Technology License Agreement
This Technology License Agreement (the "Agreement") is made and
entered into this 22 day of December, 1999, by and between American
Infrared Technologies, Inc., an Alberta corporation ("Licensor") and
American IR Technologies, Inc., a Nevada corporation ("Licensee").
RECITALS
A. Licensor is the owner of certain technologies, the full and
complete descriptions of which are attached hereto and incorporated
herein by reference at Exhibit A (the "Technologies").
B. Licensee desires to acquire from Licensor the exclusive rights
to the use of such Technologies, and Licensor desires to transfer and
convey the same to Licensee, in accordance with the terms and conditions
of this Agreement.
C. Contemporaneously with the closing (as hereinafter defined),
Licensee and Licensor will enter into an agreement not-to-compete (the
form of which is attached hereto and incorporated by reference herein at
Exhibit B).
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 Technologies. "Technologies" shall mean the following:
1.1a. All rights and interests in the procedures, written
technical data, computer software and related documentation,
patents, copyrights, formulas, methods, practices, statistics,
trade secrets, trademarks, trade names, and service marks
concerning the technologies listed at Exhibit A
1.1b. All rights and interests in the procedures, written technical
data, computer software and related documentation, patents,
copyrights, formulas, methods, practices, statistics, trade
secrets, trademarks, trade names, and service marks concerning the
technologies listed at Exhibit A.
ARTICLE II
Assignment, Transfer and Royalties
2.1 Assignment and Transfer of Technologies. Subject to and upon
the terms and conditions contained herein, Licensor shall grant to
Licensee an exclusive license for the use of the Technologies as defined
at Exhibit A.
2.2 Royalty. As consideration for the license granted in Section
2.1 above, Licensee shall pay to Licensor, on a monthly basis, a royalty
equal to THREE PERCENT (3%) of all revenues derived by Licensee directly
attributable to the use of the Technologies subject to this Agreement.
Said Royalty payments shall be due and payable on the 20th day of the
month following the month in which they were accrued.
2.3 Term of License. The Term of the license granted by this
Agreement is three (3) years from the date of this Agreement, and is
automatically renewable for successive year periods, unless written
notice is given by Licensor of non-renewal not later than sixty (60)
days prior to the end of the Term or any renewal thereof.
2.4 Right of First Refusal. If, during the Term of the License,
Licensor shall develop any other technologies not included in or derived
from the Technologies, Licensor shall be granted a thirty (30) day right
of first refusal to license the additional technologies upon the same
terms and conditions as contained within this Agreement.
ARTICLE III
Representations and Warranties of Licensee
Licensee 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:
3.1 Organization and Good Standing. Licensee 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.
3.2 Authorization and Validity. The execution, delivery and
performance by Licensee of this Agreement and the other agreements
contemplated hereby, and the consummation of the transactions
contemplated hereby, have been duly authorized by Licensee. This
Agreement and each other agreement contemplated hereby have been or will
be prior to Closing duly executed and delivered by Licensee and
constitute or will constitute legal, valid and binding obligations of
Licensee, enforceable against Licensee in accordance with their
respective terms.
3.3 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 Licensee or any agreement, indenture or other
instrument under which Licensee 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 Licensee or the properties or assets of Licensee.
3.4 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 Licensee.
ARTICLE IV
Representations and Warranties of Licensor
Licensor 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. Licensor is a corporation
duly organized, validly existing and in good standing under the laws of
the Province of Alberta, 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.
4.2 Authorization and Validity. The execution, delivery and
performance by Licensor of this Agreement and the other agreements
contemplated hereby, and the consummation of the transactions
contemplated hereby, have been duly authorized by Licensor. This
Agreement and each other agreement contemplated hereby have been or will
be prior to Closing duly executed and delivered by Licensor and
constitute or will constitute legal, valid and binding obligations of
Licensor, enforceable against Licensor in accordance with their
respective terms.
4.3 Title. Licensor has good and marketable title to the
Technologies, free and clear of all liens, claims, and encumbrances,
which are the subject of this Agreement.
4.4 Commitments. Licensor has not entered into, nor are the
Technologies or the business of Licensor bound by, whether or not in
writing, any (i) partnership or joint venture agreement; (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 transaction in which an interest is held by a person or entity which
is an affiliate of Licensor; (xi) powers of attorney; or (xii) contracts
containing noncompetition covenants.
4.5 Adverse Agreements. Licensor 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 Licensor can now
foresee, may in the future materially and adversely affect the business
operations, prospects, properties, assets or condition, financial or
otherwise, of Licensor.
4.6 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 Licensor or any agreement, indenture or other
instrument under which Licensor 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 Licensor or the properties or assets of Licensor.
4.7 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 Licensor.
4.8 Compliance with Laws. There are no existing violations by
Licensor 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 Licensor.
4.9 Accuracy of Information Furnished. All information furnished
to Licensee by Licensor 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 under which such statements are made, true, correct
and complete.
4.10 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.
ARTICLE V
Indemnification
5.1 Licensor's Indemnity. Subject to the terms of this Section,
Licensor hereby agrees to indemnify, defend and hold harmless Licensee
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 expenses ("Damages") asserted against or incurred by
Licensee by reason of or resulting from a breach by Licensor of any
representation, warranty or covenant contained herein, or in any
agreement executed pursuant thereto.
5.2 Licensee's Indemnity. Subject to the terms of this Section,
Licensee hereby agrees to indemnify, defend and hold harmless Licensor
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 expenses ("Damages") asserted against or incurred by
Licensor by reason of or resulting from a breach by Licensee of any
representation, warranty or covenant contained herein, or in any
agreement executed pursuant thereto.
5.3 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 VI
Termination
6.1 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.
6.2 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 Licensee and Licensor.
ARTICLE VII
Miscellaneous Provisions
7.1 Amendment and Modification. Subject to applicable law, this
Agreement may be amended, modified or supplemented only by a written
agreement signed by Licensee and Licensor.
7.2 Waiver of Compliance; Consents.
7.2.1 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.
7.2.2 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.
7.3 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 Licensee, to: 0000 X. Xxxxxx Xxxx, Xxxxx 000, Xxx
Xxxxx, Xxxxxx 00000
If to Licensor, to: 000, 0xx Xxx. XX., #000, Xxxxxxx, Xxxxxxx
X0X*0X0
7.4 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.
7.5 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 matter
of this Agreement.
7.6 Agreement Binding. This Agreement shall be binding upon the
heirs, executors, administrators, successors and assigns of the parties
hereto.
7.7 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.
7.8 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.
7.9 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.
7.10 Governing Law. 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.
7.11 Arbitration. If at any time during the term of this
Agreement any dispute, difference, or disagreement shall arise upon or
in respect of this Agreement, and the meaning and construction hereof,
every such dispute, difference, and disagreement shall be referred to a
single arbiter agreed upon by the parties, or if no single arbiter can
be agreed upon, an arbiter or arbiters shall be selected in accordance
with the rules of the American Arbitration Association and such dispute,
difference or disagreement shall be settled by arbitration in accordance
with the then prevailing commercial rules of the American Arbitration
Association, and judgment upon the award rendered by the arbiter may be
entered in any court having jurisdiction thereof.
7.12 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.
7.13 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.
7.14 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.
7.15 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.
7.16 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.
7.17 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.
7.18 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.
7.19 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.
7.20 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 22
day of December, 1999.
American IR Technologies, American Infrared Technologies, Inc.,
Inc., a Nevada Corporation an Alberta Corporation
("Licensee") ("Licensor")
by: /s/ Xxx Xxxx by: /s/ Xxxxxx Xxxxx
Noncompetition Agreement
This Noncompetition Agreement (the "Agreement") is made as of the
___ day of December, 1999, by and between American IR
Technologies, Inc., a Nevada corporation ("Licensee"), and
American Infrared Technologies, Inc., an Alberta corporation
("Licensor").
RECITALS
A. Licensee and Licensor have entered into a Technology License
Agreement dated December 22, 1999 (the "Transfer Agreement") under
the terms of which Licensor has agreed to license certain
technologies to Licensee, all as more fully set forth and
described in the Transfer Agreement.
B. Licensor's delivery to Licensee of this Agreement is a
condition to Licensee consummating the transactions contemplated
by the Transfer Agreement.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements contained herein and in the
Transfer Agreement, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereby covenant and agree as follows:
1. Noncompetition.
1.1 Licensor covenants and agrees that for a period of five
(5) years from the date hereof, Licensor will not engage in or
carry on, directly or indirectly, any business in competition with
the business of Licensee relating to the technologies that are the
subject of the Transfer Agreement but only for as long as such
like business is carried on by (i) Licensee or any subsidiary or
affiliate of Licensee or (ii) any person or entity deriving title
from Licensee of the technologies, in any county in which Licensee
or any of its subsidiaries or affiliates conduct business, or in
any other county or state of the United States, or in any country
or political subdivision of the world.
1.2 The term of the covenants contained in Section 1.1
hereof shall be tolled for the period commencing on the date any
successful action is filed for injunctive relief or damages
arising out of a breach by Licensor of Section 1.1 hereof and
ending upon final adjudication (including appeals) of such action.
1.3 If, in any judicial proceeding, the court shall
refuse to enforce all of the covenants contained in Section 1.1
hereof because the time limit is excessive, it is expressly
understood and agreed between the parties hereto that for purposes
of such proceeding such time limitation shall be deemed reduced to
the extent necessary to permit enforcement of such covenants. If,
in any judicial proceeding, the court shall refuse to enforce all
of the covenants contained in Section 1.1 hereof because it is
more extensive than necessary to protect the business and goodwill
of Licensee, it is expressly understood and agreed between the
parties hereto that for purposes of such proceeding the geographic
area, scope of business or other aspect shall be deemed reduced to
the extent necessary to permit enforcement of such covenants.
2 Governing Law. 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.
3 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 matter of this Agreement.
4 Agreement Binding. This Agreement shall be binding upon
the heirs, executors, administrators, successors and assigns of
the parties hereto.
5 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.
IN WITNESS WHEREOF, the parties hereto have set their hands
this 22 day of December, 1999.
American IR Technologies, American Infrared Technologies, Inc.,
Inc., a Nevada Corporation an Alberta Corporation
("Licensee") ("Licensor")
by: /s/ Xxx Xxxx by: /s/ Xxxxxx Xxxxx
