EX-10.10
DEFINITIVE AGREEMENT AND MANAGEMENT PLAN
THIS AGREEMENT AND MANAGEMENT PLAN (the "Agreement") is made as of
this 27th day of August 2002, by and among EVERLERT, Inc., a Nevada
corporation ("EVRL"), and NEW MANAGEMENT GROUP of individuals
("Managers").
RECITALS
A. EVRL and Managers desire that Managers be nominated and elected
to the board of EVRL replacing the current board, EXCEPT ▇▇▇▇▇
▇▇▇▇▇▇▇.
B. Because this change is not a change of control it is believed
this transaction will not be deemed a change of control or merger
for federal income tax purposes, within the meaning of Section
368(a)(2)(E) of the Internal Revenue Code of 1986, as amended
(the "Code").
NOW, THEREFORE, the parties hereto hereby agree as follows:
AGREEMENT
ARTICLE 1
GENERAL TERMS
1.1 THE TIMING. Subject to the terms and conditions of this Agreement
and in accordance with the laws of the State of Nevada, at the
Effective Time (as defined hereinafter), EVRL and Managers desire that
Managers take over all management and administrative functions of
EVRL, subject to the terms and conditions of this agreement.
1.2 THE EFFECTIVE DATE. Subject to the terms and conditions of this
Agreement, the consummation of the Change of Management and the other
transactions contemplated hereby (the "Effective Date") shall take
place on August 27, 2002, at the offices of ▇▇▇▇ ▇. Tow, or such
other place and time as the parties may otherwise agree, and the date
this agreement is consummated is referred to herein as the "Effective Date."
1.3 FILING OF DOCUMENTS; EFFECTIVE TIME. On the Effective Date, the
parties shall cause the Change of Management to be consummated by
executing and filing a duly executed memorandum and appropriate
minutes and resolutions of the current Board of Directors. In
addition an 8-K will be prepared and filed to announce this material
event. With respect to the change of management & officers and
directors, all notification required shall be filed with the Secretary
of State of the State of Nevada, in such form as EVRL and Managers
reasonably determine is required by and in accordance with the
relevant provisions of the laws. The time upon which such filing
becomes effective in accordance with the laws of the State of Nevada
is referred to herein as the "Effective Time."
1.4 EFFECT OF AGREEMENT. At the Effective Time of the filing with the
State of Nevada, the Managers shall assume the power and duties as set
forth in their respective Employment and/or Director Agreements and
shall carry out their duties thereunder, unless and until amended in
accordance with their terms and as provided by law.
ARTICLE 2
CONSIDERATION
2.1 CONSIDERATION; PAYMENT OF CONSIDERATION.
2.1.1 For the purposes of the Agreement "Consideration"
means 4,000,000 shares of Common Stock $.001 par value per share of
EVRL ("EVRL Common Stock"). At the Effective Time, by virtue of this
Agreement, and without further action by any person or entity, all of
the shares of EVRL Stock (as hereinabove defined) shall be issued as
set forth by Managers.
2.1.2 The Consideration shall be paid as follows:
- Four million (4,000,000) shares on the Effective Date.
- After the Effective Date the Managers will cause a
registration to be filed to register shares for
equity investment in EVRL under ▇-▇, ▇▇-▇ or other
appropriate filing to raise the capital needed to
develop the smoke detector product(s) of EVRL as
soon as practical after closing.
- The Managers will cause a registration to be filed
to register sufficient shares of common stock
pursuant to an S-8 Employee & Non-employee stock
purchase plan as deemed necessary by management.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF CURRENT EVERLERT
BOARD TO MANAGERS
3.1 CONTRACTS AND OTHER AGREEMENTS. The Everlert Disclosure Schedule
sets forth a list of the following contracts and other agreements to
which Everlert is a party or by or to which Everlert or Everlert's
assets or properties are bound or subject:
(a) any agreement or series of related agreements requiring
aggregate payments after the date hereof by or to Everlert of more
than $100,000;
(b) any agreement with or for the benefit of any current or
former officer, director, stockholder, employee or consultant of
Everlert;
(c) any agreement with any labor union or association
representing any employee of Everlert;
(d) any agreement for the purchase or sale of materials,
supplies, equipment, merchandise or services that contain an
escalation, renegotiation or redetermination clause or that obligate
Everlert to purchase all or substantially all of its requirements of a
particular product from a supplier, or for periodic minimum purchases
of a particular product from a supplier;
(e) any agreement for sale of any of the assets or
properties of Everlert other than in the ordinary course of business
or for the grant to any person of any options, rights of first
refusal, or preferential or similar rights to purchase any such assets
or properties;
(f) any partnership or joint venture agreement;
(g) any agreement of surety, guarantee or indemnification,
other than agreements in the ordinary course of business with respect
to obligations in an aggregate amount not in excess of $5,000;
(h) any agreement containing covenants of Everlert not to
compete in any line of business, in any geographic area or with any
person or covenants of any other person not to compete with Everlert
or in any line of business of Everlert;
(i) any agreement granting or restricting the right of
Everlert to use any Intellectual Property (as defined hereinafter),
except for any Intellectual Property that is licensed to Everlert
under any third party license generally available to the public at a
cost of less than $50,000;
(j) any agreement with customers or suppliers for the
sharing of fees, the rebating of charges or other similar arrangements;
(k) any agreement with any holder of securities of Everlert
as such (including, without limitation, any agreement containing an
obligation to register any of such securities under any federal or
state securities laws);
(l) any agreement obligating Everlert to deliver services or
product enhancements or containing a "most favored nation" pricing clause;
(m) any agreement relating to the acquisition by Everlert of
any operating business or the capital stock of any other person;
(n) any agreement requiring the payment to any person of a
brokerage or sales commission or a finder's or referral fee in
connection with the transactions contemplated by this Agreement (other
than arrangements to pay commission or fees to employees in the
ordinary course of business);
(o) any agreement or note relating to or evidencing
outstanding indebtedness for borrowed money, other than agreements
entered into in the ordinary course of business for amounts not
exceeding $5,000;
(p) any lease, sublease or other agreement under which
Everlert is lessor or lessee of any real property or equipment or
other tangible property with respect to obligations in excess of
$5,000; and
(q) Except for agreements to provide maintenance, upgrades,
bug fixes, error corrections or similar work product that are ordinary
and customary for the software industry and that are related to the
Everlert products which have been delivered as of the date hereof, any
agreement that requires Everlert to deliver, or undertake the
development of, any new product, customized product, substantial
upgrade, new version or similar work product where such delivery or
development requires Everlert to utilize substantial personnel or
financial resources.
(r) any other material agreement not made in the ordinary
course of business.
True and complete copies of all the contracts and other
agreements (and all amendments, waivers or other modifications
thereto) set forth on the Everlert Disclosure Schedule have been made
available to Managers. Each of such contracts is valid, subsisting, in
full force and effect, binding upon Everlert, and to the knowledge of
Everlert, binding upon the other parties thereto in accordance with
their terms, and Everlert is not in default under any of them, nor, to
the best knowledge of Everlert, is any other party to any such
contract or other agreement in default thereunder, nor does any
condition exist that with notice or lapse of time or both, would
constitute a default thereunder, except, in each case, such defaults
as would not, individually or in the aggregate, have a material
adverse effect on the business of Everlert.
3.9 COMPLIANCE WITH LAWS.
3.9.1 Everlert has all licenses, permits, franchises, orders
or approvals of any federal, state, local or foreign governmental or
regulatory body required for the conduct of the business of Everlert,
except where not having such license, permit, franchise, order or
approval would not result in a material adverse effect on business,
operations or financial condition of Everlert (collectively,
"Permits"); such Permits are in full force and effect; and no
proceeding is pending or, to the knowledge of Everlert, threatened to
revoke or limit any Permit. EXCEPT California qualification of
foreign corporation and business license.
3.9.2 Except where such violation would not have a material
adverse effect on the business, operations or financial condition of
Everlert, Everlert is not in violation of any applicable law,
ordinance or regulation or any order, judgment, injunction, decree or
other requirement of any court, arbitrator or governmental or
regulatory body. Everlert has not received notice of, and there has
not been any citation, fine or penalty imposed against Everlert for,
any such violation or alleged violation. Except California
qualification of foreign corporation and business license.
3.10 BANK ACCOUNTS AND POWERS OF ATTORNEY. Section 3.10 of the
Everlert Disclosure Schedule identifies all bank and brokerage
accounts of Everlert, whether or not such accounts are held in the
name of Everlert, lists the respective signatories therefore and lists
the names of all persons holding a power of attorney from Everlert and
a summary of the terms thereof. All current signatories will resign
from such authority upon the Effective Date hereof and consent to
Managers being authorized by the new Board of Directors to conduct
business as authorized within new banking resolutions to be executed
concurrently or after the Effective Date of this Agreement.
3.11 AGREEMENT WILL NOT CAUSE BREACH OR VIOLATION. Neither the
execution nor delivery of this Agreement or the other documents
contemplated hereby by Everlert, nor performance by Everlert of the
terms and provisions of this Agreement or such other documents will
(a) conflict with or result in a breach or violation of any of the
terms, conditions or provisions of any Permit or any judgment, order,
injunction, decree, regulation or ruling of any court or governmental
authority to which Everlert or any assets of Everlert are subject or
of any contract to which Everlert is a party or any agreement,
contract, or commitment to which Everlert is a party or by which it is
bound, except where such conflict, breach or violation would not have
a material adverse effect on the business, operations or financial
condition of Everlert, or (b) give any person or entity the right to
terminate or modify any material contract to which Everlert is a
party, or accelerate any material obligation or indebtedness of
Everlert thereunder.
3.12 FINANCIAL STATEMENTS. The 2001 & 2002 INTERIM FINANCIAL
STATEMENTS have been prepared in accordance with generally accepted
accounting principles (GAAP) applied on a basis consistent with prior
periods and present fairly in all material respects the financial
position of the Everlert and the results of its operations.
3.13 NO UNDISCLOSED LIABILITIES. Everlert has no liabilities or
obligations of any nature required to be disclosed as liabilities on a
balance sheet prepared in accordance with GAAP except (a) liabilities
which are fully reflected or reserved against in the Financial
Statements, and (b) liabilities incurred in the ordinary course of
operation of the business of Everlert since the date of the Audited
Financial Statements.
3.14 CUSTOMERS. Section 3.14 of the Everlert Disclosure Schedule sets
forth all documentation of prospective customers for Everlert's
products known at this time.
3.15 TRANSACTIONS WITH MANAGEMENT. No current or past officer or
director of Everlert has (whether directly or indirectly through
another entity in which such person has an interest, other than as the
holder of less than 1% of a class of securities of a publicly traded
company) any interest in (a) any property or assets of Everlert
(except as a stockholder) or (b) to Everlert's knowledge, any current
competitor, customer or supplier of Everlert or (c) to Everlert's
knowledge, any person which is currently a party to any contract with
Everlert involving any amount in excess of $50,000. Except N/A.
3.16 ABSENCE OF CERTAIN CHANGES. Since June 30, 2002, there have been
no material changes in the condition, financial or otherwise, of any
of the assets or any of the liabilities, business, prospects or
operations of Everlert or the business of Everlert, other than changes
which in the aggregate have not been materially adverse to the
business, finances or operations of Everlert. Parties acknowledge that
at the Effective Time of this Agreement Everlert may not be considered
a "going concern."
3.17 INTELLECTUAL PROPERTY.
3.17.1 Section 3.17.1 of the Everlert Disclosure Schedule
contains a list of all patents, patent applications, trademarks
(whether registered or unregistered), trademark applications, service
marks (whether registered or unregistered), service ▇▇▇▇ applications,
copyrights (whether registered or unregistered) and copyright
applications owned by or filed in the name of the Everlert (the "Owned
Intellectual Property"), specifying as to each, as applicable: (i) the
nature of such Intellectual Property; (ii) the other owner(s) of such
Intellectual Property, for any Intellectual Property that is jointly
owned by the Everlert and any other Person that is not an Affiliate of
the Everlert; (iii) the jurisdictions by or in which such Intellectual
Property has been issued or registered or in which an application for
such issuance or registration has been filed, including the respective
registration or application numbers; and (iv) licenses, sublicenses
and other agreements to which the Everlert is a party and pursuant to
which any Person is authorized to use such Intellectual Property,
including the identity of all parties thereto, a description of the
nature and subject matter thereof, the applicable royalty and the term thereof.
3.17.2 The Everlert owns or licenses all Intellectual
Property necessary to conduct business to the same extent and in
substantially the same manner as presently conducted and as presently
proposed by the Everlert to be conducted (the "Everlert Intellectual
Property"). The Everlert Intellectual Property will be owned by the
Everlert, or the Everlert will have right for use thereof on identical
terms and conditions immediately subsequent to the Closing. No Owned
Intellectual Property is involved in any interference or re-
examination or cancellation or opposition proceeding and the Everlert
has not been notified or alerted that any such proceeding will
hereafter be commenced. Except as set forth in Section 3.17.2 of the
Everlert Disclosure Schedule, to the Everlert's knowledge, after
reasonable inquiry, the Everlert has no reasonable legal basis for
provoking or initiating an interference or opposition proceeding with
respect to any Intellectual Property held or used by others, and has
no reasonable basis for believing that any of Everlert Intellectual
Property, owned exclusively or jointly by Everlert, is being infringed
by others.
3.17.3 The Everlert has not been notified (after having made
reasonable inquiry as to whether notice has been received) that it is
a defendant in any action, suit, investigation or proceeding relating
to, any alleged claim of infringement by the Everlert Intellectual
Property, and no Everlert Intellectual Property infringes or
misappropriates Intellectual Property of any other Person. Everlert
has no knowledge, after reasonable inquiry, of any continuing
infringement by any other Person of any Everlert Intellectual Property
owned, exclusively or jointly, by Everlert. Except as set forth on
Section 3.17.3 of the Everlert Disclosure Schedule, the Everlert has
not entered into any agreement to indemnify any other Person against
any charge of infringement, misappropriation or other conflict with
respect to any Intellectual Property.
3.17.4 The Everlert has delivered to Managers correct and
complete copies of any Everlert patents, claims that may lead to
patents, registrations, applications, licenses, agreements, and
permissions (as amended to date) relating to Owned Intellectual
Property and has made available to Managers correct and complete
copies of all other written documentation evidencing ownership and
prosecution (if applicable) of each such Owned Intellectual Property.
With respect to all Everlert Intellectual Property, to Everlert's
knowledge, after reasonable inquiry:
(a) all patents, copyrights and trademarks included in the Owned
Intellectual Property are valid and in full force and all applications
listed on Section 3.17.1 of the Everlert Disclosure Schedule as
pending have been prosecuted in good faith as required by law and are
in good standing;
(b) Everlert possesses all right, title and interest in the
Owned Intellectual Property and any other Everlert Intellectual
Property not jointly owned or licensed from any other Person and,
except as set forth in Section 3.17.4 of the Everlert Disclosure
Schedule, no Person that is not party to a non-disclosure agreement
with Everlert, a copy of which has been provided to Managers, and has
been provided by Everlert access to or has any rights to, contingent
or otherwise (including without limitation any rights under any
special license or similar agreement), any portion of the Everlert
Intellectual Property that is owned by Everlert;
(c) the Owned Intellectual Property, and the other Everlert
Intellectual Property owned by Everlert either exclusively or jointly
with others, or licensed exclusively from any other Person, is not
subject to any outstanding Lien, judgment, order, decree, stipulation,
injunction, or charge; and
(d) no charge, complaint, action, suit, proceeding, hearing,
investigation, claim, or demand is pending or to the knowledge of the
Everlert (and Everlert employees with responsibility for intellectual
property matters) is threatened which challenges the legality,
validity, enforceability, use, or ownership of the Owned Intellectual
Property or the other Everlert Intellectual Property owned by
Everlert, either exclusively or jointly with any other Person, or
licensed exclusively from any other Person.
3.17.5 To the Everlert's knowledge, after reasonable
inquiry, no employee of the Everlert is subject to any secrecy or
noncompetition agreement or any agreement or restriction of any kind
that would impede in any material way the ability of such employee to
carry out fully all activities of such employee in furtherance of the
business of the Everlert as currently operated and as presently
proposed to be operated by the Everlert. To the Everlert's knowledge,
after reasonable inquiry, no third party has claimed that any person
employed by or affiliated with the Everlert has violated or may be
violating any of the terms or conditions of his past employment,
noncompetition or nondisclosure agreement with such third party, or
disclosed or may be disclosing or utilized or may be utilizing any
trade secret or proprietary information or documentation of such third
party or interfered or may be interfering in the employment
relationship between such third party and any of its present or former
employees. Each current employee, officer and consultant of the
Everlert has executed a proprietary information and inventions
agreement substantially in the form provided to Managers. The
Everlert, after reasonable investigation, is not aware that any of its
employees are in violation of any such agreement.
3.17.6 To the knowledge of the Everlert, after reasonable
inquiry, the Intellectual Property is free from significant design
errors and will operate in substantial conformity with its user
documentation and other descriptions and standards applicable thereto
provided by Everlert, and except as set forth on Section 3.17.6 of the
Everlert Disclosure Schedule, the Smoke Detectors and the specified
components do not contain any known characteristics, or other limiting
design, instruction or routine, that would, without the user's
knowledge and consent, cause a failure or become inoperable or
otherwise incapable of being used in the full manner for which it was
designed and created, subject Underwriters Laboratories testing results.
3.18 PRODUCT WARRANTIES AND RETURNS. Omitted.
3.19 LITIGATION. Everlert is not a party to any pending or, to
Everlert's knowledge after reasonable inquiry, threatened action,
suit, arbitration, mediation, proceeding or investigation, at law or
in equity or otherwise in, for or by any court or other governmental
body or any arbitration, mediation or similar forum (collectively,
"Litigation"); nor, to Everlert's knowledge, does any basis exist for
any such Litigation. Everlert is not subject to any decree, judgment
or order of any court or other governmental body that could have a
material adverse effect on the condition, financial or otherwise, of
any of Everlert's assets or the business of Everlert or which could
prevent the transactions contemplated by this Agreement.
3.20 PERSONNEL. Section 3.20 of the Everlert Disclosure Schedule
lists: (i) all Employee Plans (as defined below) and all contracts or
agreements with directors, officers, employees or unions, or
consulting agreements, to which Everlert is a party or it or its
assets are subject as of the date of this Agreement; (ii) the names,
salary rates, bonuses paid during the last fiscal year, and accrued
vacation and sick leave for all the employees of Everlert as of
February 20, 2002; and (iii) all group insurance programs in effect
for employees of Everlert. Everlert is not in default with respect to
any of the obligations so listed, except where such default would not
have a material adverse effect on the business, operations or
financial condition of Everlert. Everlert has delivered to Managers
true, complete and correct copies of all Employee Plans. Everlert has
no union contracts or collective bargaining agreements with, or any
other obligations to, employee organizations or groups, nor is
Everlert currently engaged in any labor negotiations except in minor
grievances not involving any employee organization or group, nor, to
the knowledge of Everlert, is Everlert the subject of any union
organization. There is no pending or, to Everlert's knowledge,
threatened labor dispute, strike or work stoppage affecting the
business of Everlert. All plans described on Section 3.20 of the
Everlert Disclosure Schedule are in full compliance with applicable
provisions of the Employee Retirement Income Security Act of 1974
("ERISA") and regulations issued under ERISA, except where such
noncompliance would not have a material adverse effect on the
business, operations or financial condition of Everlert, and there is
no unfunded liability with respect to such plans. Section 3.20 of the
Everlert Disclosure Schedule also lists the amount payable to
employees of Everlert under other fringe benefit plans. The term
"Employee Plan" shall mean all present and prior (including terminated
and transferred) plans, programs, agreements, arrangements and methods
of contributions or compensation (including all amendments to and
components of the same, such as a trust with respect to a plan)
providing any remuneration or benefits, other than current cash
compensation, to any current or former employee of Everlert or to any
other person who provides services to Everlert, including, without
limitation, pension, retirement, profit sharing, percentage
compensation, stock purchase, stock option, bonus and non-qualified
deferred compensation plans, disability plans, medical plans, dental
plans, workers compensation, health insurance, life insurance or other
death benefits, incentive plans, severance plans, vacation benefits
and fringe benefits.
3.21 OSHA. Omitted.
3.22 TAXES. No tax returns required to be filed prior to the date
hereof with respect to Everlert and the business of Everlert have been
filed. All taxes due and payable prior to the Closing Date by or with
respect to Everlert or the business of Everlert for the periods prior
to the Closing Date will be paid by Everlert prior to the Closing or
reserves have been or will be established therefore in the Interim
Financial Statements.
3.23 INSURANCE. THERE ARE NO INSURANCE POLICIES IN FORCE AS OF THE
DATE OF THIS AGREEMENT.
3.24 ENVIRONMENTAL LIABILITY. Omitted
3.25 PR CAPITALIZATION. As of August 28, 2002, the authorized
capital stock of EVRL consists of 50,000,000 shares of EVRL Common
Stock and 5,000,000 shares of preferred stock. As of August 28, 2002
(a) approximately 23,452,516 shares of EVRL Common Stock were validly
issued and outstanding, and (b)NO (0) shares of preferred stock were
issued or outstanding.
3.26 REPRESENTATIONS COMPLETE. The representations and warranties of
Everlert contained in this Article 3 do not contain any untrue
statement of a material fact and do not omit to state any material
fact necessary to make such representations and warranties, in light
of the circumstances under which they were made, not misleading.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF MANAGERS
Managers hereby represent and warrant to EVRL that they are
ready, willing and able to fulfill the obligations and perform the
duties set forth in their respective employment and/or directors
agreements.
4.4 SEC FILINGS; FINANCIAL STATEMENTS. Managers will undertake to
continue to provide for timely audits and interim financial statements
Everlert and accurate and complete copies of any report, registration
statement and definitive proxy statement (if any) and filed by EVRL
with the Securities and Exchange Commission (the "SEC"). In the event
the required Audits, Interim Financials or any other cause shall allow
the required filings with the SEC to be delayed, Managers shall have
thirty (30) days in which to cure the late filing status. If after
this period the filings remain delinquent, the Managers terms as
Directors shall be terminated and a new board of directors shall be
elected according to the by-laws to replace the departed directors who
shall then appoint officers to conduct the affairs of the company.
4.5 DILUTION. New management also agrees that it will agree to
mutually acceptable "Anti-dilution" provisions that will allow new
management necessary latitude in order to obtain financing for the
business plan AND/OR to acquire another company with positive cash
flows on an "earn in" basis. In other words dilution can only occur
when the cash flows (i.e. revenue/profits are demonstrated). The
following are to be adopted by the current board and any amendments to
corporate bylaws will be undertaken by the current board of directors.
The new management group and board agrees to maintain the equity
ratios as exist on the date of election of the new board of directors
except as follows: 1) EVRL or successor maintains an VWAP at bid of
$0.10 or greater for 90 consecutive day period; 2) EVRL or successor
has a net profit in two consecutive calendar quarters as defined by
EBIT (Earnings Before Income Taxes - GAAP); 3) upon merger or
acquisition with another entity that produces positive cash flow for
the successor entity for two consecutive calendar quarters; 4)
dilution as needed in order to conduct capital formation activities
(i.e. stock subscriptions to raise capital); 5) use of S8 shares to
pay operating and other expenses of EVRL. The anti-dilution
protection shall take the form of warrants or options issue able and
exercisable by shareholders of record on the date of election of the
new board of directors at the bid price per share for such shares on
the date of exercise of such options or warrants the company will have
no requirement to register any shares underlying such options or
warrants.
4.6 BBX QUALIFICATION. New management agrees to apply for BBX when
applications are available and will take steps to attempt to obtain
approval.
4.8 CAPITAL FORMATION. Managers will take action to assure that
adequate capital structure is afforded to accommodate this transaction
and possible future acquisition or merger activities required by New
Management. Current Board acknowledge that Managers may or may not be
able to raise adequate capital and that all undertakings may be on a
"Best Efforts" basis.
4.9 REPRESENTATIONS COMPLETE. The representations and warranties of
Managers contained in this Article 4 do not contain any untrue
statement of a material fact and do not omit to state any material
fact necessary to make such representations and warranties, in light
of the circumstances under which they were made, not misleading.
ARTICLE 5
EVERLERT'S COVENANTS
5.1 ACCESS TO PROPERTIES AND RECORDS. Throughout the period between
the date of this Agreement and the Effective Date, Everlert shall give
to Managers and Managers' authorized representatives reasonable
access, during business hours, to its facilities, and shall provide
Managers and its representatives with all records, documents and
information reasonably required by Managers relating to Everlert
and/or the business of Everlert. Without limiting the foregoing,
Managers shall be permitted to interview during regular business hours
such employees/officers & directors of Everlert as Managers shall
reasonably request of Everlert, including any officers of Everlert and
any employees with substantial responsibility for any Everlert
Intellectual Property material to the business of Everlert.
5.2 CONDUCT OF THE BUSINESS OF EVERLERT PRIOR TO CLOSING DATE. Between
the date of this Agreement and the Effective Date, and except as
otherwise required by this Agreement:
5.2.1 The business of Everlert shall be operated in the
ordinary course consistent with past practices and in a normal
businesslike fashion (including, without limitation, its normal
accounts receivable practice), and Everlert shall take such actions as
are in its business judgment reasonably necessary to facilitate a
smooth transition of the control of operation of the business of
Everlert from Everlert to Managers at the Effective Time. Everlert
shall use all commercially reasonable efforts to preserve and maintain
the business of Everlert and Everlert's goodwill, including
relationships with employees, suppliers and customers. In addition,
Everlert shall maintain records and books of account for the business
of Everlert consistent with past practices and in a normal
businesslike fashion, and shall continue to carry all of the insurance
for the business of Everlert consistent with past practice.
5.2.2 Everlert shall not take (or permit to be taken) any
action which would cause any material change in any of the items and
matters covered by the representations and warranties set forth in
Article 3, including, without limitation :
(a) incurring or becoming subject to, or agreeing to incur
or become subject to, any obligation or liability (absolute or
contingent), except current liabilities incurred, and obligations
under contracts entered into, in the ordinary course of business
consistent with past practices;
(b) mortgaging, pledging or assuming any Lien, or agreeing
to do so, in respect to any of its assets;
(c) waiving or compromising any material rights or any
material debt owed to Everlert;
(d) entering into any material transactions, other than in
the ordinary course of business consistent with past practices;
(e) increasing the rate of compensation payable or to become
payable to any employees;
(f) terminating or amending any contract to which it is a
party, unless terminated or amended in the ordinary course of business
consistent with past practices and not material to the business of
Everlert;
(g) introducing any new method of accounting with respect to
the business of any of the assets or liabilities of Everlert (assumed
or not assumed) (including, without limitation, any change in
depreciation or amortization policies or rates);
(h) making any capital expenditures or entering into
commitments for capital expenditures exceeding, in the aggregate, One
Thousand Dollars ($1,000);
(i) without Managers' prior consent (which consent,
Managers' shall not unreasonably withhold or delay), hiring or
terminating employees;
(j) issuing any shares of its capital stock or other
securities or making any redemption or other acquisition of any
capital stock of any declaration, setting aside, or payment of any
dividend or distribution of any kind with respect to any shares of
capital stock of Everlert; or
(k) commencing, settling or compromising any litigation,
except those related to insured claims or arising in the ordinary
course of business consistent with past practices.
5.3 NO SOLICITATION. Everlert will not (i) solicit or initiate
discussions with any person, other than Managers relating to the
possible acquisition of Everlert or all or a material portion of the
assets or capital stock of any merger or other business combination
with Everlert or (ii) except to the extent reasonably required by
fiduciary obligations under applicable law as advised in writing by
independent legal counsel, participate in any negotiations regarding,
or furnish to any other person information with respect to, any effort
or attempt by any other person to do or to seek any such transaction.
Everlert agrees to inform Managers in reasonable detail within one
business day of their receipt of any offer, proposal or inquiry
relating to any such transaction.
5.4 STOCKHOLDER CONSENT. Everlert shall, in accordance with applicable
law, solicit within 10 days after the date hereof, the approval of the
holders of the requisite number of shares of Everlert's capital stock
required to approve this Agreement and the transactions contemplated
hereby under applicable law, if any are so required. Without limiting
the generality of the preceding sentence, the board of directors of
Everlert will recommend to Everlert's stockholders a vote in favor of
the adoption of this Agreement and the Merger unless the board of
directors shall determine, based on the written opinion of counsel,
that such recommendation will not be consistent with its fiduciary duty.
5.5 SATISFACTION OF CONDITIONS Everlert shall take or cause to be
taken all actions within its power necessary to satisfy all conditions
to Managers' obligations to close and consummate the transactions
contemplated by this Agreement.
5.6 CONSENTS. On or prior to the Effective Date, except with regard to
any consents, which if not obtained by Everlert would not have a
material adverse effect on the business, operations or financial
condition of Everlert, Everlert shall (a) notify all persons required
to be notified pursuant to applicable law or any of the Permits or
contracts to which Everlert is a party of the transactions
contemplated hereunder, in the form and manner required thereunder,
and (b) use all commercially reasonable efforts to obtain the consent
of all persons whose consent is required pursuant to applicable law or
any of the Permits or contracts to which Everlert is a party in
connection with the consummation of the transactions contemplated
hereby, in the form and manner required thereunder.
5.7 NOTIFICATION OF CERTAIN MATTERS. Everlert and Managers shall give
prompt notice to the other party of the discovery of the occurrence or
non-occurrence of any event which causes or is likely to cause any
representation or warranty made by Everlert herein to be untrue or
inaccurate or any covenant, condition or agreement contained herein
not to be complied with or satisfied (provided, however, that if such
disclosure is made and the transactions contemplated hereby shall be
consummated, such disclosure shall be deemed to (a) amend and modify
the representations, warranties and covenants made by the disclosing
party in or pursuant to this Agreement and (b) the recipient party
shall be deemed to have waived all rights with respect to the breach thereof).
5.8 AFFILIATE AGREEMENTS. Schedule 5 delivered by Everlert to Managers
concurrent with the execution and delivery of the Agreement sets forth
those persons who may be deemed "Affiliates" of Everlert within the
meaning of Rule 145 promulgated under the Securities Act. Everlert
shall provide Managers such information and documents, as Managers
shall reasonably request for purposes of reviewing such list. Everlert
shall use its best efforts to deliver or cause to be delivered to
Managers, concurrently with the execution of this Agreement (and in
each case prior to the Effective Time) from each of the Affiliates of
Everlert, an executed Affiliate Agreement in the form attached hereto
as Exhibit 5.8. Managers and Everlert shall be entitled to place
appropriate legends on the certificates evidencing any EVRL Common
Stock to be received by such Affiliates of Everlert pursuant to the
terms of such Affiliates Agreement, and to issue appropriate stop
transfer instructions to the transfer agent for EVRL Common Stock,
consistent with the terms of such Affiliates Agreements if deemed
appropriate.
GENERAL CONSENTS AND ADVICES
6.1 CONSENTS. On or prior to the Effective Date, Everlert and Managers
shall (a) notify all persons required to be notified by Managers
pursuant to applicable law of the transactions contemplated hereby, in
the form and manner required thereunder, and (b) use all commercially
reasonable efforts to obtain the consent of all persons whose consent
is required to be obtained by Everlert or Managers pursuant to
applicable law in connection with the consummation of the transactions
contemplated hereby, in the form and manner required thereunder.
6.2 ADVICE OF DEVELOPMENTS. Everlert shall have continuing obligations
after the date of this Agreement through the Effective Date to advise
Managers of any event, fact or circumstance which has a material
adverse effect on the business, operations or financial condition of
Everlert.
6.8 FINDERS FEE. Managers will pay ▇▇▇▇▇▇ ▇▇▇▇▇▇ a finders fee of
150,000 shares of common stock of Everlert after the consummation of
this agreement.
6.10 BOARD SEATS. It is agreed that at the August 27, 2002, meeting
of the board of directors of EVRL a new slate of directors will be
elected as set forth herein, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
and ▇▇▇▇ ▇▇▇▇▇▇▇ will be elected (▇▇▇▇▇▇▇ remains from current
Everlert board) and will be allowed to designate up to 4 additional
outside directors if required to fulfill outside director positions as
needed.
6.11 GENERAL CONSENTS AND WAIVERS OF CONFLICT BY THE PARTIES IN
RESPECT OF LEGAL COUNSEL. Disclosure of ▇▇▇▇ ▇. Tow, Esq. and ▇▇▇▇▇
▇▇▇▇▇▇▇▇, Esq. (the "Lawyers") of Potential Adverse Interests in
Client.
Pursuant to the Rules of Professional conduct: Rule 3-300, a member of
the state bar shall not enter into a business transaction with a
client; or knowingly acquire an ownership, possessory, security, or
other pecuniary interest adverse to a client, unless each of the
following requirements has been satisfied:
(a) The transaction or acquisition and its terms are fair and
reasonable to the client and are fully disclosed and transmitted in
writing to the client in a manner which should reasonably have been
understood by the client; and
(b) The client is advised in writing that the client may seek the
advice of an independent lawyer of the client's choice and is given a
reasonable opportunity to seek that advice; and
(c) The client thereafter consents in writing to the terms of the
transaction or the terms of the acquisition.
6.12 ALL UNDERSIGNED PARTIES WAIVER OF ADVERSE INTERESTS AND CONFLICTS
ALL THE UNDERSIGNED PARTIES have reviewed Section 6.11 regarding
adverse interests and THEY realize that there are many areas of
differing interests, as well as potential or real conflicts of
interest between the parties hereto in connection with certain
business matters and/or transactions. EACH PARTY understands that, at
any time, either party may have separate, independent counsel in
connection with these matters or transactions. After considering all
of the above, WE EACH request that THE LAWYERS and your firms continue
with THEIR representation of the parties in and to this matter. WE
also understand that, as between each of us and THE LAWYERS and your
firms, confidential communications you receive from either of us may
be shared with the other; however, as to third parties, THE LAWYERS
will maintain our confidences.
6.13 GENERAL CONSENTS AND WAIVERS OF CONFLICT BY THE PARTIES IN
RESPECT OF CONSULTANT. DISCLOSURE OF ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, the
"CONSULTANT", OF POTENTIAL ADVERSE INTERESTS IN CLIENT.
Although the Consultant is not bound by the Rules of Professional
conduct: Rule 3-300, which states, " a member of the state bar shall
not enter into a business transaction with a client; or knowingly
acquire an ownership, possessory, security, or other pecuniary
interest adverse to a client, unless each of the following
requirements has been satisfied:
(a) The transaction or acquisition and its terms are fair and
reasonable to the client and are fully disclosed and transmitted in
writing to the client in a manner which should reasonably have been
understood by the client; and
(b) The client is advised in writing that the client may seek
the advice of an independent lawyer of the client's choice and is
given a reasonable opportunity to seek that advice; and
(c) The client thereafter consents in writing to the terms of
the transaction or the terms of the acquisition."
The consultant has elected to conduct itself according to the same
standards.
6.14 ALL UNDERSIGNED PARTIES WAIVER OF ADVERSE INTERESTS AND CONFLICTS
ALL THE UNDERSIGNED PARTIES HAVE REVIEWED SECTION 6.13 REGARDING
ADVERSE INTERESTS AND THEY REALIZE THAT THERE ARE MANY AREAS OF
DIFFERING INTERESTS, AS WELL AS POTENTIAL OR REAL CONFLICTS OF
INTEREST BETWEEN THE PARTIES HERETO IN CONNECTION WITH CERTAIN
BUSINESS MATTERS AND/OR TRANSACTIONS. EACH PARTY UNDERSTANDS THAT, AT
ANY TIME, EITHER PARTY MAY HAVE SEPARATE, INDEPENDENT CONSULTATION IN
CONNECTION WITH THESE MATTERS OR TRANSACTIONS. AFTER CONSIDERING ALL
OF THE ABOVE, WE EACH REQUEST THAT THE CONSULTANT CONTINUE WITH THEIR
REPRESENTATION OF THE PARTIES IN AND TO THIS MATTER. WE ALSO
UNDERSTAND THAT, AS BETWEEN EACH OF US AND THE CONSULTANT,
CONFIDENTIAL COMMUNICATIONS CONSULTANT RECEIVE FROM EITHER OF US MAY
BE SHARED WITH THE OTHER; HOWEVER, AS TO THIRD PARTIES, THE CONSULTANT
WILL MAINTAIN OUR CONFIDENCES.
ARTICLE 7
CONDITIONS TO CLOSING
7.1 CONDITIONS TO MANAGERS' OBLIGATION TO CONSUMMATE. Managers'
obligations to consummate the transactions contemplated by this
Agreement shall be subject to the full satisfaction of the following
conditions, each of which conditions may be waived in writing by
Managers:
7.1.1 INSTRUMENTS. Everlert and Everlert's Representative) shall
have executed and delivered to Managers the executed copy of this
Definitive Agreement, if applicable, and any and all other documents
reasonably required by Managers to effect the transactions
contemplated hereby.
7.1.2 REPRESENTATIONS AND WARRANTIES TRUE. The representations
and warranties of Everlert contained in this Agreement shall be true
in all material respects at the Closing as though made at such time
except for any changes in the ordinary course of business.
7.1.3 PERFORMANCE OF COVENANTS. Everlert shall have performed all
obligations and complied with all covenants and conditions required by
this Agreement to be performed or complied with by it on or prior to
the Closing Date in all material respects.
7.1.4 CERTIFICATE. Everlert shall have delivered to Managers a
certificate executed by its chief executive officer certifying as to
(a) Everlert's satisfaction of the conditions set forth in Sections
7.1.2 and 7.1.3 above and (b) the results of the vote by Everlert's
stockholders to approve the transactions contemplated hereby pursuant
to Section 5.4.
7.1.5 NO MATERIAL CHANGES. There shall not have been any material
adverse change in the assets, liabilities, business, operations or
financial condition of Everlert from the date hereof to the Effective
Date, nor shall there exist any condition which could reasonably be
expected to result in such a material adverse change, provided,
however, that any material adverse change that results from general
economic, business or industry conditions or the announcement of the
transaction contemplated hereby shall be disregarded for the purposes
of this Section 7.1.5.
7.1.6 CONSENTS. All consents or approvals required for the
consummation of the transactions contemplated hereby, including any
required consents of the parties to any contract to which Everlert is
a party, shall have been obtained, except any consents, which if not
obtained by Everlert would not have a material adverse effect on the
business, operations or financial condition of Everlert.
7.1.7 OPINION. No opinion of Everlert's legal counsel is required.
7.1.8 STOCKHOLDER APPROVAL. This Agreement and the transactions
contemplated hereby shall have been duly approved and adopted by the
requisite vote of the stockholders of Everlert.
7.1.9 LETTER FROM ACCOUNTANTS. Omitted.
7.1.10 NON-COMPETITION AND NON-SOLICITATION AGREEMENTS. The
current directors and employees of Everlert set forth on Schedule
7.1.10 shall have entered into non-competition and non-solicitation
agreements substantially in the respective forms attached hereto as
Exhibit 7.1.10.
7.2 CONDITIONS TO EVERLERT'S OBLIGATIONS TO CONSUMMATE. Everlert's
obligations to consummate the transactions contemplated by this
Agreement shall be subject to the following conditions, each of which
Everlert may waive conditions in writing:
7.2.1 INSTRUMENTS. Managers shall have executed and delivered to
Everlert the Definitive Agreement, ▇▇▇▇▇▇▇ Consulting Agreement, and
any and all other documents reasonably required by Everlert to effect
the transactions contemplated hereby.
7.2.2 REPRESENTATIONS AND WARRANTIES TRUE. The
representations and warranties of Everlert and Managers contained in
this Agreement shall be true in all material respects at the Closing
as though made at such time, except for any changes in the ordinary
course of business.
7.2.3 PERFORMANCE OF COVENANTS. Everlert and Managers shall
have performed all obligations and complied with all covenants and
conditions required by this Agreement to be performed or complied with
by them at or prior to the Closing Date in all material respects.
ARTICLE 8
SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION
8.1 SURVIVAL. The representations and warranties of Everlert
contained in this Agreement or in any document, certificate or
schedule or instrument contemplated hereby or delivered pursuant
hereto, shall survive the Effective Date until the date (the
"Expiration Date") that is the earlier of (i) one (1) year from the
Effective Time.
8.2 EVERLERT'S INDEMNITY. Everlert shall indemnify, defend, protect
and hold harmless Managers (and Managers'and Affiliates and their
respective officers, directors, stockholders, employees and agents)
from and against any and all losses, costs, expenses, liabilities,
obligations, claims, demands, causes of action, suits, settlements and
judgments of every nature, including the costs and expenses associated
therewith and reasonable attorneys', consultants' and witness fees
incurred in connection therewith ("Managers' Damages"), which arise
out of: (i) the breach by Everlert prior to the Closing Date of any
representation or warranty made by Everlert under this Agreement or
any schedule, exhibit or certificate delivered by Everlert pursuant to
this Agreement; (ii) the non-performance by Everlert, partial or
total, prior to the Effective Date of any covenant made by Everlert
pursuant to this Agreement or schedule, exhibit or certificate
delivered by Everlert pursuant to this Agreement; or (iii) [the
conduct of the business of Everlert prior to the Effective Date in
breach of any covenant set forth in Article 5 hereof].
8.3 OTHER REMEDIES. The rights of indemnification of an Indemnitee
shall be limited to the provisions of this Article, and the provisions
of this Article shall be exclusive of any other indemnification
provided for under this Agreement and any other rights or remedies at
law or in equity which may accrue to an Indemnitee.
ARTICLE 9
TERMINATION
9.1 GROUNDS FOR TERMINATION. This Agreement may be terminated at any
time prior to the Effective Date:
9.1.1 by mutual written agreement of Everlert and Managers; or
9.1.2 by either Managers if this Agreement shall not have
been consummated on or before August 28,, 2002 (other than as a result
of a failure by such party to comply with its obligations under this
Agreement); or
9.1.3 by Managers in the event of the Everlert's material
breach of any of its covenants, representations or warranties under
this Agreement; or
9.1.4 by Everlert in the event of Managers or Everlert's
material breach of any of their respective covenants, representations
or warranties under this Agreement; or
9.2 EFFECT OF TERMINATION. If this Agreement is terminated as
permitted by Section 9.1, except as set forth in the next sentence,
the parties hereto shall have no further obligations to each other,
provided that no such termination shall impair, limit or affect, in
any manner, any liability of any party hereto for any breach of any
covenant, representation or warranty set forth in this Agreement,
accrued as of the date of such termination. The provisions of Sections
8, 10.1, 10.2, 10.5, 10.7, 10.8, 10.11, 10.12 and 10.18 shall survive
any termination hereof pursuant to Section 9.1.
ARTICLE 10
MISCELLANEOUS
10.1 ANNOUNCEMENTS. Each of Managers and Everlert agree not to make
any press release or other public announcements regarding this
Agreement without the other party's prior consent, unless reasonably
required by applicable law, in which case prompt notice of such
announcement shall be given to the other party. Upon consummation,
Everlert will make an 8K filing to announce the change of Board and
new officers.
10.2 FINDERS AND BROKERS. Addressed elsewhere.
10.3 AMENDMENT. Subject to applicable law, this Agreement may only be
amended or supplemented by written agreement of Everlert and Managers.
10.4 WAIVER OF COMPLIANCE. Except as set forth in Section 5.7, any
failure of Everlert, on the one hand, or Managers, on the other, to
comply with any provision of this Agreement may be expressly waived in
writing by Managers or Everlert, respectively, but such waiver or
failure to insist upon strict compliance with such provision shall not
operate as a waiver of, or estoppel with respect to, any subsequent or
other failure. No failure to exercise and no delay in exercising any
right, remedy, or power hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any right, remedy, or
power hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, or power provided herein or by
law or in equity. The waiver by any party of the time for performance
of any act or condition hereunder does not constitute a waiver of the
act or condition itself.
10.5 EXPENSES. At Effective Date, each of the parties hereto shall pay
its own fees and expenses (including the fees of any attorneys,
accountants, appraisers or others engaged by such party) in connection
with this Agreement and the transactions contemplated hereby whether
or not the transactions contemplated hereby are consummated; provided,
however, that if the Agreement is consummated such fees and expenses
billed to or incurred by Everlert in connection with this Agreement
and the transactions contemplated hereby shall be borne by Everlert.
10.6 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The respective
representations and warranties of each party contained herein shall
not be deemed waived or otherwise affected by any investigation made
by or on behalf of the other party and such representations and
warranties shall survive the Effective Date and the consummation of
this Agreement contemplated hereby as provided in Article 8. All
statements contained in this Agreement or in any schedule, exhibit,
certificate, list, or other document delivered pursuant hereto shall
be deemed representations or warranties, as the case may be (as such
terms are used in this Agreement), of the party making such statements.
10.7 NOTICES. All notices, demands, and other communications required
or permitted hereunder shall be made in writing and shall be deemed to
have been duly given if delivered by hand, against receipt, or mailed,
postage prepaid, certified or registered mail, return receipt
requested, and addressed as follows:
To Everlert at:
c/o Law Offices of ▇▇▇▇ ▇. Tow.
▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇., ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
With a copy to:
To Managers at:
C/o Law Offices of ▇▇▇▇ ▇. Tow.
▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇., ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇▇
With a copy to:
▇▇▇▇ ▇▇▇ & Associates
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇
Notice of change of address shall be effective only when done in
accordance with this Section. All notices complying with this Section
shall be deemed to have been received on the date of delivery or on
the third business day after mailing.
10.8 ASSIGNMENT; SUCCESSORS AND ASSIGNS. Except as otherwise provided
herein, each party agrees that it will not assign, sell, transfer,
delegate, or otherwise dispose of, whether voluntarily or
involuntarily, or by operation of law, any right or obligation under
this Agreement. Any purported assignment, transfer, or delegation in
violation of this Section shall be null and void. Subject to the
foregoing limits on assignment and delegation, this Agreement shall be
binding upon and shall inure to the benefit of the parties and their
respective successors and assigns. Except for those enumerated above,
this Agreement does not create, and shall not be construed as
creating, any rights or claims enforceable by any person or entity not
a party to this Agreement.
10.9 GOVERNING LAW. The validity, interpretation, enforceability, and
performance of this Agreement shall be governed by and construed in
accordance with the law of the State of California.
10.10 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
10.11 HEADINGS. The headings of the Sections and Articles of this
Agreement and Table of Contents are for reference purposes only and
shall not constitute a part hereof or affect the meaning or
interpretation of this Agreement.
10.12 ENTIRE AGREEMENT. The parties intend that the terms of this
Agreement, including the Everlert Disclosure Schedule and other
documents referred to herein, shall be the final expression of their
agreement with respect to the subject matter hereof and may not be
contradicted by evidence of any prior or contemporaneous agreement.
The parties further intend that this Agreement shall constitute the
complete and exclusive statement of its terms and that no extrinsic
evidence whatsoever may be introduced in any judicial, administrative,
or other legal proceeding involving this Agreement.
10.13 EVERLERT DISCLOSURE SCHEDULE. The Everlert Disclosure Schedule
shall be divided into sections corresponding to the sections of this
Agreement. Disclosure in any section of the Everlert Disclosure
Schedule shall constitute disclosure for purposes of all sections of
the Agreement.
10.14 SEVERABILITY. If any provision 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
provisions as applied to other Persons, places, and circumstances
shall remain in full force and effect.
10.15 RULES OF CONSTRUCTION. The parties acknowledge that each party
has read and negotiated the language used in this Agreement. The
parties agree that, because all parties participated in negotiating
and drafting this Agreement, no rule of construction shall apply to
this Agreement, which construes ambiguous language in favor of or
against any party by reason of that party's role in drafting this
Agreement.
10.16 ADDITIONAL DOCUMENTS. Each of the parties agree, without further
consideration, to execute and deliver such other documents and take
such further action as may be reasonably required to effectuate the
provisions of this Agreement.
10.17 ATTORNEY'S FEES. If any action or proceeding relating to this
Agreement or the enforcement of any provision of this Agreement is
brought against any party hereto, the prevailing party shall be
entitled to recover reasonable attorney's fees, costs and
disbursements (in addition to any other relief to which the prevailing
party may be entitled).
10.18 EXHIBITS. All Exhibits attached hereto shall be deemed to be a
part of this Agreement and are fully incorporated in this Agreement by
this reference.
10.19 CERTAIN DEFINITIONS.
"Affiliate" or "Associate" shall have the meaning assigned
thereto in Rule 405, as presently promulgated under the Securities Act
of 1933, as amended.
"Intellectual Property" shall mean any trademark, copyright,
service ▇▇▇▇, trade name, patent, maskworks, inventions, trade
secrets, know-how, processes, manufacturing or marketing procedures,
net lists, documentation, schematics, technology, algorithms, computer
software programs or applications (in both source code and object code
form), and tangible and intangible proprietary information or material
(including any registrations or applications for registration of any
of the foregoing).
"Person" shall include any individual, partnership, joint
venture, corporation, trust, unincorporated organization, any other
entity and any government or any department or agency thereof, whether
acting in an individual, fiduciary, or other capacity.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement and Plan of Merger as of the date first written above.
Everlert, Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
Title: President
Managers
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
LIST OF SCHEDULES AND EXHIBITS
SCHEDULE NAME
1.4 List of Directors & Officers of Everlert,
Inc. following Consummation
2.2.1 Allocation of Shares to Managers or Designees
3 Everlert Disclosure Schedule
5 List of Everlert Affiliates
7.1.10 List of Everlert Officers/Directors/Employees
to Enter Into Non-Competition Agreements
EXHIBIT NAME
5.8 Form of Everlert Affiliates Agreement
7.1.10 Form of Non-Competition Agreement