement to be construed or interpreted against any party shall
not apply to any construction or interpretation hereof.
f. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which together shall constitute one
and the same instrument. This Agreement shall become binding when any one or
more counterparts hereof, individually or taken together, bear the signatures of
both parties hereto. For the purposes hereof, a facsimile copy of this
Agreement, including the signature pages hereto, shall be deemed an original.
g. All notices, waivers and other communications required or permitted by
this Agreement shall be in writing and shall be deemed given to a party when (a)
delivered to the appropriate address by hand or by nationally recognized
overnight courier service (costs prepaid); (b) sent by facsimile or e-mail with
confirmation of transmission by the transmitting equipment; or (c) received or
rejected by the addressee, if sent by certified mail, return receipt requested,
in each case to the following addresses, facsimile numbers or e-mail addresses
and marked to the attention of the person (by name or title) designated below
(or to such other address, facsimile number, e-mail address or person as a party
may designate by notice to the other parties):
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Seller: Xxxxxxx X. Xxxxxx, Xx. Seller: Xxxx X. Xxxxx
Address: 0000 Xxxxxxxxx Xxxxx Address: 00 Xxxxxxxxx Xxxxx
Xxxxx, XX 00000 Xxxxxx, XX 00000
Buyer: Delta Technologies, Inc.
Address: 000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date as defined above.
Buyer:Delta Technologies, Inc. Seller:Xxxxxxx X. Xxxxxx, Xx. Seller:Xxxx X. Xxxxx
By:/s/_____________________ By: /s/______________________ By: /s/___________________
Xxxxxx X. Xxxxxx Xxxxxxx X. Xxxxxx, Xx. Xxxx X. Xxxxx
Vice President
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EXHIBIT A
FEES
Xxxxxxx Xxxxxx (Seller 1)
Delta Technologies, Inc. ("DTI") will compensate Xxxxxxx Xxxxxx ("Seller 1")
with a combination of cash and shares of restricted common stock of Delta
Mutual, Inc. all as set forth below:
1. Cash Payments
$50,000.00 in United States currency upon execution of this Agreement.
2. Delta Mutual, Inc. Restricted Common Stock
The number of shares of restricted common stock of Delta Mutual, Inc. with
a dollar equivalent of $50,000.00 in United States currency based on the closing
price of DELTA common stock (DLTM.OB) on the date of execution of the Agreement
and to be delivered to Seller 1 within five (5) business days.
Xxxx X. Xxxxx (Seller 2)
1. Delta Mutual, Inc Restricted Common Stock
One-Hundred Thousand (100,000) shares of restricted common stock of Delta
Mutual, Inc. to be delivered to Seller within five (5) business days after the
date of execution of the Agreement.
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EXHIBIT B
ASSIGNMENT
In consideration of the payment by Delta Technologies, Inc. ("ASSIGNEE"),
a corporation incorporated under the laws of Delaware and having a place of
business at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 to each of
Xxxxxxx X. Xxxxxx, Xx. and Xxxx Xxxxx (together, "ASSIGNORS"), the sum of One
Dollar ($1.00), the receipt of which is hereby acknowledged, and for other good
and valuable consideration, ASSIGNORS hereby sell, assign and transfer to
ASSIGNEE and the successors, assigns and legal representatives of the ASSIGNEE
the entire right, title and interest for the United States and its territorial
possessions and in all foreign countries, including all rights to claim
priority, in and to any and all improvements which are disclosed in the
invention entitled:
SYSTEM FOR MANUFACTURE OF INSULATED CONCRETE
FORM WALL FORMING
and which is described in the specification filed herewith and attached hereto
and any legal equivalent thereof in a foreign country, including the right to
claim priority and, in and to, all Letters Patent to be obtained for said
invention by the above application or any continuation, division, renewal, or
substitute thereof, and as to letters patent any reissue or re examination
thereof.
ASSIGNORS hereby covenant that no assignment, sale, agreement or encumbrance has
been or will be made or entered into which would conflict with this assignment.
ASSIGNORS further covenant that ASSIGNEE will, upon its request, be provided
promptly with all pertinent facts and documents relating to said invention and
said Letters Patent and legal equivalents as may be known and accessible to
ASSIGNORS and will testify as to the same in any interference, litigation or
proceeding related thereto and will promptly execute and deliver to ASSIGNEE or
its legal representatives any and all papers, instruments or affidavits required
to apply for, obtain, maintain, issue and enforce said application, said
invention and said Letters Patent and said equivalents thereof which may be
necessary or desirable to carry out the purposes thereof.
IN WITNESS WHEREOF, ASSIGNORS hereunto set hand and seal this 26th day of August
2005.
/s/ Xxxxxxx X. Xxxxxx, Xx. /s/ Xxxx X. Xxxxx
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Xxxxxxx X. Xxxxxx, Xx. Xxxx X. Xxxxx
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DELTA MUTUAL INC - 8-K/A Filing Date: 08/__/05
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EXHIBIT C
Declaration And Power of Attorney
As a below named inventor, I hereby declare that:
My residence, post office address and citizenship are stated below next to
my name.
I believe I am the original, first, and sole inventor (if only one name is
listed below) or an original, first, and joint inventor (if plural names are
listed below) of the subject matter which is claimed and for which a patent is
sought on the invention entitled:
SYSTEM FOR MANUFACTURE OF INSULATED
CONCRETE FORM WALL FORMING
the specification of which is attached herewith unless the following box is
checked.
|_| was filed on as Application Serial No.
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or PCT Application No. And was amended on
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(if applicable).
I hereby state that I have reviewed and understand the contents of the
above-identified specification, including the claims, as amended by any
amendment referred to above.
I acknowledge the duty to disclose information which is material to the
examination of this application in accordance with 37 CFR ss.1.56.
I hereby claim foreign priority benefits under 35 U.S.C. ss.119(a)-(d) or
ss.365(b) of any foreign application(s) for patent or inventor's certificate, or
ss.365(a) of any PCT international application which designated at least one
country other than the United States, listed below and have also identified
below any foreign application for patent or inventor's certificate or PCT
International application having a filing date before that of the application on
which priority is claimed:
PRIOR FOREIGN/PCT APPLICATION(S)
APPLICATION NO. COUNTRY DATE OF FILING PRIORITY CLAIMED
|_| YES NO |_|
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|_| YES NO |_|
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I hereby claim the benefit under 35 U.S.C. ss.119(e) of any United States
provisional application(s) listed below.
PROVISIONAL APPLICATION NUMBER DATE OF FILING
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I hereby claim the benefit under 35 U.S.C. ss.120 of any United States
application(s) or ss.365(c) of any PCT International application(s) designating
the United States, listed below and, insofar as the subject matter of each of
the claims of this application is not disclosed in the prior United States
application in the manner provided by the first paragraph of 35 U.S.C. ss.112, I
acknowledge the duty to disclose material information as defined in 37 CFR
ss.1.56 which became available between the filing date of the prior application
and the national or PCT inter-national filing date of this application:
PRIOR U.S. APPLICATIONS OR PCT INTERNATIONAL APPLICATIONS
DESIGNATING THE U.S. FOR BENEFIT UNDER 35 U.S.C. SS.120
Status (check one)
Application Serial No. Date of Filing
Patented Pending Abandoned
|_| |_| |_|
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And I hereby appoint ________________________ my attorneys or agents with
full power of substitution and revocation, to prosecute this application and to
transact all business in the Patent and Trademark Office connected therewith.
Address all correspondence to _____________________________________.
Address all telephone calls to.
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I hereby declare that all statements made herein of my own knowledge are
true and that all statements made on information and belief are believed to be
true; and further that these statements were made with the knowledge that
willful false statements and the like so made are punishable by fine or
imprisonment, or both, under Section 1001 of Title 18 of the United States Code,
and that such willful false statements may jeopardize the validity of the
application or any patent issuing thereon.
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FULL NAME OF SOLE OR FIRST INVENTOR
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(GIVEN NAME) (MIDDLE INITIAL OR NAME) (FAMILY OR LAST NAME)
Inventor's signature:
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FULL NAME OF SECOND JOINT INVENTOR, IF ANY
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(GIVEN NAME) (MIDDLE INITIAL OR NAME) (FAMILY OR LAST NAME)
Inventor's signature:
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FULL NAME OF THIRD JOINT INVENTOR, IF ANY
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(GIVEN NAME) (MIDDLE INITIAL OR NAME) (FAMILY OR LAST NAME)
Inventor's signature:
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FULL NAME OF FOURTH JOINT INVENTOR, IF ANY
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(GIVEN NAME) (MIDDLE INITIAL OR NAME) (FAMILY OR LAST NAME)
Inventor's signature:
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Date:
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