Exhibit 2.1
TECHNOLOGY TRANSFER AGREEMENT
This
Technology Transfer Agreement (the “ Agreement
”) is entered into as of June 9, 2009
(the “ Effective Date ”) by and between
Avatech Solutions, Inc., a Maryland corporation located at 10715
Red Run Blvd, Owings Mills, MD, 21117 (“ Seller
”) and Autodesk, Inc., a Delaware corporation with its
principal office at 111 McInnis Parkway, San Rafael, California
94903 (“ Autodesk ”). Each of Seller and
Autodesk are each referred to herein as a “ Party
,” and together as “ Parties .”
RECITALS
WHEREAS, Seller is engaged in the business of
software systems integration and implementation, consulting,
standards development and deployment, education, and technical
support and, in connection therewith, it has designed, developed,
built, maintained, marketed and distributed a software application
referred to as BIMreview that automatically validates the accuracy
and consistency of building information models against project,
firm, national or user-defined standards; and
WHEREAS, Seller desires to transfer to Autodesk,
and Autodesk desires to receive from Seller, ownership of the
BIMreview application described in Exhibit A and
Exhibit B hereto and related technology, including all
patents, copyrights, trademarks, trade secrets and other
intellectual property rights therein and thereto.
NOW, THEREFORE,
in consideration of the foregoing
and of the mutual promises contained in this Agreement, the Parties
hereby agree as follows:
AGREEMENT
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1
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DEFINITIONS
AND CONSTRUCTION
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1.1
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In
addition to other defined items in this Agreement, the following
capitalized terms shall have the meanings set forth
below:
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1.1.1
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“
Business Day ” means a day, other than a Saturday or
Sunday, on which banks are generally open for business in San
Francisco, California.
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1.1.2
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“
Confidential Information ” has the meaning set forth
in Section 5.1.
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1.1.3
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“
Derivative Work ” has the meaning ascribed to it under
the United States Copyright Law, Title 17 U.S.C. Sec. 101 et. seq.,
as the same may be amended from time to time.
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1.1.4
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“
Developers ” means all persons (including employees,
directors, contractors, consultants) who contributed to the
development, planning, or other creation of the Transferred
Software.
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1.1.5
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“
Escrow Agent ” means Computershare Trust Company
N.A.
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1.1.6
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“
Intellectual Property Rights ” means any or all of the
rights in, arising out of, or associated with throughout the world
in or to:
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(i)
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all United
States and foreign patents (including utility models) and
applications therefore, including provisional applications, and all
reissues, divisions, renewals, extensions, continuations and
continuations-in-part thereof (“ Patents
”);
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(ii)
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all inventions
(whether patentable or not), invention disclosures, improvements,
trade secrets, proprietary information, know-how, technology and
technical data (“ Trade Secrets ”);
and
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(iii)
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all United
States and foreign copyrights, copyright registrations and
applications therefore and all other rights corresponding thereto
throughout the world (“ Copyrights ”);
and
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(iv)
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all United
States and foreign trademarks, service marks, trade names, logos,
brand names and trade dress, whether registered or unregistered,
and all other rights corresponding thereto throughout the world
(“ Trademarks ”).
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1.1.7
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“
Prior Grantees ” means third parties who have been
granted a license to, or otherwise have a right to, the Transferred
Software.
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1.1.8
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“
Software ” means any and all computer software,
documentation, code and other materials, including assemblers,
applets, compilers, source code, source code listings, object code,
data (including image and sound data), manuals, instructions,
samples, examples, charts, diagrams, design tools and user
interfaces, in any form or format, however fixed.
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1.1.9
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“
Third Party Software ” means any Software that is a
component of or necessary to compile the Transferred Software and
that either (i) is not owned by Seller or (ii) to which
Seller is restricted from transferring ownership to
Autodesk.
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1.1.10
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“
Transferred Intellectual Property Rights ” means all
Intellectual Property Rights in and to the Transferred
Software.
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1.1.11
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“
Transferred Software ” means all versions of the
Software known as BIMreview and related technology, works in
progress, documentation, customer information and materials, as
more particularly described in Exhibit A and
Exhibit B .
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1.2.1
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The singular
number will include the plural, and vice versa; the masculine
gender will include the feminine and neuter genders; the feminine
gender will include the masculine and neuter genders; and the
neuter gender will include the masculine and feminine
genders;
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1.2.2
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This Agreement
will be interpreted in good faith in accordance with its terms and
without strict construction in favor of or against either party.
Any rule of construction to the effect that ambiguities are to be
resolved against the drafting Party will not be applied in the
construction or interpretation of this Agreement;
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1.2.3
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The words
“include” and “including” and variations
thereof, will not be deemed to be terms of limitation, but rather
will be deemed to be followed by the words “without
limitation;”
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1.2.4
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Except as
otherwise indicated, all references in this Agreement to
“Sections” and “Exhibits” are intended to
refer to Sections of this Agreement and Exhibits to this Agreement;
and
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1.2.5
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The headings in
this Agreement are for convenience of reference only, will not be
deemed to be a part of this Agreement, and will not be referred to
in connection with the construction or interpretation of this
Agreement.
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2
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SOFTWARE
TRANSFER AND DELIVERY
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2.1
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As of
the Effective Date, Seller hereby irrevocably grants, conveys and
assigns to Autodesk, by execution hereof, all of its worldwide
right title and interest in and to the Transferred Software and
Transferred Intellectual Property Rights, to be held and enjoyed by
Autodesk and its successors and assigns. Seller further irrevocably
grants, conveys and assigns to Autodesk, by execution hereof, all
of its worldwide right, title and interest in and to any and all
causes of action and rights of recovery for past infringement or
misappropriation of the Transferred Intellectual Property Rights,
to be held and enjoyed by Autodesk and its successors and assigns.
Autodesk hereby accepts the foregoing grants, conveyances and
assignments.
On
and after the Effective Date, Seller will, without charge and
promptly upon request by Autodesk, as may be reasonably requested
by Autodesk in order to effect and perfect the grants, conveyances
and assignments contained herein, to enable Autodesk to obtain the
full benefits of this Agreement and the transactions contemplated
hereby, or to otherwise enforce or protect the Transferred
Intellectual Property Rights:
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2.2.1
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deliver to
Autodesk records, data or other documents relating to the
Transferred Intellectual Property Rights that are in Seller’s
possession;
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2.2.2
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execute and
deliver assignments, licenses, consents, documents or further
instruments of transfer, and consent to the filing of the sole
applications, including without limitation the short form
assignment in Exhibit D , and
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2.2.3
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take other
reasonable actions, render other assistance and execute other
documents.
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Seller will also assist Autodesk (and cause its
current and former personnel to assist), at Autodesk’s
request, in filing and prosecuting United States and foreign patent
applications claiming the Transferred Intellectual Property Rights
at Autodesk’s expense.
Without limiting the foregoing, Autodesk will
have the exclusive and unlimited right to commercialize, prepare
and sell products based upon, license, sublicense, prepare
Derivative Works from, transfer to third parties, change, alter and
otherwise use and exploit the Transferred Software and Transferred
Intellectual Property Rights. Seller hereby waives any and all
moral rights, including any right to identification of authorship
or limitation on subsequent modification, which Seller (or its
employees, agents or consultants) have or may have in any
Transferred Software or Transferred Intellectual Property Rights.
To the extent, if any, that Seller retains any right to the
Transferred Software and Transferred Intellectual Property Rights,
Seller hereby grants and agree to grant to Autodesk a perpetual,
exclusive, irrevocable, fully paid-up, transferable, sublicensable,
worldwide right and license under any rights Seller may have to
use, make, reproduce, distribute, display and perform, modify,
sell, and otherwise exploit and distribute in any manner, all or
any portion of the Transferred Software, in any form or media (now
known or later developed).
Seller hereby irrevocably designates and
appoints Autodesk and its duly authorized officers and agents as
its agents and attorneys-in-fact, to act on their behalf and
instead of Seller, to execute and file any such application, and to
do all other lawfully permitted acts to further the prosecution and
issuance of Intellectual Property Rights provided for herein with
the same legal force and effect as if executed by Seller. This
power of attorney shall be deemed coupled with an interest and
shall be irrevocable.
On
the Effective Date, Seller shall deliver to Autodesk:
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2.5.1
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the applicable
Transferred Software via electronic download, as more particularly
described in Exhibit A and Exhibit B
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2.5.2
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an affirmation
for Software Product Purchase by Electronic Transfer as set forth
in Exhibit C ;
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2.5.3
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an Assignment
of Copyright as set forth in Exhibit D ;
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2.5.4
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an Escrow
Agreement as set forth in Exhibit E;
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2.5.5
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consents to the
assignment to Autodesk of any Third Party Software listed in
Section 7.2.8 of the Disclosure Schedule; and
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2.5.6
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signed copies
of agreements for assignment of proprietary rights and
non-disclosure of confidential information, in a form substantially
as that set forth in Section 7.2.19 of the Disclosure
Schedule, between Seller and each Developer set forth in
Section 7.2.4 of the Disclosure Schedule.
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2.5.7
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The items
referred to in Sections 2.5.2, 2.5.3, 2.5.4 and 2.5.6 above
shall be collectively referred to as the “ Ancillary
Agreements ”.
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2.6
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No Assumed
Liabilities
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The
Parties agree that Autodesk shall not assume any liabilities of any
nature, whether or not accrued, contingent or otherwise (“
Liabilities ”), associated with the Transferred
Software or the Transferred Intellectual Property Rights that arose
prior to or on the Effective Date, regardless of whether any such
Liabilities are determined or asserted after the Effective Date,
including but not limited to obligations to end users pursuant to
any maintenance, support, license or other agreement. The Parties
agree that Autodesk shall not assume any Liabilities associated
with the Transferred Software or the Transferred Intellectual
Property Rights that before or after the Effective Date in
connection with Seller’s use of any Transferred Software or
the Transferred Intellectual Property Rights whether before or
after the Effective Date.
2.7
No Conflict
The
Parties agree and acknowledge that Seller’s purchase and
resale of Autodesk’s or Autodesk’s affiliates’
products (“ Buyer’s Products ”) and
services are in no way related to or dependent upon this Agreement.
The pricing used for sale of Buyer’s Products to Seller is
derived in a manner that is not dependent upon this Agreement and
is not influenced by the negotiation or consummation of this
Agreement. In addition, Seller has the capital financing available
to pay all current balances due to Autodesk and Autodesk
affiliates’ from the purchase of Buyer’s Products
without the cash that would be generated from this
Agreement.
2.8
License Back
Autodesk recognizes that after the Effective
Date, Seller will continue to have obligations respecting the
Transferred Software and will continue to be able to use the
Transferred Software and the Transferred Intellectual Property as
provided in this Section 2.8. Accordingly, subject to the
terms and conditions of this Agreement (including Section 4.1)
Autodesk hereby grants to Seller a royalty free, irrevocable
license to provide the services listed in this Section 2.8, to
use the Transferred Software and the Transferred Intellectual
Property as it exists on the Effective Date (a) in object code
or source code form, to fulfil Seller’s existing support
obligations (e.g., providing bug fixes) to its customers; provided
that Seller agrees to provide any such bug fixes back to Autodesk
as part of, and to be included as part of, the Transferred
Software, and (b) in object code form only, to develop plug-in
checks to extend the capability of the Transferred Software,
whether on a commercial software or professional services basis.
Seller shall not copy or use the object or source code of the
Transferred Software for any purpose other than this
Section 2.8.
On
the Effective Date, Autodesk shall pay Seller an amount equal to
Five Hundred Thousand U.S. Dollars (U.S.$500,000) less the Escrow
Amount, in full and complete consideration for the Transferred
Intellectual Property Rights and the Transferred Software (the
“ Purchase Price ”). For the avoidance of doubt,
the Purchase Price is net of the license grant specified in
Section 2.8.
Seller
shall be solely responsible for the payment of, and shall pay when
due and indemnify Autodesk against, all applicable taxes, including
any sales, use, consumption, withholding, excise or transfer taxes
and other taxes associated with payments to Seller under this
Agreement (except for taxes assessed on Autodesk’s net
income). The Parties shall cooperate and take all reasonable steps
to reduce any transfer taxes associated with the transactions
contemplated hereby. For purposes of this Agreement, the term
“taxes” shall not include any fee, cost or expense
incurred by Autodesk to register copyright or patent rights, or
similarly protect the Transferred Software or the Transferred
Intellectual Property Rights.
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3.2.2
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Post-Closing
Tax Covenants
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(i)
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in the case of
any personal property taxes (or other similar taxes) attributable
to the Transferred Software, Seller shall be responsible for tax
returns which cover the taxable period through the Effective Date
and, subject to the provisions of Section 3.2.2(ii) a and b;
and
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(ii)
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to the extent
relevant to the Transferred Software, each Party shall;
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(a)
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provide the
other with such assistance as may reasonably be required in
connection with the preparation of any tax return and the conduct
of any audit or other examination by any taxing authority or in
connection with judicial or administrative proceedings relating to
any liability for taxes; and
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(b)
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retain and
provide the other with all records or other information that may be
relevant to the preparation of any tax returns, or the conduct of
any audit or examination, or other proceeding relating to taxes.
Seller shall retain all documents, including prior years’ tax
returns, supporting work schedules and other records or information
with respect to all applicable tax returns and shall not destroy or
otherwise dispose of any such records for the longer of
ten (10) years after the Effective Date, or the expiration of
the statute of limitations applicable to the tax period relevant to
said records, without the prior written consent of
Autodesk.
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4
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NON-COMPETE
AND EXCLUSIVITY
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4.1
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Commencing on the Effective Date and continuing
for a period of one (1) year thereafter, Seller shall not,
directly or indirectly, (i) sell, provide or distribute any
product that, as a whole, performs the same function as the
Transferred Software, or provide any assistance, cooperation or
take any other action to allow any third party to do so, or
(ii) provide services or products as a whole, performs the
same function as the services or products purchased hereunder for
any competitors of Autodesk. The Parties agree that such covenant
is necessary to protect Autodesk’s Trade Secrets in and to
the Transferred Software and the value of Autodesk’s
investment in the Transferred Software. Notwithstanding the
foregoing, Seller may develop a checking tool for other Autodesk
computer-aided-design software packages (such as Civil3D or
Vault/Productstream) using Seller’s general knowledge and/or
know-how, without breach of this Section 4.1.
The
covenants contained in Section 4 will be construed as a series
of separate covenants, one for each county, city, state and country
(or their equivalents in any country) in which the covenants
contained in this Section 4 apply. If, in any judicial
proceeding, a court refuses to enforce any of such separate
covenants (or any part thereof), then such unenforceable covenant
(or such part) will be eliminated from this Agreement to the extent
necessary to permit the remaining separate covenants (or portions
thereof) to be enforced. In the event that the provisions of
Section 4 are deemed to exceed the time, geographic or scope
limitations permitted by applicable law, then such provisions will
be reformed to the maximum time, geographic or scope limitations,
as the case may be, permitted by applicable laws.
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5
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CONFIDENTIAL
INFORMATION
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5.1
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For
purposes of this Agreement, “ Confidential Information
” means any proprietary information, technical data, trade
secrets or know-how, including, but not limited to, research,
business plans or models, product plans, products, services,
computer software and code, developments, inventions, processes,
formulas, technology, designs, drawings, engineering, hardware
configuration information, marketing, finances or other business
information disclosed by one Party (“Discloser”) to the
other (“Recipient”) either directly or indirectly in
writing, orally or by drawings or inspection of parts or equipment
or owned by Discloser even though not delivered by Discloser. It is
understood that all Confidential Information is and shall remain
the sole property of Discloser, and Recipient shall have no
interest therein. Upon Discloser’s request, Recipient shall
promptly return to Discloser all such tangible Confidential
Information.
Notwithstanding the provisions of
Section 5.1, Confidential Information shall exclude
information that Recipient can demonstrate: (i) was
independently developed by Recipient without any use of
Discloser’s Confidential Information or by Recipient’s
employees or other agents (or independent contractors hired by
Recipient) who have not been exposed to Discloser’s
Confidential Information (provided that this clause does not limit
the terms of Section 4); (ii) becomes known to Recipient,
without restriction, from a source other than Discloser (or
Discloser’s Confidential Information) that had a right to
disclose it without breach of this Agreement; or (iii) was in
the public domain at the time it was disclosed or enters the public
domain through no act or omission of Recipient.
Notwithstanding anything in Section 5.1 and
Section 5.2, the Transferred Software and any other non-public
information regarding the Transferred Intellectual Property Rights
shall be deemed Confidential Information of Autodesk.
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5.4
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Confidentiality Obligation
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Recipient may use Discloser’s Confidential
Information solely to fulfil its obligations to Discloser in
connection with this Agreement. Recipient shall treat as
confidential and not disclose to any third party any of
Discloser’s Confidential Information and shall not use such
Confidential Information for its own benefit. Without limiting the
foregoing, Recipient shall use at least the same degree of care
which it uses to prevent the disclosure of its own confidential
information of like importance, but in no event with less than
reasonable care, to prevent the disclosure of Discloser’s
Confidential Information. Recipient further agrees to take all
reasonable precautions to prevent any unauthorized disclosure or
use of any Discloser’s Confidential Information. Recipient
shall, upon written request from Discloser, destroy or deliver to
Discloser all Discloser’s Confidential Information in its
possession, and shall provide Discloser with written confirmation
that all such materials have been delivered or
destroyed.
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5.5
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Confidentiality of Agreement
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Each
Party agrees that the terms and conditions, but not the existence,
of this Agreement shall be treated as each Party’s
Confidential Information and that no reference to the terms and
conditions of this Agreement or to activities pertaining thereto
may be made in any form of public or commercial advertising without
the prior written consent of the other Party; provided,
however , that either Party may disclose the terms and
conditions of this Agreement:
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5.6
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5.5.1 to its legal counsel;
5.5.2 as required by any court or other governmental body;
or
5.5.3 as otherwise required by law.
Remedies
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Unauthorized use by Recipient of
Discloser’s Confidential Information will diminish the value
of such information. Therefore, if Recipient breaches any of its
obligations with respect to confidentiality or use of
Discloser’s Confidential Information hereunder, Recipient
agrees and acknowledges that Discloser shall be entitled to
equitable relief to protect its interest therein, including
injunctive relief, as well as money damages.
In
the event that either Party believes that it will be compelled, or
is compelled, by a court, administrative agency, or other
governmental body or pursuant to applicable security laws or
regulations to disclose Discloser’s Confidential Information,
it shall:
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5.7.1
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provide prompt
notice thereof to Discloser so that Discloser make take steps to
oppose such disclosure;
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5.7.2
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cooperate with
Discloser’s reasonable attempts to oppose such
disclosure;
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5.7.3
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use reasonable
efforts to obtain a protective order or otherwise prevent
unrestricted or public disclosure of such information;
and
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5.7.4
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cooperate with
Discloser’s reasonable attempts to oppose such
disclosure.
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Subject to Section 5.5, neither Party shall
make any public announcement relating to this Agreement except upon
the other Party’s prior written consent, which may be granted
or withheld in such Party’s sole discretion.
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6
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ACCEPTANCE
AND CORRECTION
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6.1
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Upon
receipt of the Transferred Software and Autodesk’s
acknowledgment of such receipt via electronic mail or fax to
Seller, the Transferred Software shall be deemed accepted by
Autodesk. Autodesk shall notify Seller in writing of any errors or
defects in the Transferred Software as delivered which prevent it
from operating substantially in accordance with its documentation
or specifications (“ Errors ”).
If
Autodesk notifies Seller that the Transferred Software contains any
Error(s), Seller shall, within five (5) Business Days after
the receipt of any such notice or such longer period as Autodesk
expressly allows in writing (the “ Correction Period
”), correct the Error(s) or determine that no Error existed,
and resubmit the corrected Transferred Software to Autodesk. In the
event that the correction of an Error requires a substantial change
in the structure or organization of the Transferred Software or any
portion thereof, Autodesk at its discretion may grant an extension
of the Correction Period. The foregoing process shall repeat until
the particular Error no longer exists, as determined by Autodesk in
its reasonable discretion. Notwithstanding Autodesk’s
acceptance of the Transferred Software as delivered or corrected,
Seller will work with Autodesk for a period of one (1) year
from the Effective Date to make reasonable efforts to correct any
defects in the Transferred Software as delivered.
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7
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REPRESENTATIONS AND WARRANTIES
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7.1
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Each
Party represents and warrants to the other that:
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7.1.1
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such Party has
the full right, power and authority to enter into this Agreement
and fully perform its obligations hereunder; and
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7.1.2
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the making of
this Agreement and such Party’s performance of all its
obligations hereunder is not prohibited by or in conflict with any
agreement between such Party and any third party.
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7.2
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Representations and Warranties
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Except as specifically disclosed in the
disclosure schedule attached hereto (the “ Disclosure
Schedule ”) (referencing the appropriate section and
paragraph numbers), Seller represents and warrants to Autodesk, as
of the Effective Date of this Agreement, as follows:
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7.2.1
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Seller is the
exclusive owner of the Transferred Software and the Transferred
Intellectual Property Rights;
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7.2.2
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Seller has the
full and unencumbered right to assign and transfer to Autodesk all
of Seller’ rights in and under the Transferred Software and,
other than as listed on Section 7.2.2 of the Disclosure
Schedule, the Third Party Software without incurring, or causing
Autodesk to incur, any obligation to any third party, including any
fee, payment or royalty obligations;
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7.2.3
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Seller has not
transferred ownership of, granted any license of or right to (other
than in connection with an end-user license) or authorized the
retention of any exclusive rights to or joint ownership of, any
Transferred Software;
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7.2.4
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Section 7.2.4 of the Disclosure Schedule is
a true and complete list of all Developers. All Developers have
waived all rights or claims to invoke any moral rights regarding
the Transferred Software against Autodesk and any other
transferees;
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7.2.5
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The Transferred
Software is free and clear of any liens or encumbrances;
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7.2.6
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The Transferred
Software, Transferred Intellectual Property Rights and Third Party
Software do not and will not infringe or misappropriate any third
party’s Intellectual Property Rights, including, but not
limited to Patents, Trademarks, Trade Secrets, or Copyrights of any
third party;
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7.2.7
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Section 7.2.7 of the Disclosure Schedule
lists all registered Intellectual Property Rights and registration
applications pendent with respect to the Transferred Software. All
such registered Intellectual Property Rights are currently in
compliance with formal legal requirements (including payment of
filing, examination and maintenance fees and proofs of use), are
valid and enforceable, and are not subject to any unpaid
maintenance fees or taxes or actions falling due within
ninety (90) days after the Effective Date. There are no
proceedings or actions known to Seller before any court, tribunal
(including the United States Patent and Trademark Office or
equivalent authority anywhere in the world) related to any such
registered Intellectual Property Rights. Seller has not claimed any
status in the application for or registration of any Registered
Intellectual Property Rights that would not be applicable to
Autodesk. Seller has not knowingly misrepresented, or knowingly
failed to disclose, any facts or circumstances in any application
for any registered Intellectual Property Rights that would
constitute fraud or a misrepresentation with respect to such
application or that would otherwise affect the enforceability of
any registered Intellectual Property Rights.
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7.2.8
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Section 7.2.8 of the Disclosure Schedule
lists a complete, accurate list and description of all Third Party
Software and other technology of third parties included in or to be
used with or necessary to install or compile the Transferred
Software.
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7.2.9
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Other than as
described in Section 7.2.9 of the Disclosure Schedule,
Seller has, and as a result of the
transactions contemplated by this Agreement, Autodesk will have,
the right to use, on a perpetual, non-revocable, world-wide basis,
pursuant to valid licenses, all software development tools, library
functions, compilers and all other Third Party Software that are or
were used by Seller to create, modify, compile, operate or support
any Transferred Software or Transferred Intellectual Property or
that are or were used in, incorporated into, integrated or bundled
with, or used in the development of any Transferred Software or
Transferred Intellectual Property without any obligation to pay any
royalties, accounting or other similar payments to any third
party.
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7.2.10
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Section 7.2.10 of the Disclosure Schedule
contains a complete, accurate list and description of all Prior
Grantees;
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7.2.11
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Seller has not
permitted Seller’s rights in the Transferred Intellectual
Property Rights to lapse or enter the public domain, provided that
Autodesk acknowledges that Seller has not fi
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