Exhibit 10.6
Technology Purchase Agreement (H.G. "Xxxxx" Xxxxxxxxx)
TECHNOLOGY PURCHASE AGREEMENT
THIS INSTRUMENT, made and entered into as of the 21st day of May, 1999,
by and between H.G. "XXXXX' XXXXXXXXX, a resident of the State of Tennessee
("Xxxxxxxxx"); and AVALON-XXXXXX COMPANIES, INC. a Delaware corporation
("ABCO").
WITNESSETH THAT:
WHEREAS, Xxxxxxxxx owns certain technology more particularly described
in EXHIBIT "A" attached hereto and made a part hereto and made part hereof by
reference (herein the "Technology"); and
WHEREAS, ABCO desires to purchase the Technology from Xxxxxxxxx.
NOW THEREFORE, and in consideration of the mutual promises and
covenants herein, the receipt and sufficiency of which is hereby acknowledged,
the parties hereto do hereby agree as follows:
1. ASSIGNMENT
Xxxxxxxxx hereby assigns to ABCO, its successors and assigns, all
right, title and interest in the following property:
(i) The Technology;
(ii) All patents, patent applications, copyrights, personal
property, warranties, plans and specifications for the Technology, or
describing, depicting or outlining same in whole or in part, all tangible and
intangible property, contract and other rights and benefits related to the
Technology.
(iii) All "Technical Know-how" which shall mean all pertinent and
available technical know-how for using the Technology, including technical
drawings, software and source codes, data sheets, manuals, protocols and the
like referred to on EXHIBIT "A".
It is the intent of the parties that Xxxxxxxxx is assigning the ABCO,
all property and rights of any kind, whether real, personal, tangible or
intangible, which relates to or is necessary or useful in the Technology
referred to herein. If ABCO desires or finds it necessary to have an assignment
of any specific property or any supplemental assignment or transfer document,
Xxxxxxxxx agrees that promptly after written request he will execute such
supplemental assignment.
2. PURCHASE CONSIDERATION.
As consideration for the assignment of the Technology to ABCO,
Xxxxxxxxx shall receive Two million two hundred thirty-six thousand (2,236,000)
shares of the common stock of ABCO (the "Common Stock") evidenced by certificate
Number N/A for shares dated of even date herewith. The certificate(s)
representing the Common Stock shall bear the legend set forth below and any
other legend or legends are reasonably required by ABCO to comply with state,
federal or foreign law.
The securities represented by this certificate have not been registered
under the Federal Securities Act of 1933 (the "Securities Act") in
reliance upon the exemptions from registration contained in Section
4(2) of the Securities Act and have not been registered under any state
securities law, and neither these securities nor any interest therein
may be sold, transferred, assigned, pledged, hypothecated, or a
security interest otherwise granted therein, unless these securities
are registered under the securities Act and applicable state securities
acts or the Corporation has received an opinion of counsel (which
opinion and counsel are acceptable to the Corporation) that such
registration is not required.
3. There is no paragraph 3 in this Agreement.
4. REPRESENTATIONS
Xxxxxxxxx represents and warrants to ABCO that:
(a) The Technology and Xxxxxxxxx'x rights therein are subsisting and
have not been adjudged invalid or unenforceable, in whole or in part;
(b) Xxxxxxxxx is the sole and exclusive owner of the entire and
unencumbered right, title and interest in and to the Technology, free and clear
of any license, liens, charges and encumbrances, including without limitation
licenses, shop rights and covenants by Xxxxxxxxx not to xxx third persons.
(c) No dispute, right of setoff, counterclaim, or defenses exist with
respect to Xxxxxxxxx'x title to any part of the Technology;
(d) Xxxxxxxxx has the unrestricted right to assign the Technology to
ABCO and to enter into this Agreement;
(e) The Technology is free from any known defects and shall operate in
accordance with the description of the Technology, functional and performance
specifications and standards set forth in EXHIBIT "A";
(f) Xxxxxxxxx, in accepting the Common Stock hereunder, has relied upon
an independent investigation and has, prior to the date hereof, been given
access to and the opportunity to examine all such information about ABCO as he
has requested. Xxxxxxxxx will keep confidential all non-public information
regarding ABCO that Xxxxxxxxx receives from ABCO. In making his investment
decision to acquire the Common Stock Xxxxxxxxx is not relying on any oral or
written representations or assurances from ABCO or any other person or any
representation of ABCO or any other person other than as set forth in this
Agreement, public filings of ABCO or in a document executed by a duly authorized
representative of ABO making reference to this Agreement. Xxxxxxxxx has such
experience in business and financial matters that he is capable of evaluating
the risk of his investment and determining the suitability of his investment.
Xxxxxxxxx is a sophisticated investor, as defined in Rule 506(b)(2)(ii) of
Regulation D, and an accredited investor as defined in Rule 501 of Regulation X.
Xxxxxxxxx understands that no United States federal or state agency has passed
upon or made any recommendation or endorsement of ABCO, this transaction or the
subscription of the Common Stock. Xxxxxxxxx understands that the Common Stock
has not been registered under the Securities Act of 1933 (the "Act") and is
being offered and sold pursuant to an exemption from registration contained in
the Act based in part upon the representations of Xxxxxxxxx contained herein.
Xxxxxxxxx
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is acquiring the common stock for Xxxxxxxxx'x own account for investment and not
with a view to the distribution thereof. Xxxxxxxxx understands that Xxxxxxxxx
must bear the economic risk of this investment indefinitely unless the sale of
such common stock is registered pursuant of the act, or an exemption from such
registration is available, and that ABCO has no present intention of registering
any such sale of the common stock.Xxxxxxxxx represents and warrants to ABCO that
he has no present plan or intention of selling the common stock and has made no
predetermined arrangements to sell the common stock Thornnhill acknowledges the
Xxxxxxxxx has had the opportunity to review this agreement and the transactions
contemplated by this agreement with his own legal counsel. Xxxxxxxxx is relying
solely on such counsel and not on any statements of representations of ABCO or
any of its agents for legal advice with respect to this investment or the
transactions contemplated by this agreement.
5. COVENANTS
XXXXXXXXX COVENANTS AND AGREES:
(i) from time to time promptly, to execute and deliver to ABCO all
such other assignments certificates, supplemental documents, and financing
statements, and do all other acts or things, as ABCO may reasonably request in
order to more fully assign the technology to ABCO;
(ii) promptly to notify ABCO of any claim, action or proceeding which
could affect Xxxxxxxxx'x title to or materially and adversely af fect the value
of the Technology, or any part thereof, or the effectiveness of the Technology,
and at the request of ABCO, appear in and defend any such action or proceeding;
(iii) to do all things reasonably necessary or appropriate to enable
ABCO to fully exercise its rights under this agreement;
(iv) that ABCO shall have the right but in no way be obligated to
bring suit in its own name to enforce the technology and the assignment thereof
hereunder, in which event Xxxxxxxxx shall at the request of ABCO do any and all
lawful acts and execute any and all proper documents required by ABCO in aid of
such enforcement.
(v) that Xxxxxxxxx will not make any sale, transfer or other
disposition of the common stock in violation of the Act, the Securities Exchange
Act of 1934, as amended or the rules and regulations of the Securities and
Exchange commission promulgated thereunder.
(vi) In consideration of the purchase of the Technology provided for
in this Agreement, Xxxxxxxxx will preserve the confidentiality of the technology
and such improvements therein as he or ABCO shall make or develop, and Xxxxxxxxx
shall preserve and assign to ABCO such rights of copyright, inventorship,
authorship, or trade secret to be or ABCO may have or acquire in such
improvements.
6. There is no paragraph in this agreement.
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7. NOTICES
(a) All notices, request, demands and other communications under this
agreement or in connection therewith shall be given to or made upon respective
parties hereto as follows:
To Xxxxxxxxx: H.G. "Xxxxx" Xxxxxxxxx
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Fax: 000-000-0000
To ABCO: Avalon-Xxxxxx Companies, Inc.
Xxxxx 000
000 Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, XX 00000
Fax: 000-000-0000
(b) All notices, request, demands and other communications given or
made in accordance with the provisions of this agreement shall be made in
writing, and shall either be: (i) forwarded by reputable overnight courier
(e.g., FedEx) marked and billed or prepaid for next business day delivery to
the proper address listed above; or (ii) sent by facsimile to the number
identified above. Notice made by overnight courier shall be deemed to have been
given on the next business day after delivery to such courier as specified.
Notice given to facsimile shall be deemed to have been given when the
confirmation is received from the sender's fax machine to the fax number
specified in the preceding paragraph.
8 MISCELLANEOUS
(a) This Agreement shall be binding upon and inure to the benefit of
Xxxxxxxxx and ABCO and their respective legal representatives, successors,heirs,
and assigns.
(b) This Agreement shall be deemed to be a contract made under the laws
of the State of Alabama.
(c) If any provision of this Agreement is determined to be illegal or
invalid, then this agreement shall be construed as if such provision did not
appear herein, and the remaining provisions of this Agreement will continue in
full force and effect.
(d) This Agreement embodies all of the understandings and obligations
between the parties with respect to the subject matter hereof, superseding all
prior comunications, both oral and written. No amendment, modification,
extension or renewal of this Agreement shall be valid or binding upon the
parties unless made in writing, signed on behalf of each of the parties by its
proper officer thereunto duly authorized.
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IN WITNESS WHEREOF, ABCO and Xxxxxxxxx have executed this instrument as
of the date first written above.
/s/ H.G. "XXXXX" XXXXXXXXX
--------------------------------
H.G. "XXXXX" XXXXXXXXX
AVALON-XXXXXX COMPANIES, INC
By: /s/ DAS X. XXXXXX
----------------------------
Title: CEO
--------------------------
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EXHIBIT "A"
Any and all Technology,Technical Know-how, Patent Rights and Copyrights
relating in any way to band-width narrowing, digital and analog data transfer
and/or switching/routing, including but not limited to all of Xxxxxxxxx'x
technology designs, software and hardware designs and developments known as
ASWITCH, INSTORaM, Transmodulator, NU CPU, addressing MCCM (Bandwidth),
Xxxxxxxxx'x SET-TOP BOX and NCO (National Central Office) designs and
developments. This Purchase Agreement also expressly includes all of Xxxxxxxxx'x
rights, title and interest in patent #5,535,229, and any and all applications,
improvements or upgrades to the technology represented by patent # 5,535,229.
