EXHIBIT 10.2
PATENT PURCHASE, LICENSE AND REPURCHASE AGREEMENT
This Patent Purchase, License and Repurchase Agreement is made effective as
of the Effective Date (defined below) between:
IPIX Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter "IPIX")
and
AdMission Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter "AdMission")
IPIX and AdMission may be referred to individually as a "Party," and
collectively as the "Parties."
WHEREAS, IPIX owns or controls title to certain patents and patent
applications and IPIX is willing to transfer and sell all right, title and
interest to such patents and patent applications to AdMission in connection
with, and in consideration for, the execution, delivery and performance of that
certain Asset Purchase Agreement by and among IPIX and AdMission dated as of
January 11, 2005 (the "Asset Purchase Agreement"), provided, however, that IPIX
is willing to make such transfer and sale to AdMission if, and only if,
AdMission enters into this Agreement and grants back to IPIX a license of such
patents and patent applications and the repurchase right on the terms and
conditions set forth herein.
WHEREAS, AdMission is willing to purchase and accept title to the Patents
subject to the terms and conditions set forth herein and desires to grant a
license back and the repurchase right to IPIX the patents and patent
applications as provided herein.
WHEREAS, IPIX is prepared to accept such license and the right to
repurchase the Patents.
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 Affiliate. Any corporation or other legal entity that either directly
or indirectly controls a Party to this Agreement, is controlled by such Party,
or is under common control of such Party. As used herein, the term "control"
means possession of the power to direct or cause the direction of the management
and policies of a corporation or other entity, whether through the ownership of
the majority of voting securities, by contract, or otherwise
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1.2 Effective Date. The "Effective Date" shall mean the last date that
either Party hereto signs this Agreement.
1.3 Knowledge. The term "Knowledge" shall have the meaning given such term
in the Asset Purchase Agreement.
1.4 Marketplace Definition. Except for the specific exclusions relating to
the Security Sector, AdMission intends to fully exploit the intrinsic commercial
value of the Patents and assets acquired in this transaction. The sectors in
which AdMission will participate include, but are not limited to, the following
areas of commerce and digital media sharing for both online and print, as such
may be modified, amended or supplemented from time to time, by the Board of
Directors of AdMission: a) online search: local, national, and international; b)
publishing; c) yellow pages directories; d) directories: industrial, commercial,
and consumer; e) newspapers: local, regional, national, and international; f)
real estate retail sales and aggregation; g) automotive sales; h) catalogs; i)
marketplaces: online, virtual, and physical; j) advertising: commercial,
classified, display, and consumer; k) auctions; l) appraisals; m) credit and
debit cards: media transfer n) dating, alumni, membership and personal affinity
building sites; and o) classified ads, all categories. Notwithstanding the
foregoing, field of use relating to the Security Sector are expressly excluded
from the Marketplace Definition and AdMission shall in no case participate in
and the Marketplace Definition shall in no case include or be amended to include
any sector relating to the Security Sector.
1.5 Patents. The patents and patent applications listed in Schedule A, and
any other application based in whole or in part upon such patents and patent
applications in any country (including divisional, renewal, substitute,
continuation, and continuation-in-part applications), and all patents which may
be granted thereon (including all reissues, reexaminations, and extensions
thereof).
1.6 Security Sector. Uses for security, surveillance, military, police, or
law enforcement.
1.7 . Triggering Event. For purposes of this Agreement a "Triggering Event"
shall mean an event where AdMission remains Insolvent and unable to meet its
current obligations for a period of three (3) months or longer.
ARTICLE II
TRANSFER
2.1 Assignment. Except as otherwise set forth herein, IPIX hereby sells,
assigns, and transfers to AdMission all of the IPIX's right, title and interest
in the Patents.
2.2 Encumbrances. AdMission acknowledges that the Patents are subject to
various preexisting licenses and agreements, and agrees to take title to the
Patents subject to such preexisting licenses and agreements and to the License
granted to IPIX hereunder.
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ARTICLE III
IPIX REPRESENTATIONS AND WARRANTIES
As a material inducement to AdMission to enter into this Agreement and to
consummate the transactions contemplated by this Agreement, IPIX represents and
warrants to AdMission, as of the date hereof: 3.1 Organization. IPIX is a
corporation duly incorporated and organized, validly existing and in good
standing under the laws of the State of Delaware and has the requisite corporate
power and authority to own and operate the Patents.
3.2 Authority of IPIX. IPIX has full power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. This Agreement
has been duly authorized, executed and delivered by IPIX and is the legal, valid
and binding agreement or instrument of IPIX, enforceable against IPIX in
accordance with its terms, except as such enforceability may be limited by
principles of public policy and subject to the laws of general application
relating to bankruptcy, insolvency and the relief of debtors and rules of law
governing specific performance, injunctive relief or other equitable remedies.
The execution, delivery and performance of this Agreement does not require the
consent of or notice to any third-party. Neither the execution and delivery of
this Agreement nor the consummation of the transactions contemplated hereby will
conflict with or result in any violation of or constitute a default under any
term of the Articles of Incorporation or Bylaws of IPIX, or any agreement,
mortgage, debt instrument, indenture, or other instrument, judgment, decree,
order, award, law or regulation by which IPIX is bound, or result in the
creation of any lien, security interest, charge or encumbrance upon the Patents,
except if such conflict violation, default, lien or encumbrance would not have a
Material Adverse Effect.
3.3 Intellectual Property.
(a) To the Knowledge of IPIX, IPIX has sole title to and ownership of
the Patents.
(b) To the Knowledge of IPIX, Schedule A lists each currently
effective or pending patent and patent application (including all
provisional applications, continuations and continuations-in-part), in each
case, included in the Patents.
(c) To the Knowledge of IPIX, no action, suit, proceeding or claim
with respect to the Patents has been instituted, or is pending or
threatened against IPIX.
ARTICLE IV
ADMISSION REPRESENTATIONS AND WARRANTIES
As a material inducement to IPIX to enter into this Agreement and to
consummate the transactions contemplated by this Agreement, AdMission represents
and warrants to IPIX, as of the date hereof:
4.1 Organization. AdMission is a corporation duly incorporated and
organized, validly existing and in good standing under the laws of the State of
Delaware and has the requisite corporate power and authority to own or lease all
of its assets and to carry on its business as now conducted.
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4.2 Authority of AdMission. AdMission has full power and authority to enter
into this Agreement and to consummate the transactions contemplated hereby. This
Agreement has been duly authorized, executed and delivered by AdMission and is
the legal, valid and binding agreement or instrument of AdMission, enforceable
against AdMission in accordance with its terms, except as such enforceability
may be limited by principles of public policy and subject to the laws of general
application relating to bankruptcy, insolvency and the relief of debtors and
rules of law governing specific performance, injunctive relief or other
equitable remedies. The execution, delivery and performance of this Agreement do
not require the consent of or notice to any third-party. Neither the execution
and delivery of this Agreement nor the consummation of the transactions
contemplated thereby will conflict with or result in any violation of or
constitute a default under any term of the Articles of Incorporation or Bylaws
of AdMission, or any agreement, mortgage, debt instrument, indenture, or other
instrument, judgment, decree, order, award, law or regulation by which any of
AdMission is bound, or result in the creation of any lien, security interest,
charge or encumbrance upon the assets of AdMission, or result in the
cancellation, modification, revocation or suspension of any license,
certificate, permit or authorization held by AdMission.
4.3 Due Diligence. In making its determination to proceed with the
transactions contemplated by this Agreement, AdMission has relied solely on the
results of its own independent investigation and the representations and
warranties of IPIX set forth in Article III, including the schedules thereto.
Such representations and warranties by IPIX constitute the sole and exclusive
representations and warranties of IPIX to AdMission in connection with the
transactions contemplated hereby, and AdMission acknowledges and agrees that
IPIX is not making any representation or warranty whatsoever, express or
implied, beyond those expressly given in this Agreement, including any implied
warranty as to condition, merchantability or suitability as to any of the
Patents and it is understood that AdMission is taking the Patents as is and
where is. AdMission has no knowledge that any of the representations and
warranties of IPIX in this Agreement is not true and correct, and AdMission has
no knowledge of any errors in, or omissions from, the information set forth in
the schedules to this Agreement.
ARTICLE V
LICENSE AND REPURCHASE
5.1 License. AdMission grants to IPIX an exclusive (including exclusive to
AdMission), worldwide, royalty-free, paid-up, transferable, perpetual license,
which is revocable only as specifically set forth herein, to make, have made,
use, sell, offer for sale, lease, import, or otherwise exploit any invention
covered by the Patents, but only in the Security Sector (the "License").
5.2 Sublicenses.
(a) IPIX may freely, and without consultation with AdMission, sublicense
any all rights contained in the License to its Affiliates, customers, end-users,
distributors, manufacturers, vendors, or anyone otherwise involved in or
supporting IPIX's commercial activities for any use relating to IPIX branded
activities.
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(b) If IPIX wishes to sublicense any rights contained in the License to its
Affiliates, customers, end-users, distributors, manufacturers, vendors, or
anyone otherwise involved in or supporting IPIX's commercial activities for the
use of the License for activities which are not IPIX branded activities, IPIX
shall first obtain the prior written consent of AdMission, which shall not be
unreasonably withheld or delayed. Any objection to such sublicensing shall be
set out in writing together with the reasons therefor, and AdMission's failure
to provide such an objection within thirty (30) days after receipt of IPIX's
written request shall be deemed irrevocable consent to such sublicensing.
(c) For the purposes of this License, "IPIX branded activities" means any
activities for which any resulting product or service shall use or contain the
IPIX name or logo or which shall be incorporated into any product or service
which uses or contains the IPIX name or logo.
5.3 Scope Extension. If, within 36 months of the commencement of this
Agreement, IPIX determines that it is necessary to extend License beyond the
Security Sector for the pursuit of its own core business strategy, then IPIX
shall have the right to seek AdMission's consent to extend the scope of the
license, which consent shall not be unreasonably withheld, provided that such
extension does not infringe upon or compete with AdMission's core business
activities as set forth in the Marketplace Definition. Any extension of the
scope of the License shall be considered part of the original License and shall
also be an exclusive (including exclusive to AdMission), worldwide,
royalty-free, paid-up, transferable and perpetual license which is revocable
only as specifically set forth herein. However, the right to extend the scope of
the License shall be non-transferable and shall apply only to "IPIX" branded
activities. The Company's consent to extend the scope of the License under these
circumstances shall not be unreasonably withheld. If the Parties are unable to
reach an agreement regarding an extension, then either Party may submit the
dispute to binding arbitration to determine fair and equitable terms.
5.4 Repurchase.
(a) In case of a Triggering Event by AdMission at any point during the
first thirty-six (36) months of this Agreement, IPIX will have the
non-assignable right to repurchase the Patents (hereinafter, "Repurchase Right")
in exchange for payment by IPIX of the "Repurchase Right Payment." The
Repurchase Right Payment shall be an amount calculated by dividing the numerator
(36 months minus the number of complete months from the Effective Date to the
date of the Triggering Event) by the denominator of 36 (the term of the
Repurchase Right being 36 months) and multiplying that number times $700,000.
This Repurchase Right shall irrevocably expire on the third anniversary from the
Effective Date of this Agreement.
(b) In the event of a Change in Control of IPIX, AdMission will have the
non-assignable first right of refusal to buy back the Repurchase Right at the
then current fair market value. For purposes of this Section 5.4(b), a "Change
of Control" shall mean the acquisition of IPIX by another person or entity by
means of any transaction or series of related transactions (including, without
limitation, any reorganization, merger or consolidation, or acquisition directly
or indirectly, of the securities of IPIX representing more than fifty percent
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(50%) of the total voting power represented by IPIX's then outstanding voting
securities, but excluding any merger effected exclusively for the purpose of
changing the domicile of IPIX), (b) a sale, conveyance or disposition of all or
substantially all of the assets of IPIX, or (c) any reorganization, merger,
consolidation or similar transaction in which IPIX is not the surviving entity
(unless, IPIX's stockholders of record as constituted immediately prior to such
acquisition, sale, conveyance, disposition, reorganization, merger,
consolidation or similar transaction will, by virtue of such shares of IPIX held
immediately prior to such transaction, immediately after such acquisition, sale,
conveyance, disposition, reorganization, merger, consolidation or similar
transaction hold at least 50% of the voting power of the surviving or acquiring
entity immediately after such acquisition, sale, conveyance, disposition,
reorganization, merger, consolidation or similar transaction).
5.5 No Encumbrance. AdMission shall agree not to sell, transfer or encumber
the Patents or take any other action which could reasonably be expected to
hinder or interfere with IPIX's exercise of the Repurchase Right.
5.6 Information Rights. AdMission shall promptly provide IPIX with the
information set forth in this Section 5.6. IPIX's right to this financial
information shall continue for thirty-six (36) months from the Effective Date.
Any such financial information disclosed under this section shall be deemed
confidential and proprietary to AdMission and IPIX shall comply with the
confidentiality requirements as set forth in the Asset Purchase Agreement.
AdMission shall provide IPIX with the following:
(a) as soon as practicable, but in any event within ninety (90) days after
the end of each fiscal year of AdMission, a balance sheet and income statement
as of the last day of such year; a statement of cash flows for such year, such
year-end financial reports to be in reasonable detail, prepared in accordance
with generally accepted accounting principles ("GAAP") and audited and certified
by independent public accountants selected by AdMission;
(b) as soon as practicable, but in any event within forty-five (45) days
after the end of each of the first three (3) quarters of each fiscal year of
AdMission, an unaudited balance sheet and income statement prepared in
accordance with GAAP (except that the financial report may (i) be subject to
normal year-end audit adjustments and (ii) not contain all notes thereto which
may be required in accordance with GAAP), as well as an accounts payable aging
reflecting, for each account payable, the date of the invoice that gave rise to
the payable and whether such payable is in bona fide dispute, certified by the
Chief Financial Officer or Chief Executive Officer of AdMission as being true,
complete and correct;
(c) as soon as practicable, but in any event within forty-five (45) days
after the end of each of the first three (3) quarters of each fiscal year of
AdMission, a statement showing the number of shares of each class and series of
capital stock and securities convertible into or exercisable for shares of
capital stock outstanding at the end of the period, the number of common shares
issuable upon conversion or exercise of any outstanding securities convertible
or exercisable for common shares and the exchange ratio or exercise price
applicable thereto and number of shares of issued stock options and stock
options not yet issued but reserved for issuance, if any, all in sufficient
detail as to permit IPIX to calculate its percentage equity ownership in
AdMission and certified by the Chief Financial Officer or Chief Executive
Officer of AdMission as being true, complete and correct;
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(d) with respect to the financial statements called for in subsections (a),
(b) and (c) of this Section 5.5, an instrument executed by the Chief Financial
Officer and President or Chief Executive Officer of AdMission and certifying
that such financials were prepared in accordance with GAAP consistently applied
with prior practice for earlier periods (with the exception of footnotes that
may be required by GAAP) and fairly present the financial condition of AdMission
and its results of operation for the periods specified therein, subject to
year-end audit adjustment;
(e) upon written request by IPIX, provide a certificate executed by the
Chief Executive Officer of AdMission affirming that AdMission is not Insolvent,
as defined herein, AdMission is currently able to meet its current obligations,
and AdMission will be able to meet its current obligations for the next three
months; and
(f) promptly provide IPIX with such other information relating to the
financial condition, business, prospects or corporate affairs of AdMission or
any other relevant information regarding the occurrence of any Triggering Event
as IPIX may from time to time reasonably request, provided, however, that
AdMission shall be permitted to exclude from such disclosures any proprietary
information relating to the AdMission business.
5.7 Inspection Rights. AdMission shall permit IPIX, at IPIX's expense, to
visit and inspect AdMission's properties, to examine its books of account and
records and to discuss AdMission's affairs, finances and accounts with its
officers, all at such reasonable times as may be reasonably requested by IPIX;
provided, however, that AdMission shall not be obligated pursuant to this
Section 5.7 to provide access to any information which it reasonably considers
to be a trade secret or similar confidential information.
5.8 Definitions.
(a) For purposes of this Section, "Insolvent" shall mean (a) the sum of
AdMission's debts and obligations is greater than AdMission's assets, at a fair
valuation, without taking into account any value for assets that consist of
inchoate legal claims and chooses in action; or (b) the sum of AdMission's debts
and obligations, as reflected on AdMission's balance sheet prepared in
accordance with GAAP, exceeds the sum of the book value of AdMission's assets,
as reflected on its balance sheet prepared in accordance with GAAP.
(b) For purposes of this Section, the phrase "unable to meet its current
obligations" shall mean, among other things, AdMission's failure to pay bona
fide obligations within ninety (90) days of the date of invoice of such
obligation.
(c) In the event of that AdMission is Insolvent or unable to meet its
current obligations as defined above, AdMission shall immediately notify IPIX in
writing of its financial condition.
5.9 Essential Element. IPIX and AdMission specifically agree that the
Repurchase Right granted to IPIX is an essential element of the license granted
to IPIX under this Agreement, and that the Repurchase Right is a right of the
licensee under 11 U.S.C. ss.365(n) and is enforceable by IPIX under 11 U.S.C.
ss.365(n).
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5.10 Termination upon Qualified Initial Public Offering or Qualified
Liquidation Event. Notwithstanding any other term of this License, the rights
set forth in Section 5.4 above shall terminate and be of no further effect upon
the occurrence of a "Qualified Initial Public Offering" or a "Qualified
Liquidation Event."
(a) For purposes of this License a "Qualified Initial Public Offering"
shall mean an initial public offering of the equity of AdMission resulting in
gross proceeds to AdMission of $10,000,000, net of all underwriters' discounts
and offering expenses.
(b) For purposes of this License a "Qualified Liquidation Event" shall mean
any reorganization, merger, consolidation or similar transaction in which
AdMission is not the surviving entity and for which AdMission or its
stockholders receive not less than $20,000,000_ (the value of any consideration
other than cash received in such a transaction shall be determined by the fair
market value as determined by an independent third party jointly chosen by the
Board of Directors of AdMission and IPIX).
5.11 Specific Performance. The parties acknowledge and agree that damages
would not be an adequate remedy for the failure of IPIX to receive the Patents
upon a Triggering Event pursuant to the Repurchase Right and, accordingly, it is
the intent of the parties that the ability to exercise the Repurchase Right
shall be enforceable by an action for specific performance and in connection
therewith, IPIX shall be entitled to reduce the amount of the Repurchase Right
Payment by the amount of IPIX's actual out-of-pocket expenses (including,
without limitation, reasonable attorneys', paralegals', accountants' and
consultants' fees) incurred in connection with IPIX's enforcement of the
Repurchase Right, including without limitation any proceeding or defense against
any other competing claim to the Patents.
5.12 Security Interest. In order to secure and further assure IPIX's
license rights to the Patents, including without limitation the ability to
perfect and enforce the Repurchase Right, in the event of a Triggering Event
which occurs within thirty-six (36) months from the Effective Date of this
Agreement, AdMission hereby grants to IPIX a security interest in and a lien
upon any and all right, title and interest of AdMission in and to the Patents,
and all proceeds thereof, to secure the license rights of IPIX hereunder with
respect to the Patents, including without limitation the right to enforce the
Repurchase Right. Such security interest shall terminate thirty-six (36) months
after the Effective Date. With respect to such security interest, IPIX shall
have all of the rights and remedies of a secured party under the Uniform
Commercial Code of the State of Delaware. AdMission hereby authorizes IPIX to
execute and deliver and/or file all assignments, conveyances, statements,
financing statements, continuation financing statements, security agreements,
affidavits, notices and other agreements, instruments and documents that IPIX
may determine necessary in order to perfect and maintain the security interests
and liens granted in this Section 5.12 only in such case of a Triggering Event
and in order to fully consummate all of the transactions contemplated herein.
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ARTICLE VI
MAINTENANCE AND ENFORCEMENT
6.1 Maintenance. AdMission shall use commercially reasonable efforts to
maintain and prosecute the Patents licensed under this Agreement, which shall be
done at AdMission's discretion and expense.
6.2 Enforcement. IPIX shall have the right to enforce the Patents against
any third party infringers in the Security Sector. Only in the event that IPIX
elects not to enforce the Patents against third party infringers in the Security
Sector, then AdMission shall have the right to enforce the Patents against any
third party infringers in the Security Sector. IPIX shall notify AdMission in
writing before initiating any enforcement action in the Security Sector. IPIX
shall exercise the same degree of vigilance and care in enforcing its rights
under this Agreement as it does in protecting and enforcing its own intellectual
property portfolio. AdMission shall have the exclusive right to enforce the
Patents against any third party infringers outside the Security Sector.
(a) In the event of any infringement or threatened infringement of a Patent
by a third party, a Party may initiate an enforcement action against the
infringing or potentially infringing party if the infringing activities fall
within the scope of their area of exclusive enforcement. If a Party does not
initiate an action within 3 months after the other Party provides notice to such
Party of the infringement or threatened infringement, then, notwithstanding the
scope of the other Party's area of exclusive enforcement, the other Party may
initiate an action. Such notice shall reference this Agreement and this Section
6.2(a), and expressly state the intention of the Party giving such notice to
initiate an action. Failure by either Party to initiate an action within 6
months from the date such notice is received shall constitute a withdrawal
without prejudice of the notice.
(b) In the event of any infringement or threatened infringement of a Patent
by a third party involving substantial infringing activities within the scope of
the Security Sector, then the Parties shall meet and confer as to how to proceed
in enforcing the Patent. If both Parties desire to initiate an action, then the
Parties shall in good faith negotiate terms on how to conduct and participate in
the action. IPIX shall be the sole recipient of any proceeds resulting from any
enforcement of a Patent in the Security Sector. IPIX shall not initiate an
action until a negotiated agreement is reached.
(c) In the event either Party initiates an action enforcing a Patent
against a third party, the other Party shall provide commercially reasonable
assistance in connection with such action, including, without limitation joining
the action as a party. The initiating Party shall be entitled to keep any
proceeds as a result of such action, subject to reimbursing the other Party for
all reasonable out-of-pocket expenses and legal fees incurred in rendering
assistance in connection with such action. Such reimbursement shall be due and
payable after a final and non-appealable judgment. The initiating Party shall
keep the other Party informed of material events for dialogue and comment. In
any event, the filing Party shall provide advance notice of any action and shall
provide copies of all pleadings.
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6.3 Joinder. As AdMission and IPIX both have an interest relating to the
Patents, the disposition of an action under Section 6.2 in the absence of one
Party may as a practical matter impair or impede the absent Party's ability to
protect that interest or leave the absent Party subject to a substantial risk of
incurring double, multiple, or otherwise inconsistent obligations. If the absent
Party seeks joinder in an action, the other Party shall not oppose such joinder
and shall, at the absent Party's request, provide commercially reasonable
assistance to achieve such joinder.
6.4 Settlements. IPIX shall not settle any action under Section 6.2 with a
third party without AdMission's prior written approval, which approval shall not
be unreasonably withheld or delayed.
6.5 Marking. The Parties agree that for each article sold to an end-user
covered by a Patent, it will use commercially reasonable efforts to affix
thereon the word "patent" or the abbreviation "▇▇▇.", together with the number
of the patent, or when, from the character of the article, this can not be done,
by fixing to it, or to the package wherein one or more of them is contained, a
label containing a like notice.
ARTICLE VII
TERM AND TERMINATION
7.1 Term. This Agreement shall commence upon mutual execution by the
Parties of this Agreement. This Agreement shall remain in effect until all
Patents expire.
7.2 Remedies. The Parties to this Agreement recognize that the Patents
being transferred, the License being granted, and the Repurchase Right granted
hereunder possess a special, unique and extraordinary character, which makes it
difficult to assess the monetary damages which would result in the event of a
breach of this agreement. Each of the Parties expressly recognizes and agrees
that an irreparable injury would be caused to the other Party by such material
breach, and agrees that preliminary or permanent injunctive relief is
appropriate in the event of a breach of this Agreement. Notwithstanding the
foregoing, the Parties will retain any other remedies available resulting from a
breach of this Agreement. The rights set forth in this Section 7.2 are in
addition to the rights set forth in Section 5.11.
ARTICLE VIII
WARRANTIES
8.1 No Warranties. Each Party acknowledges that it has not entered into
this Agreement in reliance upon any warranty or representation.
8.2 Disclaimer. THE PARTIES DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR
IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, MERCHANTABILITY FOR
COMPUTER PROGRAMS, AND INFORMATIONAL CONTENT.
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ARTICLE IX
MISCELLANEOUS
9.1 Transferable. Except as otherwise provided, this Agreement may be
assigned by either Party, and the assigning Party shall provide notice of such
assignment to the other Party. This Agreement shall inure to the benefit of and
be binding upon the successors and assigns of the Parties. Notwithstanding the
foregoing, the right to Extend the Scope of the License in Section 5.3 and the
Repurchase Right set forth in Section 5.4 shall be non-assignable by IPIX
without the express written permission of AdMission.
9.2 Governing Laws. This Agreement shall be construed and governed in
accordance with the substantive laws of the State of Delaware, without regard to
conflict of laws principles. Venue for any and all actions shall be in Contra
Costa County, San Ramon, California.
9.3 Binding Arbitration. Any controversy or claim arising out of or
relating to this Agreement, or the breach thereof, shall be settled by
arbitration administered by American Arbitration Association in accordance with
its Commercial Arbitration Rules including the Emergency Interim Relief
Procedures, and judgment on the award rendered by the arbitrator may be entered
in any court having jurisdiction thereof. The arbitration shall have a single
arbitrator and shall be conducted in San Francisco, California.
9.4 Notices. All notices under this Agreement must be to the Party's
General Counsel (and if the Party does not have a General Counsel, then to its
President) in writing through (i) hand delivery, or (ii) nationally recognized
overnight or next day delivery service addressed to the Party's then current
corporate headquarters. Such notice shall reference this Agreement and this
Section 9.4. Notice shall be effective upon hand delivery or delivery by the
service, as the case may be.
9.5 Force Majeure. Nonperformance by either Party will be excused to the
extent that performance is rendered impossible by storm, lockout or other labor
trouble, riot, Internet infrastructure failure, hacker attack, computer virus,
war, rebellion, strike, fire, flood, accident or other act of God, governmental
acts, orders or restrictions, or any other reason where failure to perform is
beyond the control, and not caused by the gross negligence or willful misconduct
of, the non-performing Party.
9.6 Unenforceability. It is intended that this Agreement shall not violate
any applicable law. If, at any time or for any reason, any provision becomes
unenforceable or invalid, such provisions shall be amended to bring them into
legal compliance and to preserve to the maximum extent possible the intent of
the Parties and the remaining provisions shall remain unaffected and continue
with the same effect as if such unenforceable or invalid provision had not have
been inserted herein.
9.7 No Waiver. Failure of either Party to exercise its rights under this
Agreement shall not be construed as a waiver of that Party's rights, including
without limitation the right to seek remedies arising from past, present or
future breach by the other Party
9.8 Interpretation. This Agreement shall be construed fairly and there
shall be no presumption or inference against the drafting Party in construing or
interpreting the provisions hereof. The headings and captions in this Agreement
11
are for convenience purposes only, and shall not be used to construe the terms
of this Agreement.
9.9 Intellectual Property. This Agreement, in its entirety, constitutes an
executory contract under which AdMission is the licensor and IPIX is the
licensee of a right to intellectual property. As such, 11 U.S.C. 365(n) shall
apply to this Agreement in its entirety.
9.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
9.11 Relationship of the Parties. IPIX is not an employee of AdMission, nor
is AdMission an employee of IPIX. Nothing in this Agreement shall be construed
as creating an employer-employee relationship, partnership, joint venture or
agency between the Parties and neither Party shall have the right, power or
authority to create any obligation, express or implied, on behalf of the other.
9.12 Limitations of Liability. Notwithstanding any other provision in this
Agreement to the contrary, under no circumstances shall AdMission be liable for
any indirect, incidental, special or consequential damages, including damages
arising from lost revenue, profits, data or use arising out of the use of the
Patent by IPIX in accordance with the terms of this Agreement, even if AdMission
has been advised of the possibility of such damages. Notwithstanding any other
provision in this Agreement to the contrary, under no circumstances shall IPIX
be liable for any indirect, incidental, special or consequential damages,
including damages arising from lost revenue, profits, data or use arising out of
the use of the Patents by AdMission in accordance with the terms of this
Agreement, even if IPIX has been advised of the possibility of such damages.
9.13 Entire Agreement. This Agreement and its Schedules contain the entire
understanding between the Parties with respect to the matters contained herein.
This Agreement supercedes all prior agreements between the Parties, whether oral
or written, express or implied, as to the matters contained herein. No waiver,
consent, modification, amendment or change of the terms of this Agreement shall
be binding unless in writing and signed by the Parties.
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As duly authorized representatives of the Parties and after consultation
with their respective legal counsel, the undersigned declare that they
understand and agree to be bound by the Agreement as an enforceable contract.
This Agreement shall be effective as of the last date written below.
IPIX Corporation AdMission Corporation
/s/ ▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇
---------------------------------- ----------------------------------
Signature Signature
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
---------------------------------- ----------------------------------
Name Name
Chairman President
---------------------------------- ----------------------------------
Title Title
February 11, 2005 February 11, 2005
---------------------------------- ----------------------------------
Date Date
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Schedule A
Patents
Patent No. 6,732,162 (issued 05/04/04) Method of Providing Preprocessed Images
for a Plurality of Internet Web Sites
Application No. 10/736,285 (filed 12/15/03) Method or Providing Preprocessed
Images for a Plurality of Internet Web Sites
Application No. 09/357,836 (filed 7/21/99) Web-based Media Submission Tool
(Allowed)
Application No. 10/961,720 (filed 10/8/04) Web-Based Media Submission Tool
14
