SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): October 21, 2003
WHISTLER INVESTMENTS, INC.
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(Exact Name of Registrant as Specified in Its Charter)
Nevada 000-33391 98-0339467
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(State or Other Jurisdiction (Commission ( I.R.S. Employer
of Incorporation) File Number) Identification No.)
5001 East Bonanza Road, Suite 144-145, Las Vegas, Nevada 89110
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (702) 296-2754
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4440 East Washington Avenue, Suite 107, Las Vegas, Nevada 89110
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Former name or former address, if changed since last report
ITEM 5. OTHER EVENTS AND REGULATION FD DISCLOSURE.
Termination of Nu Age Licensing Agreement, New Distribution and Licensing
Agreement with RV Systems, Inc. and Planet Electric Litigation
Nu Age Agreement Termination.
On October 21, 2003, the original Licensing Agreement between Whistler and
Nu Age Electric Inc was terminated. Each Party to the amendment terminating the
Licensing Agreement agreed to indemnify the other Party and hold it harmless
from and against any and all losses, damages, liabilities, costs and
expenses (including, but not limited to, any and all expenses reasonably
incurred in investigating or defending against any litigation commenced
or threatened or any claim whatsoever) which the indemnified Party
may sustain or incur resulting from actions of the indemnifying Party
in connection with the original Licensing Agreement or the breach by the
indemnifying Party of any material representation, warranty, or covenant made
by it in the original Licensing Agreement.
New Distribution and Licensing Agreement With RV Systems, Inc.
On October 21, 2003, we entered into a new Distribution and Licensing
Agreement (the "Agreement") with RV Systems, Inc., a Nevada corporation,
for the worldwide arena (with the exception of India for the two- and
three-wheeled vehicle technology) to sell, distribute and/or manufacture
(or arrange for the sale, distribution or manufacture of) specified products
utilizing the portable power systems (the "Licensed Technologies"),
developed by Lithium House, Inc., a California corporation with principal
offices located in Van Nuys, California. Lithium House is an affiliate of RV
Systems, and has licensed all product development to RV Systems for products
and applications of portable power systems utilizing Lithium House's
proprietary lithium battery technology.
Lithium House was founded in 2002 by Charles Haba and designs and builds lithium
ion and lithium polymer battery packs and systems. Prior to the founding of
Lithium House, Mr. Haba was involved in the founding of Planet Electric, Inc.
(see description below of litigation filed by a stockholder of Planet Electric,
Inc.). Lithium House is dedicated to applying its proprietary methods of lithium
battery technology to improve performance and reliability for everyday power
needs. With its substantial experience building lithium battery systems, Lithium
House can provide the exact battery and charger configurations for virtually any
application.
Lithium House offers battery and charging solutions in seven broad product
areas: computers, portable power (such as portable generators ranging from
purse-size to rolling generators on wheels), cameras, lighting (including
lighting belts and power sources for motion picture cameras, video, sound and
production equipment with ranges of 4 to 120 volt applications),
recreational/transportation applications (including two- and three-wheeled
vehicles and small cars), camping (primarily power packs) and hobby and RC
control models.
The Agreement with RV Systems covers Licensed Technologies in three separate
product groups: two- and three-wheeled vehicles to be manufactured and sold in
all countries of the world except India; lawn and garden equipment to be
manufactured and sold in all countries of the world; and Neighborhood Electric
Vehicles to be manufactured and sold in all countries of the world.
Two- and Three-Wheeled Vehicles
1. Motorcycle product - Identification/model: Stealth H (Harley type)
2. Two-Wheel Vehicle - Identification/model: Stealth V (Vespa-type
scooter)
3. Two-Wheel Bicycle - Recumbent style with motor in the front wheel
and batteries in the bicycle frame
4. Three-wheel bicycle or a three-wheel motorcycle, commonly referred
to as trikes or Tuk-Tuk's (as in the Thailand style three-wheel
taxis)
Lawn and Garden Equipment
Lawn and garden will include two and four wheel electric mowers. It will also
include leaf blowers and any electric rotating lawn tool (e.g., edgers,
roto-tillers).
Neighborhood Electric Vehicles
Neighborhood electric vehicles include four wheel neighborhood electric vehicles
("NEV's").
Subject to the terms of this Agreement, RV Systems, as Licensor, has granted to
us, during the term of the Agreement, and upon the terms and conditions set
forth in the Agreement, a non-assignable right and license to market, sell,
manufacture, and distribute the Licensed Technologies in all countries of the
world, with the exception of India for two- and three-wheeled vehicles. We have
the right, upon receipt of written approval and due diligence by the Licensor,
to sublicense any of the rights and licenses granted in the Agreement to or
enter into distribution agreements with third parties ("Sublicensees") with the
written consent of Licensor to the sublicense or distribution agreement and the
approval of Licensor of the related agreement or agreements with the particular
Sublicensee, which consent or approval shall not unreasonably be withheld.
The term of the Agreement commenced on October 21, 2003, and continues for a
period of five License Years. NEV's were added to the Licensed Technologies on
November 14, 2003. The term is automatically renewed for three succeeding
License Years unless earlier terminated by either party upon not less than 90
days prior written notice to the other of intent to terminate.
The Company is required to pay the Licensor the technology payments (the
"Technology Payments") (to be paid to Lithium House) as specified in the
Agreement ($100,000 for two- and three-wheeled vehicles, and $50,000 for lawn
and garden equipment) to be paid on or before October 31, 2003, which payments
have been made. For NEV's we are required to pay $250,000 no later than December
31, 2003, with a weekly minimum of $15,000. We are also required to pay Licensor
product development payments of $400,000, on or before December 31, 2003, with a
weekly minimum of $15,000, for two- and three-wheeled vehicles; $200,000 for
lawn and garden equipment, on or before December 31, 2003, with a weekly minimum
of $15,000; and $1,000,000, payable no later than March 31, 2004, with a weekly
minimum of $35,000 for NEV's ("Product Development Payments"). As reimbursement
to the Company, Licensor is required to pay to us the proceeds from any sales by
Licensor of product inventory manufactured with the financing provided by the
Product Development Payments as and when that product inventory is sold by
Licensor.
We (or our Sublicensees) are required to pay royalties to Licensor as to be
specified for each of the Licensed Technologies, or products or applications
utilizing such Licensed Technology, in the Agreement ("Royalties"). The
particular royalty payment levels are to be agreed upon when we enter into
sublicense agreements or commence manufacturing or distribution operations
ourselves. We are responsible for the collection of any Royalty payments due
from our Sublicensees and remittance of such royalty payments to the Licensor,
unless direct payment of royalties to Licensor by a Sublicensee is provided for
in the applicable Addendum to the Agreement.
If the Company fails to make any payment due under the Agreement, (a) we are
obligated to pay interest thereon from and including the date such payment
becomes due until the entire amount is paid in full at a rate equal to three
percent (3%) per annum over the prime rate charged by CitiBank, N.A., New York
as of the close of business on the date the payment first becomes due, but in no
event greater than the highest rate permitted by law; (b) if such a default
shall continue uncured for a period of sixty (60 days) after written notice is
received by the Company, the Licensor then shall have the right to terminate the
Agreement immediately upon notification to us by the Licensor to terminate. If
such default is by a Sublicensee, we shall provide the notice referred to above
and shall follow Licensor's instructions as to termination of the particular
Sublicensee's rights as to the Licensed Technologies.
We shall have the option of preventing the termination of this Agreement by
taking corrective action that cures the default, if such corrective action is
taken prior to the end of the 60-day cure period and if there are no other
defaults during such time period. If the Licensor or the Company otherwise fails
to perform any of the material terms, conditions, agreements or covenants in
this Agreement on its part to be performed (hereinafter referred to as "other
default") and such other default is not curable, or if such default is curable
but continues uncured for a period of sixty (60) days after notice thereof has
been given to the defaulting party in writing by the other party or all
reasonable steps necessary to cure such other default have not been taken by the
defaulting party within sixty (60) days after notice thereof has been given to
the defaulting party in writing by the other party or all reasonable steps
necessary to cure such other default have not been taken by the defaulting party
within such sixty (60) day period, the other party at its sole election may
terminate the Agreement forthwith by written notice. If we file a petition in
bankruptcy, are adjudicated as bankrupt or file a petition or otherwise seek
relief under or pursuant to any bankruptcy, insolvency or reorganization statute
or proceeding or if a petition in bankruptcy is filed against us, which is not
vacated within sixty (60 ) days, or we become insolvent or make an assignment
for the benefit of its creditors or a custodian receiver or trustee is appointed
for us or a substantial portion of our business assets, which is not discharged
within sixty (60) days, the Agreement by its terms terminates automatically and
forthwith. No assignee for the benefit of creditors, custodian, trustee in
bankruptcy or any official charged with taking over custody of our assets or
business shall have any right to continue the Agreement or to exploit or in any
way use the Licensed Technologies if the Agreement terminates; provided,
however, that a termination under the Agreement as to a particular Sublicensee
and Licensed Technologies to that Sublicensee would not affect the validity of
the Agreement or our status under the Agreement or that of other Sublicensees
not in default.
We are proceeding to initiate discussions with potential Sublicensees under the
Agreement.
Planet Electric, Inc. Stockholder Litigation
On October 17, 2003, we were served with a complaint filed on October 15, 2003,
by Michael McDermott, as a stockholder of Planet Electric, Inc. and purportedly
on behalf of Planet Electric in the United States District Court for the Central
District of California. Charles Haba was one of the founders of Planet Electric,
and was associated with that company from until early 2002. The complaint lists
Charles Haba, other individuals, Lithium House, Inc., Nupow'r LLC, Nu Age
Electric, Inc., Dynamic Concepts aka NPDI, and Whistler Investments, Inc. as
defendants. The complaint seeks an injunction prohibiting certain defendants
from continuing their business relationship and transfer of alleged Planet
Electric trade secrets or processes and also seeks damages for: patent
infringement against Charles Haba, companies that Mr. Haba has been associated
with since his involvement with Planet Electric, and Whistler; breach of
fiduciary duty against Mr. Haba; breach of confidential relationship against Mr.
Haba; conversion against Mr. Haba and certain other individual defendants;
various business torts against Mr. Haba, Lithium House, NuPow'r and Nu Age;
trade secret misappropriation against all defendants.
The defendants in this action have retained counsel, and will move to dismiss
the complaint on the grounds that there is no evidence to support plaintiffs'
claims.
After consultation with Charles Haba, Lithium House and our counsel, we are
confident that this litigation does not pose any obstacle to continuation of our
activities in consortium with Mr. Haba, RV Systems and Lithium House under the
October 21, 2003 Distribution and Licensing Agreement and to our commencing to
implement and license the technologies covered by that Agreement worldwide. The
lithium battery technologies licensed to us by RV Systems were developed by
Lithium House subsequent to Mr. Haba's association with Planet Electric.
Item 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Exhibits:
10.3 Amendment to Licensing Agreement, dated October 21, 2003,
between Nu Age Electric Inc. and Whistler Investments, Inc.
10.4 Agreement, dated October 21, 2003, by and between RV Systems,
Inc. and Whistler Investments, Inc.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Company has caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
WHISTLER INVESTMENTS, INC.
By /s/ Holly Roseberry
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Chief Executive Officer
Date: November 21, 2003
EXHIBIT 10.3
AMENDMENT TO LICENSING AGREEMENT
--------------------------------
THIS AMENDMENT, dated October 21st, 2003, to Licensing Agreement dated
the 27th day of June, 2003 ("Amended Agreement").
BETWEEN:
NU AGE ELECTRIC INC., a company incorporated pursuant to the laws
of the State of Nevada and having an office located at 799 Marsopa
Dr., Vista, California 92083;
("Nu Age")
OF THE FIRST PART
AND:
WHISTLER INVESTMENTS, INC., a company incorporated pursuant to the
laws of the State of Nevada and having an office located at 4440
East Washington Avenue, Suite 107, Las Vegas, Nevada, 89110;
("Whistler")
OF THE SECOND PART
WHEREAS:
A. Whistler and Nu Age have negotiated alternate business
arrangements with third parties that require agreements that are
inconsistent with the terms of the June 27, 2003 Licensing Agreement
(the "Original Licensing Agreement").
B. Whistler and Nu Age desire therefore to terminate the Original
Licensing Agreement between the parties.
NOW THEREFORE THIS AMENDED AGREEMENT WITNESSES that in
consideration of the premises and mutual agreements and covenants herein
contained, the parties hereby covenant and agree as follows:
1. TERMINATION OF ORIGINAL LICENSING AGREEMENT
The Original Licensing Agreement is hereby terminated as of
the date first set forth above.
2. INDEMNIFICATION
Each Party (the "Indemnifying Party") agrees to indemnify the
other Party (the "Indemnified Party") and hold it harmless from and against any
and all losses, damages, liabilities, costs and expenses (including, but not
limited to, any and all expenses reasonably incurred in investigating or
defending against any litigation commenced or threatened or any claim
whatsoever) which the Indemnified Party may sustain or incur resulting from
actions of the Indemnifying Party in connection with the Original Licensing
Agreement or the breach by the Indemnifying Party of any material
representation, warranty, or covenant made by it in the Original Licensing
Agreement.
3. ENTIRE AGREEMENT
This Amended Agreement constitutes the entire agreement
between the parties hereto and supersedes every previous agreement,
communication, expectation, negotiation, representation or understanding,
whether oral or written, express or implied, statutory or otherwise, between the
parties with respect to the subject of this Agreement.
4. NOTICES
4.1 Any notice required to be given under this Amended Agreement
shall be deemed to be well and sufficiently given if delivered, in the case of
Nu Age as follows:
NU AGE ELECTRIC INC.
799 Marsopa Dr.
Vista, California 92083
and in the case of the Whistler addressed as follows:
Whistler Investments, Inc.
4440 East Washington Avenue, Suite 107
Las Vegas, Nevada 89110
and any notice given as aforesaid shall be deemed to have been given when
delivered.
4.2 Either party may time to time by notice in writing change its
address for the purpose of this section.
5. APPLICABLE LAW
The situs of the Amended Agreement is Las Vegas, Nevada, and
for all purposes this Amended Agreement will be governed exclusively by and
construed and enforced in accordance with laws prevailing in the State of
Nevada. The parties hereto agree to the jurisdiction of the Courts of the State
of Nevada with respect to the resolution of all disputes related to this Amended
Agreement.
IN WITNESS WHEREOF this Amended Agreement has been executed as
of the day and year first above written.
NU AGE ELECTRIC INC. WHISTLER INVESTMENTS, INC.
per: per:
/s/ Lee Eastman /s/ Holly Roseberry
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Lee Eastman, President Holly Roseberry, President
EXHIBIT 10.4
R V SYSTEMS, INC.
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Distribution and License Agreement
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AGREEMENT ("Agreement"), made and entered into as of the 21st day of
October, 2003, in duplicate originals by and between R V SYSTEMS, INC., a Nevada
corporation having an address of record of 6100 Neil Road, Suite, 500, Reno, NV
89511 ("Licensor"); and WHISTLER INVESTMENTS, INC., a Nevada corporation
authorized to do business in the State of Nevada, having an office and place of
business at 5001 East Bonanza Road, Suite 144-145, Las Vegas, NV 89110
("Licensee").
WHEREAS, Lithium House, a California corporation ("Lithium House"), has
expended considerable resources to research, develop and test its proprietary
lithium battery technology and has licensed to R V Systems the rights to
technologies (the "Technologies") for the products and applications utilizing
the related portable power systems ; AND,
WHEREAS, Licensee possesses the experience, contacts, expertise, market
know-how, distribution and financial contacts to develop a sustainable business,
in the worldwide arena and to sell, distribute and/or manufacture (or arrange
for the sale, distribution or manufacture of) products utilizing the
Technologies (the "Licensed Technologies" , as defined hereafter in this
Agreement); AND
WHEREAS, the Licensee desires to market, sell, distribute and/or
manufacture (or arrange for the sale, distribution or manufacturing of) the
Licensed Technologies in the Territories, as defined below; AND,
WHEREAS, Licensee agrees to comply with all provisions of the United
States Foreign Corrupt Practices Act. NOW, THEREFORE, in consideration of the
mutual covenants set forth, the Licensor and Licensee do hereby respectfully
grant, agree and covenant this agreement as follows:
1. DEFINITIONS.
------------
1.1 Territory or Territories: The geographic area or areas, or country or
-------------------------
countries, as specified in Addendum hereto for theparticular Licensed
Technology.
1.2 Licensed Technologies: The Licensed Technologies are defined in the
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Technologies relating to two- and three-wheeled vehicles, and Addendum
II provides for the license of Technologies relating to lawn and garden
equipment.
1.3 License Year: A twelve (12) month period beginning on January 1 and
-------------
ending on December 31, except that the first License Year begins on the
date hereof and ends on December 31, 2003.
2 GRANT OF LICENSE.
-----------------
2.1 Grant of License and Product Designations: Subject to the terms of
------------------------------------------
this Agreement, Licensor hereby grants to Licensee, during the term of
this Agreement, and upon the terms and conditions hereinafter set forth, a
non-assignable right and license to market, sell, manufacture, and distribute
the Licensed Technologies within the Territories, as specified in the Addenda
hereto. The Licensee shall have the right, upon receipt of written approval and
due diligence by the Licensor, to sublicense any of the rights and licenses
granted herein to or to enter into distribution agreements with third parties
("Sublicensees") with the written consent of Licensor to the sublicense or
distribution agreement and the approval of Licensor of the related agreement or
agreements with the particular Sublicensee, which consent or approval shall not
unreasonably be withheld. Licensee shall have no rights with respect to the
Licensed Technologies outside the defined Territory or Territories unless
approved in writing by the Licensor in the form of an amendment to this License
Agreement or the applicable Addendum hereto. Any and all other rights
specifically not granted to Licensee herein are reserved exclusively to the
Licensor. No intellectual property rights are hereby granted with this licensing
agreement. All intellectual property rights remain with the Licensor.
2.2 Licensee's Efforts: Licensee agrees to use its best professional
-------------------
efforts todistribute, market, promote, sell and /or manufacture the Licensed
Technologies throughout the Territory.
3. TERM.
----- The term of this Agreement shall commence on the date of
execution hereof and shall continue for a period of five (5) License Years,
and shall automatically renew for three (3) succeeding License Years unless
earlier terminated by either party upon not less than ninety (90) days
prior written notice to the other of intent to terminate. No termination
notice or termination of this Agreement shall relieve Licensee or any
Sublicensee from paying any and all obligations owed by it to Licensor up
to the date of termination. Upon termination of this Agreement, Licensee
shall cease to sell, market, distribute, and/or manufacture any and all of
the Licensed Technologies unless modified or amended in writing by the
Licensor. Effective the date of termination the Licensee shall have no
further rights under this Agreement and to the Licensed Technologies.
4. QUALITY CONTROL, STANDARDS, AND OWNERSHIP.
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4.1 Quality Control: Licensee shall acquire the Licensed Technologies
----------------
only from the Licensor. The Licensee shall meet all of the product design and
specifications imposed by the Licensor. No changes or modifications in
manufacturing shall be made to the Licensed Technologies without the express
written consent to the Licensor and its engineering advisory consultants.
Licensee's failure to adhere to the foregoing requirements shall be grounds for
the immediate termination of this Agreement by the Licensor.
4.2 Use of Licensed Technologies: Licensee agrees, and will require its
----------------------------
Sublicensees to agree, not to market, sell, distribute or otherwise use,
manufacture, modify the products and applications utilizing the Licensed
Technologies in any manner whatsoever without first obtaining all the required
permits, licenses, approvals and consent as may be required by the laws of any
jurisdiction in which products or applications utilizing the Licensed
Technologies will be sold, distributed, marketed, and/or manufactured by the
Licensee or any Sub-Licensee.
5. CONFIDENTIAL INFORMATION.
-------------------------
5.1 Confidential Information: Licensee acknowledges that
------------------------
Licensor's trade secrets, private or secret processions, methods,
protocols, and ideas, as they exist from time to time, as well as
other corporate information concerning the Licensed Technologies as
developed by the Licensor and contemplated in this Agreement restricts the
Licensee to disclosure of information. The Licensee hereby warrants that
Licensee will safeguard and preserve said confidentiality. The Licensee further
agrees to require from its Sublicensees, officers, employees and or agents to
relinquish any and all rights it may have in any matter, such as drawings, bill
of materials, documents, samples and models/prototypes and to promptly deliver
to the Licensor any such matter as the Licensor may direct at any time; and not
to retain any copies or other reproductions of any kind without the express
written consent of the Licensor.
5.2 Exclusions: Confidential information does not
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include the following: (a) information which is public and has been released by
the Licensor; (b) information in the public domain; (c) information disclosed by
a third party who was free to disclose it, provided that the burden shall be
upon the Licensee to establish that this exclusion is applicable; and (d)
disclosure of information through no wrongful act of the Licensee and or a
Sublicensee.
5.3 Execution of Agreement: Licensee agrees that the Licensee's assigned
------------------------
personnel, including Sublicensees engaged by the Licensee, will prior to
commencement of their assigned activities relating to the Licensed Technologies,
acknowledge in writing that they agree to be bound by the provisions set forth
in section 5 of this License Agreement.
5.4 Restriction: During the term of this Agreement, and for a period of
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two (2) years following completion of all services rendered by Licensee pursuant
to this Agreement, Licensee agrees that it will not, directly or indirectly,
either for itself or on behalf of any third party, develop, engineer,
manufacture, produce or sell, or consult to do any of the foregoing, relating to
any product or device employing lithium battery technology, whose purpose is the
direct or indirect competition with the Licensor.
5.5 Remedies: Licensee acknowledges and agrees that Licensor's remedy at law
--------
for a breach or threatened breach of the provisions of this Section 5 would be
inadequate and the breach shall be per se deemed as causing irreparable harm to
Licensor. In recognition of this fact, in the event of a breach by Licensee of
any of the provisions of this Section 5, Licensee agrees that, in addition to
any remedy at law available to Licensor, without posting any bond, Licensor
shall be entitled to obtain equitable relief in the form of specific
performance, temporary restraining order, temporary or permanent injunction or
any other equitable remedy which may then be available to Licensor. In the event
that, despite the express agreement of the parties, any provision stated herein
shall be determined by any court or other tribunal of competent jurisdiction
to be unenforceable for any reason whatsoever, the parties agree that the
provision shall be interpreted to extend only to the maximum extent in any and
all other respects as to which it may be enforceable, all as determined by such
court or tribunal.
6. ADVERTISING AND ADVERTISING MATERIALS.
--------------------------------------
A copy of any and all materials that Licensee proposes to use
in connection with its marketing and distribution of the Licensed
Technologies shall be, at the request of Licensor, provided to Licensor
(together with an English translation thereof if such materials are
prepared in a language other than English) for review.
7. TECHNOLOGY AND DEVELOPMENT PAYMENTS; ROYALTIES.
-----------------------------------------------
7.1. Technology License Payments.
----------------------------
The Licensee shall pay the Licensor for consideration in granting this
license to the Licensee the technology payments (the "Technology Payments")
(to be paid to Lithium House) as specified in the Addenda hereto for each
of the Licensed Technologies. The Technology Payments are to be received by
the Licensor as per the schedule set forth in the Addenda hereto.
7.2. Product Development License Payments.
-------------------------------------
The Licensee shall pay the Licensor for consideration in granting this
license to the Licensee the product development payments ("Product
Development Payments") as specified in the Addenda hereto for each of the
Licensed Technologies. The Product Development Payments are to be received
by the Licensor in as per the schedule set forth in the Addenda hereto. As
reimbursement to Licensee, Licensor shall pay to Licensee the proceeds from
any sales by Licensor of product inventory manufactured with the financing
provided by the Product Development Payments as and when that product
inventory is sold by Licensor.
7.3 Royalties.
----------
Licensee (or its Sublicensees) shall pay royalties to Licensor
as specified for each of the Licensed Technologies, or products or
applications utilizing such Licensed Technology, in the Addenda hereto
("Royalties"). The Licensee is responsible for the collection of any
Royalty payments due from its Sublicensees and remittance of such royalty
payments to the Licensor, unless direct payment of royalties to Licensor by
a Sublicensee is provided for in the applicable Addendum.
Licensee shall prepare and maintain complete and accurate
books of account, records and statements. With respect to Royalties payable
by Licensee, Licensee will make available any and all payment records in
order to substantiate proper accounting of Royalties to the Licensor. The
Licensor agrees to pay for any and all expenses inclusive accounting
personnel, travel, lodging, etc. with regards to such an inspection and
review. The Licensor agrees to provide a minimum of 10 days notice prior to
such an accounting audit. Within 30 days of completion of such an
accounting audit the Licensor will provide to the Licensee a complete
report of the audit for their records. Any payments due to the Licensor or
credits/refunds due to the Licensee will be paid within 30 days of audit
report issue date. The Licensee grants to the Licensor the right to audit
any and all books and records pertaining to the Licensed Technologies, one
time per each License Year by the Licensor's designated accounting and
corporate personnel.
7.4. Relationship of the Parties: The Licensee is not granted any
-----------------------------
right or authority to assume or create any obligation or responsibility,
express or implied, on behalf of or in the name of the Licensor or to bind
the Licensor in any manner or thing whatsoever.
8. OWNERSHIP AND PROTECTION OF THE LICENSED TECHNOLOGIES
-----------------------------------------------------
8.1 Restriction on Use of Name: Licensee shall not have the
-------------------------------
right to use the Licensor's name or the name "Lithium House" in the name of
its corporation or as an assumed name of its corporation or any subsidiary
or affiliate.
8.2 Ownership of Licensed Technologies: Licensee acknowledges
-------------------------------------
that the Licensor is the owner of all rights, title and interest in and to
the Licensed Technologies. The Licensee shall not at any time, do or suffer
to be done any act or thing which may adversely affect any rights of the
Licensor in and to the Licensed Technologies or any registrations thereof
or which, directly or indirectly, may reduce the value of the Licensed
Technologies by Licensee or confers rights to the Licensed Technologies.
Licensee hereby assigns its entire right, title and interest in and to any
such rights to the Licensed Technologies to Licensor subject to the terms
hereof.
8.3 Legal Requirements: Licensee shall use the Licensed
--------------------
Technologies in the Territory strictly in compliance with the legal
requirements in the Territory pertaining thereto.
8.4 Prohibition Against Challenges by Licensee: Licensee never
-------------------------------------------
shall challenge or take any action in conflict with, or potentially in
conflict with, Licensor's ownership of or the validity of the Licensed
Technologies or any applications for registration thereof, or any
trademark, governmental license, or any rights of the Licensor therein.
8.5 Infringement Actions: In the event that either Licensor or
---------------------
Licensee learns of any infringement or imitation of the Licensed
Technologies or of any use by any person company which is utilizing the
like device or patent similar to the Licensed Technologies, whether in the
Territory or not, they shall notify the other party. Upon such notification
the Licensor shall take such action as it deems advisable for the
protection of its rights in and to the Licensed Technologies and, if
requested to do so by the Licensor, Licensee shall cooperate with Licensor
in all reasonable respects, at the Licensor's sole expense. Licensor
recognizes that in regard to any counterfeiting of the Licensed
Technologies, Licensee may take immediate legal action, at its own expense,
upon prior notification and approval by the Licensor. Such approval shall
be deemed to have been granted unless within four (4) business days after
the receipt of such request, Licensor notifies the Licensee in writing of
its disapproval. Licensor shall cooperate with Licensee in taking such
legal action, at no cost to the Licensor.
9. INDEMNITY
---------
9.1 Indemnity: Excepting in regard to trademark
---------
infringement actions, Licensee does hereby save and hold Licensor harmless
of and from and indemnify Licensor against any and all losses, liability,
damages and expenses (including reasonable attorney's fees, costs and
expenses through appeal) which Licensor may incur or may be obligated to
pay, or for which Licensor may become liable or be compelled to pay in any
action, claim or proceeding against it by reason of any acts, whether by
omission or commission, that may be claimed to be or are actually
committed, permitted to take place or suffered by the Licensee or any of
its Sublicensees, contractors, agents, employees, officers or management in
connection with the Licensee's performance under this Agreement. Licensee
will keep Licensor apprised of any actions and shall give prompt notice to
the Licensor and where practicable, in advance of any action to be taken by
Licensee.
The provisions of this paragraph and Licensee's obligations hereunder
shall survive the expiration or termination of this Agreement.
9.2 Licensed Technologies Liability Insurance: Whenever possible
-----------------------------------------
and within the legal and statutory regulations and business practices
within the Territory the Licensee shall (when available) procure and
maintain at its own expense in full force and effect during which the
products utilizing Licensed Technologies are being manufactured, sold, and
or distributed a product liability insurance policy with respect to the
Licensed Technologies acceptable to the Licensor. Such a policy when issued
shall name the Licensor as an additional insured and shall provide for at
least a 30 days prior notice to said parties of cancellation or substantial
modification thereof. A copy of the liability insurance policy shall to be
sent to the Licensor upon issuance.
10. DEFAULTS
------------
10.1 Default Right to Terminate: If the
----------------------------------
Licensee fails to make any payment due hereunder, (a) Licensee shall pay
interest thereon from and including the date such payment becomes due until
the entire amount is paid in full at a rate equal to three percent (3%) per
annum over the prime rate charged by CitiBank, N.A., New York as of the
close of business on the date the payment first becomes due, but in no
event greater than the highest rate permitted by law; (b) if such a default
shall continue uncured for a period of sixty (60 days) after written notice
is received by Licensee, the Licensor then shall have the right to
terminate this Agreement immediately upon notification to the Licensee by
the Licensor to terminate. If such default is by a Sublicensee, Licensee
shall provide the notice referred to above and shall follow Licensor's
instructions as to termination of the particular Sublicensee's rights as to
the Licensed Technologies.
The Licensee shall have the option of preventing the termination of this
Agreement by taking corrective action that cures the default, if such
corrective action is taken prior to the end of the time period stated in
the previous paragraph (Section 10.1) and if there are no other defaults
during such time period.
10.2 Breach of Material Condition: If the
------------------------------------
Licensor or Licensee otherwise fails to perform any of the material terms,
conditions, agreements or covenants in this Agreement on its part to be
performed (hereinafter referred to as "other default") and such other
default is not curable, or if such default is curable but continues uncured
for a period of sixty (60) days after notice thereof has been given to the
defaulting party in writing by the other party or all reasonable steps
necessary to cure such other default have not been taken by the defaulting
party within sixty (60) days after notice thereof has been given to the
defaulting party in writing by the other party or all reasonable steps
necessary to cure such other default have not been taken by the defaulting
party within such sixty (60) day period, the other party at its sole
election may terminate this Agreement forthwith by written notice.
10.3 Bankruptcy, Insolvency and Related Occurrences: In the
---------------------------------------------------
event that Licensee files a petition in bankruptcy, is
adjudicated as bankrupt or files a petition or otherwise seeks relief under
or pursuant to any bankruptcy, insolvency or reorganization statute or
proceeding or if a petition in bankruptcy is filed against it, which is not
vacated within sixty (60 ) days, or it becomes insolvent or makes an
assignment for the benefit of its creditors or a custodian receiver or
trustee is appointed for it or a substantial portion of its business
assets, which is not discharged within sixty (60) days, this Agreement
shall terminate automatically and forthwith.
10.4 Rights of Licensee to Continue Agreement:
---------------------------------------------------
The rights granted herein are personal to Licensee and no assignee for the
benefit of creditors, custodian, trustee in bankruptcy or any official
charged with taking over custody of Licensee's assets or business shall
have any right to continue this Agreement or to exploit or in any way use
the Licensed Technologies if this Agreement terminates; provided, however,
that a termination hereunder as to a particular Sublicensee and Licensed
Technologies to that Sublicensee shall not affect the validity of this
Agreement or the status hereunder of Licensee or other Sublicensees not in
default.
10.5 Inventory: Upon the expiration or termination of
---------
this Agreement, Licensee immediately shall deliver to the
Licensor complete and accurate schedule of Licensee's inventory of products
Licensed Technologies and of related work in process then on hand
("inventory").
10.6 Sale of Inventory: If this Agreement expires or is
------------------
terminated other than by Licensor then the Licensee (or
applicable Sublicensee) shall be entitled for an additional period of six
(6) months only on a non-exclusive basis to sell and dispose of its
inventory. Such sales shall be made subject to all of the provisions of
this Agreement inclusive of accounting and payment of royalty. Such payment
shall be due within thirty (30) days after the close of said six (6) month
extension period.
10.7 Reversion of Rights to Licensor: Except as
---------------------------------------
specifically provided in this Agreement above, on the expiration or
termination of this Agreement, all of the rights of Licensee under this
Agreement (or rights of a Sublicensee under a particular sublicense
agreement) shall terminate forthwith and shall revert immediately to
Licensor, all Royalties shall become immediately due and payable and
Licensee shall discontinue forthwith all use of the Licensed Technologies,
and shall promptly transfer to Licensor free of charge any and all
registrations, filings, and rights if any with regards to the particular
Licensed Technologies which it may have possessed at any time. Licensee
hereby irrevocably appoints Licensor as Licensee's attorney-in-fact,
effective upon the termination or expiration of this Agreement as to one or
more Licensed Technologies, to take the necessary steps on Licensee's
behalf in the Territory to cancel any recordation of any such license
granted hereunder and to execute any instruments necessary or desirable to
confirm termination of Licensee's rights as to that license under this
Agreement.
11. REPRESENTATION AND WARRANTIES OF LICENSOR
-----------------------------------------
Licensor represents and warrants that (1) Licensor has full
right, power and authority to enter into this Agreement and to perform all
of its obligations hereunder; and (2) Lithium House has assigned or
licensed to R V Systems the rights to Technologies for the products and
applications specified in the Addenda hereto.
12. NOTICES
-------
All reports, approvals, requests, demands, and notices
(collectively "notices") required or permitted by this Agreement to be
given to a party shall be in writing and shall be deemed to be duly given
if personally delivered or if sent (by facsimile or overnight courier) to
the party concerned at its address set forth in this Section. Copies of all
notices to the Licensor and all payments required to be made to Licensor,
shall be sent to:
R V Systems, Inc.
7122 Sophia Ave.
Van Nuys, CA 91406
USA
Copies of all notices to Licensee shall be sent to:
Whistler Investments, Inc.
5001 East Bonanza Road
Suite 144-145
Las Vegas, Nevada 89110
13. ASSIGNABILITY
-------------
The Licensee maintains the right to sublicense this Agreement
to qualified Sublicensees in the Territory with the written consent of
Licensor to the sublicense or distribution agreement and the approval of
Licensor of the agreement or agreements with the particular Sublicensee,
which consent or approvals shall not unreasonably be withheld. Any such
sublicense or distribution agreement 1shall be made in compliance with this
Agreement as in effect at that time and any Sublicensee shall agree in
writing to be bound by the same substantive terms and conditions hereof.
This Agreement shall not be assignable by Licensee or Licensor without the
written consent of the other party. Except as provided herein, this
Agreement shall inure to the benefit of and shall be binding upon the
parties, Licensee's permitted successors and/or assigns, and Licensor's
permitted successors and/or assigns.
14. RESOLUTION OF DISPUTES
----------------------
14.1 Jurisdiction: The Licensor and Licensee hereby irrevocably
------------
submit to the personal jurisdiction of the federal and state courts of
the State of California, in the venue of Los Angeles County
(the "Courts") in any action or proceeding arising out of or relating to
this Agreement. In any court proceeding, the Courts shall have exclusive
jurisdiction over the subject matter of this Agreement.
14.2 Waiver of Immunity: To the extent that
----------------------
either party has or hereafter may acquire any immunity from jurisdiction of
any court or from legal process with respect to itself or its property, the
parties irrevocably waive such immunity with respect to their respective
obligations under this Agreement.
15. MISCELLANEOUS
-------------
Unless otherwise provided, in the event the Licensee elects as
evidenced by an agreement in writing to purchase any services from the
Licensor, it shall pay for such services at the Licensor's rates then
currently in effect for such services as set forth in writing. All invoices
for such services shall be paid by the Licensee within thirty (30) days
after receipt thereof. The Licensee will be responsible for any incidentals
associated with the purchase of any services from the Licensor. The
Licensee will be responsible for any importation charges such as customs,
shipping, duties and incidentals for any products or applications utilizing
Licensed Technologies being shipped into the Territory by the Licensor. The
Licensee is also responsible for business development expenses within the
Territory inclusive of research, permits, personnel, product services,
maintenance, etc....
16. GOVERNING LAW
--------------
This Agreement shall be construed and interpreted in
accordance with the laws of the State of California, USA; contains the
entire understanding and agreement between the parties hereto with respect
to the subject matter hereof and supersedes all prior oral and written
understandings and agreements. This Agreement may not be modified, amended,
discharged or terminated orally except by a written notification signed by
the party against whom the modification, discharge or termination is sought
to be enforced.
17. WARRANTIES
----------
17.1 Warranties: Neither party makes any
----------
warranties with respect to the use, sale, manufacturing, or other transfer
of the Licensed Technologies by the other party or by any third party. In
no event will the Licensor be liable for direct, indirect, special,
incidental, or consequential damages, that are in any way related to the
Licensed Technologies.
17.2 Relationship: Nothing herein contained in
-----------
this Agreement shall be construed to constitute the parties hereto as
partners or joint venturers, or either as agent of the other, and no party
shall have any power to obligate or bind the other in any manner
whatsoever.
17.3 Waivers: No waiver by either party,
-------
whether express or implied, of any provision of this Agreement, or of any
breach or default thereof, shall constitute a continuing waiver of such
provision or of any other provision of this Agreement. Acceptance of
payments by the Licensor shall not be deemed a waiver by Licensor of any
violation or default under any of the provisions of the Agreement by the
Licensee.
17.4 Severability: If any provision or any portion of any
------------
provision of this Agreement shall be held to be void or unenforceable,
the remaining provisions of this Agreement and the remaining portion of
any provision held void or unenforceable in part shall continue in full
force and effect.
17.5 Descriptive Headings: The descriptive headings used and
--------------------
inserted in this Agreement are for convenience only and shall not be deemed
to affect the meaning or construction of any provision of this Agreement.
IN WITNESS THEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
R V SYSTEMS, INC.
/s/ Chaz Haba
-----------------------------------
Authorized Corporate Representative
WHISTLER INVESTMENTS, INC.
/s/ Holly Roseberry
-----------------------------------
Authorized Corporate Representative
ADDENDUM I to Distribution and License Agreement Dated As of October 21, 2003
-----------------------------------------------------------------------------
Licensed Technologies: The following products incorporating the
--------------------- Technologies: 2- and 3-wheeled vehicles.
Territory: All of the countries of the world, with
--------- the exception of India.
Technology License Payment: $100,000, payable no later than October
-------------------------- 31, 2003
Product Development
-------------------
License Payment: $400,000, payable no later than December
--------------- 31, 2003
With a weekly minimum of $15,000.00
The Technology License Payment and the Product Development License
Payment are payable in weekly installments of $17,500, until the total of
$500,000 is paid in full.
Approved Sublicensees and Royalties Payable to Licensor:
--------------------------------------------------------
APPROVED:
---------
R V SYSTEMS, INC. WHISTLER INVESTMENTS, INC.
BY: /s/ Chaz Haba BY: /s/ Holly Roseberry
ADDENDUM II to Distribution and License Agreement Dated As of October 21, 2003
------------------------------------------------------------------------------
Licensed Technologies: The following products incorporating the
---------------------
Technologies: Lawn and
garden equipment.
Territory: All of the countries of the world.
---------
Technology License Payment: $50,000, payable no later than October
-------------------------- 31, 2003
Product Development
-------------------
License Payment: $200,000, payable no later than December
--------------- 31, 2003
With a minimum weekly of $15,000.00
The Technology License Payment and the Product Development License
Payment are payable in weekly installments of $7,500, until the total of
$200,000 is paid in full.
Approved Sublicensees and Royalties Payable to Licensor:
--------------------------------------------------------
APPROVED:
---------
R V SYSTEMS, INC. WHISTLER INVESTMENTS, INC.
BY: /s/ Chaz Haba BY: /s/ Holly Roseberry
ADDENDUM III to Distribution and License Agreement Dated As of November 14, 2003
- --------------------------------------------------------------------------------
Licensed Technologies: The following products incorporating the
--------------------- Technologies: Neighborhood Electric
Vehicle.
"NEV"
Territory: All of the countries of the world.
---------
Technology License Payment: $250,000, payable no later than December
-------------------------- 31, 2003. With a weekly minimum of
$15,000.00.
Product Development
-------------------
License Payment: $1,000,000, payable no later than March
--------------- 31, 2004. With a weekly minimum of
$35,000.00
Approved Sublicensees and Royalties Payable to Licensor:
--------------------------------------------------------
APPROVED:
---------
R V SYSTEMS, INC. WHISTLER INVESTMENTS, INC.
BY: /s/ Chaz Haba BY: /s/ Holly Roseberry