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EXHIBIT 10.79
PRODUCT RIGHTS TRANSFER AGREEMENT
The Product Rights Transfer Agreement ("Agreement"), is made and effective this
24th day of May, 1996 by and between Advanced Materials, Inc. ("Grantor"). a
California Corporation and Wilshire Technologies, Inc. (Grantee"), a California
Corporation.
Whereas, pursuant to an Asset Purchase Agreement dated November 23, 1993 (the
"Original Agreement"), the Grantee sold its OEM medical division to the Grantor;
and
Whereas, certain Products were included in that sale; and
Whereas, the Grantee wishes to purchase the rights to certain Products from the
Grantor;
NOW, THEREFORE, in consideration of the mutual agreements and promises set forth
herein, the parties agree as follows:
1. RIGHTS GRANTED.
Grantor hereby conveys to Grantee, its successors and permitted assigns
the exclusive right to manufacture, use, inventory, promote, market,
sell and/or resell such of the Grantor's Products as are defined in the
following section.
2. PRODUCTS.
As used in this Agreement, the term "Product" or "Products" will refer
exclusively to the following part numbers or derivative part numbers or
directly derivative Products:
NDM #5557 NDM #5631
NDM #5413 NDM #5432
3. PAYMENT.
As compensation for the rights granted by this Agreement, the Grantee
agrees to pay the Grantor the total amount of $50,000. The "Payment" is
calculated by multiplying (a) the number of units of the Product sold,
or estimated to be sold, by the Grantee during the period May 17, 1995
to May 16, 1998, by (b.) one and one half cent ($0.015) per unit. The
calculation of the Payment is attached as Exhibit A.
The payment shall be made as a reduction of $50,000 in the amount due
from Grantor to Grantee pursuant to the Promissory Note dated November
23, 1993.
4. RIGHTS TRANSFER.
Upon execution of this agreement and the completion of the Payment
under Section 3 by an amendment to the Promissory Note dated November
23, 1993, all rights, title and interest to the Products will pass to
the Grantee without further payment or obligation to the Grantor.
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5. REPRESENTATIONS, WARRANTIES AND IDEMNIFICATIONS.
5.1 By Grantor. Grantor represents and warrants that, except for
any matters disclosable by Grantee to Grantor pursuant to the
Original Agreement, and to the knowledge of Steve F. Scott and J.
Douglas Graven without independent inquiry, the exercise by Grantee of
the rights granted in Section 1 hereof will not infringe any valid
enforceable patent rights of third parties and will not violate any
other intellectual property rights of third parties. Grantor agrees to
protect Grantee and hold Grantee harmless from any loss, damage or
claim arising from the breach of the representation and warranty
contained in this paragraph.
Grantor specifically disclaims any liability and makes no warranty to
Grantee or others with respect to the Products, either express or
implied, including, without limitation, the implied warranties of
merchantability of fitness for a particular purpose.
5.2 By Grantee. Except as otherwise provided in Section 5.1, Grantee
agrees to protect Grantor and hold Grantor harmless from any loss,
damage or claim arising from the Grantee's exercise of any right
granted under this agreement. This indemnification includes any
representation or warranty made by grantee or its agents, employees or
representatives to customers, users or third party consumers of the
Products.
6. BINDING EFFECT.
All the terms and provisions of this Agreement shall be binding upon,
shall inure to the benefit of and shall be enforceable by the parties
hereto and their respective heirs, beneficiaries, legal representative,
successors and permitted assigns.
7. ASSIGNMENT.
Neither this Agreement nor any right or interest in the Agreement
may be assigned without the express written approval of the Grantor,
except that no approval is required for the assignment to Horizon
Medical, Inc. or its subsidiaries of the rights (except the rights
under Section 5.1) granted under this Agreement.
8. FINAL AGREEMENT.
With regard to the Products, this Agreement shall constitute the entire
understanding between the Grantor and Grantee and supersedes any
previous communications, representations or agreements, whether oral or
in writing.
9. CHANGES.
No change or modification of any term or condition herein shall be
valid or binding on Grantor or Grantee unless made in writing and
signed by each party.
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10. NOTICES.
Any notice required by this Agreement or given in connection with it,
shall be in writing and shall be give to the appropriate party as
follows:
IF TO GRANTOR:
Doug Graven
Advanced Materials, Inc.
20211 S. Susana Road
Dominquez Hills, CA 90221
(310) 537-5444
IT TO GRANTEE:
James Klingler
Wilshire Technologies Inc.
5441 Avenida Encinas, Suite A
Carlsbad, CA 92008
(619) 929-7200
11. GOVERNING LAW.
This Agreement shall be construed and enforced in accordance with the
laws of the State of California.
12. SEVERABILITY.
If any term of this Agreement is held by a court of competent
jurisdiction to be invalid or unenforceable, then this Agreement,
including all of the remaining terms, will remain in full force and
effect as if such invalid or unenforceable term had never been
included.
13. HEADINGS.
Headings used in this Agreement are provided for convenience only and
shall not be used to construe meaning or intent.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
Grantor:
Advanced Materials, Inc.
By: /s/ Steve Scott Date: 5/24/96
____________________________ __________________
Title: President/CEO
_________________________
Grantee:
Wilshire Technologies, Inc.
By: /s/ James W. Klingler Date: 5/23/96
____________________________ __________________
Title: VP & Chief Financial Officer
_________________________
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