TECHNOLOGY ASSIGNMENT AGREEMENT
This
Agreement is entered as of September ____, 2005 between Solar Night Industries,
Inc., a Delaware corporation (the "Company"), and Xxxxx Xxxxx, an individual,
and Xxx Corp, L.L.C., a Missouri limited liability company owned solely by
Xxxxx
Xxxxx (collectively with Xxxxx Xxxxx, the "Developer").
1. Assignment
Developer
hereby assigns to the Company exclusively throughout the world all right, title
and interest (xxxxxx or inchoate) in (i) the subject matter referred to in
Exhibit A ("Technology"), (ii) all precursors, portions and work in progress
with respect thereto and all inventions, works of authorship, mask works,
technology, information, know-how, materials and tools relating thereto or
to
the development, support or maintenance thereof and (iii) all copyrights, patent
rights, trade secret rights, trademark rights, mask works rights, sui generis
database rights and all other intellectual and industrial property rights of
any
sort and all business, contract rights, causes of action, and goodwill in,
incorporated or embodied in, used to develop, or related to any of the foregoing
(collectively "Intellectual Property").
2. Consideration
The
Company agrees to issue to Xxxxx Xxxxx 83,333 and one-third shares of common
stock of the Company on the date of this Agreement. Such shares shall be the
only consideration required of the Company with respect to the subject matter
of
this Agreement.
3. Further
Assurances; Moral Rights; Competition; Marketing
3.1 Developer
agrees to assist the Company in every legal way to evidence, record and perfect
the Section 1 assignment and to apply for and obtain recordation of and from
time to time enforce, maintain, and defend the assigned rights. If the Company
is unable for any reason whatsoever to secure the Developer's signature to
any
document it is entitled to under this Section 3.1, Developer hereby irrevocably
designates and appoints the Company and its duly authorized officers and agents,
as his agents and attorneys-in-fact with full power of substitution to act
for
and on his behalf and instead of Developer, to execute and file any such
document or documents and to do all other lawfully permitted acts to further
the
purposes of the foregoing with the same legal force and effect as if executed
by
Developer.
3.2 To
the
extent allowed by law, Section 1 includes all rights of paternity, integrity,
disclosure and withdrawal and any other rights that may be known as or referred
to as "moral rights," "artist's rights," "droit moral" or the like (collectively
"Moral Rights"). To the extent Developer retains any such Moral Rights under
applicable law, Developer hereby ratifies and consents to, and provides all
necessary ratifications and consents to, any action that may be taken with
respect to such Moral Rights by or authorized by Company; Developer agrees
not
to assert any Moral Rights with respect thereto. Developer will confirm any
such
ratifications, consents and agreements from time to time as requested by
Company.
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4. Confidential
Information
Developer
will not use or disclose anything assigned to the Company hereunder or any
other
technical or business information or plans of the Company, except to the extent
Developer (i) can document that it is generally available (through no fault
of
Developer) for use and disclosure by the public without any charge, license
or
restriction, or (ii) is permitted to use or disclose such information or plans
pursuant to the Proprietary Information and Inventions Agreement by and between
Developer and the Company of even date herewith. Developer recognizes and agrees
that there is no adequate remedy at law for a breach of this Section 4, that
such a breach would irreparably harm the Company and that the Company is
entitled to equitable relief (including, without limitations, injunctions)
with
respect to any such breach or potential breach in addition to any other
remedies.
5. Warranty
Developer
represents and warrants to the Company that the Developer: (i) was the sole
owner of all rights, title and interest in the Intellectual Property and the
Technology, (ii) has not assigned, transferred, licensed, pledged or otherwise
encumbered any Intellectual Property or the Technology or agreed to do so,
(iii)
has full power and authority to enter into this Agreement and to make the
assignment as provided in Section 1, (iv) is not aware of any violation,
infringement or misappropriation of any third party's rights (or any claim
thereof) by the Intellectual Property or the Technology, (v) was not acting
within the scope of employment by any third party when conceiving, creating
or
otherwise performing any activity with respect to anything purportedly assigned
in Section 1, and (vi) is not aware of any questions or challenges with respect
to the patentability or validity of any claims of any existing patents or patent
applications relating to the Intellectual Property.
6. Miscellaneous
This
Agreement is not assignable or transferable by Developer without the prior
written consent of the Company; any attempt to do so shall be void. Any notice,
report, approval or consent required or permitted hereunder shall be in writing
and will be deemed to have been duly given if delivered personally or mailed
by
first-class, registered or certified U.S. mail, postage prepaid to the
respective addresses of the parties as set below (or such other address as
a
party may designate by ten (10) days notice). No failure to exercise, and no
delay in exercising, on the part of either party, any privilege, any power
or
any rights hereunder will operate as a waiver thereof, nor will any single
or
partial exercise of any right or power hereunder preclude further exercise
of
any other right hereunder. If any provision of this Agreement shall be adjudged
by any court of competent jurisdiction to be unenforceable or invalid, that
provision shall be limited or eliminated to the minimum extent necessary so
that
this Agreement shall otherwise remain in full force and effect and enforceable.
This Agreement shall be deemed to have been made in, and shall be construed
pursuant to the laws of the State of Missouri and the United States without
regard to conflicts of laws provisions thereof. The prevailing party in any
action to enforce this Agreement shall be entitled to recover costs and expenses
including, without limitation, attorneys' fees. The terms of this Agreement
are
confidential to the Company and no press release or other written or oral
disclosure of any nature regarding the compensation terms of this Agreement
shall be made by Developer without the Company's prior written approval;
however, approval for such disclosure shall be deemed given to the extent such
disclosure is required to comply with governmental rules. Any waivers or
amendments shall be effective only if made in writing and signed by a
representative of the respective parties authorized to bind the parties. Both
parties agree that this Agreement is the complete and exclusive statement of
the
mutual understanding of the parties and supersedes and cancels all previous
written and oral agreements and communications relating to the subject matter
of
this Agreement.
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IN
WITNESS WHEREOF, the parties have executed this Agreement on the day and year
first indicated above.
| ___________________________________________________ | ||
| By: ________________________________________________ | ||
| Name: ______________________________________________ | ||
| Title: ______________________________________________ | ||
| Address: ___________________________________________ | ||
| ___________________________________________________ | ||
| Address: ___________________________________________ | ||
| ___________________________________________________ |
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EXHIBIT
A
All
Intellectual Property owned by Xxx Corp, L.L.C. and/or Xxxxx Xxxxx relating
to
Solar Flowers, any components of solar flowers, and any other technology
relating to any products now produced or potentially produceable with respect
to
such technology.
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