AMENDED PURCHASE AGREEMENT
This amended Agreement made and entered into as of January 15, 2001 and between
Advanced Optics Electronics, Inc., a Nevada corporation having its principal
place of business at 0000 Xxxxxxxxxx Xx XX, Xxxxxxxxxxx, XX 00000 ("ADOT") as
Seller and Wang REDACTED as buyer replaces and is in the stead of all previous
Agreements, contracts and orders between ADOT and Wang REDACTED.
WHEREAS, ADOT is in the process of manufacturing products for electronic
outdoor flat panel displays ("the Products" and/or "the Units"), and is the sole
owner of certain proprietary rights relating to such Products including, but not
limited to all rights relating to United States Patents pending therefore it is
agreed:
A. That ADOT will utilize proprietary REDACTED processing technology to
maximize pixel density and reduce activation voltage increasing light
transmission (brightness) through a REDACTED in the surface area of
the material required for the REDACTED. Advanced Optics Electronics,
Inc. will provide a manufacturing process for a high density
electro-optic array.
Advanced Optics Electronics, Inc. shall provide a high density
electro-optic light valve array with reduced REDACTED compatible with
or to exceed current commercially available REDACTED technology and
display circuitry designed for use with REDACTED.
B. That such reduction is an important inducement and benefit to Buyers
and to significantly reduce Buyer's cost of operations of the
Products.
C. That Wang desires that ADOT build, test, and install two large scale
electronic flat panel moving color image display boards, hereinafter
referred to as Units A and B capable of being viewed by interstate
motorists at a distance of no less than REDACTED feet by employing the
above referenced developments by ADOT to minimize operating REDACTED
that will be required by Buyer to employ in its operation of the
Products.
D. Due to the confidential nature of technical processes and systems
described in this Agreement and matters of confidential concern to
Buyer in its industry; Buyer and Seller jointly agree not to disclose
the terms and conditions herein unless to a U.S. domestic bank for
financing of all or a portion of the purchase herein. When this
Agreement is completed disclosure may be made.
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E. In the event that any part of the Agreement is breached or violated,
Buyer then shall have the option terminate this Agreement. In the
event this Agreement is terminated all unused funds shall be remitted
to the Buyer including interest at seven (7%) per cent per annum.
NOW, THEREFORE, in consideration of the mutual promises contained
herein, ADOT and agree as follows:
1. Product Description
(a) Two large scale outdoor flat panel displays Units Size
REDACTED meters X REDACTED meters
(b) Employment of ADOTs Patents pending or to be applied for
held by ADOT related to flat panel displays.
(c) Levels of Achievement Required
Pixel Density: minimum REDACTED
Framing Rate: minimum REDACTED
Contrast Ratio: minimum REDACTED
2. Installation Per Unit Display.
(a) Delivery allowance $REDACTED
(b) Erection/site Preparation Allowance $REDACTED
(c) Computer interface Allowance $REDACTED
(d) All sites are to have reasonable access, at ground level or
not more than 30' of elevation.
3. Price.
(a) $885,000 for first Display unit "A"
(b) $875,000 for second Display unit "B"
(a) Phase I - Draw Unit A. A New Mexico based partner of a
mutually acceptable accounting firm will verify the serial
number of the designed board for REDACTED.
Said verification must indicate that said board is
under construction. At this point ADOT shall receive payment
via check, wire, or Letter of Credit for $65,000 to be
applied on the purchase of the first Display Unit.
(b) Phase II - Draw Unit A. Upon verification by a New Mexico
based
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partner of a mutually acceptable accounting firm that the
Levels of Achievement required herein have been
demonstrated. ADOT shall receive additional payment via
check, wire, or Letter of Credit for $265,000 to be applied
on the purchase of the first Display Unit.
(a) Phase I - Draw Unit B. A New Mexico based partner of a
mutually acceptable accounting firm will verify the serial
number of the designed board for Wang. Said verification
must indicate that said board is under construction. At this
point ADOT shall receiver payment via check, wire, or Letter
of Credit for $65,000 to be applied on the purchase of the
first Display Unit.
(b) Phase II - Draw Unit B. Upon verification by a New Mexico
based partner of a mutually acceptable accounting firm that
the Levels of Achievement required herein have been
demonstrated, ADOT shall receive additional payment via
check or Letter of Credit for $REDACTED to be applied on the
purchased of the first Display Unit.
4. Payment Upon Completion of Unit A.
(a) Upon delivery to the buyers designated installation site
field testing of electronic display lighted circuitry, ADOT
shall receive its final 30% payment via check or Letter of
Credit.
Payment Upon Completion of Unit B.
(a) Upon delivery to the indicated installation site in REDACTED
and field testing of electronic display lighted circuitry
ADOT shall receive additional payment via check or Letter of
Credit for $ REDACTED.
(b) The balance shall be payable as follows: $100,000 within 5
business days after installation and testing is complete.
(c) $230,000 within 60 days thereafter.
(a) ADOT shall pay the costs for up to two representatives of
Buyer to travel (including lodging) business class, to
ADOT's assembly factory in order to observe testing
procedures in an outdoor venue of each board ordered herein.
(b) After two boards have been successfully delivered and
installed, ADOT shall have no further obligation to pay for
travel costs of
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representatives of Buyer.
5. Delivery Times.
(a) ADOT shall be required to deliver the initial flat panel
display, Unit A, no later than October 15, 2001 or at the
time that ADOT has commenced limited or full production of
flat panel displays, whichever shall occur first.
(b) ADOT shall be required to deliver the second flat panel
display, Unit B, no later than March 1, 2002.
6. Territory Provision. ADOT agrees that it shall not sell directly
or allow the indirect sale of any large scale outdoor flat panel
display(s) to any other third party customer/user, licensee or
agent located within REDACTED miles of any location where a unit
is located or to be located. This Agreement to restrict shall be
valid for two years after completion of installation by ADOT of
the initial display for Wang.
7. Product Testing. Upon notification by ADOT to of the completion
of the initial assembly and testing of the Product by or under
the direction of ADOT, any Acceptance Test shall be performed at
a mutually designated location in the presence of representatives
of Wang. If the Acceptance Test is successfully completed, will
complete the agreed upon payment schedule. If the Acceptance Test
is not successfully completed, ADOT shall use its best efforts to
make the necessary corrections to the Product within thirty days
of receipt of notice of nonacceptance, at which time the
Acceptance Test shall again be conducted. The Acceptance Test may
be repeated until it is successfully completed as provided
herein.
8. Obligations of ADOT under this Agreement during Construction
Period.
(a) Progress Reports and Meetings. During the construction
period at such times and in such manner or format as Wang
shall reasonably request, ADOT shall submit to Wang reports
summarizing ADOT's progress on the construction of the
Panel.
(b) Maintenance. During the development period, ADOT shall
provide, at expense, up to two (2) liaison persons and such
training and instruction as is reasonably necessary to
provide with sufficient technical understanding of the
Product and its operation and use.
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9. Representations Warranties and Covenants of ADOT.
(a) ADOT represents, warrants and covenants as follows:
(i) It is duly organized, validly existing as a Nevada
corporation and has full legal right, power and
authority to enter into, execute and perform its
obligations under this Agreement which constitutes the
legal, valid and binding obligation of ADOT
enforceable in accordance with its terms.
(ii) It is the sole owner or otherwise has all rights to
the patents, patent applications, trademarks,
technology and know-how which are the subjects of the
Agreement and such rights are not subject to any
encumbrance lien or claim of ownership by any third
party.
(iii) All the patents, patent applications and the
trademarks which are the subject of the Agreement are
valid and enforceable in all material respects.
(iv) ADOT is aware of no fact which puts in question the
validity or enforceability of any of the patents,
patent applications or the trademarks, nor does or
will the use of the patents, patent applications,
trademarks, technology or know-how infringe upon the
patents, trademarks or proprietary property of anyone
else.
10. Technical Services of ADOT. During the term of this Agreement up
to at Buyers expense, ADOT agrees to provide such reasonable
technical assistance including training, testing, specific
consultations, and other technological support services as may be
reasonably required by Buyer to enable Buyer to use the display
in a productive manner. Thereafter Wang and ADOT may agree from
time to time to continue to have ADOT provide for such services
to assist Wang to refine and/or improve the Product; however ADOT
shall not be under the obligation to do so. If the foregoing
requires any travel or in incurring of any other out-of-pocket
expenses for travel, lodging or similar expenses, or, (as is
applicable) shall reimburse ADOT for such expenses reasonably
incurred and previously approved in writing by REDACTED.
11. Definition of Improvements. For purposes of the Agreement the
term "Improvements" shall mean all modifications, revisions,
upgrades, new
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technology, new models, or other improvements to the Product,
know-how or technology which are incorporated into or relate to
the Product or any part thereof, or the commercial applications
presently utilizing the Product, as well as all processes,
machines, manufactures or composition of matter which ADOT or any
affiliate may conceive, develop, acquire or otherwise obtain
rights to during the term of this Agreement which relate to the
Product or any of its parts or the commercial applications
presently utilizing such Product.
12. Confidentiality.
(a) Agreement not to Disclose. The parties hereby agree that
they will not publish, disclose to any third party (except
to their own employees or technical consultants to the
extent necessary to permit them to perform their obligations
hereunder), or otherwise use for their own benefit a copy of
this Agreement or any technical or confidential information,
know-how or other proprietary information of the other party
heretofore or hereafter disclosed to them pursuant to this
Agreement without the prior written approval of such other
party. The parties shall not disclose any technical
information, know-how or other proprietary information of
the other party to any of their employees or consultants
pursuant hereto unless such employees or consultants have
entered into a non-disclosure Agreement satisfactory to the
other party. No customer or distributor shall be furnished
with any technical or confidential information, know-how or
other proprietary information of ADOT, unless and until such
customer or distributor has agreed in writing to deep such
information confidential. The provisions of the Section
shall not apply to information which (i) was at the time of
disclosure to the other party a part of the public domain by
publication or otherwise (ii) was already properly and
lawfully in the possession of the other party at the time it
was received (iii) was lawfully received by the other party
without restriction from a third party or (iv) is required
by law to be disclosed (but only to the extent of such
required disclosure). The provisions of the Section shall
survive any expiration or termination of the Agreement.
(b) Equitable Relief. The parties hereto acknowledge and agree
that any breach of the terms of this Section would cause
irreparable harm to the injured party and agree that the
injured party shall be entitled, in addition to whatever
remedies shall be available at law, to injunctive relief or
other equitable remedies with respect to any
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such breach.
13. Assignability. This Agreement shall not be assignable by either
party except that ADOT shall have the right at any time to
assign, in connection with its merger or consolidation or the
sale of substantially all of its assets utilized in the business
to which this Agreement relates, any or all of the rights and
interest herein granted, without the necessity of obtaining the
consent of the other party to the surviving or purchasing entity
who shall expressly assume and agree to perform all of the
obligations of said party pursuant hereto.
14. Relationship of Parties. It is expressly agreed that the
relationship hereby established is solely that of manufacturer
and consumer. It being understood that Wang is acting for it own
account and that it has no authority to make, assume or create
any representation, warranty, Agreement, guarantee, claim or
settlement on behalf of ADOT with respect to the Products or
otherwise.
15. Force Majeure. Neither party shall be responsible for any failure
to comply with the terms of the Agreement due to force majeure or
acts of God, including, but not limited to, fire, storm, flood,
earthquake, explosion, accident, acts of the public enemy, war,
riot, rebellion, insurrection, sabotage, epidemic, quarantine,
restrictions, labor disputes, transportation embargoes, failures
or delays in transportation or the mails, failures or delays of
suppliers or subcontractors, acts of any government, whether
national, state, local, foreign or otherwise, or any agency
thereof, or judicial action.
16. Notices. Any notice required or permitted to be given hereunder
shall be in writing and shall be deemed to be properly given when
sent by registered or certified mail, return receipt, requested
addressed as follows:
If to
Advanced Optics Electronics, Inc.
0000 Xxxxxxxxxx XX Xxxxx 0
Xxxxxxxxxxx, XX 00000
Attn: X. Xxxxxx
If to
Wang REDACTED
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17. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of each State where final
installation is to be completed.
18. Waivers; Amendments. No waiver of any rights hereunder by either
party shall operate as a waiver of any other rights, or of the
same right with respect to any subsequent occasion for its
exercise, or of any right to damages. No waiver by either party
of any breach of this Agreement shall be held to constitute a
waiver of any other breach or a continuation of the same breach.
All remedies provided by this Agreement are in addition to all
other remedies provided by law. This Agreement may not be amended
except by a writing signed by each of the parties hereto.
19. Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the permitted successors and
assigns of the parties hereto.
20. Severability. If any condition of the Agreement should be
determined to be unenforceable or illegal, it shall be deemed
severable from the other provisions hereof, which shall remain
valid and enforceable. In the event that the relative benefits,
habilities, and obligations of either party to the Agreement as
compared to those of the other party hereto are significantly
increased or reduced by the action of any judicial or
administrative authority the parties agree to enter into
immediate good faith negotiations to amend this Agreement in a
manner which will fulfill the original intention of the parties
in a legal manner. This Agreement shall remain in full force and
effect during the course of such negotiations and thereafter
until validly amended.
21. Counterparts. This Agreement may may be executed in three or more
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
22. Prior Understandings. This Agreement represents the complete
Agreement of the parties with respect to the transactions
contemplated hereby and supersedes all prior Agreements and
understandings.
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23. Headings. Headings in this Agreement are included for reference
only and shall have no effect upon the construction or
interpretation of any part of the Agreement.
24. Arbitration. Any disagreements arising out of the provisions of
the Agreement will be decided by arbitration in New York City,
New York, in accordance with the Rules of the American
Arbitration Association. Each party will appoint an arbitrator,
and the two thus selected will designate a third. If either of
the parties fails to appoint its arbitrator within sixty (60)
days after receipt of notice of the appointment, by the other, of
its arbitrator, or if the arbitrators fail to appoint a third,
then the American Arbitration Association will have the power, on
the request of either party, to make the appointments which have
not been made as contemplated above. The arbitration will be held
as promptly as possible at such time and place as the arbitrators
may determine. The decision of the majority of the arbitrators
will be final and binding upon the parties hereto, and the
expense of the arbitration will be shared equally by the parties.
Judgment upon the award may be entered in any court having
jurisdiction, or application may be made to such court for a
judicial acceptance of the award and an order of endorsement as
the case may be.
IN WITNESS WHEREOF the parties have caused this Agreement to be executed by
their respective officers thereunto duly authorized and have caused their
respective corporate seals to be affixed hereto as the date first above written.
(Corporate Seal) Advanced Optics Electronics, Inc.
A Nevada corporation
By: /S/ XXXXXX X. XXXXXX
----------------------------
Title: Executive Vice-President
(Corporate Seal) Wang REDACTED
By: /S/ ILLEGIBLE
----------------------------
Title: President
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