Exhibit 10.5
ASSET AND TECHNOLOGY ACQUISITION AGREEMENT
BY AND BETWEEN
IMAR GROUP, LLC, A WHOLLY-OWNED SUBSIDIARY
OF CHALLENGER POWERBOATS, INC.
AND
MARK OVERBYE AND GEKKO SPORTS, CORPORATION
This Asset
and Technology Acquisition Agreement ("Agreement") dated
January
_30_, 2007,
sets forth the terms on which IMAR
Group, LLC ("Buyer"), a wholly
owned subsidiary
of Challenger
Powerboats, Inc.
("Challenger"), will purchase
certain ownership
rights and interests in assets and technology, as
defined
below, from
Mark Overbye ("Overbye") and Gekko Sports
Corporation, a Florida
corporation with
its principal place of business at is 587 Vista Ridge,
Shakopee, MN
(the "Seller").
1.
Buyer's Purchase
of Seller's Assets and Technology
--------------------------------------------------------
1.1
Subject to
the terms and conditions of this Agreement,
Buyer hereby
purchases from
Seller and Seller hereby sells, transfers
and assigns to Buyer
all of Seller's right, title and interest in (i) the assets, trademarks,
copyrights and
domain names described on Exhibit A; (ii) any adaptation,
modification,
improvement, or
enhancement of the
foregoing; (iii) all
of the
pending and
issued patents and patent applications described
on Exhibit D as
well as any continuations,
continuations-in-part, divisional applications, and
any Letters
Patent issued there from including reissues, together with
all
non-U.S. counterparts;
(iv) the trade names "Gekko Sports", "Gekko Sports
Corporation" and
related variations thereon; and (v) all goodwill,
know-how,
service marks,
industrial property rights related to the foregoing (the
"Assets
and Technology").
Seller agrees to take all necessary steps to effect the
transfer of
the Assets and Technology, including, without limitation, the
transfer of
USPTO # DVH 0066.
2.
Representations and
Warranties
--------------------------------
2.1
Seller represents
and warrants to Buyer as follows:
2.1.1 Seller holds
all right, title and interest in the Assets and
Technology free
and clear of any and all claims, liens, and
encumbrances of any kind and nature whatsoever. No third party
retains
any residual rights or
claims to the Assets and Technology. There are
no claims of Seller
which have not been fully asserted and which may,
as a result, lead to issues of laches or estoppel.
2.1.2 Seller has
the right and authority to enter into this
Agreement,
and the execution and performance of this Agreement by Seller will
not
violate or result in
violation of any other agreement to which Seller
is a party.
2.1.3 Seller has
delivered to Buyer copies of copyrights and
copyright
applications,
patents and patent applications, patent and patent
application status
reports, patent prosecution files, opinions Seller
has received
regarding third party patents, all lab
books, research
reports, invention
disclosures,
documentation, and any and all other
materials that were
used in creation of the Assets and Technology and
are currently in Seller's possession, custody, or control, that
embody
the Assets
and Technology. The following shall be provided
for all
patents related
to the Seller's Assets and Technology:
2.1.3.1 Titles,
copyright numbers,
patent numbers, and serial
numbers of
issued patents; titles
and serial numbers of pending
patents; and
titles of inventions or technology not
yet filed.
2.1.3.2 Names and
status of inventors (present employee, past
employee, contractor)
for each item listed in 2.1.3.1.
2.1.3.3 Countries
filed in (U.S. and foreign).
2.1.3.4 Representation
that if issued, maintenance fees or other
necessary payments
are fully paid up.
2.1.3.5 Representation
that, to the Seller's knowledge, none of
the items listed in 2.1.3.1 are subject to any asserted
ownership
dispute, litigation,
reexamination,
reissue, or interference.
2.1.4 Seller has
delivered to Buyer a true and complete copy of, and
listed on Exhibit B
hereto, each written agreement and license and an
accurate description
of each oral agreement and license
relating to
the Assets
and Technology (other than as provided hereunder),
including all amendments, waivers, or other changes thereto. There
are
no other written or oral contractual commitments, contracts, or
licenses to
which Seller is a party or by which it is bound
which
shall be binding upon the Buyer, Challenger, any of
Challenger's
subsidiaries or
any other party.
2.1.5 Every employee,
consultant,
licensee, or other person who has
contributed in any way to the development of the Assets and
Technology
was, at the time such contributions were made, subject to an
agreement
wherein such
person agreed to hold the Assets and Technology in
secrecy and confidence and transfer and assign to Seller all rights
in
the Assets
and Technology including without
limitation trade secret
and patent
rights.
2.1.6 Seller has
transferred
to Buyer copies of all material business
and legal files related to the Assets and
Technology including those
related to
the Assets and Technology. Buyer will
be responsible for
prosecuting all patent
applications and maintaining all patents after
the Effective Date of
this Agreement. Seller has paid, and is current
on, all patent maintenance fees due as of the Effective Date.
2.1.7 The Assets and
Technology
do not infringe any patents,
copyrights, trade
secrets, or other proprietary rights of any
third
party. No rights or licenses are required from third parties to
exercise any
rights with respect to
the Assets and Technology or any
part thereof.
To the knowledge of the Seller, the Assets and
Technology have
not been infringed by any third party. Seller has
taken proper
steps to protect the trade secrets and know-how
associated with
the Assets and Technology.
2.1.8 There are
no actions, suits, litigation, proceedings, or
controversy in
any court or legal proceeding pending or, to the
knowledge of
Seller, threatened by or against Seller or any of
its
employees, officers, or agents arising out of or related to the
Assets
and Technology.
To the knowledge of Seller, there are no claims,
demands or controversies that would, if proven, constitute a breach
of
any of the
representations and warranties of Seller contained herein.
2.1.9 Seller has
not and will not license, assign, sell or otherwise
transfer or grant any rights in the Assets and Technology to any
third
party and shall not use or otherwise commercialize the
Assets and
Technology to
develop, market, or
distribute a product that competes
with Buyer
or any other subsidiary of Challenger. Seller will
indemnify and
hold Buyer harmless
against any and all losses, costs,
or liabilities
that may arise as a result of a claim that would
constitute a
material breach of Seller's warranties or
obligations
under this
Agreement.
Notwithstanding the foregoing indemnification,
and not in derogation
of it, Seller may elect to defend or to settle,
at its sole discretion and expense, any claim that would alter,
diminish, or
otherwise affect Seller's rights in the Assets and
Technology.
3.
Consideration
-------------
3.1.
In consideration for this Agreement, Buyer shall pay Overbye a
total of
$670,000 in
U.S. dollars by wire transfer or
company check in accordance with
the terms and conditions set forth in the Promissory Note of even
dat
