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Exhibit 10.6
SUBLICENSE AGREEMENT
THIS SUBLICENSE AGREEMENT (the "Agreement") is entered into to be
effective as of August 30, 1995, by and between BioFactors, Inc., a Delaware
Corporation, ("BFI") and ▇▇▇▇▇▇ International Associates, Inc. or its assignees
("▇▇▇▇▇▇").
WHEREAS, BFI holds an exclusive, transferable license of proprietary
computer software and associated protocols and methodology for objectively
testing operator psychomotor skills developed by Systems Technology, Inc., a
California Corporation ("STI") collectively referred to as the "Critical
Tracking Task" ("CTT") technology" or the STI proprietary technology; and
WHEREAS, pursuant to its exclusive license, BFI has developed hardware,
software and delivery systems to utilize STI's proprietary technology and is
currently marketing (1) a non-invasive fitness-for-work testing service ("FACTOR
1000 Service") and (2) has developed a prototype on-field athletic performance
system based on the FACTOR 1000 Service ("SportsTrac System or"SportsTrac"),
defining the correlation between hand-eye coordination as measured by FACTOR
1000 and on-the-field athletic performance; and
WHEREAS, simultaneous herewith the parties herewith are entering into a
novation agreement with STI in connection with this agreement (the "STI Novation
Agreement"); and
WHEREAS, ▇▇▇▇▇▇ wishes to obtain the exclusive license to market
SportsTrac to sports markets on a world-wide basis and BFI is willing to grant
to ▇▇▇▇▇▇ such a license;
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
SUBLICENSES AND MARKETING
1.1 Sublicense. BFI hereby grants to ▇▇▇▇▇▇ an exclusive and world-wide
sublicense (the "Sublicense") to reproduce, manufacture, use and market directly
and through sub-distributors and/or sublicensees, to commercial end-user
customers, the SportsTrac System solely for sports-related and sports
entertainment applications. Sports-related and sports entertainment applications
shall include athletic performance enhancement, measuring sports diagnostics,
sports rehabilitation and sports related clinical applications and applications
directly related to the foregoing. In no event shall sports-related applications
include fitness-for-work testing. ▇▇▇▇▇▇ shall not sublicense to customers the
SportsTrac System, except as permitted by Section 1.2 herein. BFI grants to
▇▇▇▇▇▇ the right to assign or issue sublicenses, except each sublicense shall
include and be limited to all the terms of this agreement. BFI shall not itself
or through agents
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or third parties license, sublicense, market, or distribute SportsTrac during
the term of this Agreement.
1.2 Customer Sublicenses. Pursuant to the sublicense granted to ▇▇▇▇▇▇
in Section 1.1, ▇▇▇▇▇▇ shall have the rights to grant to its customers (object
code only) or co-venturers and partners non-exclusive and non-transferable
sublicenses to utilize the SportsTrac System.
1.3 Trademark License. BFI has not registered a service ▇▇▇▇ in
connection with the name, marketing, selling or sublicensing of the SportsTrac
System. ▇▇▇▇▇▇ undertakes to use its best efforts to register service ▇▇▇▇ or
trademark for SportsTrac (under that or any other name selected by ▇▇▇▇▇▇) and
such ▇▇▇▇ for SportsTrac shall be owned, and inure to the benefit of ▇▇▇▇▇▇.
▇▇▇▇▇▇ shall have no liability in the event it is unable to obtain such service
▇▇▇▇ or trademark. This license will not create any right, title or interest in
the FACTOR 1000 or BioFactors' Service Marks in ▇▇▇▇▇▇. ▇▇▇▇▇▇ shall acknowledge
BFI's ownership of the FACTOR 1000 Service ▇▇▇▇ in its advertising and other
literature describing SportsTrac in which there is any reference to BFI or the
FACTOR 1000 service. ▇▇▇▇▇▇ hereby agrees to promptly provide BFI with copies of
▇▇▇▇▇▇'▇ service mars use guidelines and all revisions thereto used to govern
the use by all licensees of sublicensees of the SportsTrac service ▇▇▇▇ in the
Territory. ▇▇▇▇▇▇ further agrees to comply with any requirements as to patent
and trademark notices contained in STI's license to BFI.
1.4 Developments and Associated Products. This license will not create
any right, title or interest to BFI in any developments or associated products
▇▇▇▇▇▇ may produce or develop that do not use the FACTOR 1000 or SportsTrac
systems as defined herein ("Associated Products"). Any use of the name
"SportsTrac" or SportsTrac System" or any other name on an Associated Product
does not of itself create any right title or interest in the Associated Product
to BFI.
ARTICLE II
ROYALTIES AND PAYMENTS
2.1 Initial Royalty License Fee. ▇▇▇▇▇▇ shall pay a fee to BFI as
follows:
(a) A non-refundable royalty of $1,000,000 payable as follows:
(1) $300,000 upon the execution of this Agreement, of which
$50,000 has already been received as an ▇▇▇▇▇▇▇ deposit;
(2) A promissory Note in the amount of $700,000 payable to BFI.
The terms of the note shall provide that $350,000 is due and payable on March
31, 1996 and $350,000 due and payable on July 31, 1996.
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(3) In the event that ▇▇▇▇▇▇ undertakes an initial public
offering of its shares prior to the due dates for payment on amounts due under
the promissory note, any proceeds received as a result of such offering, shall
be utilized to retire the promissory note.
2.2 Continuing Royalty. A royalty equal to eight and one-half percent
(8-1/2%) of the cash receipts from the sale or license by ▇▇▇▇▇▇ of products or
services containing the FACTOR 1000 technology, but not including any revenues
derived by ▇▇▇▇▇▇ from installation, maintenance, consulting, hardware sales, or
any other revenues not directly or indirectly related to the FACTOR 1000 or CTT
technology. BFI shall have the right to audit ▇▇▇▇▇▇'▇ records, with adequate
notice, for the purpose of verifying royalty payments. Said royalty shall be
due and payable within thirty (30) days after the conclusion of each calendar
quarter commencing with the quarter ending December 31, 1995.
2.3 Other Consideration.
(a) Warrants. As additional consideration for this Agreement,
▇▇▇▇▇▇ has authorized the issuance or warrants (the "Warrants") to purchase up
to an aggregate of seven and one-half (7-1/2%) percent of the fully diluted
outstanding Common Stock of ▇▇▇▇▇▇ or any affiliate or subsidiary or other
entity formed by or through ▇▇▇▇▇▇ that may be in existence or formed to operate
under this Agreement ("NEWCO") such percentage to be measured at the time of
initial capitalization. It is anticipated that the initial aggregate capital
will be $500,000 on or before September 9, 1995. Such warrants will be promptly
issued and BFI may exercise its Warrants, in whole or in part, at any time
beginning on a date one year from the date of any initial public offering of the
shares of NEWCO, but not later than a date three years from the date of initial
public offering (the "Expiration Date"), at a purchase price equal to the per
share price of the shares offered to the public in the initial public offering.
(b) Capital Stock. BFI (either directly, through its shareholders,
or other designees, as designated by BFI) shall have the right to contribute
capital up to twenty-five (25%) percent of any funds initially contributed to
NEWCO in exchange for up to twenty-five percent of the ownership of said entity
on the same terms and conditions as all other investors, on or before September
8, 1995. ▇▇▇▇▇▇ agrees that the initial capitalization NEWCO shall be
approximately $500,000.
(c) Board Representation. BFI shall have be entitled to designate
one member of the Board of Directors of NEWCO. ▇▇▇▇▇▇ shall cause NEWCO's other
investors to enter into a voting agreement in form and substance reasonably
satisfactory to BFI, in order to effectuate this provision.
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ARTICLE III
TERM
3.1 Term. This agreement shall be in effect during the term of BFI's
License Agreement with STI, including all renewals and extensions thereof. The
term of BFI's License Agreement with STI expires on November 24, 2008. BFI shall
use its best efforts to maintain its License Agreement with STI in good standing
and in full force and effect. In the event of any default in BFI's License
Agreement with STI, subject to STI's consent, ▇▇▇▇▇▇ shall have the right to
cure said default on behalf of BFI, and to the extent such cure requires money
payments, ▇▇▇▇▇▇ shall have the right to cure said defaults by paying all
delinquent payments due and offset said payments by ▇▇▇▇▇▇ against any royalties
due BFI under this Agreement. After said default is corrected by ▇▇▇▇▇▇ the
continuing license will be between ▇▇▇▇▇▇ and STI directly, with all future
royalty payments paid directly to STI (see Exhibit A, the STI Novation
Agreement). Attached hereto as Exhibit B is a true and correct copy of the BFI
License Agreement with STI.
3.2 Termination. This Agreement shall be terminable by notice in
writing from the party not at fault if any one of the following events shall
occur:
(a) Either party's material default under this Agreement which has
not been remedied within thirty (30) days from notice in writing from the party
not in default specifying such default;
(b) ▇▇▇▇▇▇'▇ failure to pay any amounts due to BFI pursuant to
Article II when due and such failure is not cured within thirty (30) days from
written notice after such payment is due;
(c) ▇▇▇▇▇▇'▇ material misrepresentation of the function of the
SportsTrac System to ▇▇▇▇▇▇'▇ customers and said failure is not corrected within
thirty (30) days after written notice from BFI of such failure.
(d) Termination of the STI License Agreement shall automatically
terminate this Sublicense granted to ▇▇▇▇▇▇ in Article I of this Agreement and
▇▇▇▇▇▇'▇ ongoing license will be directly with STI without change in terms (see
Section 3.1 Term and the STI Novation Agreement).
ARTICLE IV
BFI's OBLIGATIONS AND WARRANTIES
4.1 Obligations of BFI. BFI shall:
(a) Provide ▇▇▇▇▇▇ with one complete copy of all its FACTOR 1000
systems and application source code, to be used by ▇▇▇▇▇▇ for only the purposes
provided herein.
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(b) Provide ▇▇▇▇▇▇ with one complete copy of all the source code
for sports related applications completed to date, to be used by ▇▇▇▇▇▇ for only
the purposes provided herein.
(c) Provide ▇▇▇▇▇▇ with one copy of all written technical
documentation for its FACTOR 1000 and sports related software, including
programmer's notes, file layouts, and flow charts, to be used by ▇▇▇▇▇▇ for only
the purposes provided herein.
(d) Provide ▇▇▇▇▇▇ with all its internal FACTOR 1000 support
software and related documentation, including complete listings of all libraries
and subroutines (both developed internally and provided by third parties).
Provide all third party vendor's name, address and all documentation detailing
the routine or library's utility.
(e) Provide ▇▇▇▇▇▇ with its complete FACTOR 1000 database software
system (known as "FMR") at no cost and a suitable operating platform at BFI's
current fully burdened cost, if ▇▇▇▇▇▇ chooses to purchase said platform from
BFI.
(f) Provide ▇▇▇▇▇▇ with initial technical support and consulting
equal to 40 hours without charge as reasonably required and requested by ▇▇▇▇▇▇,
it being acknowledged by ▇▇▇▇▇▇ that BFI's currently available resources for
such support are quite limited. BFI's reasonable out-of-pocket costs, if any,
will be paid by ▇▇▇▇▇▇.
(g) Provide ▇▇▇▇▇▇ with reasonable ongoing technical support at
BFI's current fully burdened cost, as requested by ▇▇▇▇▇▇. Such support will
include up to 40 hours per month of ▇▇▇▇ ▇▇▇▇▇▇▇'▇ engineering expertise during
the first six months of this agreement.
(h) Provide ▇▇▇▇▇▇ with all current control panel documentation,
including bills of materials, parts lists, diagrams, schematics, and vendor
lists. BFI grants ▇▇▇▇▇▇ the right to have control panels manufactured directly
with BFI's vendor or any other vendor ▇▇▇▇▇▇ deems qualified to produce the
control panel.
(i) Sell ▇▇▇▇▇▇ reasonable quantities of control panels, which
shall be forecasted quarterly by ▇▇▇▇▇▇, at BFI's current fully burdened cost.
(j) Sell ▇▇▇▇▇▇ reasonable quantities of hardware platforms or full
systems at BFI's current fully burdened cost.
(k) Not incur any liability on behalf of ▇▇▇▇▇▇ or in any way to
pledge ▇▇▇▇▇▇ credit or accept any order or make any contract binding upon
▇▇▇▇▇▇ without proper written consent.
4.2 Additional Assistance. For additional assistance requested by
▇▇▇▇▇▇ and provided to ▇▇▇▇▇▇ or its customers during installation of the
SportsTrac service, ▇▇▇▇▇▇ shall pay BFI at BFI's then current published rates
for such assistance. BFI shall also be reimbursed for reasonable out-of-pocket
expenses. Payments due under this section shall be due and payable upon receipt
by ▇▇▇▇▇▇ of an invoice for such assistance from BFI.
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4.3 BFI Representations and Warranties.
(a) BFI warrants that it has the right to provide the hardware and
sublicense the software to ▇▇▇▇▇▇ hereunder and that BFI has not received notice
from any third party that the FACTOR 1000 System and/or the SportsTrac System
infringes any United States or Canadian patent or copyright;
(b) BFI warrants to ▇▇▇▇▇▇ that each diskette(s) on which the
FACTOR 1000 and/or SportsTrac software is furnished to ▇▇▇▇▇▇ and each of the
Control Panels supplied pursuant to Section 4.1 will be free from defects in
materials and workmanship under normal use and in good working condition. BFI
will replace any diskette and control panel not meeting the foregoing warranty
within five(s) business days of receipt of said alleged defective diskette or
Control Panel by BFI for a period of one year after shipment;
(c) BFI warrants to ▇▇▇▇▇▇ that its License Agreement with STI,
granting BFI, among other things, the right to develop, manufacture, reproduce,
use and market certain proprietary technology and associated protocols and
methodologies which BFI utilizes in the FACTOR 1000 and SportsTrac Services are
in full force and effect, there is no breach of said agreement by either party
and entering into and performing, this Agreement will not constitute or result
in a breach under said agreement.
EXCEPT AS PROVIDED FOR IN THIS SECTION 4.3, BFI DISCLAIMS ALL
WARRANTIES ON THE HARDWARE AND SOFTWARE PROVIDED PURSUANT TO THIS AGREEMENT,
INCLUDING ANY AND ALL IMPLIED WARRANTIES OF FITNESS AND/OR MERCHANTABILITY. THE
PARTIES AGREE THAT EXCEPT AS PROVIDED FOR IN THIS SECTION 4.3, BFI WILL NOT BE
LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT
OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE HARDWARE OR SOFTWARE
FURNISHED BY BFI.
4.4 Marketing. BFI hereby grants to ▇▇▇▇▇▇ the right to copy any
manuals and marketing materials used in connection with its FACTOR 1000 service
as are required or as needed for the marketing and implementation of the
SportsTrac Service to existing and prospective ▇▇▇▇▇▇ customers.
4.5 Marketing. ▇▇▇▇▇▇ shall have the exclusive authority to determine
its own marketing and sales program for the Territory. This shall include the
right to market directly and through sub-distributors appointed by ▇▇▇▇▇▇ from
time to time in its sole discretion; provided that any such sub-distributor
shall enter into an agreement with ▇▇▇▇▇▇ by which such sub-distributor agrees
to honor the provisions of Section 5.2 hereof.
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ARTICLE V
CERTAIN AGREEMENTS OF ▇▇▇▇▇▇
5.1 ▇▇▇▇▇▇'▇ Obligation. ▇▇▇▇▇▇ shall:
(a) Use all reasonable efforts to develop, promote and market the
SportsTrac System within its markets.
(b) be solely responsible for all marketing, sales and related
activities in connection with its efforts to solicit and grant sublicenses to
utilize the technology pursuant to this Agreement;
(c) provide BFI with adequate lead time to supply control panels
required for ▇▇▇▇▇▇'▇ client installations, and pay BFI for said control panels
at BFI's current fully burdened cost.
(d) provide BFI with advance copies of all advertising and/or
marketing materials it intends to distribute concerning the FACTOR 1000 service,
which materials will be approved by BFI in its sole discretion prior to use by
▇▇▇▇▇▇;
(e) ▇▇▇▇▇▇ shall not solicit or attempt to hire ▇▇▇▇ ▇▇▇▇▇▇▇, an
employee of BFI, but shall have the right to reasonably retain his services
through BFI at BFI's fully burdened cost for said employee (see Section 4.1(g);
(f) During the term of this agreement, ▇▇▇▇▇▇ shall not, except
with BFI's prior written consent, engage in any business activity which is
directly in competition with any of the other products or services being sold or
otherwise provided by BFI, as of the date of this agreement.
5.2 Confidentiality.
(a) Proprietary Information. In conducting the activities
contemplated by this Agreement, ▇▇▇▇▇▇ may, from time to time, receive from BFI
confidential information and trade secrets ("Secrets"). ▇▇▇▇▇▇ acknowledges that
BFI's Secrets include, but are not limited to (i) software source and object
code, certain documentation for its FACTOR 1000 and the SportsTrac Services,
schematics, reports, programs, user lists and/or the date generated by users of
its FACTOR 1000 service, training techniques, formats, specifications and
procedures relating to testing, documentation, algorithms, processes, "look and
feel" of its FACTOR 1000 service and know-how (whether or not reduced to writing
and whether or not copyrightable); (ii) any modification of the same; and (iii)
any extraction from the same; and certain other scientific, technical,
financial, marketing and business information, trade secrets, and confidential
knowledge of BFI;
(b) Protection. ▇▇▇▇▇▇ agrees (i) to hold BFI's Secrets in
confidence; (ii) to refrain from disclosing BFI's secrets except to its own
personnel and agents who need to know such information to perform their duties
and to licensees of ▇▇▇▇▇▇'▇ who enter into similar confidentiality agreements
with ▇▇▇▇▇▇ for the benefit of BFI; (iii) to safeguard BFI's Secrets in
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the same manner it employs for its own trade secrets, but in no event shall
▇▇▇▇▇▇ exercise less than due care and diligence in accordance with good
commercial practice; and (iv) not to use BFI's Secrets to the detriment of BFI,
nor use BFI's Secrets in any business competitive with or similar to any
business of BFI, which secrets ▇▇▇▇▇▇ may have acquired in the course of or
incident to the performance of this Agreement, including, without limitation,
any material available to ▇▇▇▇▇▇ or any reproductions or summaries thereof.
Notwithstanding the foregoing, ▇▇▇▇▇▇ may make such disclosures as may be
required by any court or quasi-judicial administrative body pursuant to any
applicable laws, statutes or regulations, provided that ▇▇▇▇▇▇ shall, to the
extent possible, give BFI advance notice of any such demand for information and
shall permit BFI to intervene and make such representations and take such
actions to challenge any such demand as BFI may deem necessary or appropriate;
such intervention or other action being done at BFI's expense. ▇▇▇▇▇▇ further
agrees to deliver to BFI all hardware, software, manuals, documentation,
confidential information, proprietary documents, data or calculations, and any
copies thereof, in its possession pertaining to BFI or any of its affiliates at
the time of termination of this Agreement. ▇▇▇▇▇▇ agrees to notify BFI
immediately if it has knowledge that any unauthorized third party possesses or
uses BFI's Secrets or that BFI's Secrets are being utilized for any unauthorized
purpose;
(d) Exclusion. This Section 5.2 shall not apply to secrets that are
or become generally known or used by others in the same or competing business
with BFI other than through breach of this Agreement by ▇▇▇▇▇▇, its employees or
agents;
(e) Copying and Modification. ▇▇▇▇▇▇ shall not make any
unauthorized copy of any Secrets disclosed by BFI. ▇▇▇▇▇▇ shall not make any
unauthorized copy of any of the proprietary software provided to ▇▇▇▇▇▇ pursuant
to this Agreement. ▇▇▇▇▇▇ may make modifications but such modifications,
enhancements or derivative works are hereby assigned to BFI, subject to the
exclusive license hereunder in favor of ▇▇▇▇▇▇. ▇▇▇▇▇▇ shall take any and all
steps from time to time as may be reasonably necessary to effectuate such
assignment.
ARTICLE VI
INDEMNIFICATION
6.1 BFI's Indemnification of ▇▇▇▇▇▇. BFI will indemnify, defend and
hold harmless ▇▇▇▇▇▇, and each of its officers and directors, against all
expenses, claims, losses, damages and liabilities (or actions in respect
thereof), arising out of or based on any negligence on the part of BFI or its
officers, directors, employees or agents, in the performance of BFI's
obligations pursuant to this Agreement and any breach, breach of warranty or
material misrepresentation by BFI. BFI will indemnify, defend and hold harmless
▇▇▇▇▇▇ against any claim, suit or proceeding against ▇▇▇▇▇▇ based on (i) any
such material breach or misrepresentation or (ii) a claimed infringement of a
United States patent or copyright by the software or (iii) a claimed
infringement of a United States service ▇▇▇▇ or trademark by its FACTOR 1000
service ▇▇▇▇.
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6.2 ▇▇▇▇▇▇'▇ indemnification of BFI. ▇▇▇▇▇▇ will indemnify, defend and
hold harmless BFI, and each of its officers and directors, against all expenses,
claims, losses, damages and liabilities (or actions in respect thereof), arising
out of or based on any third party claim resulting from (i) ▇▇▇▇▇▇'▇ marketing
and/or implementation of products containing the FACTOR 1000 or SportsTrac
technology; (ii) services rendered by ▇▇▇▇▇▇ hereunder, except to the extent set
forth in section 6.1 above; and (iii) the use or performance of equipment
provided by ▇▇▇▇▇▇; except claims based upon BFI's negligence with respect
thereto. Notwithstanding the foregoing, the liability of ▇▇▇▇▇▇ pursuant to the
indemnities set forth in this Section 6.2 shall be limited to the amount of One
hundred Thousand Dollars ($100,000).
6.3 Indemnification Procedures. Each party entitled to indemnification
under this Article VI (the "Indemnified Party") shall give notice to the party
required to provide indemnification (the "Indemnifying Party") promptly after
such indemnified Party has actual knowledge of any claim as to which indemnity
may be sought. After notice from the indemnifying Party to the indemnified Party
of the indemnifying Party's assumption of the defense of all such actions or
proceedings, the indemnifying Party shall not be liable to such indemnified
Party for any fees of such indemnified Party's counsel subsequently incurred in
connection with the defense of such actions or proceedings, but shall-be liable
to the extent described above for all other reasonable expenses incurred by such
indemnified Party. The indemnified Party shall have the right to employ separate
counsel at the indemnifying Party's expense if (i) the indemnifying Party has
agreed to pay such fees and expenses; (ii) the indemnifying Party shall have
failed to promptly assume the defense of such action or proceeding, and employ
counsel reasonably satisfactory to the indemnified Party in such action or
proceeding; or (iii) the named parties to any such action or proceeding
(including any impleased parties) include the indemnified Party and the
indemnifying Party, and the indemnified Party shall have been advised by counsel
that there may be one or more legal defenses available to the indemnified Party
which are different from or in addition to those available to the indemnifying
Party and which could result in actual or potential differing interests between
such parties in the conduct of the defense of such actions or proceedings. No
indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such indemnified Party
of a release from all liability in respect to such claim or litigation.
ARTICLE VII
MISCELLANEOUS
7.1 Independent Agents. Each party to this Agreement shall act as an
independent agent with relation to this Agreement and has no authority to act
for or on behalf of the other or to bind the other to any obligation in any
manner except as expressly set forth herein. Nothing contained herein shall be
construed as creating a joint venture or partnership between the parties.
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7.2 Continuing. All obligations that by nature survive expiration or
termination of this Agreement shall continue subsequent to and regardless of
such expiration or termination until full satisfaction, or until by nature
expire.
7.3 Successors and Assigns. Except to the extent assignment is
specifically limited herein, this Agreement shall inure to the benefit of and be
binding on and be enforceable by the respective successors, assigns and legal
representatives of the parties hereto.
7.4 Entire Agreement: Modifications. This Agreement, including all
Exhibits and Schedules hereto (each of which is incorporated herein by this
reference), contains the entire Agreement between the parties and supersedes any
and all prior agreements, arrangements and understandings between the parties
relating to the subject matter hereof. No oral understandings, statements,
promises or inducements contrary to the terms of this Agreement exist. No
supplement, modification or amendment of this Agreement shall be binding unless
executed in writing by the parties hereto. No waiver of any of the provisions of
the Agreement shall be deemed to be or shall constitute a continuing waiver. No
waiver shall be binding unless executed in writing by the party making the
waiver. The parties also intend this Agreement to be a complete and exclusive
statement of the terms of their agreement, which may not be explained or
supplemented by evidence of consistent additional terms.
7.5 Amendments and waivers. Any term of this Agreement may be amended
and the observance of any term hereof may be waived (either prospectively or
retrospectively and either generally or in a particular instance) only with the
written consent of the parties hereto.
7.6 Choice of Law. This Agreement is entered into and is to be
performed in accordance with the laws of the State of Delaware and shall be
construed and enforced in accordance therewith.
7.7 Notices, etc. All notices and other communications required or
permitted hereunder will be in writing and will be mailed by first-class mail,
postage prepaid, addressed
(a) if to BFI at:
BioFactors, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Chief Operating Officer
(▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as BFI will have furnished to ▇▇▇▇▇▇ in writing in
accordance with this section, or
(b) ▇▇▇▇▇▇ at:
▇▇▇▇▇▇ International Associates, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇ ▇▇▇▇▇
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ fax
or at such other address as ▇▇▇▇▇▇ wild have furnished to BFI in writing in
accordance with this section. All notices and other communications to be given
hereunder shall be given in writing. Except as otherwise specifically provided
herein, all notices and other communications hereunder shall be deemed to have
been given if personally delivered to an officer of the party being served, of
by Telex or facsimile machine, at the time they are transmitted, or Three (3)
business days after mailing thereof by registered or certified mail, return
receipt requested, postage prepaid, to the address of the receiving party set
forth above (until notice of change thereof is served in the manner provided in
this Section 7.7).
7.9 Separability. In case any provision of this Agreement not material
to the benefits intended to be conferred hereby is invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions will not in any way be affected or impaired thereby.
7.10 Miscellaneous. Except as set forth herein, time is of the essence
for the performance of each and every covenant and the satisfaction of each and
every condition contained in this agreement. The headings and captions of this
Agreement are for the purpose of reference only and shall not limit or define
any meaning or terms hereof. All references to the masculine shall include both
the neuter and the feminine. The singular shall include the plural and vice
versa as the context shall require. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. The provision of this
Agreement shall be interpreted in accordance with their fair meaning and shall
not be construed strictly for or against a party.
7.11 Authority and Execution. Each person executing this Agreement on
behalf of a party hereto represents and warrants that he is duly and validly
authorized to do so on behalf of such a party, with full right and authority to
execute this Agreement and to bind such party with respect to all of its
obligations hereunder.
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed by their duly authorized representatives effective as of the date
first set forth above.
BioFactors, Inc.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Its CEO August 30, 1995
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▇▇▇▇▇▇ International Associates, Inc.
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Its
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July 31, 1996
Addendum to Sublicense Agreement, dated as of August 30, 1995
("Sublicense Agreement") by and between BioFactors, Inc. ("BFI") and SportsTrac,
Inc. ("SportsTrac").
WHEREAS, BFI and SportsTrac are parties to the Sublicense Agreement and
desire to clarify certain provisions thereof;
NOW, THEREFORE, the parties agree as follows:
1. The prototype on-field athletic performance system referred to in
the second "WHEREAS" clause of the Sublicense Agreement, developed by
BioFactors, was a research prototype used to validate the application of the CTT
and Factor 1000 technologies to evaluate athletic performance which BioFactors
did not and has not developed for commercial production.
2. The license granted by BioFactors pursuant to Section 1.1 of the
Sublicense Agreement was a license of the Factor 1000 technology developed by
BioFactors, and a sublicense of the CTT technology, which technologies
SportsTrac subsequently incorporated in its SportsTrac System.
BIOFACTORS, INC. SPORTSTRAC, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------- ------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Vice President and COO President and CEO
Date: 7/31/96 Date: 7/31/96
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