Data Factor, LP
000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000 XXX
LETTER OF INTENT BETWEEN
DATA FACTOR, LP & ADVA INTERNATIONAL INC.
WHEREAS, Data Factor, LP and its affiliates ("DF" or "Licensor") possess
the worldwide exclusive rights to develop, market and exploit a set of
algorithms, mathematical equations and the ancillary information employed in the
production of software and hardware/software combinations which combine to
encrypt and decrypt files created in certain Microsoft(R)software applications,
as well as the creation of certain other potential encryption and security
technology applications (hereinafter the "Technology");
WHEREAS, ADVA International Inc. ("ADVA" or "Licensee"), a publicly
listed company located at 000 X Xxxxxxxx Xxxx, Xxxx Xxxx, XX 00000; currently
de-listed from the OTC:BB of the NASDAQ and available for trade via the grey (ie
"Pink Sheets") market, wishes to further explore the possibility of licensing
the Technology from DF with the intention of marketing, sub-licensing and
commercially exploiting the Technology in the security and encryption markets on
a worldwide exclusive basis;
THEREFORE, let it be known that both parties understand and agree it
shall be their mutual intent that the following terms and covenants will be
effected in a Technology License Agreement (the "Agreement"), pursuant upon and
conditional to, the successful completion of certain milestones to be further
described herein.
I. Scope of Proposed License: If a License Agreement is determined to be
in the best interests of both parties, the general terms shall be as
follows:
a. Technology License is for the development and marketing of
products for use in the encryption of data, secure network and
telephony systems and any related products; for sale in retail
(B2C), corporate (B2B) and governmental (B2G) organizations.
Ownership of the Original Algorithms on which the Technology
is based remain the sole property of the Inventor.
b. Licensor grants worldwide exclusive license for encryption and
security end-use. Any sub-licensing of the Technology is
possible only when sub-Licensee agrees to the pertinent terms
contained in the original License.
c. 10 year term with automatic right of renewal pursuant to
Licensee satisfying terms & conditions of the Agreement
d. Buyout option from Royalty payments for Licensee may be
available based on mutually agreed terms. Licensee shall have
the right of first refusal for all bona fide third-party
offers for the purchase of all applicable source code. Any
third party sale shall not impinge on Licensee's Agreement for
term thereof.
e. Licensor shall make all previous development work owned by DF
on the Technology available to aid Licensee in development
while retaining ownership and copyrights thereto.
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Data Factor, LP
000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
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II. Fixed Fees: License Payments
a. Non-refundable license payments totaling US$300,000 to be
disbursed at
i. Milestone I: US$100,000 shall be paid upon execution of
the contemplated Agreement ("Agreement Date")
ii. Milestone II: US$100,000 payable at the earlier of six (6)
months from the Agreement Date or the completion of an
ADVA approved release version of the file encryption
software on the Microsoft XP(R)PC platform
iii. Milestone III: US$ 100,000 payable at the earlier of 15
months from the Agreement Date or completion of first sale
III. Variable Fees: Royalty Payments
a. Licensee to pay to Licensor Royalty equal to 5% of gross
quarterly sales with minimums as per III-c below.
b. Payment to be made quarterly within 10 business days of
quarter close.
c. Minimum Payment Schedule:
i. Minimum of $US5K/ month in Royalty within 12 months of
first release of software.
ii. Minimum of $US10K/ month within 24 months of first release
of software
iii. Minimum of $US15K/ month within 36 months of first release
of software
IV. Guaranteed Operating Funds (GOF) and Milestones
a. The Licensee shall provide a minimum guaranteed level of
operating capital devoted to the development and marketing of
the Technology for the first three (3) years. Said amount will
be mutually agreed based on a Business Plan accepted by both
parties in advance of, and to be included in the Agreement.
In no case shall the amount of GOF be lower than US$1 million
per year.
b. The Agreement shall include mutually agreed funding,
development, marketing and sales milestones as per the agreed
Business Plan
V. Default/Breach of Agreement:
a. If GOF falls below agreed levels, or other default/breach of
Agreement terms take place the Licensor reserves the right to
cancel the Agreement in its entirety without liability.
b. All work to the date of a default or breach of terms,
including original technology and modifications thereof, and
all legal rights thereto, shall immediately revert to the
Licensor.
c. License is non-transferable without the express written
agreement of Licensor except in the case of a company sale of
ADVA to a third party in which case ADVA shall ensure the
terms of the Agreement are carried forward.
VI. Corporate Conditions
a. ADVA to bring all external debt to current and maintain
adequate reserves to avoid any collection or bankruptcy
proceedings within six months of Agreement Date.
b. Any collection proceedings against the company, if unresolved
within six months of occurrence, shall result in Default.
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Data Factor, LP
000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000 XXX
c. ADVA to bring Board of Directors and committees, corporate
filings, staffing and membership in compliance with all SEC
and any other applicable regulations within six (6) months of
Agreement Date
d. ADVA to bring all outstanding and contingent liabilities (i.e.
debts, liens, stock option grants, tax and corporate issues,
etc) to resolution within nine (9) months of the Agreement
Date
e. ADVA to provide adequate staff for marketing and sales to
achieve sales goals as agreed in the Business Plan
f. Within thirty (30) calendar days of the Agreement Date, the
Board shall be expanded to include one Director of the
Licensor's choosing, pursuant to the approval of the
shareholders at the company's Annual Shareholder meeting. Said
Director shall be subject to the same level of due diligence
scrutiny as the existing Directors on the Board. In the case
that candidate is not duly approved, the Licensor shall have
the right to appoint an interim Director until such time as
necessary shareholder approval is secured or the seat is
revoked by same in the next Annual Meeting.
VII. Equity Issues
i. ADVA stock must be brought back to full trading status on
the Nasdaq OTC:BB or a similar U.S. public bourse within
nine (9) months of the Agreement Date and maintain
continuously trading status and listing for the term of
the Agreement, unless ADVA is sold or taken private.
ii. ADVA shall grant to Licensor at each of the three
Milestones described in section II sub a, warrants to
purchase three blocks of 250,000 shares of stock at the
price of US$0.15, 0.45 and 1.35 respectively.
VIII. Business Plan: In order that the decision to pursue the DF proposed
opportunity may be made in an informed and timely manner, ADVA will
commission the market research and authoring of a full Business Plan.
a. The scope of the Business Plan will be:
i. To determine and describe in detail the potential market
for the first application of file encryption software on
the Microsoft Windows(R)platform;
ii. put forth a reasonable plan of operation to achieve
penetration in that market;
iii. to describe the financial results that might be expected
to result from said market share under optimal conditions;
iv. identify potential partners and the relationships that
might be expected to be implemented in both the technical
and market environments;
v. identify the Risk Factors which can be reasonably
determined to have potential impact on ADVA and its
investors in the proposed venture.
vi. To describe other applications which can be derived from
the DF encryption technology to be licensed to ADVA
vii. To outline the potential markets for said secondary and
future applications
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Data Factor, LP
000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000 XXX
b. Compensation & Methodology:
i. DF shall be retained to author the Business Plan on
behalf of ADVA. DF projects the project will require
approximately 32-35 man-days (224-245 man-hrs) to complete
all market & technical research, authoring and editing of
a document of this nature.
ii. DF's current hourly rate is $125-175 per hour. As a
gesture of good will DF is willing to make a concession
and charge US$65- per hour which translates into
US$14,560-15,925 depending on the timeliness and volume of
ADVA comments and changes. All out-of-pocket expenses (ie
printing costs, shipping, travel, conference calls, etc)
will be the responsibility of ADVA and subject to its
prior written approval. An unreasonable amount of changes,
timing problems, etc may increase the amount of hours
required significantly and raise the overall cost.
c. A retainer of US$10,000- shall be paid upon start of the project
and the remaining xxxx will be paid on delivery of the final
document.
d. DF will strive to provide the most current and complete
independent market and technical research available to it in the
public domain. At its discretion, DF LP may require certain
commercially available market information if it believes the BP
would be incomplete without such data. No such purchase will be
made without prior notification and written approval of ADVA.
c. In undertaking the composition of said BP on behalf and at the
request of ADVA, DF shall consult with and provide a maximum of
three successive drafts to ADVA for review & comment prior to
release.
d. Given ADVA's ultimate approval of the final document, DF will in
no way be liable for the failure of ADVA to gain funding based
on the provision of this or any other work, information or
documents by Data Factor, LP. The responsibility for the success
or failure to raise funds, and any effects thereof, shall sit
solely with ADVA.
IX. Timing:
a. This proposed Letter of Intent ("LOI") is valid until 1700 EDT
on June 30, 2003 at which time, if not so agreed to in writing
by the ADVA Board of Directors, the offer shall be null and
void and both parties shall hold the other harmless and without
liability.
b. If the LOI is so agreed, DF reserves the right to terminate any
relationship with ADVA if the Agreement Date is not fixed on or
before September 30, 2003.
X. Release:
a. If ADVA, for any reason, is not able to raise sufficient funds
to realize the authoring of the Business Plan by August 15,
2003, DF reserves the right to hold this LOI null and void on
all points.
b. Should ADVA attempt to change or alter in any material way, the
proposed terms and covenants embodied in this Letter of Intent
at its contemplated transferral into a Technology License
Agreement, DF shall have the right to sever the relationship
without any liability whatsoever.
c. Both parties agree to hold the other harmless and without
liability if, for any reason, the Agreement is not consummated.
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Data Factor, LP
000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000 XXX
XI. Limitation of Liability: To the maximum extent permitted by applicable
law, in no event shall Data Factor, LP or ADVA International Inc.,
their suppliers or affiliates be held liable by the other party for
any special, incidental, indirect, or consequential damages whatsoever
(including, without limitation, damages for loss of business profits,
business interruption, loss of business information, or any other
pecuniary loss) arising out of the failure to provide advice, support
services, documentation or products, even if the concerned party has
been advised of the possibility of such damages.
HEREBY UNDERSTOOD AND AGREED:
For ADVA International Inc For Data Factor, LP
SIGNED: /s/ Xxxxxx X. Down SIGNED: /s/ Xxxxxxx Xxxx
Print Name: Xxxxxx X. Down Print Name: Xxxxxxx Xxxx
Title: Director Title: Partner
Date: July 9, 2003 Date: July 8, 2003
SIGNED: /s/ C. Xxxxx Xxxxx
Print Name: C. Xxxxx Xxxxx
Title: Director
Date: July 9, 2003
SIGNED: /s/ Xxxxx X. Xxxxxxxx
Print Name: Xxxxx X. Xxxxxxxx
Title: Chairman
Date: June 28, 2003
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