TERMINATION AND PURCHASE AGREEMENT
THIS TERMINATION AND PURCHASE AGREEMENT (the "Agreement") is made and
entered into as of November 11, 2002 by and between Oryx Technology Corp., a
Delaware corporation ("Oryx") and Oryx Advanced Materials, Inc., a California
corporation ("Buyer").
WHEREAS, Oryx and Buyer have entered into that certain License
Agreement dated as of June 1, 1999 (the "Original Agreement") as amended by that
First Amendment to License Agreement dated as of March 1, 2002 (the "First
Amendment" and, together with the Original Agreement, the "License Agreement").
WHEREAS, Oryx and Buyer desire to terminate the License Agreement in
its entirety and provide for the sale by Oryx to Buyer of the intellectual
property that is the subject of the License Agreement, on the terms and
conditions set forth herein.
NOW, THEREFORE, the parties, intending to be legally bound, agree as
follows:
1. Definitions. When used herein:
(a) "Business" shall mean the Intragene and related coating
business acquired by Buyer pursuant to the terms of that certain Asset Purchase
Agreement dated as of June 1, 1999 by and between Oryx and Buyer.
(b) "Marks" shall mean the trademark "Oryx Materials" and all
trade or service xxxx registrations (and any applications therefor) associated
therewith.
(c) "Patents" shall mean the following patents: (i) U.S.
Patent 4,535,029 dated 8/13/85, (ii) U.S. Patent 4,426,423 dated 11/17/84, (iii)
U.S. Patent 4,358,506 dated 11/9/82, (iv) U.S. Patent 4,376,806 dated 3/15/83
and (v) U.S. Patent 4,396,677 dated 8/2/83.
(d) "Purchased Technology" shall mean all of Oryx' proprietary
technology relating to the Business which has been licensed to Buyer under the
License Agreement including, but not limited to, the Marks, the Patents, the
Technical Information and the Trade Secrets.
(e) "Technical Information" shall mean all data in written,
tangible or machine-readable form, relating to the Patents and the Trade Secrets
which has been disclosed to Buyer by Oryx pursuant to the terms of the License
Agreement.
(f) "Trade Secrets" shall mean all of Oryx' inventions,
inventor's notes, copyrights, formulae, know-how, trade secrets, drawings and
designs relating to the Business and licensed pursuant to the License Agreement.
2. Sale of Purchased Technology. Oryx and Buyer hereby agree that Oryx
shall sell to Buyer the Purchased Technology for a purchase price of seventy
thousand dollars ($70,000), payable in cash. Upon payment of the full purchase
price on or before November 30, 2002, Oryx
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shall execute a Xxxx of Sale, in substantially the form attached hereto as
Exhibit A, transferring the Purchased Technology to Buyer.
3. Taxes. Buyer hereby agrees to pay any sales, transfer or other taxes
arising from the sale of the Purchased Technology and shall indemnify and hold
harmless Oryx with respect to any such taxes.
4. Disclaimer. THE SALE OF THE PURCHASED TECHNOLOGY IS BEING MADE "AS
IS" AND "WHERE IS," "WITH NO WARRANTIES OR REPRESENTATIONS OF ANY KIND BY ORYX
TO BUYER. ORYX MAKES, AND HAS MADE, NO WARRANTIES, EXPRESS OR IMPLIED, TO BUYER
AND BUYER HEREBY EXPRESSLY WAIVES THE IMPLIED WARRANTIES OR MERCHANTABILITY AND
FITNESS FOR USE, IF ANY, AND ALL OTHER WARRANTIES EXPRESS OR IMPLIED. BUYER
ACKNOWLEDGES THAT BUYER IS NOT RELYING UPON ANY REPRESENTATIONS OF ORYX AND THAT
BUYER HAS UNDERTAKEN BUYER'S OWN DUE DILIGENCE REGARDING THE QUALITY, CONDITION
AND VALUE, IF ANY, OF THE PURCHASED TECHNOLOGY BEING SOLD HEREIN. ORYX SHALL NOT
BE LIABLE FOR ANY INJURY OR DAMAGE TO BUYER, OR TO ANY OTHER PERSON CAUSED
DIRECTLY OR INDIRECTLY BY THE USE OF THE PURCHASED TECHNOLOGY OR THE SALE OR USE
OF ANY PRODUCT INCORPORATING SUCH PURCHASED TECHNOLOGY BY BUYER; PROVIDED
FURTHER, THAT IN NO EVENT SHALL ORYX BE LIABLE TO ANY PERSON, FIRM, OR
CORPORATION FOR ANY LOSS OR INJURY TO ANY PERSON, FIRM, OR CORPORATION FOR ANY
LOSS OR INJURY TO EARNINGS, PROFITS, OR GOODWILL, OR FOR ANY DIRECT, SPECIAL,
INDIRECT, OR CONSEQUENTIAL DAMAGES ARISING OUT OF BUYER'S SALE OR USE OF ANY
PRODUCT INCORPORATING SUCH PURCHASED TECHNOLOGY.
5. Termination of License Agreement. Upon receipt by Oryx of the full
purchase price referred in Section 2 above, the License Agreement shall
terminate in its entirety and neither Oryx or Buyer shall have any further
rights, obligations, remedies, claims or causes of action under the License
Agreement.
6. Miscellaneous.
(a) Complete Agreement. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter thereof and hereof
and supercede all prior agreements of the parties and all representations,
warranties, undertakings and understandings, whether written or verbal, made
with respect to the same subject matter. This Agreement may not be changed or
modified in any manner, orally or otherwise, except in writing, in the form of
an amendment, duly executed by each of the parties hereto.
(b) Governing Law. This Agreement shall be governed by and
construed under the laws of the State of California applied to agreements among
California residents entered into and to be performed entirely within
California.
(c) Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provisions shall be
excluded from this Agreement and
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the balance of the Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
(d) Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
written above.
ORYX TECHNOLOGY CORP.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxx
---------------------------
Title: CEO
--------------------------
ORYX ADVANCED MATERIALS, INC.
By: /s/ Xxxxxx Xxx
-----------------------------
Name: Xxxxxx Xxx
---------------------------
Title: President
--------------------------
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EXHIBIT A
Xxxx of Sale
XXXX OF SALE
THIS XXXX OF SALE is made and entered into as of November 11, 2002 by
and between Oryx Technology Corp, a Delaware corporation ("Oryx") and Oryx
Advanced Materials, Inc., a California corporation ("Buyer").
A. Buyer and Oryx have executed and delivered a Termination and
Purchase Agreement, dated as of November 11, 2002 (the "Agreement"), pursuant to
which Buyer has agreed to purchase from Oryx the intellectual property of Oryx
related to the Business (as defined in the Agreement).
B. This Xxxx of Sale is being executed and delivered in order to effect
the transfer to Buyer of the Purchased Technology (as defined in the Agreement)
pursuant to the terms of the Agreement. Terms used herein that are defined in
the Agreement but not otherwise defined herein shall have the respective
meanings assigned to them therein.
NOW, THEREFORE, in consideration of the premises and for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged:
1. Assignment. Oryx does hereby convey, grant, bargain, sell, transfer,
assign and deliver unto Buyer, its successors and assigns, and Buyer does hereby
purchase all right, title and interest of Oryx in and to the Purchased Assets,
as defined in the Agreement.
TO HAVE AND TO HOLD all of the properties, assets and rights
granted and transferred hereby, with the appurtenances thereof, unto Buyer, its
successors and assigns forever, to it and their own use and benefit.
2. Disclaimer. THIS SALE IS MADE "AS IS" AND "WHERE IS" WITH NO
WARRANTIES OR REPRESENTATIONS OF ANY KIND BY ORYX TO BUYER. ORYX MAKES, AND HAS
MADE, NO WARRANTIES, EXPRESS OR IMPLIED, TO BUYER AND BUYER HEREBY EXPRESSLY
WAIVES THE IMPLIED WARRANTIES OR MERCHANTABILITY AND FITNESS FOR USE, IF ANY,
AND ALL OTHER WARRANTIES EXPRESS OR IMPLIED. BUYER ACKNOWLEDGES THAT BUYER IS
NOT RELYING UPON ANY REPRESENTATIONS OF ORYX AND THAT BUYER HAS UNDERTAKEN
BUYER'S OWN DUE DILIGENCE REGARDING THE QUALITY, CONDITION AND VALUE, IF ANY, OF
THE PURCHASED TECHNOLOGY BEING SOLD HEREUNDER.
3. Further Assurances. Oryx for itself and its successors and assigns,
does hereby covenant with Buyer, its successor and assigns, that Oryx and its
successors and assigns will do, execute, acknowledge and deliver, or will cause
to be done, executed, acknowledged and delivered all such further acts, deeds,
bills of sale, transfers, assignments and conveyances, powers of attorney,
conveying and confirming unto Buyer, its successors and assigns, all and
singular, the properties hereby granted, sold, assigned, transferred, and
conveyed as Buyer, its successors or assigns, shall reasonably require,
provided, however, that the Buyer, its successors and assigns shall prepare all
necessary documentation at its own cost and expense.
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4. Counterparts. This Xxxx of Sale is executed pursuant to the
Agreement and may be simultaneously executed in two or more counterparts, each
of which as so executed shall be deemed to be an original and such counterparts
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, Oryx and Buyer have caused this Xxxx of Sale to be
executed on and as of the day and year first above written.
ORYX TECHNOLOGY CORP.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxx
---------------------------
Title: CEO
--------------------------
ORYX ADVANCED MATERIALS, INC.
By: /s/ Xxxxxx Xxx
-----------------------------
Name: Xxxxxx Xxx
---------------------------
Title: President
--------------------------
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