THIS AGREEMENT is made the 02 day of February 2004
PARTIES:
(1) Xx Xxxxx Xxxxxxxx of 00 Xxxxx Xxxx, Xxxxxxxxxx, Xxxx XX0
0XX ("Xx Xxxxxxxx"),
(2) Atlantic Security Inc (incorporated in the Florida) whose
registrar address is (30 St Xxxxx Street, Oxford, OX 1 3LE).
RECITALS:
(A) Xx Xxxxxxxx is the holder and beneficial owner of the
intellectual property related to the Bio Detection technologies
and part the holder and beneficial owner of the intellectual
property related to the Molecular Detection technologies.
(B) Xx Xxxxxxxx desires to grant to the Optionholder a call option
in respect of his intellectual property rights and shares in
Company A and Company B that will be or have already been formed
for these technologies.
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
In this Agreement unless there is something in the subject or
context inconsistent therewith the following expressions have
the following meanings:
The Articles means the articles of association
from time to time of Company A and
Company B;
Bio- Detection technologies means the Intellectual Property
Rights in relation to bio-detection only
The Company means the company which is purchasing
the option from company A and company B
the Company(ies) Means Company A and Company B or a
new company set up for the purpose of
conveying the IPR as referred to in
this document.
Company A means a new company registered in
England whose company number is
[4645054] and created to incorporate
the Bio- Detection technologies for
the purposes of this Agreement
Company B means a new company registered in
England whose company number is
[4645054 ] and created to incorporate
the Molecular- Detection technologies
for the purposes of this Agreement
Completion means the performance of both parties
obligations under Clause 3.2;
Encumbrance means any charge, lien, equity, third
party right, option, right of pre-
emption or any other encumbrance,
priority or security interest of
whatsoever nature other than any such
arising under the Articles;
Exercise Date means the date of service of an Option Notice;
Intellectual Property Rights means patents, copyright, trade
marks, design rights, registered
designs, utility models, plant
variety rights, database rights,
rights in trade or business names,
semiconductor topography rights,
domain names, moral rights, rights in
performances, rights protecting
confidential information and know
how, rights protecting goodwill and
reputation and all similar or
analogous rights or forms of
protection anywhere in the world, and
all applications and rights to
register any of those rights;
"Bonus Price" milestone The first positive "in-field" test of
a demonstration model of
Nucleation/Condensation transportable
detector or the first positive test
of Bio-product for the detection
The Milestone A transportable Nucleation/Condensation detector
with a performance capability higher than
any other competing products
currently available on the market
(known as InatSniffer)
Molecular Detection
technologies means the Intellectual Property
Rights in relation to
Nucleation/Condensation technology
only (for the detection of dangerous
compounds in gaseous media known as InatSniffer)
Option means the option granted by Xx
Xxxxxxxx to the Optionholder by this
Agreement pursuant to Clause 2.2;
Option Notice means a notice exercising the Option
given pursuant to Clause 2.3;
Option Period means the period commencing on the
date of this Agreement and expiring
at 5p.m. on the date falling 10 month
from the date of this Agreement (both
dates inclusive) only extendable by
the written agreement of Xx Xxxxxxxx;
Option Shares Means, separately, the total amount
of ordinary shares in the capital of
Company A and Company B held by Xx
Xxxxxxxx at the date hereof and all
securities in Company A and Company
B which are hereafter derived from
such shares or which are hereafter
distributed by Company A and Company
B in respect of such shares or any
securities previously so derived or
distributed and (in each case) of
which Xx Xxxxxxxx is the beneficial
owner, or to which he is entitled,
from time to time together (if
applicable) with any ordinary shares
in the capital of Company A and
Company B acquired by Xx Xxxxxxxx by
transfer from the other members of
Company A and Company B;
Reorganisation means any variation in the issued
share capital of the Company A and
Company B whether by way of
capitalisation issue, rights issue,
sub-division, consolidation,
reduction, purchase or otherwise or
any alteration of the rights attached
thereto;
Sale A sale is the purchase of a single
unit of a product to a customer & the
payment being made according to
Federal accounting standard XxXXX
XXX00-0, XXX00-0, XXX00-0xxx SOP99-1
Technologies The "Bio- Detection" and "Molecular
Detection" technologies;
Transfer Price means the price to be paid (subject
to the satisfaction of certain
conditions as set out in Clause 4)
for the Option Shares which shall be
made up as follows:
(i) 2,000,000 pounds sterling
("Initial Price")
(ii) 2,000,000 pounds sterling
("Bonus Price")
(iii) 1,000,000 pounds sterling
("Total Control Price")
(iv) 2,000,000 pounds sterling
("Bonus payment after the first sale of the
molecular product")
(v) 2,000,000 pounds sterling
("Bonus payment after the first sale of either
the bio product, or the second
sale of the
Nucleation/Condensation product
whichever event occurs first
Transfer Terms means that all the Option Shares
shall be sold and purchased free from
any Encumbrance and together with all
rights attaching thereto as at the
Exercise Date (other than rights to
receive dividends which shall have
been paid prior thereto) or at any
time thereafter and that the
consideration for the Option Shares
shall be the Transfer Price.
1.2 Words importing persons shall be construed as importing a
corporate body and vice-versa
1.3 Where a party comprises more than one person the obligations and
liabilities of that party under this Agreement shall be joint
and several obligations and liabilities of those persons.
1.4 The clause headings do not form part of this Agreement and shall
not be taken in account in its construction or interpretation
1.5 Any reference to a clause or a paragraph or a schedule is to one
in this Agreement so numbered.
2. CALL OPTION
2.1 In consideration of the Optionholder paying to Xx Xxxxxxxx the
sum of 1 pound sterling (receipt of which is hereby acknowledged), Xx Xxxxxxxx
hereby grants to the Optionholder the option referred to in
Clause 2.2.
2.2 The Optionholder shall have the option to purchase all (but not
some only) of the Option Shares, on the exercise of which and in
accordance with this Agreement, Xx Xxxxxxxx will become bound to
sell and the Optionholder will become bound to complete the
purchase of all of the Option Shares on the Transfer Terms.
2.3 The Option must be exercised by notice in writing to Xx Xxxxxxxx
served only during the Option Period, failing which this
Agreement will lapse and cease to have any further effect. An
Option Notice, once given, may not be withdrawn except with the
written consent of Xx Xxxxxxxx.
2.4 If the Option is exercised, then the remaining provisions of
this Clause 2 and Clauses 3 and 5 will apply.
2.5 Neither Xx Xxxxxxxx nor the Optionholder shall be obliged to
complete the sale and purchase of the Option Shares unless the
sale and purchase of all the Option Shares is completed
simultaneously, but completion of the sale and purchase of some
of the Option Shares will not affect the rights of Xx Xxxxxxxx
or the Optionholder with respect to the other.
2.6 All voting and other rights attached to the Option Shares in
Company A and Company B shall accrue to the Optionholder on the
Completion Date and following that time Xx Xxxxxxxx shall
exercise all voting and other rights at the direction of the
Optionholder if clause 5.7 is not in force. See Appendix A
3 COMPLETION
3.1 Completion of the sale and purchase of the Option Shares
for Company A and Company B shall take place at the
registered office of the Company (or at such other place
as may be agreed) at 12 noon on the day 14 days after the
Exercise Date, provided that if such day is not a business
day then Completion shall take place at 12 noon on the
first business day thereafter.
3.2 In relation to Company A and Company B On Completion, Xx
Xxxxxxxx shall :
3.2.1 transfer or procure the transfer of the Option Shares
to the Optionholder;
3.2.2 deliver all relevant share certificates and other
documents of title in respect of the Option Shares to
the Optionholder;
3.2.3 account to the Optionholder for all benefits received
in respect of the Option Shares between the Exercise
Date and the date of Completion (both dates
inclusive);
3.2.4 deliver to the Optionholder any form of consent or
waiver required from Xx Xxxxxxxx or any other member
of the Company to enable the transfer of the Option
Shares to be registered in accordance with the
Articles;
3.2.5 use his best endeavours to procure registration of
the transfer of the Option Shares forthwith (subject
to the transfer being stamped with any necessary
stamp duty at the expense of the Optionholder); and
3.2.6 do such things and execute such documents as shall be
necessary or as the Optionholder may reasonably
request to give effect to the sale of the Option
Shares on the Transfer Terms.
3.3 In relation to Company A and Company B, the
Optionholder, shall on achieving the Bonus Price milestone,
pay the Bonus Price 2,000,000 pounds sterling to Xx. Xxxxxxxx in return
for Xx. Xxxxxxxx effecting Completion of the Option Shares
in relation to Company A and Company B.
4 POST-SIGNING OBLIGATIONS OF DOCTOR GORBUNOV AND Optionholder
4.1 As soon as practicable after the execution of this
Agreement, Dr Gorbunuv shall procure that
4.1.1 all the Bio- Detection technologies owned by him are
assigned to, vested in and beneficially held by the
Company A; and,
4.1.2 all the Nucleation/Condensation technologies so far
as they owned only by him are assigned to, vested in
and beneficially held by the Company B. In the case
of any part ownership in the Nucleation/Condensation
technologies Xx. Xxxxxxxx will use his best
endeavours to procure that the Molecular- Detection
technologies are assigned to, vested in and
beneficially held by the Company A.
4.2 Xx Xxxxxxxx undertakes that at the Exercise Date all his
Intellectual Property Rights in the Technologies shall be
owned by, vested in and beneficially held by the Companies
will be free from all encumbrances and any other third
party rights in accordance with clause 4.1 above .
4.3 As soon as practicable after the execution of this
Agreement, Dr Gorbunuv undertakes that he will use best
endeavours for and on behalf of the Optionholder to enter
into negotiations with all of the other members of the
Companies A & B for the purpose of entering into an
binding agreement to acquire all of their shares in these
Companies.
4.4 The Optionholder will after completion use its resources
in the best interest of all the Companies to commercially
exploit the IPR & Technologies concerned. The Optionholder
will not withhold reasonable resources to facilitate the
commercialisation of the acquired IPR as long as this will
not contravene US law.
5 PAYMENT OF THE TRANSFER PRICE
Subject to Xx Xxxxxxxx complying with his obligations under
Clause 3, and on completion the Optionholder shall pay the
Transfer Price in accordance with the following provisions:
5.1 The Transfer Price shall be payable in cash provided that
the Optionholder may, at its option, satisfy up to a
maximum of fifty per cent (50%) of the Transfer Price by
the allotment and issue to Xx Xxxxxxxx of such number of
fully tradable shares in the Optionholder as are of equal
value (determined at the Exercise Date) to that part of
the Transfer Price so satisfied as long as this action
will not contravene US securities exchange commission
rules at the time of the transaction.
5.2 The Optionholder shall pay the Initial Price on Completion
or (if later) the date falling 10 months after the
commencement of Xx Xxxxxxxx'x employment by the Company
and subject to Xx Xxxxxxxx remaining an employee on that
date.
5.3 If Xx Xxxxxxxx shall have entered into a contract of
employment with the Optionholder in the form reasonably
acceptable to the Optionholder which requires that Xx
Xxxxxxxx serve the Optionholder as an employee for a
period of not less than 10 months from the date of this
Agreement and meets the agreed "Bonus Price" milestone,
the Optionholder shall pay the Bonus Price on Completion
or (if later) the date falling 10 months after the
commencement of Xx Xxxxxxxx'x employment by the Company
and subject to Xx Xxxxxxxx remaining an employee on that
date.
5.4 If on Completion, the Option Shares represent the entire
issued share capital of Companies A and Company B, the
Optionholder shall immediately pay to Xx Xxxxxxxx the
Total Control Price on Completion or (if later) the date
falling 10 months after the commencement of Xx Xxxxxxxx'x
employment by the Company and subject to Xx Xxxxxxxx
remaining an employee on that date.
5.5 on completion of the first sale of the
Nucleation/Condensation product as referred to in the
definition of Transfer Price in clause 1 and that uses the
technologies, Xx Xxxxxxxx is to be immediately paid
2,000,000 pounds sterling as in clause 5.1
5.6 On Completion of the first sale of a bio product as
referred to in the definition of Transfer Price in clause
1 and that uses the Bio- Detection technologies or on the
sale of a second molecular product that uses the
Molecular- Detection technologies, whichever is the first
event, the Optionholder shall immediately pay to Xx
Xxxxxxxx the sum of 2,000,000 pounds sterling as in clause 5.1.
5.7 Should Optionholder fail to meet the payment schedule any
IPR , share certificates and other documents of title in
respect of Option Shares held by the Optionholder in
either Company A or Company B will be returned to Xx
Xxxxxxxx. Monies (both cash and shares) paid for shares
and IPR in Company A and Company B as in the Transfer
price (ii) will be returned to the Company. Monies (both
cash and shares) paid as in the Transfer price (i) and
(iii) to Xx Xxxxxxxx will remain with Xx Xxxxxxxx. Each
party will be fully responsible for their own taxation
liabilities.
6 OWNERSHIP AND ALIENATION
6.1 Xx Xxxxxxxx warrants to the Optionholder that at the time
of execution of this Agreement he is the registered holder
and beneficial owner of the Option Shares and that, apart
from this Agreement, such shares are free from all
Encumbrances and that he has full power and authority to
exercise and enjoy all rights attaching thereto without
the consent of any other person and to grant the Option in
respect of the same upon the terms and conditions of this
Agreement.
6.2 Xx Xxxxxxxx undertakes to the Optionholder that during the
Option Period he will not (without the prior written
consent of the Optionholder) dispose of any interest in
any of the Option Shares or any right attaching thereto
(save as may be required in pursuance of his obligations
under this Agreement) or create or allow to be created any
Encumbrance over any of the Option Shares or agree
(whether subject to any condition precedent or condition
subsequent or otherwise) to do any of such things.
7 DURATION OF OBLIGATIONS
7.1 Agreement shall terminate on the expiry of the Option
Period if no Option Notice shall have been served on or
prior to such date.
7.2 If an Option Notice shall have been served on or prior to
the date mentioned in Clause 7.1 this Agreement shall
continue in force after such date until the fulfilment of
the parties' obligations hereunder in relation to such
Option Notice whereupon it shall terminate.
8 REORGANISATIONS
8.1 Xx Xxxxxxxx shall procure that until this Agreement
terminates in accordance with Clause 7 the Company A and
Company B shall not effect any Reorganisation without the
prior written consent of the Optionholder.
8.2 Xx Xxxxxxxx shall procure that until this Agreement
terminates in accordance with Clause 7 that Company A and
Company B shall not issue, allot, redeem, purchase or
grant options over any of its shares or other securities
nor issue or create any loan or other security convertible
into its shares.
9 CONFIDENTIALITY
This Clause contains restrictions on the use of information
disclosed by either party ("the Disclosing Party") to the other
("the Receiving Party").
9.1 Definitions.
For the purposes of this clause 9 the following expressions
shall have the following meanings:
9.1.1 "Confidential Information" means:
(a) All information of a confidential nature or
which is marked or identified as confidential at
the time of disclosure, which is provided
directly or indirectly by the Disclosing Party
to the Receiving Party (in any form or stored
on any medium), and whether before, on or after
the date of this Agreement;
(b) any copy of any of the information described in
paragraph (a) above including a version of that
information incorporated in another form; and
(c) the fact that discussions are taking place
between us the parties to this Agreement and the
terms of this Agreement.
9.1.2 "The Purpose" means negotiations for the exploitation
of the Technologies.
9.2 Confidentiality and Non-Use
The Receiving Party undertakes to the Disclosing Party to keep the
Confidential Information secret at all times, not to disclose it or
allow it to be disclosed in whole or in part to any third party
without the Disclosing Party's prior written consent and not to use
all or any of it except for the Purpose.
Exceptions.
A party will not breach this the obligations in Clause 9.2
hereof to the extent that the Confidential Information which is
disclosed:
9.2.1 is known to the Receiving Party before its disclosure
by the Disclosing Party; or
9.2.2 is or becomes publicly known without the fault of the
Receiving Party; or
9.2.3 is obtained by the Receiving Party from a third party
in circumstances where the Receiving Party has no
reason to believe that there has been a breach of an
obligation of confidentiality owed to the Disclosing
Party; or
9.2.3.1 is independently developed by the Receiving
Party; or where. Party such development is
not either a consequence, directly or
indirectly, of access to the Intellectual
Property Rights; or,
9.2.3.2 by way of reverse engineering;
9.2.4 is approved for release in writing by an authorised
representative of the Disclosing Party; or
9.2.5 is required to be disclosed pursuant to an order of
any Court of competent jurisdiction; or
9.2.6 is required to be disclosed for the purpose of
obtaining legal advice
9.3 Permitted disclosures by the Optionholder
The Optionholder undertakes to permit access to Xx Xxxxxxxx'x
Confidential Information only to those third parties (including,
but not limited to, potential investors in the Technologies) who
reasonably need access to Xx Xxxxxxxx'x Confidential Information
for the Purpose, and on the condition that those third parties
must have:
9.3.1 those third parties must have entered into legally
binding confidentiality obligations with the
Receiving Party and the Disclosing Party on terms
equivalent to those set out in this Agreement and
applicable to the Confidential Information;
9.3.2 those third parties must have been informed of the
Disclosing Party's interest in the Confidential
Information and the terms of this Agreement; and
9.3.3 those third parties must have been instructed to
treat the Confidential Information as secret and
confidential in accordance with the provisions of
this Agreement.
9.3.4 the Optionholder shall:
9.3.4.1 obtain a full indemnity from each of the
third parties in respect of a breach of
confidentiality; and,
9.3.4.2 will fully indemnify and keep indemnified Xx.
Xxxxxxxx, for any unauthorised disclosure of
Confidential Information by any third party
who had Confidential Information disclosed to
them by the Optionholder
9.7 Return of information and property
The Receiving Party acknowledges and agrees that the property
and copyright in Confidential Information disclosed to it by the
Disclosing Party, including any documents, files and other items
containing any Confidential Information or in any other form of
media, belongs to the Disclosing Party. At the Disclosing
Party's written request, the Receiving Party will return
immediately to the Disclosing Party all Confidential Information
which the Receiving Party has received under this Agreement and
which whether or not the information is in the Receiving Party's
possession, including any copies made in any other form of
media, and make no further use or disclosure of any of the
Confidential Information.
9.8 No implied rights
9.8.1 This Agreement is not intended to grant the Receiving
Party any license or rights howsoever arising in respect of
the Confidential Information other than as expressly set
out in this Agreement nor to require the Disclosing Party
to disclose any Confidential Information to the Receiving
Party.
9.8.2 No warranty, condition or representation, express or
implied, is given as to the accuracy, efficacy,
completeness, capabilities or safety of any materials or
information provided under this Agreement.
9.9 Press releases, etc
Neither party will issue any press release or similar statement
or give any interview to the media relating to the Purpose
without first obtaining the other party's consent.
10 EXCLUSIVITY
In consideration of the Optionholder paying to Xx Xxxxxxxx the
sum of 1 pound sterling receipt of which is hereby acknowledged, Xx Xxxxxxxx
agrees that he shall not (and shall procure that Company A and
Company B shall not,) during the Option Period negotiate with
any party other than the Optionholder for the use or
exploitation in any way of all or any part of the Technologies
or transfer or grant any rights in or to all or any part of the
Technologies to any third party, and the Optionholder is hereby
granted sole and exclusive rights to market, [sell], produce,
[distribute] and otherwise exploit during the Option Period the
Technologies and any products arising from or derived or created
from the Technologies.
11 NOTICES
Any notice required or permitted to be given hereunder shall be
in writing and shall be sent to the relevant party at their
address for service in England and Wales as set out in this
Agreement or to such other address in England as they may
designate by notice to the other party in accordance with this
Clause. Any such notice shall be delivered personally or sent in
a pre-paid letter and shall be deemed to have been served if by
personal delivery when delivered and if by post 48 hours after
posting.
12 GENERAL
12.1 This Agreement may not be assigned in whole or in part but
is binding upon and shall inure for the benefit of the
parties' personal representatives and other successors.
12.2 This Agreement shall be governed by and construed in
accordance with the laws of England and the parties hereby
submit to the non-exclusive jurisdiction of the English
Courts.
12.3 The parties hereto shall, and shall use their respective
best endeavours to procure that any necessary third
parties shall, execute and do all such further deeds,
documents and things as either party may reasonably
require by notice in writing to the other party to carry
the provisions of this Agreement into full force and
effect and (so far as they are able) shall do everything
necessary (including, without limitation, exercising their
powers as shareholders and as directors of the Company) to
give effect to the spirit and intent of this Agreement.
EXECUTED as a deed the day and year first before written.
SIGNED as a DEED and DELIVERED by )
/s/ Xxxxx Xxxxxxxx
------------------
XXXXX XXXXXXXX in the presence of: )
Witness Signature .........
Witness Name .........
Witness Address .........
..........
Witness Occupation ..........
SIGNED and DELIVERED by
/s/ Xxxxxxx Xxxxxxxx
---------------------
Xxxxxxx Xxxxxxxx
/s/ Xxxx Xxxx
------------------
and Xxxx Xxxx on behalf ............
of The COMPANY and thereby
executed by it as its DEED
...President Xxxxxxx Xxxxxxxx.
[Title of authorised signatory]
..Company Secretary. Xxxx Xxxx.
[Title of authorised signatory]
Appendix A
Xx Xxxxx Xxxxxxxx by signing this document attests that he holds free
from all Encumbrance .92% in company A
The Share percentages in Company A are as follows:
Name Xx Xxxxx Xxxxxxxx .......92%
Name Middlesex University ......08%
Name .................%
Name .................%
Name .................%
Xx Xxxxx Xxxxxxxx by signing this document attests that he holds free
from all Encumbrance .92% in company B
The Share percentages in Company B are as follows:
Name Xx Xxxxx Xxxxxxxx ......91.2%
Name Middlesex University .....08.8%
Name .................%
Name .................%
Name .................%
DATED 2004
