Exhibit 10.3
ASSIGNMENT
THIS ASSIGNMENT is made this 20th day of December, 2001 by MEGAWATT ENERGY
CORPORATION, a California corporation, having principal mailing address at 0000
Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, XX 00000 ("ASSIGNOR" or "MEC") and NEW
ENERGY CORPORATION, a Utah corporation ("ASSIGNEE" or "NECO"). ASSIGNOR and
ASSIGNEE hereinafter individually "PARTY" or collectively "PARTIES."
RECITALS
WHEREAS, ASSIGNOR has Purchase Orders dated June 9, 2001 (attached hereto as
Exhibit A) for Distributive Power Services, LLC ("DPS") in the amount of Thirty
Six Million Dollars ($36,000,000) for a group of MEC High Concentration
Photovoltaic Electro-Thermal Solar Generators ("SOLAR GENERATORS") comprising a
total of four (4) MegaWatts for residential, commercial, industrial Customers of
DPS; and,
WHEREAS, ASSIGNOR wishes to assign these Purchase Orders to ASSIGNEE; and,
WHEREAS, ASSIGNEE desires to license certain MEC technology and methods and
possesses component parts inventories for the manufacture of Solar Generators by
MEC, resources to market and install Solar Generators produced by MEC under a
soon to be created License Technology Agreement.
NOW THEREFORE, this ASSIGNMENT is as follows:
ASSIGNMENT
1. ASSIGNOR assigns the above referenced Purchase Orders for DPS to ASSIGNEE
under the following terms:
1.1 ASSIGNEE accepts responsibility to provide and deliver four (4)
MegaWatts of various sized Solar Generators under the terms of the
Purchase Orders to DPS.
1.2 ASSIGNEE must pay ASSIGNOR for the delivered Solar Generators under
the terms of Technology License Agreement between MEC and NECO to be
executed by MEC and NECO.
2. OBLIGATIONS OF ASSIGNOR
2.1 ASSIGNOR shall manufacture Solar Generators purchased by ASSIGNEE.
2.2 ASSIGNOR warranties all materials, labor and performance of the Solar
Generators for a period of five (5) years.
2.3 ASSIGNOR agrees to provide technical and engineering support to
ASSIGNEE as required.
3. OBLIGATIONS OF ASSIGNEE
3.1 ASSIGNEE is responsible payment, installation, maintenance and
Warranty for the aforesaid Solar Generators.
3.2 ASSIGNEE shall maintain the same price to DPS as stated in the
Purchase Order and agrees to honor all MEC warranty obligations to
DPS.
4. Termination of this ASSIGNMENT, for any cause whatsoever, shall in no
manner interfere with, affect or prevent the collection by ASSIGNOR of any
and all sums of money due to it under this ASSIGNMENT prior to or after the
Solar Generators are installed.
5. DISPUTES
There are many documents needed to carry out the objectives of the PARTIES
as described herein and the PARTIES will negotiate in good faith to resolve
any differences of opinion in order to carry out the express intent of this
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relationship. In the unlikely event that the PARTIES are not able (through
good-faith negotiation and mediation) to resolve any differences of opinion
or dispute, the following shall occur:
5.1 Any Dispute, controversy or claim arising under, out of or relating to
this ASSIGNMENT (and subsequent amendments thereof) and its valid
conclusion, binding effect, interpretation, performance, breach or
termination, including tort claims (hereinafter referred to as "the
Dispute") shall be submitted to Mediation in accordance with the Rules
of the American Arbitration Association in force at the time of
initiating the mediation procedure.
5.2 If the Dispute has not been settled pursuant to the Mediation
procedure within 60 days of the initiation of the Mediation, or if
either Party will not participate in the Mediation, the Dispute shall
be referred to and finally determined by arbitration in accordance
with the Rules of Arbitration of the International Chamber of Commerce
in force when initiating the arbitral procedure.
5.3 The arbitral tribunal shall consist of a sole arbitrator. The place of
arbitration shall be San Diego, USA. The language to be used in the
arbitral proceedings shall be English. All disputes, controversies or
claims referred to arbitration including those on any statute of
limitations, set-off claims, tort claims and interest claims shall be
governed by the substantive law of California, U.S.A.
6. INDEMNIFICATION
6.1 ASSIGNOR agrees to indemnify and hold ASSIGNEE harmless from and
against any and all liability, damage, expense, claims, or judgments,
including reasonable attorneys' fees, resulting from fiscal loss or
damages resulting from Intellectual Property infringement issues
wherein ASSIGNEE is named as a defendant from third party law suits
arising out of the development, commercialization, use and
exploitation of the HCPV Solar Generator technology.
6.2 The PARTIES shall mutually hold each harmless against any losses,
claims, damages, fines, expenses or liabilities, joint or several,
including amounts paid in settlement to which either PARTY may become
subject, insofar as such losses, claims, damages, fines, expenses, or
liabilities (or actions in respect thereof) arise out of, or are based
upon any act or failure to act by either PARTY and, directly or
indirectly, relate to the services of either PARTY or its director,
officer, employee, agent or consultant or of any other corporation,
partnership, joint venture, trust or other enterprise which, as the
representative of either PARTY, served as such, serves or will serve
at the request of either PARTY.
6.3 The indemnification provided by this ASSIGNMENT shall cover any
indemnified party who is or was a party or is threatened to be made a
party to any threatened, pending or contemplated action or
investigation, including to the extent permitted by applicable law an
action by or in the right of Indemnified Party, either PARTY or any of
its subsidiaries, (the "Companies"), and shall apply to the extent
permitted by applicable law despite any judgment, order, settlement,
conviction or plea of nolo contendere or its equivalent and despite
any adjudication of liability, negligence, misconduct or unlawful
conduct, if the Indemnified Party acted in good faith with respect to
the PARTIES and in a manner which the Indemnified Party reasonably
believed to be in or not opposed to the best interest of the PARTIES.
6.4 Indemnification payments under this ASSIGNMENT shall be made by either
PARTY promptly as any legal or other expenses are incurred by an
Indemnified Party and, except to the extent required by applicable
law, no further authorization or approval by the Board of Directors or
shareholders of either PARTY or by any court shall be required for
such payment.
6.5 Following receipt by any Indemnified Party of notice of the
commencement of any legal action, the Indemnified Party will notify
the other PARTY of the commencement thereof and the other PARTY shall
be entitled to participate therein to the extent that it may desire,
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with counsel satisfactory to the Indemnified Party; provided, however,
that failure to give notice as provided by this paragraph shall not
constitute a waiver of any rights under this ASSIGNMENT. Whether or
not either PARTY has counsel in any such legal action, any Indemnified
Party shall be entitled to select his own counsel and to be reimbursed
for legal expenses as provided herein.
6.6 The indemnification provided by this ASSIGNMENT shall not be deemed
exclusive of any other rights to which any Indemnified Party may be
entitled under charter or by-law provisions, ASSIGNMENT, vote of
directors or shareholders or otherwise. The termination or
modification of this ASSIGNMENT and the termination of services of the
Indemnified Party to the other party and its subsidiaries hereunder
shall not affect the indemnification rights of the Indemnified Party
for any act or failure to act occurring prior to such termination or
modification, without regard to whether legal action was instituted or
threatened after termination.
7. INSOLVENCY OR MERGER
In the event of a bankruptcy, insolvency, change of control or if either
PARTY or its assigns shall at any time be merged or consolidated into or
with any other company or corporation, or if substantially all of the
assets or control of either PARTY are at any time sold or transferred to
any other company or corporation, the provisions of this ASSIGNMENT shall
be binding upon and inure to the benefit of the company or corporation
resulting from such merger, sale, transfer or consolidation and these
provisions shall apply in the event of any subsequent merger, transfer,
sale or consolidation.
8. FORCE MAJEURE
Neither PARTY shall be deemed to be in default if performance of the
obligations required by this ASSIGNMENT is delayed or becomes impossible
because of any act of God, war, earthquake, fire, strike, sickness,
accident, civil commotion, epidemic, act of government, its agencies or
officers, or any other legitimate cause beyond the control of ASSIGNEE or
ASSIGNOR. Upon occurrences of any such event, or if the PARTIES fail to
perform any or all of the conditions or covenants of this ASSIGNMENT
because of circumstances beyond the control of the PARTIES and not induced
or brought about by the unreasonable acts of the PARTIES, then the PARTIES,
in addition to any other rights and remedies they may have, may elect, by
giving notice to one another, to extend the term of this ASSIGNMENT for a
period equivalent to all or any part of the period that any such conditions
shall prevail or that the PARTIES shall be in default. In the event of any
such extension, specific dates, periods and time requirements referred to
herein shall be postponed or extended accordingly.
9. ASSIGNABILITY
9.1 This ASSIGNMENT shall not be assignable by ASSIGNEE except with prior
written consent of ASSIGNOR provided ASSIGNOR consents to a transfer
to any company owned by ASSIGNEE. Any attempt to assign shall be void
and, if completed, cause automatic termination of this ASSIGNMENT.
9.2 In the event ASSIGNEE wishes to sell any of its rights, ASSIGNOR shall
have a right of first refusal.
10. RIGHTS OF HEIRS
The rights and benefits of both PARTIES under this ASSIGNMENT are personal
to them, including persons having an interest therein, and except for the
foregoing, no such right or benefit shall be subject to voluntary or
involuntary alienation, assignment or transfer.
11. NOTICES
Any notices or other communication related to this ASSIGNMENT shall be
deemed sufficiently given if sent by facsimile transmission or Email
followed by courier to the PARTY at its address set forth at the beginning
of this ASSIGNMENT; provided however, that either PARTY may change the
address to which any such notice or communication is to be sent or
delivered by giving the other PARTY written notice of such change.
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12. FUTURE ASSIGNMENTS AND MODIFICATIONS TO THIS ASSIGNMENT
12.1 The PARTIES understand that a more definitive ASSIGNMENT may be
created by the PARTIES to fulfill the scope and intent of this
ASSIGNMENT.
12.2 This ASSIGNMENT embodies all of the understanding and obligations
between the PARTIES with respect to the subject matter hereof. No
amendment or modification of this ASSIGNMENT shall be valid or binding
upon the PARTIES unless made in writing, signed on behalf of each of
the PARTIES by their respective proper officers thereunto duly
authorized.
13. PROVISIONS
In the event that one or more of the provisions contained herein shall be
invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein shall not
in any way be affected or impaired thereby, it being the intention of the
PARTIES hereto that indemnification be provided to the Indemnified Party to
the fullest extent allowable under applicable law.
IN WITNESS WHEREOF, the duly authorized representatives of the PARTIES have
executed this ASSIGNMENT as of the date first above written in the City of San
Diego, County of San Diego, State of California.
MEGAWATT ENERGY CORPORATION NEW ENERGY CORPORATION
(ASSIGNOR) (ASSIGNEE)
_________________________________ _________________________________
By: Xxxxx Xxxxxxxx, President By: Xxxx XxXxxxxx, President
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