Exhibit 10
Asset Purchase and License Agreement
This Asset Purchase and License Agreement (the "Agreement")
is made and entered into this 7th day of November, 2000, by and
between Intrac, Inc., a Nevada corporation ("Intrac") and Xx.
Xxxxxx X. Xxxxxxxxx, an individual resident of the State of New
York ("Xxxxxxxxx").
RECITALS
X. Xxxxxxxxx is the owner of certain assets, a list of
which is attached hereto at Exhibit A and incorporated herein by
reference (the "Assets"), as well as certain patents, copies of
which are attached hereto and incorporated herein by reference
(the "Patents").
B. Intrac desires to purchase and acquire from Xxxxxxxxx
such Assets, and Xxxxxxxxx desires to transfer and convey the
same to Intrac, in accordance with the terms and conditions of
this Agreement.
X. Xxxxxxxxx is the holder of certain patents and
trademarks regarding the Accomotrac Vision Trainer (the
"Patents"), copies of which are attached hereto at Exhibit B and
incorporated herein by reference, and Intrac wishes to acquire an
exclusive license for the use of said Patents from Xxxxxxxxx.
NOW, THEREFORE, in consideration of the mutual
representations, warranties and covenants contained herein, and
on the terms and subject to the conditions herein set forth, the
parties hereby agree as follows:
ARTICLE I
Definitions
As used in this Agreement, the following terms shall have
the meanings set forth below:
1.1 Closing. "Closing" shall mean the closing of the
transaction contemplated by this Agreement, which shall occur at
10:00 a.m., Eastern Standard Time, on the Closing Date in the
offices of Intrac, or at such other time and place as shall be
mutually agreed in writing by the parties hereto.
1.2 Closing Date. "Closing Date" shall mean November ___,
2000, unless otherwise mutually agreed in writing by the parties
hereto.
1.3 Assets. "Assets" shall mean all rights and interests in
the assets listed at Exhibit A hereto.
1.4 Patents. "Patents" shall mean all United States Patents
attached at Exhibit B hereto, including, without limitation,
United States patent numbers 4,162,828, 4,533,221, 4,660,945, and
5,002,384, and any reissues or extensions based on any of such
patents, but not to include any
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new patents exclusively licensed to Xxxxxxxxx after the date of
this Agreement. For the purposes of this Agreement, "Patents"
shall also mean Accomotrac and Accomotrac design which are
registered at the United States Patent Office with numbers,
1,304,839 and 1,375,673, and all corresponding worldwide
trademarks and/or trademark applications based thereon, and any
trademarks resulting from said applications and any reissues or
extensions based on any of such trademarks.
ARTICLE II
Purchase and Sale of Assets
2.1 Sale and Purchase of Assets. Subject to and upon the
terms and conditions contained herein, at the Closing, Xxxxxxxxx
shall sell, transfer, assign,convey, and deliver to Intrac, free
and clear of all liens, claims and encumbrances, and Intrac shall
purchase, accept and acquire from Xxxxxxxxx all rights and
interests in the Assets.
2.2 Purchase Price. The total purchase price for the Assets
shall be SEVEN MILLION (7,000,000) shares of common stock of
Intrac.
2.3 Instruments of Transfer; Further Assurances.
(a) At the Closing, Xxxxxxxxx shall deliver to Intrac:
(i) An assignment of each Asset, in form and
substance satisfactory to Intrac;
(ii) Such other instrument or instruments of
transfer as shall be necessary or appropriate,
as lntrac shall reasonably request, to vest in
Intrac good and marketable title to the Assets.
(b) At the Closing, letter shall deliver to Xxxxxxxxx
such instrument or instruments as shall be necessary or appropriate,
as Xxxxxxxxx shall reasonably request.
ARTICLE III
License of Patents
2.1 License of Patents. Xxxxxxxxx hereby grants to letter
the exclusive license for the term of this Agreement to use the
Patents pursuant to the terms and conditions set out in this
Agreement.
2.2 Xxxxxxxxx to Provide Information. During the term of
this Agreement, Xxxxxxxxx agrees to provide Intrac with
information and sales material which Xxxxxxxxx has readily
available regarding the Patents, all to the extent Xxxxxxxxx has
the right to grant such material to others. Any costs incurred by
Xxxxxxxxx in connection therewith shall be reimbursed by Intrac.
Intrac shall promptly return to Xxxxxxxxx all such material upon
the termination of this Agreement or at any time at the request
of Xxxxxxxxx.
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2.3 Filing Fees and Expenses. All fees, expenses and taxes
which are due to any governmental agency or other authority in
connection with the filing of any patent, license, trademark or
other similar action shall be paid by Intrac.
2.4 Ownership of Patents. All rights and interests in the
Patents shall at all times remain the exclusive properly of
Xxxxxxxxx.
2.5 Infringements. Xxxxxxxxx makes no representation,
express or implied, that the Patents do not infringe upon preset
or future patents, trademarks or copyrights. In the event any
party infringes upon any of the Patents, Intrac shall immediately
notify Xxxxxxxxx of such infringement.
2.6 Hold Harmless. Intrac shall have the full responsibility
for the marketing and use of the Patents as well as for all its
other activities regarding the Patents. Intrac hereby holds
Xxxxxxxxx harmless from any liability, cost and expense with
regard thereto, including claims for injury or death to persons
or damage to property. Further, lntrac shall indemnify and hold
harmless Xxxxxxxxx, Trachtman's employees, agents, and staff from
and against any and all liabilities, claims, lawsuits, judgments,
aid expenses arising out of or in connection with an act or
omission of Intrac or any of its employees, agents, or staff,
including, but not limited to claims for personal injury,
misrepresentation, and the failure by lntrac to make proper
payments of required taxes, statutory or other settlements.
2.7 Compliance with the Law. Intrac will use its best
efforts to ensure the premises and its operation comply with all
applicable laws, orders, and regulations of governmental
authorities. Each parry will notify the other, in writing, of any
demand, order, or proceeding of any governmental authority
regarding the Patents. Such notification shall be given within
three (3) days of the party's receipt of notice of any such
demand, order or proceeding.
2.8 Termination of License. The license granted to Intrac by
Xxxxxxxxx may be terminated in writing by either party by thirty
(30) days' written notice via Certified Mail.
ARTICLE III
Non-Disclosure
3.1 Non-Disclosure. Xxxxxxxxx has in his possession certain
technical information, know-how and data. of a secret and
proprietary nature ("the "technical information") relating to
optical biofeedback devises, marketing and computer technology
relating to the operation of the Accomotrac Vision Trainer (the
"equipment"). Intrac acknowledges that the following items used
by Xxxxxxxxx clinics are secret, confidential, unique, and
valuable, were developed by Xxxxxxxxx at significant cost over a
period of time, and disclosure of any of the items to anyone
other than Intrac will cause Xxxxxxxxx irreparable injury:
3.1.1 Patient lists, call lists, and other confidential customer data;
3.1.2 Memoranda, notes, records, and other confidential technical data;
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3.1.3 Sketches, plans, drawings, and other confidential research and
development data;
3.1.4 Manufacturing processes, schematics, and the composition of
Xxxxxxxxx'x equipment;
3.1.5 Repair and maintenance processes;
3.1.6 Education programs and techniques; and
3.1.7 Marketing schemes and strategies.
3.2 Availability of Technical Information. Xxxxxxxxx shall
make the Technical Information available to Intrac to the extent
necessary for Intrac's use of the Patents licensed pursuant to
this Agreement. In consideration of that availability, Intrac
agrees to hold in trust and confidence and not to use or disclose
to others any or all Technical Information disclosed directly to
Intrac by Xxxxxxxxx except:
3.2.1 Information which at the time of disclosure is in the public domain;
3.2.2 Information which after disclosure to Intrac becomes part of the
public domain by publication or otherwise through no fault of
Intrac; and
3.3.3 Information received by Intrac after the time of disclosure hereunder
from a third party imposing no obligation and confidentiality and
who did not acquire such information directly or indirectly from
Xxxxxxxxx.
3.3 No Further License. No right or license is granted by
Xxxxxxxxx to Intrac in relation to such Technical Information
except as expressly set forth in Section II of this Agreement.
Intrac shall not copy or reproduce, in whole or in part, any of
the Technical Information without the express written consent of
Xxxxxxxxx.
3.4 Return of Technical Information. Upon demand of
Xxxxxxxxx, or upon any default, termination or expiration of this
Agreement, Intrac shall immediately return to Xxxxxxxxx all
Technical Information, including, without limitation, technical,
confidential and/or secret materials and know-how, and all copies
and documents containing said information. Intrac, its employees,
officers, directors, agents, and shareholders shall continue to
maintain the confidentiality promised in this Section III for a
period of five (5) years after the termination of this Agreement.
ARTICLE IV
Representations and Warranties of Intrac
Intrac represents and warrants that the following are true
and correct as of this date and will be true and correct through
the Closing Date as if made on that date:
4.1 Organization and Good Standing. Intrac is a corporation
duly organized, validly existing and in good standing under the
laws of the State of Nevada, with all the requisite power and
authority to carry on the business in which it is engaged, to own
the properties it owns and to execute and deliver this Agreement
and to consummate the transactions contemplated hereby.
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4.2 Authorization and Validity. The execution, delivery and
performance by Intrac of this Agreement and the other agreements
contemplated hereby, and the consummation of the transactions
contemplated hereby, have been duly authorized by Intrac. This
Agreement and each other agreement contemplated hereby have been
or will be prior to Closing duly executed and delivered by lntrac
and constitute or will constitute legal, valid and binding
obligations of Intrac, enforceable against Intrac in. accordance
with their respective terms.
4.3 No Violation. Neither the execution and performance of
this Agreement or the other agreements contemplated hereby, nor
the consummation of the transactions contemplated hereby or
thereby, will (a) conflict with, or result in a breach of the
terms, conditions and provisions of, or constitute a default
under, the Articles of Incorporation or Bylaws of Intrac or any
agreement, indenture or other instrument under which lntrac is
bound, or (b) violate or conflict with any judgment, decree,
order, statute, rule or regulation of any court or any public,
governmental or regulatory agency or body having jurisdiction
over Intrac or the properties or Assets of Intrac.
4.4 Consents. No authorization, consent, approval, permit or
license of, or filing with, any governmental or public body or
authority, any lender or lessor or any other person or entity is
required to authorize, or is required in connection with, the
execution, delivery and performance of this Agreement or the
agreements contemplated hereby on the part of Intrac.
ARTICLE V
Representations and Warranties of Xxxxxxxxx
Xxxxxxxxx represents and warrants that the following are
true and correct as of this date and will be true and correct
through the Closing Date as if made on that date:
5.1 Authorization and Validity. The execution, delivery and
performance by Xxxxxxxxx of this Agreement and the other
agreements contemplated hereby, and the consummation of the
transactions contemplated hereby, have been duly authorized by
Xxxxxxxxx. This Agreement and each other agreement contemplated
hereby have been or will be prior to Closing duly executed and
delivered by Xxxxxxxxx and constitute or will constitute legal,
valid and binding obligations of Xxxxxxxxx, enforceable against
Xxxxxxxxx in accordance with their respective terms.
5.2 Title. Xxxxxxxxx has good and marketable title to the
Assets which are the subject of this Agreement. Upon consummation
of the transactions contemplated hereby, Intrac shall receive
good, valid and marketable title to all the Assets free and clear
of all liens, claims, and encumbrances.
5.3 Patent Holder. Xxxxxxxxx represents and warm that he is
the holder of the Patents which are subject to this Agreement.
Upon consummation of the transactions contemplated hereby, Intrac
shall receive good, valid and marketable title to all the Patents
free and clear of all liens, claims, and encumbrances.
5.4 Commitments. Xxxxxxxxx has not entered into, nor are the
Assets or the business of Xxxxxxxxx bound by, whether or not in
writing, any (i) partnership or joint venture agreement;
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(ii) deed of trust or other security agreement; (iii) guaranty or
suretyship; indemnification or contribution agreement or
performance bond; (iv) employment, consulting or compensation
agreement or arrangement, including the election or retention in
office of any director or officer; (v) labor or collective
bargaining agreement; (vi) debt instrument, loan agreement or
other obligation relating to indebtedness for borrowed money or
money lent to another; (vii) deed or other document evidencing an
interest in or contract to purchase or sell real property; (viii)
agreement with dealers or sales or commission agents, public
relations or advertising agencies, accountants or attorneys, (ix)
lease of real or personal property, whether as lessor, lessee,
sublessor, or sublessee; (x) agreement relating to any material
matter or transition in which an interest is held by a person or
entity which is an affiliate of Xxxxxxxxx; (xi) xxxxxx of
attorney; or (xii) contracts containing noncompetition covenants.
5.5 Adverse Agreements. Xxxxxxxxx is not a party to any
agreement or instrument or subject to any charter or other
corporate restriction or any judgment, order, writ, injunction,
decree, rule or regulation which materially and adversely affects
or, so far as Xxxxxxxxx can now foresee, may in the future
materially and adversely affect the business operations,
prospects, properties, Assets or condition, financial or
otherwise, of Xxxxxxxxx.
5.6 No Violation. Neither the execution and performance of
this Agreement or the other agreements contemplated hereby, pox
the consummation of the transactions contemplated hereby or
thereby, will (a) conflict with, or result in a breach of the
terms, conditions and provisions of, or constitute a default
under, the Articles of Incorporation or Bylaws of Xxxxxxxxx or
any agreement, indenture or other instrument under which lntrac
is bound, or (b) violate or conflict with any judgment, decree,
order, statute, rule or regulation of any court or arty public,
governmental or regulatory agency or body having jurisdiction
over Xxxxxxxxx or the properties or Assets of Xxxxxxxxx.
5.7 Consents. No authorization, consent, approval, permit or
license of, or filing with, any governmental or public body or
authority, any lender or lessor or any other person or entity is
required to authorize, or is required in connection with, the
execution, delivery and performance of this Agreement or the
agreements contemplated hereby on the part of Xxxxxxxxx.
5.8 Compliance with Laws. There are no existing violations
by Xxxxxxxxx of any applicable federal, state or local law or
regulation, except to the extent that any such violations would
not have a material adverse effect on the property or business of
Xxxxxxxxx.
5.9 Accuracy of Information Furnished. All information
furnished to Intrac by Xxxxxxxxx is true, correct and complete in
all material respects. Such information states all material facts
required to be stated therein or necessary to make the statements
therein, in light of the circumstances wader which such
statements are anode, true, correct and complete.
5.10 Proceedings. No action, proceeding or order by any
court or governmental body or agency shall have been threatened
in writing, asserted, instituted or entered to restrain or
prohibit the carrying out of the transactions contemplated by
this Agreement.
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ARTICLE VI
Indemnification
6.1 Xxxxxxxxx'x Indemnity. Subject to the terms of this
Section, Xxxxxxxxx hereby agrees to indemnify, defend and hold
harmless Intrac and its officers, directors, agents, attorneys,
accountants and affiliates from and against air and all losses,
claims, obligations, demands, assessments, penalties,
liabilities, costs, damages, reasonable attorneys' fees and
expenses ("Damages") asserted against or incurred by Intrac by
reason of or resulting from a breach by Xxxxxxxxx of any
representation, warranty or covenant contained herein, or in any
agreement executed pursuant thereto.
6.2 Intrac's Indemnity. Subject to the terms of this
Section, Intrac hereby agrees to indemnify, defend and hold
harmless Xxxxxxxxx and its officers, directors, agents,
attorneys, accountants and affiliates from and against any and
all losses, claims, obligations, demands, assessments, penalties,
liabilities, costs, damages, reasonable attorneys' fees and
expanses ("Damages") asserted against or incurred by Xxxxxxxxx by
reason of or resulting from a breach by Intrac of any
representation, warranty or covenant contained herein, or in any
agreement executed pursuant thereto.
6.3 Remedies Not Exclusive. The remedies provided for in
this Section shall not be exclusive of any other rights or
remedies available by one party against the other, either at law
or in equity.
ARTICLE VII
Termination
7.1 Termination for Cause. This Agreement may be terminated
prior to Closing upon
notice to the other party at any time by a party if any
representation or warranty of the other party
contained in this Agreement or in any certificate or other
document executed and delivered by
one party to the other is or becomes untrue or breached in any
material respect or if one party
fails to comply in any material respect with any covenant or
agreement contained herein, and any
such misrepresentation, breach or noncompliance is not cured,
waived, or eliminated before
Closing.
7.2 Termination Without Cause. Anything herein or elsewhere
to the contrary notwithstanding, this Agreement may be terminated
and abandoned at any time without further obligation or liability
on the part of any party in favor of any other by mutual consent
of Intrac and Xxxxxxxxx.
ARTICLE VIII
Miscellaneous Provisions
8.1 Amendment and Modification. Subject to applicable law,
this Agreement may be amended, modified or supplemented only by a
written agreement signed by Intrac and Xxxxxxxxx.
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8.2 Waiver of Compliance; Consents.
8.2.1 Any failure of any party to comply with any obligation, covenant,
agreement or condition herein may be waived by the party entitled
to the performance of such obligation, covenant or agreement or who
has the benefit of such condition, but such waiver or failure to
insist upon strict compliance with such obligation, covenant, or
agreement or condition will not operate as a waiver of, or
estoppel with respect to, any subsequent or other failure.
8.2.2 Whenever this Agreement requires or permits consent by or on behalf
of any party hereto, such consent will be given in a manner
consistent with the requirements for a waiver of compliance as set
forth above.
8.3 Notices. All Notices, requests, demands and other
communications required or permitted hereunder will be in writing
and will be deemed to have been duly given when delivered by (i)
hand; (ii) reliable overnight delivery service; or (iii)
facsimile transmission.
If to Intrac, to: 00 Xxxxxxxxxxx Xxxxxx, Xxxxxxxx, XX 00000
If to Xxxxxxxxx, to: 00 Xxxxxxxxxxx Xxxxxx, Xxxxxxxx, XX 00000
8.4 Titles and Captions. All section titles or captions
contained in this Agreement are for convenience only and shall
not be deemed part of the context nor effect the interpretation
of this Agreement.
8.5 Entire Agreement. This Agreement contains the entire
understanding between and among the parties and supersedes any
prior understandings and agreements among them respecting the
subject xxxxxx of this Agreement.
8.6 Agreement Binding. This Agreement shall be binding upon
the heirs, executors, administrators, successors and assigns of
the parties hereto.
8.7 Attorneys' Fees. In the event an arbitration, suit or
action is brought by any party under this Agreement to enforce
any of its terms, or in any appeal therefrom, it is agreed that
the prevailing party shall be entitled to reasonable attorneys
fees to be fixed by the arbitrator, trial court, and/or appellate
court.
8.8 Computation of Time. In computing any period of time
pursuant to this Agreement, the day of the act, event or default
from which the designated period of time begins to run shall be
included, unless it is a Saturday, Sunday or a legal holiday, in
which event the period shall begin to run on the next day that is
not a Saturday, Sunday or legal holiday.
8.9 Pronouns and Plurals. All pronouns and any variations
thereof shall be deemed to refer to the masculine, feminine,
neuter, singular or plural as the identity of the person or
persons may require.
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8.10 GoverningLaw. This Agreement and the rights and
obligations of the parties hereto shall be governed, construed
and enforced in accordance with the laws of the State of Nevada.
The parties agree that any litigation relating directly or
indirectly to this Agreement must be brought before and
determined by a court of competent jurisdiction within the State
of Nevada.
8.11 Presumption. This Agreement or any Section thereof
shall not be construed against any party due to the fact that
said Agreement or any section thereof was drafted by said party.
8.12 Further Action. The parties hereto shall execute and
deliver all documents, provide all information and take or
forbear from all such action as may be necessary or appropriate
to achieve the purposes of the Agreement.
8.13 Parties in Interest. Nothing herein shall be construed
to be to the benefit of any third party, nor is it intended that
any provision shall be for the benefit of any third party.
8.14 Savings Clause. If any provision of this Agreement, or
the application of such provision to any person or circumstance,
shall be held invalid, the remainder of this Agreement, or the
application of such provision to persons or circumstances other
than those as to which it is held invalid, shall not be affected
hereby.
8.15 Confidentiality. The parties shall keep this Agreement
and its terms confidential, but any party may make such
disclosures as it reasonably considers are required by law or
necessary to obtain financing. In the event that the transactions
contemplated by this Agreement are not consummated for any reason
whatsoever, the parties hereto agree not to disclose or use any
confidential information they may have concerning the affairs of
other parties, except for information which is required by law to
be disclosed. Confidential information includes, but is not
limited to, financial records, surveys, reports, plans,
proposals, financial information, information relating to
personnel contracts, stock ownership, liabilities and litigation.
8.16 Costs, Expenses and Legal Fees. Whether or not the
transactions contemplated hereby are consummated, each party
hereto shall bear its own costs and expenses (including
attorneys' fees), except as set forth in the Escrow Agreement.
8.17 Severability. If any provision of this Agreement is
held to be illegal, invalid or unenforceable under present or
future laws effecting during the term hereof, such provision
shall be fully severable and this Agreement shall be construed
and enforced as if such illegal, invalid or unenforceable
provision never comprised a part hereof; and the remaining
provisions hereof shall remain in full force and effect and shall
not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom. Furthermore, in lieu of
such illegal, invalid and unenforceable provision, there shall be
added automatically as part of this Agreement a provision as
similar in nature in its terms to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid
and enforceable.
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8.18 Counterparts and Facsimile Signatures. This Agreement
may be executed in one or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute
one and the same instrument. For purposes of this Agreement,
facsimile signatures shall be treated as originals until such
time that applicable pages bearing non-facsimile signatures are
obtained from the relevant party or parties.
8.19 Continuing Nature. All representations and warranties
contained in this Agreement shall survive the Closing for a
period of two (2) years and, if applicable, all covenants, which,
according to their terms are to be performed after the execution
of this Agreement, shall survive the Closing for a period of two
(2) years.
IN WITNESS WHEREOF, the parties hereto have set their hands
this 7th day of November, 2000.
Intrac, Inc., a Nevada. Corporation ("Intrac")
by: /s/Xxxxxx X. Xxxxxxxxx
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Xx. Xxxxxx X. Xxxxxxxxx, President
Xx. Xxxxxx X. Xxxxxxxxx, an individual ("Xxxxxxxxx")
by: /s/Xxxxxx X. Xxxxxxxxx
----------------------
Xx. Xxxxxx X. Xxxxxxxxx
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