EX-10.3
TECHNOLOGY TRANSFER AGREEMENT
This Technology Transfer Agreement (the "Agreement") is made and
entered into this 1st day of April, 1999, by and between Safe at
Home Products, Inc., a California corporation ("Transferor") and
NuCo, Inc., a Nevada corporation ("Transferee").
Recitals
A. Transferor is the owner of certain technologies, used to
manufacture the Voce Record Smoke Detector and the Heat Sensor
Christmas Tree
Ornament (the "Technologies").
B. Transferee desires to acquire from Transferor such
technologies, and Transferor desires to transfer and convey the
same to Transferee, in accordance with the terms and conditions
of this Agreement.
C. Contemporaneously with the closing (as hereinafter defined),
Transferee and Transferor will enter into an agreement not-to-
compete (the form of which is attached hereto as Exhibit A).
NOW, THEREFORE, in consideration of the mutual representations,
warranties and covenants contained herein, and on the terms and
subject to the conditions herein set forth, the parties hereby
agree as follows:
ARTICLE I
Definitions
As used in this Agreement, the following terms shall have the
meanings set forth below:
1.1 Closing. "Closing" shall mean the closing of the transaction
contemplated by this Agreement, which shall occur at 9:00 a.m.,
Pacific Standard Time, on the Closing Date in the offices of
Transferee, or such other time and place as shall be mutually
agreed in writing by the parties hereto.
1.2 Closing Date. "Closing Date" shall mean April 1, 1999,
unless otherwise mutually agreed in writing by the parties
hereto.
1.3 Technologies. "Technologies" shall mean the following:
1.3(a) All rights and interests in the procedures, written
technical data, computer software and related documentation,
patents, copyrights, formulas, methods, practices, statistics,
trade secrets, trademarks, trade names and service marks
concerning the Heat Sensor Christmas Tree Ornament.
1.3(b) All rights and interest in the procedures, written
technical data, computer software and related documentation,
patents, copyrights, formulas methods, practices, statistics,
trade secrets, trademarks, trade names, and service marks
concerning the Voice Record Smoke detector, except the patents,
copyrights, trade secrets, trade names and service marks
concerning the voice recording unit within the Voice Record Smoke
Detector, which Transferee shall only obtain the rights and
interest in relation to the Voice Record Smoke Detector, and
Transferor shall retain the rights and interest to for all other
applications.
ARTICLE II
Assignment, Transfer and Royalties
2.1 Assignment and Transfer of Technologies. Subject to and upon
the terms and conditions contained herein, at the Closing,
Transferor shall transfer, assign, convey, and deliver to
Transferee, free and clear of all liens, claims and encumbrances,
and Transferee shall accept and acquire from Transferor the
Technologies.
2.2 Purchase Price. The total purchase price for the
Technologies shall be TWELVE MILLION (12,000,000) common shares
of NucCo, Inc., which shall be valued by the parties at a price
of FIFTY CENTS ($0.50) per share, and shall be fully paid and
non-assessable upon issuance. The certificate evidencing said
shares of common stock of NuCo, Inc. shall be substantially in
the form of Exhibit B attached hereto. The shares issued to
Transferor shall represent on hundred percent (100%) of the
issued and outstanding stock NuCo, Inc.
2.3 Instruments of Transfer; Further Assurances.
(a) At the Closing, Transferor shall deliver to Transferee:
(i) As assignment of each Technology, in form and substance
satisfactory to Transferee;
(ii) An agreement not-to-compete, substantially in the form of
Exhibit A attached hereto; and
(iii) Such other instrument or instruments of transfer as shall
be necessary or appropriate, as Transferee shall reasonably
request, to vest in Transferee good and marketable title to the
Technologies.
(b) At the Closing, Transferee shall deliver to Transferor:
(i) a fully executed certificate evidencing the issuance of
12,000,000 common shares of NuCo, Inc., to Transferor; and
(ii) Such other instrument or instruments as shall be necessary
or appropriate, as Transferor shall reasonably request.
ARTICLE III
Representations and Warranties of Transferee
Transferee represents and warrants that the following are true
and correct as of this date and will be true and correct through
the Closing Date as if made on that date:
3.1 Organization and Good Standing. Transferee is a corporation
duly organized, validly existing and in good standing under the
laws of the State of Nevada, with all the requisite power and
authority to carry on the business in which it is engaged, to own
the properties it owns and to execute and deliver this Agreement
and to consummate the transactions contemplated hereby.
3.2 Authorization and Validity. The execution, delivery and
performance by Transferee of this Agreement and the other
agreements contemplated hereby, and the consummation of the
transactions contemplated hereby, have been duly authorized by
Transferee. This Agreement and each other agreement contemplated
hereby have been or will be prior to Closing duly executed and
delivered by Transferee and constitute or will constitute legal,
valid and binding obligations of Transferee, enforceable against
Transferee in accordance with their respective terms.
3.3 No Violation. Neither the execution and performance of this
Agreement or the other agreements contemplated hereby, nor the
consummation of the transactions contemplated hereby or thereby,
will (a) conflict with, or result in a breach of the terms,
conditions and provisions of, or constitute a default under, the
Articles of Incorporation or Bylaws of Transferee or any
agreement, indenture or other instrument under which Transferee
is bound, or (b) violate or conflict with any judgment, decree,
order, statute, rule or regulation of any court or any public,
governmental or regulatory agency or body having jurisdiction
over Transferee or the properties or assets of Transferee.
3.4 Consents. No authorization, consent, approval, permit or
license of, or filing with, any governmental or public body or
authority, any lender or lessor or any other person or entity is
required to authorize, or is required in connection with, the
execution, delivery and performance of this Agreement or the
agreements contemplated hereby on the part of Transferee.
ARTICLE IV
Representations and Warranties of Transferor
Transferor represents and warrants that the following are true
and correct as of this date and will be true and correct through the
Closing
Date as if made on that date:
4.1 Organization and Good Standing. Transferor is a corporation
duly organized, validly existing and in good standing under the
laws of the State of California, with all the requisite power and
authority to carry on the business in which it is engaged, to own
the properties it owns and to execute and deliver this Agreement
and to consummate the transactions contemplated hereby.
4.2 Authorization and Validity. The execution, delivery and
performance by Transferor of this Agreement and the other
agreements contemplated hereby, and the consummation of the
transactions contemplated hereby, have been duly authorized by
Transferor. This Agreement and each other agreement contemplated
hereby have been or will be prior to Closing duly executed and
delivered by Transferor and constitute or will constitute legal,
valid and binding obligations of Transferor, enforceable against
Transferor in accordance with their respective terms.
4.3 Title. Transferor has good and marketable title to the
Technologies which are the subject of this Agreement. Upon
consummation of the transactions contemplated hereby, Transferee
shall receive good, valid and marketable title to all the
Technologies free and clear of all liens, claims, and
encumbrances.
4.4. Commitments. Transferor has not entered into, nor are the
Technologies or the business of Transferor bound by, whether or
not in writing, any (i) partnership or joint venture agreement;
(ii) deed of trust or other security agreement; (iii) guaranty or
suretyship, indemnification or contribution agreement or
performance bond; (iv) employment, consulting or compensation
agreement or arrangement, including the election or retention in
office of any director or officer; (v) labor or collective
bargaining agreement; (vi) debt instrument, loan agreement or
other obligation relating to indebtedness for borrowed money or
money lent to another; (vii) deed or other document evidencing an
interest in or contract to purchase or sell real property; (viii)
agreement with dealers or sales or commission agents, public
relations or advertising agencies, accountants or attorneys; (ix)
lease or real or personal property, whether as lessor, lessee,
sublessor, or sublessee; (x) agreement relating to any material
matter or transaction in which an interest is held by a person or
entity which is an affiliate of Transferor; (xi) powers of
attorney; or (xii) contracts containing noncompetition covenants.
4.5 Adverse Agreements. Transferor is not a party to any
agreement or instrument or subject to any charter or other
corporate restriction or any judgment, order, writ, injunction,
decree, rule or regulation which materially and adversely affects
or, so far as Transferor can now foresee, may in the future
materially and adversely affect the business operations,
prospects, properties, assets or condition, financial or
otherwise, of Transferor.
4.6 No Violation. Neither the execution and performance of this
Agreement or the other agreements contemplated hereby, nor the
consummation of the transactions contemplated hereby or thereby,
will (a) conflict with, or result in a breach of the terms,
conditions and provisions of, or constitute a default under, the
Articles of Incorporation or Bylaws of Transferor or any
agreement, indenture or other instrument under which Transferor
is bound, or (b) violate or conflict with any judgment, decree,
order, statute, rule or regulation or any court or any public,
governmental or regulatory agency or body having jurisdiction
over Transferor or the properties or assets of Transferor.
4.7 Consents. No authorization, consent, approval, permit or
license of, or filing with any governmental or public body or
authority, any lender or lessor or any other person or entity is
required to authorize, or is required in connection with, the
execution, delivery and performance of this Agreement or the
agreements contemplated hereby on the part of Transferor.
4.8 Compliance with Laws. There are no existing violations by
Transferor of any applicable federal, state or local law or
regulation, except to the extent that any such violations would
not have a material adverse effect on the property of business of
Transferor.
4.9 Accuracy of Information Furnished. All information furnished
to Transferee by Transferor is true, correct and complete in all
material respects. Such information states all material facts
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which such
statements are made, true, correct and complete.
4.10 Proceedings. No action, proceeding or order by any court or
governmental body or agency shall have been threatened in
writing, asserted, instituted or entered to restrain or prohibit
the carrying out of the transactions contemplated by this
Agreement.
ARTICLE V
Indemnification
5.1 Transferor's Indemnity. Subject to the terms of this
Section, Transferor hereby agrees to indemnify, defend and hold
harmless Transferee and its officers, directors, agents,
attorneys, accountants and affiliates from and against any and
all losses, claims, obligations, demands, assessments, penalties,
liabilities, costs, damages, reasonable attorneys' fees and
expenses ("Damages") asserted against or incurred by Transferee
by reason of or resulting from a breach by Transferor of any
representation, warranty or covenant contained herein, or in any
agreement executed pursuant thereto.
5.2 Transferee's Indemnity. Subject to the terms of this
Section, Transferee hereby agrees to indemnify, defend and hold
harmless Transferor and its officers, directors, agents,
attorneys, accountants and affiliates from and against any and
all losses, claims obligations, demands assessments, penalties,
liabilities, costs, damages, reasonable attorneys' fees and
expenses ("Damages") asserted against or incurred by Transferor
by reason of or resulting from a breach by Transferee of any
representation, warranty or covenant contained herein, or in any
agreement executed pursuant thereto.
5.3 Remedies Not Exclusive. The remedies provided for in this
Section shall not be exclusive of any other rights or remedies
available by one party against the other, either at law or in
equity.
ARTICLE VI
Termination
6.1 Termination for Cause. This Agreement may be terminated
prior to Closing upon notice to the other party at any time by a party
if any
representation or warranty of the other party contained in this
Agreement or in any certificate or other document executed and
delivered by one party to the other is or becomes untrue or
breached in any material respect or if one party fails to comply
in any material respect with any covenant or agreement contained
herein, and any such misrepresentation, breach or noncompliance
is not cured, waived, or eliminated before Closing.
6.2 Termination Without Cause. Anything herein or elsewhere to
the contrary notwithstanding, this Agreement may by terminated
and abandoned at any time without further obligation or liability
on the part of any party in favor of any other by mutual consent
of Transferee and Transferor.
ARTICLE VII
Miscellaneous Provisions
7.1 Amendment and Modification. Subject to applicable law, this
Agreement may be amended, modified or supplemented only by a written
agreement
signed by Transferee and Transferor.
7.2 Waiver of Compliance; Consents.
7.2.1 Any failure of any party to comply with any obligation,
covenant, agreement or condition herein may be waived by the
party entitled to the performance of such obligation, covenant or
agreement or who has the benefit of such condition, but such
waiver or failure to insist upon strict compliance with such
obligation, covenant, or agreement or condition will not operate
as a waiver of, or estoppel with respect to, any subsequent or
other failure.
7.2.2 Whenever this Agreement requires or permits consent by or
on behalf of any party hereto, such consent will be given in a
manner consistent with the requirements for a waiver of
compliance as set forth above.
7.3 Notices. All Notices, requests, demands and other
communications required or permitted hereunder will be in writing
and will be deemed to have been duly given when delivered by (i)
hand; (ii) reliable overnight delivery service; or (iii)
facsimile transmission.
If to Transferee, to: ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to Transferor, to: ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
7.4 Titles and Captions All section titles or captions contained
in this Agreement are for convenience only and shall not be
deemed part of the context nor effect the interpretation of this
Agreement.
7.5 Entire Agreement. This Agreement contains the entire
understanding between and among the parties and supersedes any
prior understandings and agreements among them respecting the
subject matter of this Agreement.
7.6 Agreement Binding. This Agreement shall be binding upon the
heirs, executors, administrators, successors and assigns of the
parties hereto.
7.7 Attorneys' Fees. In the event an arbitration, suit or action
is brought by any party under this Agreement to enforce any of
its terms, or in any appeal therefrom, it is agreed that the
prevailing party shall be entitled to reasonable attorneys fees
to be fixed by the arbitrator, trial court, and/or appellate court.
7.8 Computation of Time. In computing any period of time
pursuant to this Agreement, the day of the act, event or default
from which the designated period of time begins to run shall be
included, unless it is a Saturday, Sunday or a legal holiday, in
which event the period shall begin to run on the next day that is
not a Saturday, Sunday or legal holiday.
7.9 Pronouns and Plurals. All pronouns and any variations
thereof shall be deemed to refer to the masculine, feminine,
neuter, singular or plural as the identity of the person or
persons may require.
7.10 Governing Law. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED, CONSTRUED
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEVADA.
THE PARTIES AGREE THAT ANY LITIGATION RELATING DIRECTLY OR
INDIRECTLY TO THIS AGREEMENT MUST BE BROUGHT BEFORE AND
DETERMINED BY A COURT OF COMPETENT JURISDICTION WITHIN THE STATE
OF NEVADA.
7.11 Arbitration. If at any time during the term of this
Agreement any dispute, difference, or disagreement shall arise
upon or in respect of this Agreement, and the meaning and
construction hereof, every such dispute, difference, and
disagreement shall be referred to a single arbiter agreed upon by
the parties, or if no single arbiter can be agreed upon, an
arbiter or arbiters shall be selected in accordance with the
rules of the American Arbitration Association and such dispute,
difference or disagreement shall be settled by arbitration in
accordance with the ten prevailing commercial rules of the
American Arbitration Association and judgment upon the award
rendered by the arbiter may be entered in any court having
jurisdiction thereof.
7.12 Presumption. This Agreement or any Section thereof shall
not be construed against any party due to the fact that said
Agreement or any section thereof was drafted by said party.
7.13 Further Action. The parties hereto shall executed and
deliver all documents, provide all information and take or
forbear from all such action as may be necessary or appropriate
to achieve the purposes of the Agreement.
7.14 Parties in Interest. Nothing herein shall be construed to
be to the benefit of any third party, nor is it intended that any
provision shall be for the benefit of any third party.
7.15 Savings Clause. If any provision of this Agreement, or the
application of such provision to any person or circumstance,
shall be held invalid, the remainder of this Agreement, or the
application of such provision to persons or circumstances other
than those as to which it is held invalid, shall not be affected
hereby.
7.16 Confidentiality. The parties shall keep this Agreement and
its terms confidential, but any party may make such disclosures
as it reasonably considers are required by law or necessary to
obtain financing, In the event that the transactions contemplated
by this Agreement are not consummated for any reason whatsoever,
the parties hereto agree not to disclose or use any confidential
information they may have concerning the affairs of other
parties, except for information which is required by law to be
disclosed. Confidential information includes, but is not limited
to, financial records, surveys, reports, plans, proposals,
financial information, information relating to personnel
contracts, stock ownership, liabilities and litigation.
7.17 Costs, Expenses and Legal Fees Whether or not the
transactions contemplated hereby are consummated, each party
hereto shall bear its own costs and expenses, including
attorneys' fees.
7.18 Severability. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under present or future laws
effecting during the term hereof, such provision shall be fully
severable and this Agreement shall be construed and enforced as
if such illegal, invalid or unenforceable provision never
comprised a part hereof; and the remaining provisions hereof
shall remain in full force and effect and shall not be affected
by the illegal, invalid or unenforceable provision or by its
severance herefrom. Furthermore, in lieu of such illegal,
invalid and unenforceable provision, there shall be added
automatically as part of this Agreement a provision as similar in
nature in its terms of such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and enforceable.
7.19 Counterparts and Facsimile Signatures. This Agreement may
be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute
one and the same instrument. For purposes of this Agreement,
facsimile signatures shall be treated as originals until such
time that applicable pages bearing non-facsimile signatures are
obtained from the relevant party or parties.
7.20 Contributing Nature. All representations and warranties
contained in this Agreement shall survive the Closing for a
period of two (2) years and, if applicable, all covenants, which,
according to their terms are to be performed after the execution
of this Agreement, shall survive the Closing for a period of two
(2) years.
IN WITNESS WHEREOF, the parties hereto have set their hands this
1st day of April, 1999.
NuCo, Inc., a Nevada Corporation Safe at Home Products, Inc., a
(Transferee) California Corporation
(Transferor)
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, President ▇▇▇▇▇ ▇▇▇▇▇, President
EXHIBIT A
NON-COMPETITION AGREEMENT
This Non-competition Agreement (the "Agreement") is made as of
the 1st day of April,1999, by and between NuCo, Inc., a Nevada
corporation
("Transferee") and Safe at Home Products, Inc., a California
corporation ("Transferor").
Recitals
A. Transferor and Transferor have entered into a Technology
Transfer Agreement dated April 1, 1999 (the "Transfer Agreement") under
the
terms of which Transferor has agreed to assign and transfer certain
technologies to Transferee, all as more fully set forth described
in the Transfer Agreement.
B. Transferor's delivery to Transferee of this Agreement is
a condition to Transferee consummating the transactions
contemplated by the Transfer Agreement.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements contained herein and in the
Transfer Agreement, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the
parties hereby covenant and agree as follows:
1. Non-competition.
1.1 Transferor covenants and agrees that for a period
of five (5) years from the date hereof, Transferor will not
engage in or carry on, directly or indirectly, any business in
competitions with the business of Transferee relating to the
technologies that are the subject of the Transfer Agreement buy
only for as long as such like business is carried on by (1)
Transferee or any subsidiary or affiliate of Transferee or (ii)
any person or entity deriving title from Transferee of the
technologies, in any county in which Transferee or any of its
subsidiaries or affiliates conduct business, or in any other
county or state of the United States, or in any country or
political subdivision of the world.
1.2 The term of the covenants contained in Section 1.1
hereof shall be tolled for the period commencing on the date any
successful action is filed for injunctive relief or damages
arising out of a breach by Transferor of Section 1.1 hereof and
ending upon final adjudication (including appeals) of such
action.
1.3 If, in any judicial proceeding, the court shall
refuse to enforce all of the covenants contained in Section 1.1
hereof because the time limit is excessive, it is expressly
understood and agreed between the parties hereto that for
purposes of such proceeding such time limitation shall be deemed
reduced to the extent necessary to permit enforcement of such
covenants. If, in any judicial proceeding, the court shall
refuse to enforce all of the covenants contained in Section 1.1
hereof because it is more extensive than necessary to protect the
business and goodwill of Transferee, it is expressly understood
and agreed between the parties hereto that for purposes of such
proceeding the geographic area, scope of business or other aspect
shall be deemed reduced to the extent necessary to permit
enforcement of such covenants.
1.4 Transferor covenants and represents that, after
the Closing (as defined in the Transfer Agreement), Transferor
will have no interest in, or claim to, any of the procedures,
written technical data, computer software and related
documentation, patents, copyrights, formulas, methods, practices,
statistics, trade secrets, trademarks, trade names, or service
marks relating to the technologies that are the subject of the
Transfer Agreement, and all knowledge or information of a
confidential nature acquired at or before the date hereof with
respect to said technologies will be held in confidence by
Transferor and will not be disclosed or made public or, except
for the benefit of Transferee, and use of, by or through
Transferor, directly or indirectly.
2. Governing Law. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED, CONSTRUED
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEVADA.
THE PARTIES AGREE THAT ANY LITIGATION RELATING DIRECTLY OR
INDIRECTLY TO THIS AGREEMENT MUST BE BROUGHT BEFORE AND
DETERMINED BY A COURT OF COMPETING JURISDICTION WITH THE STATE OF
NEVADA.
3. Entire Agreement. This Agreement contains the entire
understanding between and among the parties and supersedes any
prior understandings and agreements among them respecting the
subject matter of the Agreement.
4. Agreement Binding. This Agreement shall be binding upon
the heirs, executors, administrators, successors and assigns of
the parties hereto.
5. Severability. In any provision of this Agreement is
held to be illegal, invalid or unenforceable under present or
future laws effecting during the term hereof, such provision
shall be fully severable and this Agreement shall be construed
and enforced as if such illegal, invalid or unenforceable
provision never comprised a part hereof; and the remaining
provisions hereof shall remain in full force and effect and shall
not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom. Furthermore, in lieu of
such illegal, invalid and unenforceable provision, there shall be
added automatically as part of this Agreement a provision as
similar in nature in its terms to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid
and enforceable.
IN WITNESS WHEREOF, the parties hereto have set their hands
this 1st day of April, 1999.
NuCo, Inc., a Nevada Corporation Safe at Home Products, Inc., a
(Transferee) California Corporation
(Transferor)
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, President ▇▇▇▇▇ ▇▇▇▇▇, President