EXHIBIT 10.27.9
TECHNOLOGY DEVELOPMENT AGREEMENT
This Technology Development Agreement (the "Agreement"), dated July
24th, 2002, is by and among Eurotech, Ltd. ("Eurotech"), a District of Columbia
corporation with offices located at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and ipPartners, Inc. (the "Consultant") with a mailing address
of: ▇.▇. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇. Eurotech and the Consultant
hereafter shall be referred to as the "Parties."
WHEREAS, Eurotech is a technology transfer, holding and management
company formed to commercialize new or existing but previously unrecognized
technologies; and
WHEREAS, ipPartners is a technology consulting company and ▇▇▇▇▇▇
▇▇▇▇▇▇ ("▇▇▇▇▇▇") is affiliated with the Consultant; and
WHEREAS, the Consultant has the capability to provide product
development, business development, marketing, business administrative, research
and development oversight, research and development services and the Consultant
is willing to provide these services to Eurotech based upon its capability; and
WHEREAS, Eurotech desires to have these services provided by the
Consultant; and
WHEREAS, in the performance of the services by the Consultant and its
directors, officers, employees, consultants and agents, the Consultant and its
directors, officers, employees, consultants and agents will be exposed to
certain confidential and proprietary information and trade secrets regarding
Eurotech.
Now, therefore, in consideration of the premises and the mutual
covenants, terms and conditions set forth in this Agreement, the Parties hereto,
intending to be legally bound, hereby agree as follows:
1. PRIOR AGREEMENTS. This Agreement supersedes the original
agreement between Trylon Metrics, Inc., the Consultant and Eurotech regarding
APTISTM Integrated Metal and Explosives Screening Portal Product Development
Agreement, dated March 14, 2002 (the "AIMES Agreement"), which shall be of no
further force or effect.
2. SCOPE OF WORK. The Consultant shall perform services with
respect to two development projects, the APTISTM project and the Hand Held
project described below (collectively the "Projects"). The first project, the
APTISTM Integrated Metal and Explosives Screening Portal Project (the "APTIS
Project"), is currently in progress and a description of the work to be
performed is detailed in the proposal titled "APTISTM Integrated
Explosives/Metal Detection Portal, Non-Intrusive Human Inspection". Also
included in the first APTIS Project is The Integrated Explosives Metal Detection
Portal Proposal, dated March 9, 2002. The second project relates to the
development of a hand held, portable APTIS Integrated Metal and Explosives
Screening Device (the "Hand Held Project"). The work to be performed by the
Consultant is described in the proposal to be titled "Hand Held, Portable
Explosives Screening Device. A copy of the scope of work related to the APTIS
Project and the Hand Held Project are attached hereto as Schedule 2.0 and
incorporated herein.
3. PERFORMANCE OF SERVICES. All services of the Consultant
pursuant to the terms and conditions of this Agreement, shall be provided under
the direction, and to the satisfaction, of the Chief Executive Officer of
Eurotech or his designee. All services provided by the Consultant, shall be
conducted under the supervision of ▇▇▇▇▇▇ ▇▇▇▇▇▇. The manner in which the
services are to be performed shall be determined by both the Chief Executive
Officer of Eurotech or his designee and by ▇▇▇▇▇▇, on behalf of the Consultant.
Eurotech shall rely on the Consultant to work as many hours as may be reasonably
necessary to fulfill the obligations under this Agreement provided, however,
that time is of the essence with regard to this Agreement and that the
Consultant is responsible to deliver the deliverables for the Projects in a
timely manner. The Consultant shall track and record all time spent in
connection with the execution of its obligations herein.
4. REPORTS / INSPECTION. The Consultant shall keep detailed
written records of the Projects' development and related research and
development and marketing services performed in sufficient detail to permit
Eurotech to establish the status of the Projects at any time. In addition, the
Consultant shall provide Eurotech, at a minimum, with monthly written progress
reports signed by the Consultant. These reports shall detail all activities
performed during the prior month for each of the Projects and shall include the
present status of each of the Projects. Eurotech, or its designees, shall have
the right, at any time, to review and inspect the progress of the Projects at
the office of the Consultant during normal business hours. Further, Eurotech may
talk directly to the employees or consultants of the Consultant who are
authorized to work on the Projects at any time regarding the status of the
Projects or any other related matter.
5. CONFIDENTIALITY. The Consultant shall keep all information
regarding the Projects strictly confidential and shall not disclose the nature
or status of the Projects to any person, firm, corporation, partnership,
association or other entity, without the written consent of Eurotech. During the
Project's development, the Consultant may be exposed to confidential information
regarding the business, operations and technology of Eurotech. The Consultant
shall not disclose, during the term of this Agreement (which includes the
completion of APTISTM Project and the Hand Held Project) and for a period of
three (3) years thereafter, such confidential information, secrets, information
or processes to any person, firm, corporation, partnership, association or other
entity for any reason or purpose whatsoever, nor shall the Consultant make use
of any such secrets, information or processes for the Consultant's own benefit
or the benefit of any of their other affiliates or clients.
6. INTELLECTUAL PROPERTY. All Intellectual Property Rights
relating to the Projects are solely owned by Eurotech. All of the development
activities relating to the Projects are being conducted by the Consultant for
the sole benefit of Eurotech, including, without limiting the forgoing, all
prototypes and associated technologies developed and the rights to manufacture,
market and sell APTISTM and the Hand Held. Any inventions, improvements,
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discoveries, processes, programs or systems related to the Projects developed or
discovered by Consultant, during the term of this Agreement, shall be promptly
disclosed by the Consultant to Eurotech and shall be the sole and absolute
property of Eurotech. Upon the request of Eurotech, the Consultant shall execute
and deliver such assignments, certificates or any other documents as Eurotech
may consider necessary or appropriate to properly vest all rights, title and
interest to any such invention or discovery in Eurotech.
7. RELATIONSHIP BETWEEN THE PARTIES. The Consultant is
providing services to Eurotech only for the purposes and to the extent set forth
in this Agreement and as may be set forth in any of the other agreements
identified in Section 1 above. The relationship amongst the Parties is that of
an independent contractor. Nothing contained herein shall be construed to regard
the parties as partners or joint venturers. The Consultant is solely responsible
for the payment of all taxes, income or otherwise, by reason of this engagement
as an independent contractor by Eurotech.
8. CERTAIN MARKETING ACTIVITIES. The Consultant shall assist
Eurotech in the marketing and sale of the technology relating to the Projects
and for any equipment developed under the terms of this Agreement.
9. COMPENSATION. Eurotech shall pay the Consultant for the
services in connection with the Projects as set forth on the payment schedule
below. All payments of cash and common stock set forth in the schedule below are
for the benefit of the Consultant.
Compensation for the past development services provided by the Consultant
associated with the Project is the issuance to Consultant of four million
(4,000,0000) shares of Eurotech common stock (the "Shares"). It is agreed by the
parties hereto that 2,000,000 of the Shares shall be subject to certain Escrow
Agreement subject to those forfeiture provisions contained in Section 12 herein.
In addition, upon the execution of this Agreement and in consideration of the
work previously provided by the Consultant prior to the execution of this
Agreement, Eurotech shall reduce the strike price of all warrants previously
issued to the Consultant, or its designee, to $0.50 per common share. The
warrant is otherwise subject to all previous governing terms and conditions.
Eurotech agrees to register the Shares with the Securities and Exchange
Commission ("SEC") for sale by the Consultant at its expense. If Eurotech is
unsuccessful (based upon factors outside of its control) at causing the
registration of these shares by October 15, 2002, then the Parties shall
negotiate a good faith substitute for the Shares. The issuance of these Shares
is contingent upon regulatory approval of the American Stock Exchange (the
"AMEX") and the consent of ▇▇▇▇▇▇▇▇ LLC ("▇▇▇▇▇▇▇▇") and ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Ltd.
("J&K") to the issuance. Eurotech will use its best efforts to obtain approvals
from AMEX, ▇▇▇▇▇▇▇▇ and J&K promptly after the execution of this Agreement.
All Shares issued to the Consultant shall be subject to the terms and conditions
of this Agreement and each Consultant hereby makes the following representations
and warranties to Eurotech:
(a) The Consultant has made an investigation of Eurotech and its business,
and has been given access to all information that they believe is
material to a decision to accept partial compensation for services
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hereunder in the form of Eurotech common stock hereunder, including
Eurotech's Annual Report on Form 10-K for the fiscal year ended
December 31, 2001 as well as all Quarterly Reports on Form 10-Q and all
other reports filed pursuant to Section 13 of the Securities Exchange
Act of 1934, as amended.
(b) The Consultant has such knowledge and experience in financial and
business matters and sophistication as an investor that they are
capable of evaluating the merits and risks of accepting partial
compensation for services hereunder in the form of Eurotech common
stock.
(c) The common stock issued for compensation for past services hereunder
will be acquired for the Consultants own account for investment, with
no present intention of dividing such participation with others or
reselling the common stock, and not with a view toward resale or
distribution in a manner which would require registration under the
Securities Act of 1933, as amended (the "1933 Act) or any applicable
state securities laws (the "Blue Sky Laws").
(d) The Consultant understands that the common stock has not been
registered under either the 1933 Act or the Blue Sky Laws and,
therefore, cannot be resold or otherwise transferred unless they are
registered under the 1933 Act and the applicable Blue Sky Laws or
unless an exemption from such registration is available, in which event
the undersigned might still be limited as to the amount of the common
stock that may be sold.
(e) The Consultant understands that any certificates representing the
common stock will be imprinted with a conspicuous legend in
substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED OR QUALIFIED UNDER FEDERAL OR STATE
SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED, SOLD,
PLEDGED, OR OTHERWISE TRANSFERRED UNLESS SO REGISTERED OR
QUALIFIED OR UNLESS AN EXEMPTION EXISTS, THE AVAILABILITY
OF WHICH IS TO BE ESTABLISHED BY AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY.
(f) The Consultant represents that the information contained herein is
complete and accurate and may be relied upon by Eurotech, and its
officers, directors, and agents.
10. Intentionally omitted.
11. EVENTS OF DEFAULT. The occurrence of any one or more of
the following shall be an "Event of Default" under this Agreement:
(a) 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 thirty (30) days after delivery of written
notice from the other Party making demand for such payment.
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(b) 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 fifteen (15) days after the required
date of performance, and such failure continues for thirty (30)
days after the delivery of written notice from the other Party
specifying the failure to perform any covenant, condition or
agreement.
(c) 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.
(d) 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.
(e) Any default by the Consultant (or any one Consultant) under the
ipP Consulting Agreement or any other agreement between Eurotech
and the Consultant, or their affiliates, and such default
continues for thirty (30) days after the delivery of written
notice from Eurotech specifying the failure to perform any such
covenant, condition or agreement.
12. REMEDIES ON DEFAULT. In addition to any other remedy
provided at law or equity, Eurotech shall have the right, upon written notice to
the Consultant, to terminate any part of this Agreement upon any Event of
Default by the Consultant. In addition to any other right or remedy available at
law or in equity under this Agreement, upon any Event of Default by the
Consultant, Eurotech shall be entitled to the remedy of specific performance
with respect to the obligations of the Consultant hereunder in recognition of
the inadequacy of monetary damages, other than the duty of the Consultant to
provide services to Eurotech.
In addition to all other remedies available to Eurotech, the issuance of the
Shares is subject to forfeiture by the Consultant under certain conditions. If
by October 15, 2002, the Consultant has not completed the prototype assemblies
and demonstrated to the satisfaction of Eurotech the device's capabilities to
acquire acoustic data for testing of the APTIS Project then seven hundred fifty
thousand (750,000) of the Shares are forfeited. If by January 15, 2003, the
Consultant has not completed the prototype assemblies and demonstrated to the
satisfaction of Eurotech the device's capabilities to acquire acoustic data for
testing of the Hand Held Project then seven hundred fifty thousand (750,000) of
the Shares are forfeited. On January 15, 2003, if the Consultant has not
completed and demonstrated to the satisfaction of Eurotech the prototype of the
APTIS Project then two hundred fifty thousand (250,000) of the Shares are
forfeited. On March 15, 2003, if the Consultants have not completed and
demonstrated the prototype of the Hand Held device then two hundred fifty
thousand (250,000) shares are forfeited. The parties agree that the two million
(2,000,000) of the Shares issued to the Consultant shall be held pursuant to the
terms of a mutually acceptable escrow agreement.
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13. EXPENSES. The Consultant shall be responsible to pay all
its expenses associated with this Agreement, except for the following: Eurotech
will reimburse the Consultant the aggregate sum of twenty thousand dollars
($20,000) to cover reasonable and necessary expenses associated with negotiating
and signing this Agreement. This payment shall be made on August 1, 2002.
Eurotech shall bear its own expenses in connection with the negotiation and
execution of this Agreement.
14. PATENTS. Eurotech and the Consultant recognizes that the
results of the Consultant's research and development on behalf of Eurotech may
result in development of technologies and or processes suitable for patent
protection. The Consultant recognizes that patent filing and maintenance
expenses can be costly and that Eurotech may decide not to pursue patent
protection opting instead for trade secrecy. The Consultant shall not engage in
nor initiate any patent activities directly or indirectly without express
written authorization from the Chief Executive Officer of Eurotech or his
designee. Attached to this Agreement as Schedule 14 is a complete and accurate
list of all patent applications under development, patent applications filed or
any patent issued to the Consultant which relate, directly or indirectly, to any
services previously provided by the Consultant to Eurotech. Eurotech may request
the assignment to it, for no additional consideration and without any royalty,
any or all of these patent applications and/or patents issued and the
consultants shall execute any and all documents (however characterized or
described) deemed necessary or advisable to vest full right, title and ownership
of these patent applications and/or patents, including all associated know-how
and confidential information, to Eurotech. The Consultant shall promptly forward
to Eurotech all correspondence, office actions or other notices received from
any patent office with regard to any of these patent applications made by the
Consultant or patents issued to the Consultant.
15. TERM. The term of this Agreement shall be from the date of
execution of this Agreement until June 30, 2003.
16. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
CONSULTANT.
The Consultant hereby represents, warrants and covenants to Eurotech, as
follows:
(a) The Consultant, directly or indirectly, shall not act as a consultant
for or receives any remuneration from (whether cash, services, debt,
securities, including options, warrants, etc.) any entity or person
which is an actual or potential competitor of Eurotech or with a
company engaged in a similar business to that engaged in or under
active funded development by Eurotech; and
(b) that the appointment of the Consultant by Eurotech will not result in
the violation of the terms and provisions of any agreement entered into
by the Consultant or result in any actual or potential conflict of
interest with any other client, employer or affiliate of the
Consultants; and
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(c) that, as a condition of the appointment as a consultant to Eurotech,
the Consultant shall not accept, during the term of this Agreement, any
other consulting arrangement with an actual or potential competitor of
Eurotech or with a company engaged in a similar business to that
engaged in or under active funded development by Eurotech. The
Consultant shall inform Eurotech in writing forthwith upon the
happening of any event which may be construed to be in violation of
this provision or which may represent a conflict of interest between
the services provided by the Consultant to Eurotech and any other
entity or person; and
(d) that patent applications filed or any patent issued to the Consultant
which relate, directly or indirectly, to any services previously
provided by the Consultant to Eurotech; and
(e) that technical data, records, specifications, processes, formulas,
trade secrets, designs and other associated technical information,
equipment schematics, or associated information which relate, directly
or indirectly, to any services previously provided by the Consultant to
Eurotech.
17. EMPLOYEES. The Consultant's employees, consultants,
agents, or advisors, if any, who perform services for Eurotech, under this
Agreement, shall be bound by the provisions of this Agreement. At the request of
Eurotech, the Consultant shall provide adequate evidence that such persons are
employees.
18. INDEMNIFICATION. The Consultant shall indemnify and hold
Eurotech harmless, on a joint and several basis, from all claims, losses,
expenses, fees as incurred including attorney fees, costs and judgments that may
be asserted against the Consultant that result from the acts or omissions of the
Consultant, the Consultant's employees, if any, and their agents or advisors.
19. ASSIGNMENT OF AGREEMENT. The Consultant may not assign or
otherwise transfer this Agreement or any of its rights or obligations hereunder
without the prior written consent to such assignment or transfer by the
Eurotech. Any attempted assignment without written consent by Eurotech shall be
void and without force or affect at the option of Eurotech. Eurotech may assign
or otherwise transfer this Agreement or any of its rights or obligations
hereunder without the prior written consent to such assignment or transfer by
the Consultant. All the provisions of this Agreement shall be binding upon the
respective employees, delegates, successors, heirs and permitted assignees of
the parties.
20. NON-COMPETE AGREEMENT. Recognizing that the various items
of Information are special and unique assets of Eurotech that need to be
protected from disclosure, and in consideration of the disclosure of the
Information, the Consultant agrees and covenants that for the term of this
Agreement and for a period of three (3) years following successful completion of
the Project, the Consultants will not directly or indirectly engage in any
business that is or may be deemed to be competitive with Eurotech. This covenant
shall apply to a worldwide geographical area. Directly or indirectly engaging in
any competitive business includes, but is not limited to, (i) engaging in a
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business as owner, partner, or agent, (ii) any employee becoming an employee of
a third party that is engaged in such business, or (iii) becoming interested
directly or indirectly in any such business, or (iv) soliciting any customer of
Eurotech for the benefit of a third party that is engaged in such business. The
Consultant agrees that this non-compete provision will not adversely affect the
livelihood of the Consultant and that such restriction is fair and reasonable
given the totality of the circumstances related to this Agreement.
21. RETURN OF RECORDS AND EQUIPMENT. Within thirty (30) days
of termination of this Agreement, the Consultant shall deliver all records,
know-how, notes, technical data, memoranda, models, log books, contact lists and
equipment of any nature that are in the Consultant's possession or under the
Consultant's control and that are Eurotech's property or relate to Eurotech's
business. The obligation in this section is in addition to the Consultant's
obligation to return all confidential information as specified herein.
22. NOTICES. All notices required or permitted under this
Agreement shall be in writing and shall be deemed delivered when delivered in
person or deposited in the United States mail, postage prepaid, addressed as
follows:
If for Eurotech:
Eurotech, Ltd.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Attn: President
With a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Solomon ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, N.Y. 10005
If for the Consultant:
IpPartners, Inc.
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Such address may be changed, from time to time, by either party by providing
written notice to the other party in the manner set forth above.
23. ENTIRE AGREEMENT. This Agreement contains the entire
Agreement of the parties and there are no other promises or conditions in any
other Agreement whether written or oral. This Agreement supersedes and/or amends
any prior written or oral agreements between the parties as set forth in this
Agreement.
24. AMENDMENT. This Agreement may be modified or amended only
if the amendment is made in writing and signed by both parties.
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25. SEVERABILITY. If any provision of this Agreement shall be
held to be invalid or unenforceable for any reason, the remaining provisions
shall continue to be valid and enforceable. If a court finds that any provision
of this Agreement is invalid or unenforceable, but that by limiting such
provision it would become valid and enforceable, then such provision shall be
deemed to be written, construed, and enforced as so limited.
26. WAIVER OF CONTRACTUAL RIGHT. The failure of either party
to enforce any provision of this Agreement shall not be construed as a waiver or
limitation of that party's right to subsequently enforce and compel strict
compliance with every provision of this Agreement.
27. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS.
This Agreement and the representations, warranties, covenants and other
agreements (however characterized or described) by the Parties hereto and
contained herein or made pursuant to the provisions hereof shall survive the
execution and delivery of this Agreement and any inspection or investigation
made at any time with respect to any aspect thereof until any and all monies,
payments, obligations and liabilities which either party hereto shall have made,
incurred or become liable for pursuant to the terms of this Agreement shall have
been paid in full. Sections 4, 5, 6, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20
and 21 shall remain in full force and effect regardless of any termination or
cancellation of this Agreement for a period of not less than three (3) years
from the date of any termination of this Agreement.
28. FURTHER INSTRUMENTS. The parties shall execute and deliver
any and all other instruments and shall take any and all other actions as may be
reasonably necessary to carry the intent of this Agreement into full force and
effect.
29. COMPLIANCE WITH LAWS AND REGULATIONS. Each party hereto
agrees to comply, and to do all things reasonably necessary for the other
parties to comply, with all applicable national, local and foreign laws, orders,
regulations and ordinances, including, but not limited to, regulations relating
to the export of products that may be imposed on the parties hereto by
applicable law and/or regulation. The Consultants shall take all action required
for this Agreement to be approved by the government of Israel, if such approval
is necessary. Upon approval, the Consultants shall provide a copy of the
government approval to Eurotech.
30. GENERAL PROVISIONS. This Agreement shall be construed and
enforced in accordance with, and governed by, the laws of the State of New York,
U.S.A. The Parties hereto exclusively submit to the exclusive jurisdiction of
the courts of the State of New York to the extent required for the litigation of
any claim, dispute or difference that may arise hereunder, and each party hereby
irrevocably consents that service of process shall be valid if served in the
manner and to the address set forth herein. Except as otherwise expressly stated
herein, time is of the essence in performance by either party. The headings of
this Agreement are for convenience in reference only and shall not limit or
otherwise affect the meaning thereof. All references to Consultants shall
include the actions or omissions of the Consultants. This Agreement may be
executed in any number of counterparts, each of which shall be deemed an
original but all of which taken together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date first above written.
For EUROTECH, LTD.:
Title: President and CEO
Signature: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Printed Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Date: July 24, 2002
For IPPARTNERS, INC.:
Title: President
Signature: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Printed Name ▇▇▇▇▇▇ ▇▇▇▇▇▇
Date: July 24, 2002
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