This Agreement made this 15th day of October 1999
BETWEEN:
Xxxxxxx Xxxxxxxx of the City of Coquitlam, in the Province of British
Columbia, Canada
(hereinafter referred to as the "Vendor")
OF THE FIRST PART
And
Xxxx Technologies International Inc., a body corporate having a place of
business at the City of Seattle in the State of Washington USA
(hereinafter referred to as the "Purchaser")
OF THE SECOND PART
Whereas the Vendor is the owner of the processes, batching formulations,
manufacturing processes for the production and manufacturing of photoluminescent
products including all research and development expended on such technology to
the date hereof (all hereinafter referred to as "the proprietary technology")
and is the assignee of the following related trademarks:
o "XXXX" Photoluminescence PVC sheets and rolls primarily for use in the
manufacture of signage, evacuation and wayfaring systems and secondary
lighting sources in International Class 17
o "LUNAPLAST" Photoluminescence PVC sheets and rolls primarily for use in the
manufacture of signage, evacuation and wayfaring systems and secondary
lighting sources in International Class 17
Whereas the Purchaser is desirous of promoting, distributing and selling and
having manufactured for it photoluminescent products and is desirous of
acquiring from the Vendor all right, title and interest to the proprietary
technology and the related trade marks and to manufacture or have manufactured
for it, sell, distribute and put into commercial use the proprietary technology
hereinbefore referred to and to exploit the proprietary technology and the
processes, trade secrets, manufacturing techniques and knowledge owned by the
Vendor.
NOW WITNESSETH THEREFORE IN CONSIDERATION OF THE MUTUAL PROMISES, COVENANTS, AND
REPRESENTATIONS CONTAINED HEREIN, THE PARTIES AGREE AS FOLLOWS:
Article 1.1 DEFINITIONS
(a) "Business Day" means any day except Saturday or Sunday or any public
holiday customarily observed in the Province of British Columbia.
(b) "Confidential Information" means the records and anything relating to the
Photoluminescent products which are the subject of the proprietary
technology referred herein or to the Vendor's batching formulas, processes
or any written communication, technical report which is disclosed by
either of the parties to the other and clearly marked as "Confidential".
(c)"Vendor's Documents" consists of the copyrights, trade marks, batching
formulas, manufacturer and supplier lists, service and consultant contracts
currently or previously used by the Vendor, technical reports, patent
applications and any other similar rights relating to the products which
are established before or after this Agreement is signed.
(d) "Proprietary Technology" means the batching formulations, manufacturing
processes and all-proprietary technology, research and development
associated therewith in the development of the Photoluminescent Products.
(e) "Closing Date" shall mean:
(i) The 15th day of November 1999.
(ii) Such other earlier date as the Parties hereto may mutually agree.
(f) "Effective Date" shall mean the 15th day of October 1999.
Article 1.2 - SALE OF MATERIAL AND PROPRIETARY TECHNOLOGY
The Vendor agrees to sell and the Purchaser agrees to purchase as at the
Effective Date, at and for the price of Sixty Thousand Dollars USD ($60,000
USD), all of the Vendor's documents and proprietary technology, and which for
greater clarity but without in any way restricting the foregoing definition,
shall include:
(a) the documents and proprietary technology and processes of manufacturing
Strontium Aluminate (SrAl) based photoluminescence products.
(b) the rights to those contracts with various consultants, manufacturers,
suppliers of goods, wares, merchandise, suppliers and services currently
used by the Vendor.
(c) the rights to all customer lists, technical documents, and contracts of the
Vendor.
(d) all licenses, permits and other regulatory authorizations issued by the
government.
(e) The trademarks described as "XXXX" and "LUNAPLAST" (a copy of each is
cumulatively attached as Schedule "A").
The Purchaser hereby acknowledges that the documents and proprietary technology
herein purchased is being purchased without any representation or warranty by
the Vendor.
Article 2.0 UNDERTAKING BY THE VENDOR
(a) The Vendor undertakes not to sell or otherwise in any way alienate or
dispose of the documents and proprietary technology referred to herein to
any other person, firm, or corporation.
Article 3.0 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, documents, records,
accounts and files of the Vendor. Any such examination shall not prejudice the
Purchaser's right with respect to any of the Purchaser's right with respect to
any claims for breach of any such representations and warranties.
Article 4.0 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 5.0 DELIVERY AT CLOSING DATE
Unless the Agreement shall have been terminated by the Purchaser prior to the
Closing Date pursuant to Article 4.0 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 Sixty Thousand Dollars USD ($60,000 USD),
which sum shall be due and payable without interest on or before the 31st
day of October 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 undertaken to approve, confirm and adopt this agreement and to
authorize the execution and delivery of all documents herein and the
performance of acts and consumation of all transactions on the part of the
Purchaser to be done or performed hereunder.
Article 6.0 REPRESENTATIONS FOR PURCHASER'S BENEFIT
6.1 The documents, trademarks and proprietary technology hereby sold to the
Purchaser at the Effective Date and on the Closing Date shall be free and
clear of all encumbrances, claims, charges and other third party rights or
interest and the Vendor has the full unfettered authority to sell the
documents and proprietary technology to the Purchaser.
6.2 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.
6.3 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 7.0. COVENANT NOT TO COMPETE
It is understood and agreed that the Vendor shall not, directly or indirectly,
whether on his account or as an employee, consultant, partner, officer, or
director of any other person, firm, partnership or corporation be engaged or
interested in any business which incorporates the use of the documents and
proprietary technology sold to the Purchaser by the Vendor for a period of Five
(5) years from and after the closing date.
Article 8.0 REDUCTION IN PURCHASE PRICE FOR BREACH
It is understood and agreed that any recourse in favor of the Purchaser arising
from:
(a) Any claims the cause of which originated prior to the Closing Date and
any loss that might be sustained subsequent to the Closing Date, as a
result of undisclosed liabilities or claims by third parties
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 material and proprietary technology sold at the date of this
agreement.
Article 9.0 POST CLOSING OPERATIONS
The Parties agree hereto, that the Vendor shall after the date of Closing
testify in any legal proceeding, sign all lawful papers, execute all lawful
divisional, continuation, and reissue applications, make all rightful
declarations or oaths, and do everything lawfully possible to aid the Purchaser
and its successors and assigns, to obtain and enforce proper protection for said
proprietary technology and trade marks in this or any foreign country.
Article 10.0 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser shall deliver to the Vendor at the Closing Date a certificate
signed by the Directors of the Purchaser to the effect that the following
representations and warranties which the Purchaser is hereby making to the
Vendor, are true and correct as at the Closing Date.
(a) The Purchaser is a corporation duly organized, validly existing, and
in good standing under the laws of the State of Delaware, has all
necessary corporate powers to own properties and carry on a business,
and is qualified to do business in Delaware. All actions taken by the
Incorporators, Directors and Shareholders of the Purchaser have been
valid and in accordance with the laws of the State of Delaware.
Article 11.0 CLOSING
The closing shall take place at the #00X Xxxxxxx Xxxx at Coquitlam, British
Columbia, at 10:00 a.m. on November 15th, 1999 or such other date as may be
agreed upon by the Parties.
Article 12.0 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 13.0 HEADINGS
The headings of the Articles and paragraphs are intended to be used in
conjunction with the Index for reference only. Nothing is to be inferred from
the headings themselves.
Article 14.0 APPROVALS
Each Party may be asked to give their approval before some things can be done.
Neither of the Parties will unreasonably or arbitrarily delay giving or refuse
to give their approval. The Parties will answer a request to give their approval
within five (5) business days. Failure to answer will mean that the approval
requested has been given.
Article 15.0 TIME
The Parties will act promptly and if something is required to be done within a
stated period of time or by a date, the parties will adhere to that requirement
exactly.
Article 16.0 ONLY AGREEMENT
This document sets forth the entire agreement and understanding of the Parties
relating to the subject matter herein and merges all prior discussions and
negotiations between the parties or their representatives. Neither party shall
be bound by any conditions, representations or warranties with respect to the
subject matter of this agreement other than as expressly provided herein or as
duly set forth subsequent to the date hereof in writing signed by a duly
authorized representative of the party to be bound thereby.
Article 17.0 LAWS
Questions about the interpretation or enforcement of this Agreement will be
decided by applying the laws of the State of Washington, USA.
Article 18.0 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 19.0 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 documents or proprietary technology as strictly confidential.
Article 20.0 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 VENDOR HAS AFFIXED HIS HAND AND SEAL AND THE PURCHASER
HAS AFFIXED THEIR CORPORATE SEALS BY THEIR OFFICERS PROPERLY AUTHORIZED IN THAT
BEHALF, THE DAY AND YEAR FIRST ABOVE WRITTEN.
XXXX TECHNOLOGIES INTERNATIONAL INC.
Per:
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Xxxxxxx Xxxxxxxx
