EXHIBIT 10.1
AGREEMENT
This Agreement is made between Iulius Dutu, having an address at 8681
Viagiula, Xxxx Xxxxx, Xxxxxxx 00000 (hereinafter referred to as "Dutu") and
Sense Holdings, Inc., having a business address at 0000 XX 000 Xxx., Xxxxx 000,
Xxxxxxx, Xxxxxxx 00000 (hereinafter referred to as "Sense").
RECITALS
WHEREAS, Dutu is the sole owner of the invention disclosed and claimed in
U.S. Patent Application No. 09/982,056 (hereinafter referred to as the
"Patent");
WHEREAS, Dutu desires to sell the Patent;
WHEREAS, Sense desires to acquire the Patent;
NOW, THEREFORE, in consideration of the covenants contained herein, the
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. The above RECITALS are true and correct and form a part of this
Agreement.
2. In order for Sense to acquire all rights, title and interest to the
Patent from Dutu, Sense agrees to pay Dutu the amount of
$1,000,000.00, in one payment, to a bank account designated by Dutu.
The payments shall be free of any fees or restrictions and shall be
made in full prior to the expiration of the option period or extended
option period.
3. Sense is provided with a three-month option to raise at least the one
million dollars required to acquire the Patent from Dutu and Sense
will be required to make payment to Dutu of $10,000 a month under a
Consulting Agreement attached hereto as exhibit A. The option period
of three months can be extended for one additional three-month period,
upon the same terms of payment by Sense as the original three-month
option period (See Paragraph 5). Beyond the first additional three
month extension, one further three-month extension is permitted with
the additional requirement of timely payment by Sense of $20,000.00 a
month to Dutu. The total nine months of option periods remain open to
Sense as long as payments are timely made under the Agreement and
attached Consulting Agreement and no other violations of the Agreement
by Sense have occurred.
4. The first ten thousand dollar ($10,000.00) payment shall be due no
later than 10 calendar days from March 1, 2004 and shall be provided
under the terms of this Agreement and the Consulting Agreement. If
$10,000 in cash is not in the account by the 10th calendar day from
March 1, 2004, Sense shall make payment to Dutu by that day by hand
delivery of cash or certified check of the full amount required or
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this Agreement shall be deemed expired without any further notice.
This Agreement only becomes effective upon Sense fully satisfying its
first $10,000.00 payment requirement.
5. PRIOR TO THE BEGINNING OF EACH THREE MONTH OPTION PERIOD, SENSE SHALL
IRREVOCABLY PLACE IN AN ACCOUNT DESIGNATED BY DUTU ENOUGH SHARES OF
SENSE'S FREELY EXERCISABLE COMMON STOCK WHOSE VALUE AT THE DAY OF
PLACEMENT SHALL BE EQUAL TO THE TOTAL THREE MONTH PAYMENT REQUIREMENT
(E.G. EITHER $30,000.00 OR $60,000.00) FOR THE RELEVANT OPTION PERIOD
AND ALL FEES AND COSTS INCURRED OR TO BE INCURRED FOR TRADING THE
STOCK. THE SHARES OF STOCK SHALL BE FREELY TRADABLE BY DUTU, WITHOUT
LIMITATIONS OR HOLDINGS OF ANY KIND. IN THE EVENT, THAT AT THE TIME OF
SALE BY DUTU, THE VALUE OF THE SHARES DECREASES, SENSE AGREES TO
COMPENSATE DUTU FOR THE DIFFERENCE IN SALES PRICE AND THE REQUIRED
MONTHLY PAYMENT. IN THE EVENT, THE VALUE OF THE SHARES INCREASES, SUCH
INCREASE SHALL BE DEEMED ADDITIONAL COMPENSATION TO DUTU AND SHALL NOT
BE CREDITED AGAINST ANY FUTURE MONTHLY PAYMENTS OWED BY SENSE.
6. All responsibility for assuring that the three month period of shares
of stock is in Dutu's account on the date due shall be Sense's and
Dutu will not have to get involved in or responsible for contacting
any brokers and/or Sense for this requirement. Dutu shall be able to
access his account on the date due and find the required shares
available for his unrestricted use and trade. However, Dutu will
exercise all necessary documents to permit Sense to ensure that the
required 3-month amount of shares are in Dutu's designated account and
freely available to Dutu on the due date and thereafter. If the
required shares are not available on the due date, this Agreement
shall terminate, without further notice. All broker fees and expenses,
and other fees, costs and expenses shall be paid solely by Sense and
shall not be deducted from the required $10,000.00 or $20,000.00
payments.
7. Also during the option period or extended option period, Sense shall
be the exclusive sales agent on behalf of Dutu for the Patent for
finding third party companies or individuals to acquire the Patent
from Dutu. Dutu shall not be required to transfer any rights, title or
interest to the Patent under any conditions unless at the time of his
signing he also receives in his hand or designated bank account the
required one million dollars ($1,000,000.00) acquisition payment (with
no conditions or strings attached, including any waiting or clearance
period for the check or the ability to stop payment). Payment must be
from a reliable source (not subject to cancellation or stop payment)
such as an irrevocable wire transfer, etc. It is specifically agreed
to by Sense, that no matter how good a proposed deal with some third
party may be, Dutu will not be in violation with or under any
obligation of any part of the agreement with Sense, if he refuses to
consent to the deal and refuses to sign any agreement with a third
party, if the deal does not provide him full access and unencumbered
and unrestricted use of the required million dollar
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payment in his designated bank account (under a secured payment method
as noted above) at the time that he signs the third party agreement
and thereafter.
8. For any purchase of the Patent exceeding three million dollars,
whether at the time of purchase or based on a future payment to Sense
by a third party, Dutu shall receive ten (10%) of all money,
compensation or consideration, regardless of type, received over the
three million dollar threshold.
9. Sense guarantees to compensate Dutu in full by transferring any
monetary deficiency to Dutu up to one million dollars, within five (5)
days of notification, for any problem experienced by or inability of
Dutu in having full access to the required one million dollars
represented to be available to Dutu at the time that he signs the
third party agreement and thereafter.
10. If Sense acquires the Patent during the option period or extended
option period, then sense will be provided an additional six month
period to acquire the continuations of the Patent for the price of
$500,000, payable in full. The continuations are listed in Exhibit B
to this Agreement. All other inventions and technology developed or
currently being developed by Dutu or in the future are not considered
continuations and are not part of this Agreement.
11. During the option period or extended option period Sense shall have
absolutely no rights, title or interest in the Patent or any
confidential information of Dutu.
12. During the option period or extended option period Sense shall not be
involved in or perform any services regarding developing or
manufacturing prototypes for the Patent or any industrial engineering
related to the Patent.
13. During the option period or extended option period Dutu agrees to make
himself and his vehicle with the prototype available (with Sense
bearing all costs if out of town travel is required), within reason,
when requested by an interested third party. No other services will be
required of Dutu under the Agreement.
14. If the Patent is not acquired during the option period or extended
option period, Sense's exclusive sales agent status shall terminate
immediately without any notice by Dutu. Also, at the end of the option
period or extended option period Dutu shall have no obligations of any
kind to Sense for any services provided by Sense during the option
period or extended option period. However, for "substantial
contact(s)" made by Sense during the option periods and for 1 1/2years
thereafter, Dutu agrees not to directly contact any "substantial
contact" or instruct any representative to directly contact any
"substantial contact" on Dutu's behalf. For any "substantial contact"
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who directly contacts Dutu during the 1 1/2year period after the
option period expires, the parties will work together to conclude such
transaction which shall provide to Dutu the first million dollars and
the parties splitting 50/50 thereafter all compensation over the first
million dollars. Sense shall continuously provide to Dutu a list of
all substantial contacts, including contact persons and the type of
contact (e.g. telephone conference, negotiations, meetings, dates of
negotiations and meetings, etc.) A third party shall be deemed a
substantial contact only after in person meetings or negotiations have
occurred between Sense and the third party.
15. Sense agrees to compensate Dutu in full for any damage or encumbrances
cause to the Patent during the option period or extended option period
or for any violation of this Agreement.
16. The agreement between Sense and Dutu shall immediately terminate in
its entirety, without notice, in the event that any payment owed to
Dutu under any term of the agreement is not timely made by Sense by
the date due under the Agreement.
17. This Agreement constitutes the entire understanding and agreement of
and between the parties with respect to the subject matter and
supersedes all prior representations and agreements. This Agreement
shall not be modified or varied by any oral agreement or
representation or otherwise, except by an instrument in writing of
subsequent date hereto duly executed by the parties. The parties
acknowledge that the language used in this Agreement reflects their
mutual intent and that no term or provision shall be construed more or
less favorably to any party on the ground that it was authored by such
party. Failure of either party to insist upon strict performance and
any of the covenants, terms or conditions of this Agreement should not
be deemed to be a waiver of any breach or default in the performance
of the same or any other covenant, term or condition contained
therein.
18. This Agreement shall be governed by the laws of the State of Florida,
without regard to its conflict of interest laws. All disputes
hereunder shall be resolved in the applicable state or federal courts
of Broward County, Florida. The parties consent to the jurisdiction of
such courts, agree to accept service of process by mail, and waive any
jurisdictional or venue defenses otherwise available.
19. The prevailing party, in any action to enforce any of the terms of
this Agreement, shall be entitled to recover expenses, including
reasonable attorneys' fees and costs, from the other party.
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20. With respect to any part or provision of this Agreement as deemed by a
court to be unenforceable as written, but may be rendered enforceable
by limitation thereof, the parties hereto agree that such part or
provision shall be amended in such a manner so as to render it
enforceable to fullest permitted under the law of the jurisdiction
which enforcement is sought.
21. Neither party shall have the authority to make any statements,
representations, or commitments of any kind, or to take any action
which shall be binding on the other, except as provided for herein or
authorized in writing by the party to be bound. Sense is permitted to
make public the existence and contents of this Agreement only after
this Agreement becomes effective as referenced in Paragraph 4
22. The signature of either party's representative constitutes an express
representation that said representative has the authority to bind that
party to the terms of this Agreement and that the Agreement is a
binding obligation of that party, enforceable according to its terms.
IN WITNESS WHEREOF, Dutu and Sense have signed and executed this Agreement
deemed effective from March 1st, 2004. By their authorized representatives.
Iulius Dutu Sense Holdings, Inc.
By: /s/ Iulius Dutu By: /s/ Xxxx Xxxxx Perler
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Title: President
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Dated: March 1, 2004 Dated: March 1, 2004
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EXHIBIT A
CONSULTING SERVICE AGREEMENT
This agreement (" Consulting Agreement") made as of March 1st 2004 ,
shall memorialize and confirm our recent discussions relating to services to be
performed by Iulius Dutu ("CONSULTANT") which shall include the CONSULTANT
providing to SENSE HOLDINGS, INC. (SENSE) assistance in the promotion of
technology represented in a U.S. Patent by Dutu. Such assistance shall consist
of the following: (a) review of materials produced by SENSE to be used in the
promotion of the patented technology; (b) answering questions regarding the
technology from interested parties in meetings, written form or by telephone;
(c) participating in the making of video presentation of the patented
technology; (d) participating in strategic planning regarding the
commercialization of the patented technology; and, (e) demonstrating the
patented technology. The CONSULTANT is not required to work any amount of hours
at SENSE but will provide the assistance on a good faith basis as needed. SENSE
shall reimburse the CONSULTANT for any cost and expenses associated in his
performance hereunder. CONSULTANT shall be compensated for his services as
described in the Agreement, to which this Consulting Agreement is an Exhibit and
which is being executed simultaneously herewith.
Agreed to this 1st day of March, 2004.
/s/ Iulius Dutu /s/ Dore Perler
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Iulius Dutu, CONSULTANT Dore Perler, CEO, SENSE
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