EXHIBIT 2.1
THIS TECHNOLOGY TRANSFER AGREEMENT IS ENTERED INTO AS OF JULY 13, 0000,
XXXXXXX XXXXXXXX, XXX., X XXXXXXXX XX XXXXXXXX CORPORATION (THE "BUYER") AND
TRYLON METRICS, INC., A LOUISIANA CORPORATION ("SELLER").
RECITALS
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WHEREAS, Eurotech, Ltd. ("Buyer" or "Company") is a development stage technology
transfer, holding and management company formed to commercialize new or existing
but previously unrecognized technologies.
WHEREAS, Trylon Metrics, Inc. ("Seller") is a remote sensing technology and
services company.
WHEREAS, Ocean Data Equipment Corporation (ODEC) is a Delaware corporation that
assigned certain rights to the Acoustic Core(TM) technology to Trylon pursuant
to an Asset Acquisition Agreement dated February 15, 2001, and that has
exclusive rights to manufacture all equipment (for source generation, signal
reception and proprietary processing) that Seller and Buyer will require to
deliver services based upon the Acoustic Core(TM) technology.
WHEREAS, ipPartners ("Consultant") is a consulting company and an affiliate of
Seller.
WHEREAS, Seller has certain exclusive rights to certain technologies (the
"Technologies) that are capable of in-situ remote sensing of toxic and nuclear
waste material and that are known as Electro-Magnetic Radiography (EMR(TM)) and
Acoustic Core(TM), as more fully described in Exhibit 1, attached hereto and
incorporated herein;
WHEREAS, Buyer wishes to acquire worldwide rights to the Technologies for
certain markets and retain certain key persons employed by Seller and Consultant
through its affiliates or subsidiaries for purposes of marketing and sales of
the technology; and
WHEREAS, the parties hereto will enter into separate agreements for consulting
services and any related transfer of stock, which agreements shall be
incorporated herein,
NOW, THEREFORE, based upon the consideration enumerated herein, IT IS AGREED AS
FOLLOWS:
AGREEMENT
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1. ASSIGNMENT. Seller hereby assigns to the Buyer exclusively throughout the
world all its right, title and interest (xxxxxx or inchoate) in (i) the
subject matter referred to and described more fully in Exhibit 1 ("the
Technologies"), including all patents, trademarks, copyrights and any
other intellectual property rights; (ii) all precursors, portions and work
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in progress with respect thereto and all inventions, works of authorship,
mask works, technology, information, know-how, materials and tools
relating thereto or to the development, support or maintenance thereof;
(iii) all improvements made by Seller in the technologies so described
pursuant to Section 4.3 of this Agreement; and (iv) all copyrights, patent
rights, trade secret rights, trademark rights, mask works rights, sui
generis database rights, and all other intellectual and industrial
property rights of any sort and all business, contract rights, causes of
action, and goodwill in, incorporated or embodied in, used to develop, or
related to any of the foregoing (collectively "Intellectual Property").
2. DOCUMENTATION.
2.1. Buyer shall have 90 days from the date of this Agreement to evaluate
the Technologies. This Agreement shall be null and void at the sole
discretion of Buyer if Buyer is not satisfied with the performance
of the Technologies, the analysis of the Technologies' actual and
projected valuation, or any other statement or representation made
by Seller about the performance, value or other characteristic of
the Technologies in the course of this transaction which would be
detrimental to Buyer if Buyer reasonably relied on said
representation.
2.2. Seller shall provide to Buyer all the necessary documentation,
including written documents, computer disks and programs, and all
other forms required by Buyer for the transfer of assets pursuant to
this Agreement. Said documentation shall be delivered to Buyer
within thirty (30) days of the effective date of this Agreement.
2.3. Pursuant to the requirements of Paragraph 8.4 of the "Common Stock
Purchase Agreement as of March 30, 2001 between Company and Xxxxxxxx
LLC, the Company will have obtained consent of Xxxxxxxx LLC to the
issuance of 2,500,000 shares under this Agreement, and will have
also obtained permission of the American Stock Exchange to issuance
of the shares.
3. CONSIDERATION.
3.1. In payment for the assignment of the rights set forth in Section 1,
the Buyer agrees to issue to Seller 2,500,000 fully paid and
non-assessable shares of restricted common stock of the Buyer as
described in Exhibit 3.1. This compensation shall be the only
consideration required of the Buyer with respect to the subject
matter of this Agreement other than the consulting agreement
described at Section 10. The Seller shall be responsible for all
costs incurred prior to the effective date of this Agreement. The
Buyer shall be responsible for all costs incurred in implementing
this Agreement after the effective date thereof. Issuance of the
above shares by Buyer is subject to the conditions set forth in
Section 2 (2.1, 2.2 and 2.3) of this Agreement.
3.2. This consideration is issued pursuant to the Representations and
Warranties of Seller attached hereto as Exhibit 3.2 and made a part
hereof.
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4. TERMS.
4.1. The transfer of the Technologies and Intellectual Property rights
described in Exhibit 1 shall be effective as of the date of this
Agreement.
4.2. The Agreement shall last for twenty (20) years or the life of the
longest-lasting patent, trademark or copyright transferred pursuant
to Exhibit 1, whichever is longer.
4.3. The Buyer shall have exclusive, worldwide rights, to the extent that
the Seller has such rights, in the following markets:
4.3.1. EMR: nuclear remediation sites;
4.3.2. Acoustic Core: Nuclear remediation sites; marine dredging
sites; and oil exploration sites.
4.4. The Buyer shall have the exclusive, worldwide rights, to the extent
that the Seller has such rights, in the markets listed at Section
4.3, to improvements made by Seller after the initial five year
period described in Section 1(iii) for successive five (5) year
terms through the life of this Agreement, at Buyer's sole option.
Seller shall document improvements yearly upon the anniversary date
of this Agreement or such other date as may be agreed upon by the
parties from time to time. This provision will renew automatically
at the conclusion of each five (5) year period unless Buyer provides
Seller with thirty (30) days written notice of its desire not to
invoke this provision.
4.5. The Buyer, to the extent it has such rights, assigns to the Seller
the exclusive right to sell, market, lease, license and otherwise
use the Technologies and Intellectual Property in those markets
other than the markets listed in Section 4.3, above.
5. FURTHER ASSURANCES; MORAL RIGHTS.
5.1. Seller agrees to assist the Buyer in every legal way to evidence,
record and perfect the Section 1 assignment and to apply for and
obtain recordation of and from time to time enforce, maintain, and
defend the assigned rights. If the Buyer is unable for any reason
whatsoever to secure the Seller's signature to any document it is
entitled to under this Section 3.1, Seller hereby irrevocably
designates and appoints the Buyer and its duly authorized officers
and agents, as its agents and attorneys-in-fact with full power of
substitution to act for and on its behalf and instead of Seller, to
execute and file any such document or documents and to do all other
lawfully permitted acts to further the purposes of the foregoing
with the same legal force and effect as if executed by Seller. Any
damages, settlements or other amounts recovered in any such
infringement or other action or proceeding shall be retained solely
by Buyer.
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5.2. To the extent allowed by law, Section 1 includes all rights of
paternity, integrity, disclosure and withdrawal and any other rights
that may be known as or referred to as "moral rights," "artist's
rights," "droit moral" or the like (collectively "Moral Rights"). To
the extent Seller retains any such Moral Rights under applicable
law, Seller hereby ratifies and consents to, and provides all
necessary ratifications and consents to, any action that may be
taken with respect to such Moral Rights by or authorized by Buyer
and Seller agrees not to assert any Moral Rights with respect
thereto. Seller will confirm any such ratifications, consents and
agreements from time to time as requested by Buyer.
6. CONFIDENTIAL INFORMATION. Seller will not use or disclose anything
assigned to the Buyer hereunder or any other technical or business
information or plans of the Buyer, except to the extent Seller (i) can
document that it is generally available (through no fault of Seller) for
use and disclosure by the public without any charge, license or
restriction, or (ii) Seller is specifically permitted to use or disclose
such information or plans pursuant to any other agreements by and between
Seller and Buyer entered into at the same time as or subsequent to this
Agreement. Seller recognizes and agrees that there is no adequate remedy
at law for a breach of this Section 4, that such a breach would
irreparably harm the Buyer and that the Buyer is entitled to equitable
relief (including, without limitations, injunctions) with respect to any
such breach or potential breach in addition to any other remedies.
7. WARRANTY. Seller represents and warrants to the Buyer that the Seller: (i)
was the sole owner of all rights, title and interest in the Intellectual
Property and the Technologies as described in Exhibit 1, (ii) has not
assigned, transferred, licensed, pledged or otherwise encumbered any
Intellectual Property or the Technologies or agreed to do so, (iii) has
full power and authority to make the assignment as provided in Section 1,
(iv) is not aware of any violation, infringement or misappropriation of
any third party's rights (or any claim thereof) by the Intellectual
Property or the Technologies, (v) was not acting within the scope of
employment by any third party when conceiving, creating or otherwise
performing any activity with respect to anything purportedly assigned in
Section 1, and (vi) is not aware of any questions or challenges with
respect to the patentability or validity of any claims of any existing
patents or patent applications relating to the Intellectual Property.
Seller further warrants that ODEC and ipPartners will, in their respective
dealings with Buyer, act in a fair and reasonable manner.
8. INDEMNIFICATION. Seller shall indemnify and hold Buyer, its subsidiaries,
affiliates and licensees, and the officers and directors of each, harmless
against any and all actions, suits, claims, demands, damages, liability
and costs and expenses whatsoever, including but not limited to attorney's
fees and expenses, which any of them may incur, suffer or become liable to
pay by reason of any claim, suit, or demand relating to any alleged
infringement of any patent or other proprietary rights of any third party
arising from Buyer's use and practice of the Technologies in a manner
consistent with the disclosure of the Technologies, provided that Seller
shall be promptly notified of any such action, suit, claim or demand.
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9. RIGHTS AND OBLIGATIONS IN THE EVENT OF INFRINGEMENT BY OTHERS. Buyer
shall, during the term of this Agreement, advise Seller as soon as
practicable after Buyer learns of any infringement of the Intellectual
Property or any other foreign or domestic Intellectual Property in the
name of Seller relating to the Technologies. Buyer, in its sole discretion
and at its own cost and expense, may prosecute and defend any action or
proceeding in its own name to protect the Intellectual Property, or any
other such rights granted to Seller or Buyer relating to the Technologies,
or other rights of Buyer hereunder, including but not limited to actions
or proceedings for infringement of such rights. If Buyer determines not to
proceed with any such action, it shall so inform Seller in writing and
Seller thereafter shall have the right to proceed or continue with such
action at Seller's cost and expense. Any damages, settlements or other
amounts recovered in any such infringement or other action or proceeding
shall be retained solely by Buyer, provided that any damages or other
amounts recovered in any action or proceeding initiated or continued by
Seller following Buyer's failure to initiate or continue such action or
proceeding shall belong solely and exclusively to Seller.
10. CONSULTING SERVICES BY ipPARTNERS.
10.1. The Seller, through its appointed designate, ipPartners, shall
provide consulting services to Buyer for sales and marketing of the
Technologies for a period of one (1) year from the date of this
Agreement pursuant to a Consulting Agreement ("Consulting
Agreement"), entered into between ipPartners and Buyer on July 13,
2001 (Attached hereto and made a part hereof as Exhibit 10.1).
Seller agrees to facilitate all activities involved in the promotion
of the sale of services associated with the use of the Technologies,
including marketing, proposal writing, and such other activities
which are designed to and have the effect of resulting in revenue to
Buyer.
10.2. In full payment for such consulting services, Buyer shall pay to
ipPartners , the sum of Twenty-five Thousand Dollars ($25,000),
payable in two equal installments of Twelve Thousand Five Hundred
Dollars ($12,500) each. The first installment of $12,500 shall be
due and payable upon signing of this Agreement. The second
installment shall be due and payable upon receipt of the
documentation of the Technologies pursuant to Section 2 . In payment
for such consulting services, Buyer shall issue to Seller 125,000
fully paid and non-assessable shares of restricted common stock of
Buyer as more fully set forth in the Consulting Agreement. At the
sole discretion of Buyer, payment may be made in cash equal to
$125,000 rather than in shares of common stock.
10.3. In the event that the Consulting Agreement is extended, Buyer shall
pay to Seller for each such year that the Seller provides consulting
services under the Consulting Agreement, 150,000 fully paid and
non-assessable shares of restricted common stock pursuant to the
terms of the Consulting Agreement or cash equal to $150,000 at the
sole discretion of Buyer.
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11. EVENTS OF DEFAULT. The occurrence of any one or more the following shall
be an "Event of Default" under this Agreement:
11.1. Failure by a party to pay any amount when due and payable that is
required to be paid by the terms of this Agreement, and such failure
continues for twenty (20) days after delivery of written notice from
the other party making demand for such payment.
11.2. Failure by a party to perform any covenant, condition, or agreement
required to be performed by it by the terms of this Agreement that
continues for a period of thirty (30) days after the required date
of performance, or such additional amount of time as may be
reasonable under the circumstances.
11.3. Any representation or warranty made by a party in this Agreement
proves to be incorrect or inaccurate to the material detriment of
the other party.
11.4. The institution by a party of proceedings to be adjudicated bankrupt
or insolvent, or the consent by it to the institution of bankruptcy
or insolvency proceedings against it, or the filing of a petition or
answer or consent seeking reorganization or relief under the federal
Bankruptcy Code or any other applicable federal or state law, or the
consent by it to the filing of such petition or to the appointment
of a receiver, liquidator, assignee, trustee, or similar official or
the making by it of an assignment for the benefit of creditors, or
the admission by it in writing of its inability to pay its debts
generally as they become due, or the taking of action by any of them
in furtherance of any such action. The foregoing notwithstanding, if
any such proceeding is dismissed within ninety (90) days, such
proceedings shall not create a default under this Agreement.
11.5. Any default by a party under any other agreement between Buyer and
Seller, or their affiliates, which is not cured within the cure
period, if any specified therein.
12. REMEDIES ON DEFAULT.
12.1. In addition to any other remedy provided at law or equity, the Buyer
shall have the right, upon written notice to the Seller, to
terminate this Agreement upon any Event of Default by Seller.
12.2. In addition to any other right or remedy available at law or in
equity under this Agreement, upon any Event of Default by Seller,
Buyer shall be entitled to the remedy of specific performance with
respect to the obligations of Seller hereunder in recognition of the
inadequacy of monetary damages, other than the duty of Seller under
Section 10 to provide Consulting Services to Buyer.
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12.3. In the event of default by Seller, Buyer shall have the right to use
the Technology on a non-exclusive basis.
12.4. In the event of a breach by Seller of its duty to provide consulting
service to Buyer as set forth in Section 10 and a failure by Seller
to cure such breach within thirty (30) days after notice thereof by
Buyer, Buyer shall be entitled to reimbursement of the entire cost
of Buyer's arranging for and obtaining equivalent consulting
services from another source, up to One Hundred Eighty Thousand
Dollars ($180,000), which amount shall be regarded as liquidated
damages for Seller's breach. This amount may be set-off against
compensation due Seller in the event that Buyer owes Seller
compensation under the Consulting Agreement. Seller and Buyer agree
that Buyer's actual damages in the event of such breach would be
difficult to establish and that the liquidated damages stated above
are a reasonable estimate of Buyer's actual damages.
13. MISCELLANEOUS
13.1. ASSIGNMENT. This Agreement is assignable or transferable by either
party without the prior consent of the other party, so long as the
assignee agrees to the terms of this Agreement.
13.2. NOTICE. Any notice, report, approval or consent required or
permitted hereunder shall be in writing and will be deemed to have
been duly given if delivered personally or mailed by first-class,
registered or certified U.S. mail, postage prepaid to the respective
addresses of the parties as set forth below (or such other address
as a party may designate by ten (10) days notice).
13.3. LACK OF WAIVER. No failure to exercise, and no delay in exercising,
on the part of either party, any privilege, any power or any rights
hereunder will operate as a waiver thereof, nor will any single or
partial exercise of any right or power hereunder preclude further
exercise of any other right hereunder.
13.4. SEVERABILITY. If any provision of this Agreement shall be adjudged
by any court of competent jurisdiction to be unenforceable or
invalid, that provision shall be limited or eliminated to the
minimum extent necessary so that this Agreement shall otherwise
remain in full force and effect and enforceable.
13.5. GOVERNING LAW. This Agreement shall be deemed to have been made in,
and shall be construed pursuant to the laws of the District of
Columbia and the United States without regard to conflicts of laws
provisions thereof.
13.6. FEES AND COSTS. The prevailing party in any action to enforce this
Agreement shall be entitled to recover costs and expenses including,
without limitation, attorneys' fees.
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13.7. CONFIDENTIALITY. The terms of this Agreement are confidential to the
Buyer and no press release or other written or oral disclosure of
any nature regarding the compensation terms of this Agreement shall
be made by Seller without the Buyer's prior written approval;
however, approval for such disclosure shall be deemed given to the
extent such disclosure is required to comply with governmental
rules.
13.8. WAIVERS AND AMENDMENTS. Any waivers or amendments shall be effective
only if made in writing and signed by a representative of the
respective parties authorized to bind the parties. Both parties
agree that this Agreement is the complete and exclusive statement of
the mutual understanding of the parties and supersedes and cancels
all previous written and oral agreements and communications relating
to the subject matter of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year
first indicated above.
Eurotech, Ltd.: Trylon Metrics, Inc.:
By: /s/ Don V. Hahfeldt By: /s/ Xxxxxx Xxxxxx
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Name: Xxx X. Xxxxxxxxx Name: Xxxxxx Xxxxxx
Title: President and CEO Title: President
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EXHIBIT 1
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DESCRIPTION OF TECHNOLOGIES
AND RIGHTS TRANSFERRED
ELECTROMAGNETIC RADIOGRAPHY (EMR(TM))
1. DEFINITIONS:
a. ELECTROMAGNETIC RADIOGRAPHY (EMR(TM)) is defined, for the purposes of
this Agreement, as the proprietary methods, processes and interpretations
of utilizing Ground Penetration Radar (aka Surface Impulse Radar)
supplemented by proprietary secondary methods, which are also considered
to be part of the assets purchased hereunder. Secondary methods include
but are not limited to (1) Electromagnetic (Inductive Ground Conductivity
Measurement; Time Domain Electromagnetic Profiling; Transient or
Continuous Method Induction Measurement), (2) Induced Polarization (both
time-domain and frequency-domain formats), (3) Direct-Current Methods
(Resistivity Profiling; Resistivity Depth-Sounding) and (4) VLF Methods.
b. NUCLEAR REMEDIATION SITES, for the purpose of this Agreement, shall
mean any man-made site, either underground or above ground, or combination
thereof, which is or is suspected of containing any radioactive element(s)
or radioactive isotopes thereof, regardless of whether or not the site
contains any non-radioactive chemical contamination.
2. SCOPE OF ASSETS TRANSFERRED: The EMR(TM) assets being transferred pursuant
to this Agreement consist of (1) all intellectual property, whether
patented, pending or potentially patentable which comprises
Electromagnetic Radiography as defined above and which has been applied or
can be applied to Nuclear Remediation Sites or potential sites; (2) the
exclusive, worldwide rights to own, market, sell, lease, rent or otherwise
transfer and utilize such EMR(TM) for any and all applications which
involve Nuclear Remediation Sites or potential sites.
ACOUSTIC CORE TECHNOLOGY
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1. DEFINITION: Acoustic Core(TM) is defined for the purposes of this
Agreement as the proprietary methods, processes and interpretations for
utilizing transmitted energy and associated reflected signals to determine
constituent component signatures which lead to characterization and
quantitative measurements of such. These processes are intellectual
property which is embodied in signal processing algorithms and analysis
procedures defined in certain patents and associated filings described
below as "Acoustic Core Assets."
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2. SCOPE OF ASSETS TRANSFERRED: The Acoustic Core(TM)assets being transferred
pursuant to this Agreement consist of (1) all intellectual property for an
Acoustic Detection Apparatus, defined under and associated with U.S.
Patent 4,922,467, Canadian Patent 1,299,727 and Japanese Patent 2,030,623
and all present and future improvements for the time period set out in
this Agreement, and (2) all intellectual property defined under and
associated with an "Improved Material Classification Apparatus and
Method", submitted to the U.S. Patent and Trademark Office by Ocean Data
Equipment Corporation (ODEC), which is, as of this closing, under review.
Asset rights shall include any patent rights or improvements thereunder
granted by the U.S. Patent and Trademark Office which may include
acoustic, optical and/or electromagnetic sources.
The asset rights transferred to Eurotech by this Agreement are
irrevocable, exclusive, and worldwide for the following applications:
nuclear remediation; environmental; material detection and/or
determination, and seismic/geophysical/geotechnical.
The Buyer shall have exclusive right to the Acoustic Core(TM) assets in
the following market categories: Nuclear Remediation Sites (as defined
above); marine dredging sites (inland and ocean), and oil exploration
sites. The Seller shall have the right to use the Acoustic Core(TM) assets
in all other markets.
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EXHIBIT 3.1
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CONSIDERATION AND
REGISTRATION RIGHTS
Seller shall pay to Buyer 2,500,000 restricted shares of common stock, par
value $.00025 (the "Shares") as follows:
a. For Nuclear Remediation marketplace: 1,200,000 shares
b. For marine dredging marketplace: 500,000 shares
c. For oil exploration marketplace: 800,000 shares
The Buyer agrees to register said shares with the Securities and
Exchange Commission (SEC) for sale by Seller with the next Registration
Statement filed by the Buyer, so long as such registration and sale does not
cause the Buyer to violate the terms and conditions upon which it is registered
on any stock exchange and is otherwise a valid exercise of authority by the
Board of Directors of Buyer.
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EXHIBIT 3.2
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REPRESENTATIONS AND WARRANTIES OF TRYLON METRICS, INC.(THE "SELLER") IN
CONNECTION WITH THE ISSUANCE BY EUROTECH, LTD. ("BUYER") OF 2,500,000 RESTRICTED
SHARES OF ITS COMMON STOCK (THE "SHARES") TO THE SELLER AS PAYMENT FOR THE
ASSIGNMENT OF CERTAIN TECHNOLOGY AS MORE FULLY SET FORTH IN THE TECHNOLOGY
TRANSFER AGREEMENT AND ITS RELATED DOCUMENTS (THE "TRANSACTION DOCUMENTS")
BETWEEN THE SELLER AND THE BUYER.
1. REPRESENTATIONS AND WARRANTIES OF THE SELLER. To induce the Buyer's
acceptance of this agreement, the Seller hereby certifies, represents and
warrants to Buyer and its agents and attorneys as follows:
1.1. INTENT. Seller will be acquiring the Shares for its own account, and
Seller has no present arrangement (whether or not legally binding)
to sell any of the Shares to or through any person or entity. Seller
understands that the Shares must be held indefinitely unless the
Shares are subsequently registered under the Securities Act . Seller
has been advised of or is aware of the provisions of Rule 144
promulgated under the Securities Act of 1933 (the "Securities Act").
1.2. SOPHISTICATED INVESTOR. Seller is an "accredited investor" (as
defined in Rule 501(a) of Regulation D), and Seller has such
knowledge and experience in business and financial matters that it
is capable of evaluating the merits and risks of an investment in
the Buyer.
1.3. ABILITY OF SELLER TO BEAR RISK OF INVESTMENT. Seller acknowledges
that the Shares are speculative investments and involve a high
degree of risk and Seller is able to bear the economic risk of an
investment in the Shares, and, at the present time, is able to
afford a complete loss of such investment.
1.4. AUTHORITY. Each of the Transaction Documents has been duly
authorized and validly executed and delivered by Seller and
(assuming due authorization and valid execution by the Buyer) is a
legal, valid and binding agreement of Seller enforceable against
Seller in accordance with its terms, subject to general principles
of equity and to bankruptcy, insolvency or similar laws relating to,
or affecting generally the enforcement of creditors' rights and
remedies or by other equitable principles of general application.
The person or persons executing the Transaction Documents have all
requisite authority to do so on behalf of Seller.
1.5. BROKERS, FINDERS. Seller has taken no action which would give rise
to any claim by any person for brokerage commission, finder's fees
or similar payments by the Buyer relating to this agreement or the
transactions contemplated hereby. The Buyer shall have no obligation
with respect to such fees or with respect to any claims made by or
on behalf of other persons for fees of a type contemplated in this
section that may be due in connection with the transactions
contemplated hereby. Seller shall indemnify and hold harmless the
Buyer, its employees, officers, directors, agents and partners, and
their respective affiliates, from and against all claims, losses,
damages, costs (including the costs of preparation and attorneys'
fees) and expenses suffered in respect of any such claimed or
existing fees, as and when incurred.
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1.6. ORGANIZATION; AUTHORITY. Seller is an entity organized, validly
existing and in good standing under the laws of the jurisdiction of
its organization with the requisite power and authority to enter
into and to consummate the transactions contemplated by this
agreement and to carry out its obligations hereunder. The
acquisition of the Shares has been duly authorized by all necessary
action on the part of Seller.
1.7. ABSENCE OF CONFLICTS. The execution and delivery of each of the
Transaction Documents, and the consummation of the transactions
contemplated by this agreement and such other documents and
instruments, and compliance with the requirements thereof, will not
violate any law, rule, regulation, order, writ, judgment,
injunction, decree or award binding on Seller, or the provision of
any indenture, instrument or agreement to which Seller is a party or
is subject, or by which Seller or any of its assets is bound, or
conflict with or constitute a material default thereunder, or
require the approval of any third-party pursuant to any material
contract, agreement, instrument, relationship or legal obligation to
which Seller is subject or to which any of its assets, operations or
management may be subject.
1.8. DISCLOSURE; ACCESS TO INFORMATION. Seller has received copies of or
has had access to all documents, records, books and other
information pertaining to Seller's investment in the Buyer and the
Shares that have been requested by Seller. Seller or its
representative has been afforded the opportunity to ask questions of
the Buyer and its management. Seller further acknowledges that it
understands that the Buyer is subject to the periodic reporting
requirements of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and Seller has reviewed or received copies of any
such reports that it has requested.
1.9. MANNER OF SALE. At no time was Seller presented with or solicited by
or through any leaflet, public promotional meeting, television
advertisement or any other form of general solicitation or
advertising with respect to the Shares.
1.10. ACCURACY OF REPRESENTATIONS AND INFORMATION. All representations
made by Seller in the Transaction Documents, and all information
provided by Seller to the Buyer concerning Seller, including the
information in the recitals, are correct and complete in all
material respects as of the date hereof.
2. REPRESENTATIONS AND WARRANTIES OF THE BUYER. The Buyer hereby represents
and warrants to Seller as follows, which representations and warranties
are solely for the benefit of Seller:
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2.1. BUYER STATUS. The Buyer has registered its common stock pursuant to
Section 12(g) of the Securities Exchange Act of 1934 (the "Exchange
Act") and its common stock currently trades on the American Stock
Exchange.
2.2. CURRENT PUBLIC INFORMATION. The Buyer has furnished or made
available to Buyer true and correct copies of all registration
statements, reports and documents filed with the SEC by or with
respect to the Buyer since December 31, 1998 and prior to the date
of this Agreement, pursuant to the Securities Act or the Exchange
Act (collectively, the "SEC Documents"). The SEC Documents are the
only filings made by or with respect to the Company since December
31, 1998 pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act or pursuant to the Securities Act. The Company has
filed all reports, schedules, forms, statements and other documents
required to be filed under Sections 13(a), 14 and 15(d) of the
Exchange Act since December 31, 1998 and prior to the date of this
Agreement.
2.3. NO GENERAL SOLICITATION. Neither the Buyer nor any of its
affiliates, nor any person acting on its or their behalf, has
engaged in any form of general solicitation or general advertising
(within the meaning of Regulation D under the Securities Act) in
connection with the offer or sale of the Share.
2.4. ORGANIZATION AND QUALIFICATION. The Buyer is a corporation duly
incorporated and existing in good standing under the laws of the
District of Columbia, and has the requisite corporate power to own
its properties and to carry on its business as now being conducted.
The Company is duly qualified as a foreign corporation to do
business and is in good standing in every jurisdiction in which the
nature of the business conducted or property owned by it makes such
qualification necessary, other than those in which the failure so to
qualify would not have a Material Adverse Effect. "Material Adverse
Effect" means any effect on the business, operations, properties,
prospects, or financial condition of the entity or entities with
respect to which such term is used and which is material and adverse
to such entity or to other entities controlling or controlled by
such entity, and/or any condition or situation which would prohibit
or otherwise interfere with the ability of the entity or entities
with respect to which said term is used to enter into and perform
its obligations under the Transaction Documents.
2.5. AUTHORIZATION: ENFORCEMENT. (i) The Buyer has the requisite
corporate power and authority to enter into and perform under the
Transaction Documents and to issue the Shares in accordance with the
terms of the Transaction Documents, (ii) the execution, issuance and
delivery of the Transaction Documents by the Buyer and the
consummation by it of the transactions contemplated by the
Transaction Documents have been duly authorized by all necessary
corporate action (iii) the Transaction Documents have been duly
executed and delivered by the Buyer and (iv) the Transaction
Documents (assuming due authorization and valid and legal execution
by Seller) constitute legal, valid and binding obligations of the
Buyer enforceable against the Buyer in accordance with their terms,
except as such enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws relating to, or affecting
generally the enforcement of, creditors' rights and remedies or by
other equitable principles of general application.
14
2.6. RESTRICTED SHARES. Seller understands and acknowledges that the
Shares have not been, and will not as of the time issued, be
registered under the Securities Act and that they will be issued in
reliance upon exemptions from the registration requirements of the
Securities Act, and thus cannot be resold unless they are included
in an effective registration statement filed under the Securities
Act or unless an exemption from registration is available for such
resale. With regard to the restrictions on resales of the Shares for
which a Registration Statement is not effective, Seller is aware:
(a) that the Buyer will issue stop transfer orders to its stock
transfer agent in the event of attempts to improperly transfer any
such Shares, and (b) that a restrictive legend will be placed on
certificates representing the Shares, which legend will read
substantially as follows:
2.6.1. THE SHARES REPRESENTED BY THIS CERTICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933. THE SHARES HAVE
BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SHARES UNDER THE SECURITIES ACT
OF 1933, OR A PRIOR OPINION OF COUNSEL SATISFACTORY TO THE
ISSUER, THAT REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES
ACT OF 1933.
2.6.2. The legend set forth above shall be promptly removed, and the
Buyer shall issue a certificate without such legend to the
holder of any such unlegended Shares upon which such legend is
stamped, if, unless otherwise required by state securities
laws, (i) such Shares are registered for resale under the
Securities Act, (ii) in connection with a sale transaction,
such holder provides the Buyer with an opinion of counsel, in
a generally acceptable form, to the effect that a public sale,
assignment or transfer of such Shares may be made without
registration under the Securities Act, or (iii) such holder
provides the Buyer with reasonable assurances that such Shares
can be sold pursuant to Rule 144 promulgated under the
Securities Act without any restriction as to the number of
securities acquired as of a particular date that can then be
immediately sold. Notwithstanding the removal of the legend
set forth above in the event the Shares are registered for
resale on an effective registration statement, the Buyer
reserves the right to affix a legend on certificates
representing such Shares that any selling shareholder must
comply with the prospectus delivery requirements of the
Securities Act in connection with any resale.
15
EXHIBIT 10.1
------------
CONSULTING AGREEMENT
(SEE ATTACHED)
16
CONSULTING AGREEMENT
--------------------
THIS AGREEMENT IS ENTERED INTO AS OF JULY 13, 0000, XXXXXXX XXXXXXXX, XXX., X
XXXXXXXX XX XXXXXXXX CORPORATION (THE "COMPANY"), TRYLON METRICS, INC., A
LOUISIANA CORPORATION, (TRYLON) AND ipPARTNERS (THE "CONSULTANT").
RECITALS
--------
WHEREAS, the Company has entered into a technology transfer agreement
("Technology Agreement") dated July 13, 2001, with Trylon;
WHEREAS, pursuant to the Technology Agreement, Trylon agrees to provide certain
consulting services to the Company through Trylon's affiliate ipPartners
("Consultant");
WHEREAS, Consultant has expertise in the area of the Company's business and is
willing and free to provide consulting services to the Company;
WHEREAS, pursuant to a certain Asset Acquisition Agreement entered into on
February 15, 2001, between Trylon and Ocean Data Equipment Corporation (ODEC),
Consultant will refer work to Trylon and to ODEC based on the contracts
Consultant generates on behalf of the Company;
AGREEMENT
---------
In consideration of the mutual covenants herein contained and of the mutual
benefits herein provided, the Company and the Consultant agree as follows:
1) CONSULTING SERVICES
a) The Company hereby retains the services of the Consultant to render
such consulting services as the Company may require in connection
with marketing of the EMR(TM) and Acoustic Core(TM) technologies
(the "Technologies") acquired pursuant to the Technology Agreement.
b) The Consultant agrees to perform strategic marketing activities to
increase the visibility of the Technologies to customers; such
marketing activities include but are not limited to development of
site specific proposals, meetings with potential customers, and
development of web site and marketing literature. The Consultant and
the Company estimate that Consultant's marketing activities will
require a minimum of 120 hours per month.
c) The Consultant agrees to perform technical oversight for field work
and data processing, and develop pricing proposals for projects,
over and above the activities described above. The Consultant and
the Company estimate that Consultant's oversight and pricing
activities will require approximately 20 hours per month.
17
d) The Consultant and Trylon agree that the stated financial goal is
for contracts between the Company and Trylon and/or ODEC to be
fashioned in such a manner as to guarantee a 50% gross profit margin
to the Company. Pursuant to the agreement between Trylon and ODEC,
ODEC retains exclusive rights to manufacture sensors, install and
support equipment and process field data. Trylon warrants the
performance by ODEC of said goods and services, and guarantees to
Company that such goods and services will be priced to provide the
Company with the aforesaid target of 50% gross profit margin on all
its sales to the customer end user. In the event that ODEC fails to
perform its responsibilities or does not price its goods and
services to meet the stated profit margin targets, the Company shall
have the right, at its sole discretion, to purchase such goods and
services from a n alternate supplier of its own choice. The
Consultant shall indemnify and hold the Company, its subsidiaries,
affiliates and licensees, and the officers and directors of each,
harmless against any and all actions, suits, claims, demands,
damages, liability and costs and expenses whatsoever, including but
not limited to attorney's fees and expenses, which any of them may
incur, suffer or become liable to pay by reason of any claim, suit,
or demand relating to any termination by the Company of the services
of ODEC.
e) The Consultant and Company agree that Xxxxxx Xxxxxx shall be the
individual responsible for the services hereunder, and that he may
at his discretion delegate such services to such other employees of
the Consultant, so long as he retains ultimate responsibility for
the performance of the obligations of this Agreement, and so long as
the Company is informed prior to the delegation and provides its
consent, which shall not be unreasonably withheld.
f) The Consultant hereby accepts such retention on the terms and
conditions herein set forth and agrees to use his best efforts to
perform the above-described services for or at the request of the
Company at such times and to such extent as the Company shall deem
reasonably necessary or appropriate.
2) TERM. The Term of this Agreement shall be for a period of one (1) year
commencing on July 13, 2001, renewable annually for up to five (5) years
at the option of the Company. Company may terminate this Agreement at any
time for cause.
3) COMPENSATION. In full consideration of the services rendered and to be
rendered by Consultant to the Company hereunder, the Company shall pay to
the Consultant and the Consultant shall accept the consideration set forth
herein:
a) the sum of Twenty-five Thousand Dollars ($25,000), payable in two
equal installments of Twelve Thousand Five Hundred Dollars ($12,500)
each. The first installment of $12,500 shall be due and payable upon
signing of this agreement. The second installment shall be due and
payable upon receipt of the documentation of the Technologies
pursuant to Section 2 of this Agreement
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b) In addition, Buyer shall issue to Seller 125,000 restricted shares of
common stock, par value $.00025 (the "Shares") with the same rights of
Registration as set forth at Exhibit 3.1 of the Technology Agreement,
which Exhibit is incorporated herein and made a part hereof as if it
were attached to this Consulting Agreement. The Company retains right
to pay compensation in cash rather than in stock.
c) In the event that the Consulting Agreement is extended, Buyer shall pay
to Seller for each such year that the Seller provides consulting
services under the Consulting Agreement, 150,000 restricted shares of
common stock, par value $.00025, under the same terms as described
above. The Company retains right to pay compensation in cash rather in
stock
d) The Consultant agrees that it will cover all of its own expenses for
travel, telephone, per diem and other miscellaneous out-of-pocket costs
and will not be reimbursed by the Company for these expenses. The
Company agrees to reimburse the Consultant for extraordinary costs to
be pre-approved by the Company.
4) COMPANY'S OBLIGATIONS. The Company shall make available to the Consultant
all information concerning the business, technologies, assets, operations
and financial condition of the Company which the Consultant reasonably
requests in connection with the performance of its obligations hereunder.
The Consultant may rely on the accuracy of all such information without
independent verification.
5) CONSULTANT'S OBLIGATIONS. In connection with Consultant's services
rendered hereunder, Consultant agrees to abide by all federal, state, and
local laws, ordinances and regulations, to include all applicable Federal
Acquisition Regulations or Agency Regulations required by the resultant
prime contract, including required certifications related to Procurement
Integrity and Organizational Conflicts of Interest.
6) CONSULTANT'S BUSINESS ACTIVITIES. During the term of this Agreement,
Consultant will engage in no business or other activities, which are or
may be, directly or indirectly, competitive with the business activities
of the Company without obtaining the prior written consent of the Company.
Consultant shall devote such time, attention and energy to the business
and affairs of the Company as requested by the Company, and in any event
no less than the amount of time specified in Sections 1(b) and 1(c) above.
Consultant shall keep and periodically provide to the Company a written
log describing the work activities and hours of Consultant.
19
7) INTERFERENCE WITH THE COMPANY'S BUSINESS.
a) Notwithstanding any other provision of this Agreement, during the
term of this Agreement and for a period of one year after
termination of this Agreement, Consultant shall not, directly or
indirectly, employ, solicit for employment, or advise or recommend
to any other person that such other person employ or solicit for
employment, any person employed or under contract (whether as a
consultant, employee or otherwise) by or to the Company, during the
period of such person's association with the Company and one year
thereafter.
b) Notwithstanding any other provision of this Agreement, and to the
fullest extent permitted by law, during the term of this Agreement
and for a period of one year after termination of this Agreement,
Consultant shall not, directly or indirectly, solicit any clients or
customers of the Company. Consultant agrees that such solicitation
would necessarily involve disclosure or use of confidential
information in breach of the Confidential Information and Invention
Assignment Agreement.
c) The subparagraphs 7(a) and 7(b) exclude the government agencies with
whom the Consultant conducts or will conduct business unrelated to
the Company's business, where the Consultant will not discuss
proprietary information of the Company.
8) REPRESENTATIONS AND WARRANTIES. Consultant represents and warrants (i)
that Consultant has no obligations, legal or otherwise, inconsistent with
the terms of this Agreement or with Consultant's undertaking this
relationship with the Company, (ii) that the performance of the services
called for by this Agreement do not and will not violate any applicable
law, rule or regulation or any proprietary or other right of any third
party, (iii) that Consultant will not use in the performance of his
responsibilities under this Agreement any confidential information or
trade secrets of any other person or entity and (iv) that Consultant has
not entered into or will enter into any agreement (whether oral or
written) in conflict with this Agreement.
9) CONFIDENTIALITY. The Consultant agrees to maintain in the strictest
confidence all such information provided to it by the Company provided
that such information is first identified by the Company as confidential
information. The obligation to maintain the confidentiality of all
information Consultant receives from the Company in the course of
performing this Agreement shall survive termination of this Agreement for
any reason.
10) INDEPENDENT CONTRACTOR. The Company retains the Consultant only for the
purposes and to the extent set forth in this Agreement, and its
relationship is that of an Independent Contractor. The Company shall not
control the manner and means by which the Consultant conducts its work or
achieves its results.
a) NO AGENCY. Consultant has no authority to act for the Company as its
agent or make commitments for the Company.
b) WORK FOR HIRE. All work product that is developed by the Consultant
under this Agreement shall be deemed owned and assigned to Company.
20
c) TAXES. Consultant agrees to pay all appropriate local, state and
federal taxes.
11) SEVERABILITY. If any term, provision, covenant or condition of this
Agreement, or the application thereof to any person, place or
circumstance, shall be held by a court of competent jurisdiction to be
invalid, unenforceable or void, the remainder of this Agreement and such
term, provision, covenant or condition as applied to other persons, places
and circumstances shall remain in full force and effect.
12) RIGHTS CUMULATIVE. The rights and remedies provided by this Agreement are
cumulative, and the exercise of any right or remedy by either party hereto
(or by its successors), whether pursuant to this Agreement, to any other
agreement, or to law, shall not preclude or waive its right to exercise
any or all other rights and remedies.
13) COMPLETE AGREEMENT. This Agreement contains the entire understanding and
agreement between the parties hereto with respect to its subject matter
and supersedes any prior or contemporaneous written or oral agreements,
representations or warranties between them respecting the subject matter
hereof.
14) NONWAIVER. No failure or neglect of either party hereto in any instance to
exercise any right, power or privilege hereunder or under law shall
constitute a waiver of any other right, power or privilege or of the same
right, power or privilege in any other instance. All waivers by either
party hereto must be contained in a written instrument signed by the party
to be charged and, in the case of the Company, by an executive officer of
the Company or other person duly authorized by the Company.
15) BREACH BY CONSULTANT. In the event of a breach by Consultant of its duty
to provide consulting services and a failure by Consultant to cure such
breach within thirty (30) days after notice thereof by Company, this
Agreement shall be deemed terminated, and Company shall be entitled to
reimbursement of the entire cost of Company's arranging for and obtaining
equivalent consulting services from another source, up to One Hundred
Eighty Thousand Dollars ($180,000), which amount shall be regarded as
liquidated damages for Consultant's breach. This amount may be set-off
against compensation due Consultant in the event that Company owes
Consultant compensation under this Agreement. Consultant and Company agree
that Company's actual damages in the event of such breach would be
difficult to establish and that the liquidated damages stated above are a
reasonable estimate of Company's actual damages.
16) AGREEMENT TO PERFORM NECESSARY ACTS. Consultant agrees to perform specific
acts and execute and deliver any documents that may be reasonably
necessary to carry out the provisions of this Agreement.
17) GOVERNING LAW. This Agreement shall be governed by and construed under the
laws of the District of Columbia.
21
18) MODIFICATION. This Agreement may be amended or modified only by a written
agreement signed by the parties.
IN WITNESS WHEREOF, the Company and the Consultant have executed this Agreement
as of the date first written above.
Eurotech, Ltd.: Consultant:
By: /s/ Xxx X. Xxxxxxxxx By: /s/ Xxxxxx Xxxxxx
-------------------------------- ---------------------------
Name: Xxx X. Xxxxxxxxx Name: Xxxxxx Xxxxxx
Title: President and CEO Title: President
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