Exhibit 10.23
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 Family Trust LTD., a Hong Kong corporation having its North
American office Wang Tr, c/o Leggat Xxxxxxx Keesmaat, 00 Xxxxxxx Xx. Xxxxx,
Xxxxxxxx, Xxxxxxx, Xxxxxx, X0X 0X0, as buyer and Wang Family Trust LTD as buyer
replaces and is in the stead of all previous Agreements, contracts and orders
between ADOT and Wang Family Trust LTD.
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 semiconductor processing technology
to maximize pixel density and reduce activation voltage increasing
light transmission (brightness) through a reduction in the surface
area of the material required for the non-transmissive electrodes.
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 operating voltages
compatible with or to exceed current commercially available silicon
large scale integration technology and display circuitry designed for
use with light emitting diodes.
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 one hundred and fifty feet by
employing the above referenced developments by ADOT to minimize
operating voltages 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.
E. In the event that any part of the Agreement is breached or violated,
Buyer then
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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 3 meters X
8 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 40
Framing Rate: minimum 2,000
Contrast Ratio: minimum 200
2. Installation Per Unit Display.
(a) Delivery allowance $4,500
(b) Erection/site Preparation Allowance $16,250
(c) Computer interface Allowance $12,500
(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 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
partner of a mutually acceptable accounting firm that the Levels
of
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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
$265,000 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 Greater Miami
and field testing of electronic display lighted circuitry ADOT
shall receive additional payment via check or Letter of Credit
for $165,000.
(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
representatives of Buyer.
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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 75 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.
9. Representations Warranties and Covenants of ADOT.
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(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
11. Definition of Improvements. For purposes of the Agreement the term
"Improvements" shall mean all modifications, revisions, upgrades, new
technology, new models, or other improvements to the Product, know-how
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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 such breach.
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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 Trust
c/o Leggat Xxxxxxx Keesmaat
20 Xxxxxxx St. South
7
Hamilton, Ontario
Canada L8N 3P6
Attn: X. Xxxxx
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.
23. Headings. Headings in this Agreement are included for reference only
and
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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
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice-President
(Corporate Seal) Wang Trust, LTD (Hong Kong)
By:_ /s/ X. X. Xxxx
Name: X. X. Xxxx
Title: President
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