EXHIBIT 10.5
TECHNOLOGY LEASING AGREEMENT
BETWEEN
BIOQUEST INTERNATIONAL, INC.
AND
MAINSTREETIPO.COM, INC.
<PAGE>
LEASING AGREEMENT
AGREEMENT made this 15th day of September, 2000 by and between
MainStreetIPO.com Inc. ("MainStreet"), with principal offices at 171 Church
Lane, North Brunswick, NJ 08902, and BioQuest International, Inc. ("BioQuest"),
with principal offices at 11217 Silverleaf Drive, Fairfax Station, Virginia
22039.
WHEREAS, MainStreet has designed a website known as www.MainStreetIPO.com
(the "Website"), which Website was created for the purpose of enabling
corporations to publicly offer their securities by means of posting registered
prospectuses on such Website in order that members of the public can bid in a
Dutch Auction for such securities; and
WHEREAS, BioQuest is desirous of leasing the technology underlying the
Website ("the Application Services"), utilizing the generic content of the
Website, and leasing server space ("bandwidth") to enable BioQuest to conduct a
direct public offering of its Common Stock on a one time basis.
WHEREAS, MainStreet is desirous of leasing the Application Services to
BioQuest.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties agree as follows:
1. No Alterations or Changes of Non-Advertising Material. BioQuest may not
alter or change any of the content appearing on the Website without the prior
approval of MainStreet, except to replace the name of "MainStreet IPO.com" with
the name "BioQuestIPO.com" and place BioQuest's logo on the left hand side of
the Website. BioQuest may not remove the graphical depiction of the MainStreet
Bull which appears on the right hand side of the Website. BioQuest also may not
change or alter in any way the technology of the Website, the Dutch Auction
System designed for the Website or any of the technologies or interfaces
integrated into the Dutch Auction System without the prior approval of
MainStreet.
2. Representations, Warranties and Covenants. MainStreet hereby represents and
warrants to and agrees with BioQuest as follows:
(a) MainStreet is duly incorporated, validly existing and in good standing
under the laws of the State of Delaware, and has full corporate power
and authority to execute, deliver and perform this Leasing Agreement.
This Agreement has been duly and validly executed and delivered by
MainStreet and constitutes the legal and binding obligation of
MainStreet enforceable against it in accordance with its terms;
(b) MainStreet has developed and designed the software systems and
technology for the proper, efficient and lawful operation of the
Website to enable issuers to post registered offerings under the
Securities Act of 1933, including registration statements, preliminary
prospectuses, final prospectuses and to enable public users to submit
bids for issuer's securities being offered on the Website, including
the transmission and recordation of all bidding information and to
establish and verify escrow accounts, and other related operations and
procedures necessary for issuers to offer their securities to the
public and to enable the public to bid and acquire such securities
("MainStreet Technology");
(c) at all times the Website and the MainStreet Technology will be in
optimal functional condition, including but not limited to sufficient
facilities to handle high use volume ("bandwidth") and to accept and
promptly facilitate the bidding process for BioQuest's security
offering posted on the Website, and the Website and MainStreet
Technology will at all times during the term of this agreement be
maintained by MainStreet; provided, MainStreet does not insure against
illegal or unauthorized site intrusion by person or persons unknown
whose purpose is to interfere with the providing of services to the
registered user;
(d) at all times the Website and the MainStreet Technology will be
monitored by Interactica Inc. to insure proper logging, load
balancing, demographic recording, data back-up, storage and emergency
response;
(e) the software has been properly developed and the Website and
MainStreet Technology is fit for the purpose for which it is intended
to be used;
(f) the execution, delivery and performance by MainStreet of this
Agreement and the consummation by it of the transactions contemplated
hereby will not conflict with or violate any existing provision of
law, rule or regulation, and such execution, delivery, performance and
consummation will not, with or without the giving of notice, the lapse
of time or both, conflict with or violate (A) any order, judgment or
decree applicable to MainStreet or binding upon its assets or
properties, (B) any provision of the by-laws or certificate of
incorporation of MainStreet, or (C) any agreement or other instrument
applicable to MainStreet or binding upon its assets or properties;
(g) it is the sole and exclusive owner of or otherwise has the right to
use and license all materials, methodologies and MainStreet Technology
used in connection with the Website, and the use and licensing of such
materials, methodologies and MainStreet Technology do not and will not
(A) breach, conflict with or constitute a default under any agreement
or other instrument applicable to MainStreet or binding upon its
assets or properties or (B) infringe upon any trademark, trade name,
service mark, patent, copyright or other proprietary right of any
other person or entity;
(h) the Website and the MainStreet Technology, as designed and as
hereafter may be modified for BioQuest, does not and will not violate
any federal, state or local law or regulation; neither MainStreet nor
the Website is the subject of any disciplinary proceeding; and
MainStreet will comply with all applicable federal, state and local
laws in the maintenance and rental of its Website and MainStreet
Technology;
(i) there is no pending or, to the best knowledge of MainStreet,
threatened claim, action or proceeding against MainStreet, except for
an informal inquiry by the Securities and Exchange Commission as to
possible broker-dealer registration requirements of MainStreet, which
has been disclosed to BioQuest , or any affiliate thereof, with
respect to the execution, delivery or consummation of this Agreement,
or with respect to the Website and the MainStreet Technology and their
respective contents and, to the best knowledge of MainStreet, there is
no basis for any such claim, action or proceeding; and
(j) it is, to the best of MainStreet's knowledge, in compliance with all
federal and state privacy laws, is a member in good standing of the On
Line Privacy Alliance, and shall adhere to the information gathering,
dissemination, privacy protection and other practices specified by
such organization.
3. Non-Assignability. Neither party may assign or delegate its rights and
obligations under this Agreement, except that MainStreet may use
independent contractors to provide technological support for the Website
and MainStreet Technology.
4. Procedures. BioQuest shall not do anything in contravention of the
procedures established by the MainStreet Technology regarding, among other
things, registration of subscribers, posting of prospectuses, the Dutch
Auction process, transfer agents or escrow agents, and shall adhere to the
terms and conditions of this Agreement unless otherwise required by the
Securities and Exchange Commission or the NASD pursuant to federal
securities laws or their Rules and Regulations or the various states' rules
and regulations where such offering is registered.
5. Term. The Term of this Agreement shall be for a sufficient period of time
to enable BioQuest to complete its offering but in no event to exceed two
hundred seventy (270) days after the effective date of BioQuest's
registration statement with the Securities and Exchange Commission. If
either party breaches the terms of this Agreement and fails to cure the
breach within thirty (30) days after written notice of such breach from the
other party (or if the cure cannot be completed in such thirty (30) day
period, the breaching party has failed to initiate a cure within such
thirty (30) day period and use diligence to complete the cure), the
non-breaching party may terminate this Agreement upon fifteen (15) days
written notice to the other party by regular mail or facsimile sent to the
address set forth above.
6. No Acquisition of License, Ownership or Rights. All systems and processes
developed by MainStreet and the MainStreet Technology shall be and remain
the exclusive property of MainStreet. All of the systems and related
business data and MainStreet Technology are Confidential Information,
except for that information which is generally available to the public, is
already or becomes available to BioQuest on a non-confidential basis, or
has been, is now, or later independently developed by BioQuest . BioQuest
understands and agrees that, notwithstanding this Agreement, it shall
acquire no other rights or licenses to any of the Confidential Information.
7. Consideration. In consideration for MainStreet leasing the Website to
BioQuest for a one time use which lease includes the Application Services,
MainStreet shall receive a fee consisting of $50,000 payable (i) $25,000
upon BioQuest's execution of this Agreement with the balance of $25,000 due
within ten (10) days after BioQuest ceases using the Website, and (ii)
warrants equal to one percent (1%) of the total shares of stock sold during
the direct public offering exercisable into the same number of shares of
BioQuest Common Stock at an exercise price of $1.00 per share. Said
warrants to expire five (5) years from the date of this Agreement. In the
event the BioQuest offering is unsuccessful for any reason, then the
compensation reflected by the warrants shall be adjusted as may be agreed
upon by the parties.
8. Indemnification. MainStreet agrees to indemnify and hold harmless BioQuest
and any person who controls BioQuest against any and all losses, claims,
damages or liabilities, joint or several, to which BioQuest or any
controlling person may become subject, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any technological failures of the Website and MainStreet
Technology, other than illegal or unauthorized site intrusion by person or
persons unknown whose purpose is to interfere with the providing of
services to the then registered user, provided such illegal or unauthorized
site intrusion is not due to the lack of proper security provided by or
other negligence of MainStreet or the MainStreet Technology. In no event,
shall MainStreet be liable for more than the fee paid by BioQuest, which
shall include the return of the warrants.
9. Sole Agreement. This Agreement, together with all exhibits and schedules,
constitutes the entire agreement of the parties with respect to the sale of
the Website by MainStreet.
10. Notices and Addresses. All notices or other communications given or made
under this Agreement shall be in writing and shall be (a) personally
delivered, (b) sent by certified mail, return receipt requested, postage
prepaid or by reputable overnight courier providing a receipt against
delivery, or (c) sent by telecopy or facsimile transmission, provided that
a copy thereof is concurrently delivered or sent in accordance with clause
(a) or (b) above. Such notices or other communications shall be delivered
or sent to:
to: MainStreet IPO.com Inc.
171 Church Lane
North Brunswick, NJ 08902
Attn: Joseph M. Salvani, Ch. of the Bd.
copy to: Richard J. Blumberg, Esq.
McLaughlin & Stern, LLP
260 Madison Avenue
New York, NY 10016
to: BioQuest International, Inc.
11271 Silverleaf Drive
Fairfax Station, Virginia 22039
Copy to: Carl Duncan, Esq.
C/o Duncan, Blum & Associates.
5718 Tanglewood Drive
Bethesda, Maryland 20817
Raymond J. Stewart, Esq.
1350 Eye Street, N.W.
Suite 200
Washington, D.C. 20005
or such other address as any party may specify in a notice delivered in
accordance with this Section 10.
11. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
12. Waiver. No waiver of any breach or condition of this Agreement shall be
effective unless in writing and signed by the party (s) sought to be
charged therewith, and a waiver in one instance shall not be deemed to be a
waiver of any other subsequent breach or condition, whether of like or
different nature.
13. Use of Certain Terms. Any definitions apply equally to both the singular
and the plural; any pronoun shall include the corresponding masculine,
feminine and neuter; the words "include" and "including" shall be deemed to
be followed by the phrase "without limitation"; and the terms "hereof" and
"herein" shall refer to the particular agreement or document in which such
term appears.
14. Captions. Article titles or captions contained in this Agreement are
inserted only as a matter of convenience and as reference and in no way
define, limit, extend or describe the scope of this Agreement or the intent
of any of the provisions hereof.
15. Counterparts. This Agreement may be executed in one or more counterparts
and each of such counterparts shall, for all purposes, be deemed to be an
original, but all of the counterparts shall constitute one and the same
instrument, and this Agreement shall be deemed effective on the date it is
executed by the parties hereto.
16. Binding. This Agreement and all of its provisions shall be binding on and
inure to the benefit of the successors of the parties. None of the
provisions of this Agreement is intended to be, nor shall the provisions
construed to be, for the benefit of any third party. Whenever in this
Agreement reference is made to a party, such reference shall be deemed to
include a reference to the legal representatives and successors of such
party.
17. Severability. If any of this Agreement or the applications thereof to any
person or party or circumstances shall be invalid or unenforceable to any
extent, the remainder of this Agreement and the application of such
provisions to other persons or parties or circumstances shall not be
affected thereby and shall be enforced to the greatest extent permitted by
law.
18. Additional Remedies. The rights and remedies of any party hereunder shall
not be mutually exclusive, i.e., the exercise of one or more of the
provisions hereof shall not preclude the exercise of any other provision
hereof. The respective rights and obligations hereunder shall be
enforceable by specific performance, injunction or other equitable remedy,
but nothing herein contained is intended to, nor shall it, limit or affect
any other rights in equity or any rights at law or by statute or otherwise.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above mentioned. MAINSTREETIPO.COM, INC.
By: /s/ Joseph M. Salvani
-------------------------
JOSEPH M. SALVANI, Chairman
of the Board, Chief Executive Officer
and President
BIOQUEST INTERNATIONAL, INC.
By: /s/Peter J. Ewens
---------------------
PETER J. EWENS, Chairman of the Board,
Chief Executive Officer and President
