EXHIBIT 10.6
STOCK EXCHANGE AGREEMENT
Whistler, Inc., a Delaware corporation with principal offices at ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ("Whistler") and ▇▇▇▇▇▇
A1vis, Sr., an individual with principal offices at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇"), enter into this Stock Exchange
Agreement ("Agreement") effective as of this day of November, 2001 and agree as
follows:
1. Background and Purpose.
1.1. ▇▇▇▇▇ the owner of record and beneficial owner of one hundred
thousand (100,000) shares of common stock (the "Shares") of 1-12-ERA, Inc., a
California corporation (the "Company").
1.2. ▇▇▇▇▇ desires to sell and Whistler desires to purchase the
Shares.
1.3 Concurrently with the execution of this Agreement, ▇▇▇▇▇, the
Company, Whistler, Anuvu Incorporated, a California corporation and certain
other individuals shall enter into a Settlement Agreement ("Settlement
Agreement") and an Assignment Agreement for assumption of the Cell Power! Anuvu
License and the Plugless Power Royalty ("Assignment Agreement").
1.4. The transactions under this' Agreement and the execution of the
Settlement Assignment Agreements are expressly conditioned upon each other.
2. Agreement to Purchase. ▇▇▇▇▇ hereby agrees to sell and Whistler hereby
agrees to purchase the Shares.
3. Closing. The closing of the purchase and sale of the Shares will occur
on or before November 16, 2001, or on such other date as the parties may agree,
which date, however determined, is designated the "Closing Date." At the
closing:
(a) ▇▇▇▇▇ shall deliver to Whistler the stock certificate evidencing
the Shares, duly endorsed for transfer or accompanied by stock powers duly
executed by ▇▇▇▇▇;
(b) Upon receipt of the stock certificate, Whistler shall deliver to
▇▇▇▇▇ 450,000 shares of section 144 treasury stock and 50,000 shares of common,
freely traded stock in Whistler;
(c) Resignations of all officers and directors of Company;
(d) Each party shall deliver to the other all other documents and
instruments reasonably necessary to carry out the terms and provisions of this
Agreement.
4. Representations, Warranties And Covenants. Whistler acknowledges,
represents, warrants and covenants as follows
4.1. Sophistication. Whistler is an accredited investor within the
meaning of Regulation D prescribed by the Securities and Exchange Commission
(the SEC") pursuant to the Securities Act of 1933, as amended (the "Act").
Whistler can afford to bear the economic risk of holding the Shares for an
indefinite period and it can afford to suffer the complete loss of its
investment in the Shares. Whistler's knowledge and experience in financial and
business matters is such that it is capable of evaluating the risks of the
investment in the Shares.
4.2. No Registration. Whistler understands that neither the offer nor
the sale of the Shares has been registered under the Act. Whistler understands
that the Shares must be held indefinitely unless the sale or other transfer
thereof is subsequently registered under the Act or an exemption `from such
registration is available. Whistler further understands that no documents (other
than as required by a state for a securities exemption from qualification or
registration) have been filed with or reviewed by any state securities
administrators.
4.3. Representation. Whistler has relied upon its own investigations
and the representations of the Company pursuant to the Settlement Agreement with
regard to this transaction. Accordingly, Whistler understands that Whistler must
rely solely on its own investigations and the representations of the Company
concerning its purchase of the Shares.
4.4. No Resale. The Shares are being acquired solely for Whistler's
own account for investment purposes only and not for the account of any other
person and not with a view to, or for resale in connection with, any
"distribution" thereof for purposes of the Act.
4.5. Authority. Whistler has all requisite power, authority and
capacity to execute, deliver and comply with the terms of this Agreement. The
execution and delivery of this Agreement and the purchase of the Shares have
been duly and validly authorized by the Board of Directors of Whistler. This
Agreement has been duly and validly executed and delivered by Whistler and,
assuming this Agreement has been duly and validly authorized, executed and
delivered by Shareholders, this Agreement constitutes a valid and binding
agreement of Whistler, enforceable against it in accordance with its terms.
5. Representations And Warranties By ▇▇▇▇▇. ▇▇▇▇▇ acknowledges
represents, warrants and covenants as follows:
5.1. Ownership of Shares. ▇▇▇▇▇ is the record holder and beneficial
owner of the Shares. The Shares comprise all of the outstanding Shares of the
Company. ▇▇▇▇▇ owns the Shares free and clear of all claims, charges, liens,
encumbrances, pledges, security agreements or rights of others of any nature,
description or kind whatsoever.
5.2. Authority. ▇▇▇▇▇ has the authority and legal capacity to enter
into this Agreement without obtaining approvals of any other party or person.
This Agreement has been duly and validly executed and delivered by ▇▇▇▇▇ and,
assuming this Agreement has been duly and validly authorized, executed and
delivered by Whistler, this Agreement constitutes a valid and binding agreement
of ▇▇▇▇▇, enforceable against him in accordance with its terms. Neither the
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execution and delivery of this Agreement nor the consummation by ▇▇▇▇▇ of the
transactions contemplated hereby will conflict with or constitute a violation of
or default under any contract. commitment, agreement, arrangement or restriction
of any kind to which ▇▇▇▇▇ is party or by which he is bound. ▇▇▇▇▇ are not a
party to, subject to or bound by any agreement or any judgment, order, writ,
prohibition, injunction or decree of any court or other governmental body which
would prevent the execution or delivery of this Agreement by ▇▇▇▇▇ or the
transfer, conveyance and sale of the Shares pursuant to the terms hereof.
5.3. Title to Shares. Upon consummation of the purchases contemplated
hereby, Whistler will acquire from ▇▇▇▇▇ good and marketable title to the
Shares, free and clear of all claims, charges, liens, encumbrances, pledges,
security agreements or rights of others of any nature, description or kind
whatsoever, except liens created by Whistler.
6. Conditions to C1osings. The obligations of the parties to sell and
purchase the Shares shall be subject to the fulfillment or waiver of the
following conditions:
(a) the Settlement Agreement shall have been executed and delivered by
the parties thereto; and
(b) all representations and warranties of the parties hereto contained
in this Agreement shall be true and correct when made and shall be true and
correct in all material respects at and as of the time of the closing with
respect to the Shares as if such representations and warranties were made at and
as of such closing date.
6.1. In addition, the obligation of Whistler to purchase the Shares
shall be subject to the fulfillment or waiver of the following conditions:
(a) Resignation of ▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇ as incorporator, or officer and
director of the Company.
7. Indemnification by Whistler. Whistler agrees to indemnify and hold
▇▇▇▇▇ and his agents and representatives harmless from and against all damages,
losses, costs and expenses (including attorneys' fees) which may incur by reason
of the failure of Whistler to fulfill any of the terms and conditions of this
Agreement, or by reason of any misrepresentation or breach of any
representation, warranty or covenant made by Whistler herein, or in any
document provided by Whistler to ▇▇▇▇▇ in connection with Whistler's purchase of
the Shares. Whistler further agrees that the provisions of this Section 7 shall
survive (i) the sale, transfer, or any attempted sale or transfer of all or a
portion of the Shares, and (ii) the dissolution of Whistler.
8. Indemnification By ▇▇▇▇▇. ▇▇▇▇▇ agrees to indemnify and hold Whistler,
its members and affiliates and their respective agents and representatives
harmless from and against all damages, losses, costs and expenses (including
attorneys' fees) which they may incur by reason of the failure of ▇▇▇▇▇ to
fulfill any of the terms and conditions of this Agreement, or by reason of any
misrepresentation or breach of any representation, warranty or covenant made by
▇▇▇▇▇ herein. ▇▇▇▇▇ further agrees that the provisions of this Section 8 shall
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SETTLEMENT AGREEMENT
AND MUTUAL GENERAL RELEASE
Anuvu Incorporated ("Anuvu"). a California corporation, Cell Power, Inc., a
New Hampshire Corporation ("Cell Power"), Whistler, Inc., a Delaware corporation
("Whistler"), H2 ERA, a California corporation ("112 ERA"), Plugless Power
Corp., a New Hampshire corporation ("PPC"), ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ("▇▇▇▇▇ ▇▇."),
▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇ ("▇▇▇▇▇ ▇▇."), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇.
▇▇▇▇▇ agree as follows:
1. Background and Purpose.
1.1. Cell Power. Cell Power was previously known as Next Level Power
Corp., a New Hampshire Corporation and changed its name to Cell Power on or
about October 31, 2000. All references in this Settlement Agreement and Mutual
General Release ("Agreement") include Next Level Power. Corporation.
1.2. Cell Power Agreements. Anuvu and Cell PoWer have entered into the
following three agreements (collectively "Cell Power Agreements") on the dates
specified:
(a) Licensing Agreement dated effective September i4, 2000;
(b) Exclusive Purchase and License Agreement for Fuel Cell
Production Facility dated effective January 15, 2001;
(c) Joint Venture Agreement for Anuvu/Cell Power, a New Hampshire
Joint Venture dated effective January 15, 2001.
1.3. Plugless Power, Anuvu bad also entered into a Royalty Agreement
dated effective September 14, 2000 (the "Royalty Agreement") with PPC. As
additional consideration for this Agreement, PPC has agreed to consent to Anuvu
assigning to Cell Power all of Anuvu's rights and obligations under the Royalty
Agreement and PPC shall release and hold Anuvu harmless from any claim against
Anuvu under the Royalty Agreement as further
1.4. Anuvu. Anuvu also entered into certain agreements with ▇▇▇▇▇, Sr.
under which ▇▇▇▇▇. Sr. has asserted a right to certain commissions, stock
options, reimbursement, compensation or loans (collectively, "CommIssions") for
assisting Anuvu.
1.5. Assignment of Cell Power Agreements and Royalty Agreement. Cell
Power and PPC have agreed to assign all right, title and interest in the Cell
Power Agreements and the Royalty Agreement to H2 ERA pursuant to the terms of
the Assignment of Contracts and Licenses dated November 16, 2002, in exchange
for the assumption by H2 ERA of all obligations therein.
1.6. Stock Exchange Agreement. ▇▇▇▇▇ has agreed to exchange all of the
shares of H2 ERA, following the Assignment, to Whistler in exchange for 500,000
shares of Whistler stock pursuant to the terms of the Stock Exchange Agreement
dated November 16, 2001 (the "Stock Exchange Agreement").
1.7. Disputes. Various differences and disputes have arisen between
Anuvu and Cell Power concerning the rights and responsibilities wider the Cell
Power Agreements and the Exclusive Purchase and License Agreement for the Fuel
Cell Production Facility ("Facility Agreement") dated January 2001, by and
between Anuvu and Cell Power. Various differences and disputes also have arisen
between ▇▇▇▇▇ ▇▇. and Anuvu and ▇▇▇▇▇ ▇▇. and ▇▇▇▇▇▇, ▇▇▇▇▇ and Cell Power
regarding the Commissions, regarding alleged breaches by ▇▇▇▇▇▇ and ▇▇▇▇▇ of
their agency duties to ▇▇▇▇▇, Sr. as majority owner of Cell Power (the "Agency
Disputes") and various other matters.
1.8. Settlement. Except as set forth above, each party disputes the
allegations made against him, her, or by any other party and denies that be,
she, or it has liability to any other party. The parties have agreed to settle
and release all disputes and claims which do or may exist between them, or may
exist in the future, arising out of the Cell Power Agreements, the Royally
Agreement, the Commissions, the Agency Disputes and the Facility Agreement, on
the terms and conditions set forth below.
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survive (i) the sale, transfer or any attempted sale or transfer of all or a
portion of the Shares, and (ii) the death of ▇▇▇▇▇.
9. Miscellaneous.
9.1 Notices. Notices required or permitted to be given hereunder shall
be in writing and shall be effective upon receipt and may be delivered by
telecopy, overnight delivery service, personal delivery or registered mail,
return receipt requested, addressed to the other party at the address of such
party set forth in this Agreement, as amended from time to time, or to such
other address furnished by notice given in accordance with this paragraph.
9.2 Termination. Each party agrees, that except as provided in this
Agreement, such party may not cancel, terminate or revoke this Agreement or any
agreement of such party made hereunder and that this Agreement shall survive the
dissolution of such party and shall be binding upon such party's heirs,
executors, administrators, successors and assigns, who shall execute a
substantially similar agreement.
9.3 Entire Agreement. This Agreement and the documents referred to
herein constitute the entire agreement among the parties hereto with respect to
the subject matter hereof.
9.4 Governing Law. This Agreement shall be enforced, governed and
construed in all respects in accordance with the laws of the State of California
without giving effect to conflicts of laws provisions. The parties hereby agree
that any suit, action or proceeding with respect to this Agreement, any
amendments or any replacements hereof, and any transactions relating hereto
shall be brought in the courts of, or the Federal courts in, the State of
California, County of Sacramento, and the undersigned hereby irrevocably consent
and submit to the jurisdiction of such courts for the purposes of any such suit,
action or proceeding. The undersigned hereby waive, and agree not to assert
against the other or any assignee thereof, by way of motion, as a defense, or
otherwise, in any such suit, action or proceeding, (a) any claim that the party
is not personally subject to the jurisdiction of the above-named courts or that
the party's property is exempt or immune from set off, execution or attachment,
either prior to judgment or in execution thereof, and (b) to the extent
permitted by applicable law, any claim that such suit, action or proceeding is
brought in an inconvenIent forum or that the venue of suit, action or proceeding
is improper or that this Agreement or any amendments or any replacements hereof
may not be enforced in or by such courts. Venue for such actions as set forth
above is intended to be exclusive.
9.5 Amendment and Waivers. Any term of this Agreement may be amended
and observance of any term of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively) when
evidenced by a writing executed by the parties hereto. Any amendment or waiver
effected in accordance with this paragraph shall be binding upon each party to
this Agreement.
9.6 Severability. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provision was so excluded and shall be enforceable in accordance with its terms.
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9.7 Legends. Whistler acknowledges that substantially the following'
legend will appear on the certificates representing the Shares:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND HAVE NOT BEEN
REGISTERED OR QUALIFIED UNDER THE SECURITIES LAWS OF ANY STATE, AND
ARE BEING OFFERED AND SOLD IN RELIANCE ON AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND SUCH LAWS. THE SHARES MAY NOT
BE SOLD, OFFERED FOR SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THESE
SECURITIES UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS, UNLESS
AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY IS PROVIDED TO THE
EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED PURSUANT TO AN AVAILABLE
EXEMPTION.
9.8 Successors and Assigns. Neither this Agreement nor any of the
rights or obligations hereunder may be assigned by either party without the
written consent of the other party except that Whistler may assign its
rights and obligations hereunder to an affiliate of Whistler. Subject to
the foregoing, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, permitted assigns, heirs, executors and
administrators of the parties hereto.
Whistler, Inc.
Signature on file
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▇▇▇▇▇▇ ▇▇▇▇▇
By:
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Title:
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