TERMINATION, RELEASE AND SETTLEMENT AGREEMENT
Exhibit
10.1
TERMINATION,
RELEASE
AND SETTLEMENT
AGREEMENT
THIS
TERMINATION, RELEASE AND SETTLEMENT AGREEMENT (“Agreement”) is made by and among
the following parties (each, a “Party” and collectively, the
“Parties”):
Nordic
Windpower USA, Inc., a Delaware corporation, having its principal place of
business at 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx, XXX 00000 (“Nordic
USA”);
Nordic
Windpower Limited, a private limited company organized and existing under the
laws of England and Wales, having its registered office at 000 Xxx Xxxxxx
Xxxxxx, Xxxxxx XX0X 0XX (“Nordic UK”);
Nordic
Windpower Holdings, Inc., a Delaware corporation, having its principal place of
business at 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx, XXX 00000 (“Nordic
Holdings”);
Deltawind
AB, a limited liability company organized and existing under the laws of Sweden,
having its registered offices at Xxx 0000, 000 00 Xxxxxxxxx, Xxxxxx
(“Deltawind”);
GC China
Turbine Corp., a Nevada corporation formerly known as Nordic Turbines, Inc.,
having its principal place of business at Xx. 00, Xxxxx Xxxxxx Xxxx Xxxx
Xxxxxxxxxxx Xxxx, Xxxxx, Xxxxx Xxxxxxxx, PRC (“GC China”);
Luckcharm
Holdings Limited, a limited liability company organized and existing under the
laws of Hong Kong, having its principal place of business at Flat/Room 703, Xxx
Xxx Comm. Building, 359-361 Queen’s Road Central, Hong Kong
(“Luckcharm”);
Wuhan
Guoce Nordic New Energy Co., Ltd. a limited liability company established and
existing under the laws of China, having its registered office at Xx. 00, Xxxxx
Xxxxxx Xxxx Xxxx Xxxxxxxxxxx Xxxx, Xxxxx, Xxxxx Xxxxxxxx, People’s Republic of
China (PRC) (“Wuhan”);
Wuhan
Guoce Science & Technology Co., Ltd., a limited liability company
established and existing under the laws of China, having its registered office
at #000, Xxxxx Xx, Xxxxxxxx Xxxxxxxx, Xxxxx, Xxxxx (“WGST”); and
Wuhan
Zhongjieneng New Energy Investment Ptd., Ltd., a limited liability company
established and existing under the laws of China, having its registered office
at Xxxx 000, 0xx Xxxxx, Xxxx 0, Xxxxxxxx 00, Xxxxxxxx Cun, East Lake Development
Zone, Wuhan, China (“ZJN”).
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BACKGROUND
This
Agreement is made binding and effective as of 09:00 A.M. (UTC) November 30, 2010
(the “Effective Date”), and it is made with reference to the following
facts:
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I.
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Nordic
Holdings, Nordic UK, Nordic USA and their respective predecessors,
successors, assigns and affiliates shall collectively be referred to
herein as the “Nordic Group.”
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II.
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GC
China owns 100% of the outstanding stock of Luckcharm, which owns 100% of
the outstanding stock of Wuhan. GC China, Luckcharm, Wuhan,
WGST, ZJN and their respective predecessors, successors, assigns and
affiliates shall collectively be referred to herein as the “GC China
Group.”
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III.
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On
June 30, 2006, Wuhan and Deltawind signed a Technical License Contract
(the “Technical License”). The Technical License granted Wuhan
certain rights with respect to certain manufacturing technology and
know-how owned or developed by
Deltawind.
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IV.
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On
June 30, 2006, WGST, ZJN, and Deltawind signed a Foreign Equity Joint
Venture Contract (the "Equity Joint Venture Contract"). In
August 2006 Wuhan was incorporated. On or about September 22,
2006, WGST, ZJN, and Deltawind signed a revised Equity Joint Venture
Contract and Share Transfer Agreement (“Share Transfer Agreement”)
transferring certain shares of Wuhan to Deltawind. In early
2007, WGST, ZJN and Deltawind signed a termination agreement of the
revised Equity Joint Venture Contract (the “JV Termination Agreement”) and
a share transfer agreement whereby Deltawind transferred all of its shares
in Wuhan back to WGST (“Second Share Transfer Agreement”). WGST
received approval from the relevant Chinese governmental authority to
purchase all of the Wuhan shares from Deltawind on March 19, 2007 and the
change in registration of shareholders of Wuhan was completed on March 27,
2007. The Share Transfer Agreement, revised Equity Joint
Venture Contract, JV Termination Agreement, Second Share Transfer
Agreement and other related agreements signed by WGST, ZJN, and Deltawind
are collectively referred to herein as the "China JV
Agreements."
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V.
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The
Nordic Group has never been a party to the China JV
Agreements.
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VI.
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In
accordance with an Asset Transfer Agreement between Nordic UK and
Deltawind dated August 24, 2007 (the “Asset Transfer Agreement”), Nordic
UK acquired certain rights related to the wind turbine technology and
know-how owned or developed by
Deltawind.
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VII.
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The
GC China Group has never been a party to the Asset Transfer
Agreement.
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VIII.
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Subsequent
to the consummation of the Asset Transfer Agreement, the Parties have
unresolved disagreements with regard to their respective rights and
obligations in relation to the Technical License and the China JV
Agreements.
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IX.
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Nordic
USA is the owner of U.S. Trademark Registration No. 3,536,392 for the xxxx
NORDIC WINDPOWER for use in connection with wind turbines and wind-powered
electricity generators and U.S. Trademark Registration No. 3,536,393 for
the xxxx NORDIC WINDPOWER & Design for use in connection with wind
turbines and wind-powered electricity
generators.
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X.
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GC
China is the owner of certain trademarks and trademark registrations in
China that include the word NORDIC.
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XI.
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On
December 23, 2009, Nordic USA instituted civil case no. 09-03672-PJH in
the United States District Court for the Northern District of California,
alleging that GC China was engaged in activities that infringed the Nordic
Group’s rights and caused confusion in the Nordic Group’s target audiences
(the “Lawsuit”).
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XII.
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GC
China has answered and vigorously disputes the
Lawsuit.
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XIII.
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The
Nordic Group and Deltawind, on the one hand, and the GC China Group, on
the other hand, now wish to reach a full and final settlement of the
Lawsuit and all other disputes among them and to terminate all agreements,
arrangements, relationships and understandings among them other than as
set forth in this Agreement.
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XIV.
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For
purposes of this Agreement, “China” or PRC” shall mean the People’s
Republic of China, which shall include Macau and Hong Kong SAR, but
expressly excludes Taiwan.
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Now
Therefore, in
consideration of the respective promises, and the terms, conditions, provisions
and covenants of this Agreement and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Parties agree
as follows:
AGREEMENT
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1.
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Consideration and
Dismissal of Litigation and other
Disputes
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1.1
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Dismissal of
Litigation. Following
the Effective Date, within fifteen (15) business days after receipt of a
fully executed and stamped copy of the Termination Application(s) (as
defined in Section 1.3 below) filed with the relevant PRC authority, the
Parties shall file a joint stipulated dismissal with prejudice of the
Lawsuit and all claims and
defenses.
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1.2
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Mutual Waiver of
Costs. All
Parties waive any right to recover court costs and attorneys’ fees and
expenses incurred in connection with the
Lawsuit.
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1.3
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Termination of
Technical License. The
GC China Group has stated and believes that the GC China Group has not
received proprietary technology or know-how pursuant to the Technical
License (other than copies of the WO 02079643A1 ("System for a Turbine
with a Gaseous or Liquideous Working Medium") patent application) and the
Nordic Group and Deltawind disagree with such statement and
belief. Without regard to the foregoing, the Parties hereby
agree that the Technical License is hereby terminated effective as of the
Effective Date of this Agreement in any and all
jurisdictions. All past, present and future rights and
obligations under the Technical License shall be null, void and of no
further force or effect as of the Effective Date of this
Agreement. Within fifteen (15) business days after the
Effective Date, Wuhan will duly apply for cancellation of the Technical
License at the relevant PRC authority and any other relevant governmental
authority or agency (each, a “Termination Application”) and shall provide
Nordic Holdings with a true, complete and correct copy of each Termination
Application.
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1.4
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Further
Assistance. Each
Party agrees to provide timely assistance for dismissal of the Lawsuit and
cancellation of the Technical License, as reasonably requested, including
without limitation, signing and delivering the required dismissal,
settlement, cancellation and termination documents and agreements and
timely delivering them to the requesting Party. The Parties
further covenant and agree to cooperate regarding termination of the
Technical License and changes to any registrations, approvals or recordals
necessary or appropriate to carry out the cancellations and assignments
contemplated in this Agreement, including but not limited to filing
applications to the appropriate government authorities, providing
information required by the authorities and executing related documents to
complete the cancellations and
assignments.
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1.5
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Trademarks.
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(i)
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China. The
Parties acknowledge and agree that the Nordic Group shall not use the xxxx
NORDIC WINDPOWER in China. The Parties understand and agree
that as between the GC China Group and the Nordic Group, the GC China
Group shall have the exclusive right to use the xxxxx XX NORDIC and GUOCE
NORDIC in China in connection with the sale, advertisement, marketing or
promotion of any wind-related power generating devices or wind-related
power generating technologies. The Nordic Group has not
directly or indirectly, registered or attempted to register, and shall not
directly or indirectly register or attempt to register the xxxx NORDIC in
China in connection with the sale, advertisement, marketing or promotion
of any wind-related power generating devices or
technologies. Notwithstanding anything to the contrary
contained in this Agreement, the members of the Nordic Group may at all
times use their respective legal corporate names in China as legally
required and such use is not and shall not be an infringement of the GC
China Group’s marks.
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(ii)
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Worldwide. From
and after the Effective Date, the GC China Group also covenants and agrees
not to use any blue and orange or any other color scheme anywhere in the
world where such color scheme is reasonably likely to be confusingly
similar to a color scheme employed by the Nordic Group as of the Effective
Date on its xxx.xxxxxxxxxxxxxxx.xxx website or its other websites or
products, components, logos, trademarks, trade dress, designs, service
marks, copyrights, components, business cards, letterhead or other
stationery, buildings, signage, packaging, advertising material, corporate
information, investor presentations, manuals, product information or other
items, which are directed towards the sale, advertisement,marketing,
promotion, financing, manufacturing, development, production, or use of
any wind-related power generating devices or
technologies.
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(iii)
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Outside
China. The
GC China Group hereby acknowledges and agrees that it shall cease using
and shall not use the xxxx NORDIC or any confusingly similar xxxx outside
China in connection with the sale, advertisement, marketing, promotion,
financing, manufacturing, development, production, or use of any
wind-related power generating devices or technologies. The GC
China Group shall not sell, manufacture, distribute, license, use, or
transfer any wind-related power generating devices or wind-related power
generating technologies to any person or entity that it knows or
reasonably should know intends to use a NORDIC xxxx or any confusingly
similar xxxx outside of China. The covenants and agreements of
the GC China Group in Sections 1.5(i) and (ii) above and this Section 1
.5(iii) shall apply regardless of the language, English, Chinese, or any
other language, into which the term “Nordic” may be
translated. The GC China Group has not directly or indirectly
registered or attempted to register and shall not directly or indirectly
use, register or attempt to register the xxxx NORDIC or any confusingly
similar xxxx outside of China in connection with the sale, advertisement,
marketing or promotion of any wind-related power generating devices or
technologies.
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(iv)
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The
GC China Group consents to and will not object to or otherwise challenge
the Nordic Group’s use and registration of the xxxx NORDIC or any xxxx
incorporating the term NORDIC outside of China, including, but not limited
to, filing an opposition, cancellation, revocation or invalidity
proceeding. The Nordic Group consents to and will not object to
or otherwise challenge the GC China Group’s use and registration of the
xxxx GC NORDIC or GUOCE NORDIC in China including, but not limited to,
filing an opposition, cancellation, revocation or invalidity
proceeding.
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1.6
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Termination of all
Agreements. Other
than as set forth in this Agreement, the Nordic Group and Deltawind, on
the one hand, and the GC China Group, on the other hand, hereby confirm
and agree that any and all agreements, arrangements, understandings and
other rights or obligations between them are hereby terminated, canceled
and are null and void and of no further force or effect. This
confirmation and termination includes, but is not limited to, termination
of the revised Equity Joint Venture Contract, which was cancelled in early
2007, termination of the Technical License and termination of all other
China JV Agreements.
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1.7
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Rights. Each
Party retains all right, title and interest in and to its intellectual
property subject to all of the terms and conditions of this
Agreement.
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2.
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Mutual General
Release
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2.1
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Release by GC China
Group. Excepting
the obligations imposed by this Agreement and any claims that may arise
out of the breach of this Agreement (including any representation,
warranty or covenant contained herein), and the other consideration set
forth in this Agreement, the GC China Group, on behalf of themselves and
their past and present respective predecessors, subsidiaries, parent
companies, affiliates, divisions, successors and assigns, and all of their
past and present respective officers, directors, agents, insurers,
security holders, attorneys, servants and employees, does hereby covenant
not to xxx and does hereby completely waive and forever release, cancel,
forgive, discharge and generally release Deltawind and the Nordic Group
and each of their past and present respective predecessors, subsidiaries,
affiliates, divisions, successors and assigns, and all of their past and
present officers, directors, agents, attorneys, beneficiaries, insurers,
servants and employees (the “Deltawind & Nordic Group Released
Parties”) from any and all actions, claims, demands, rights, judgments,
defenses, actions, charges, causes of action (including but not limited to
counter-claims, malicious prosecution claims and the like), damages,
obligations, liabilities, controversies, product liability (including
without limitation injuries, death, or disability to persons and
destruction of property), customer complaints, charges and executions
(collectively, “Claims”), of any kind or nature whatsoever anywhere in the
world, of any and every kind and description, in law or in equity, which
any of them ever had, now has, or hereafter can, shall or may have or
assert against all or any of the Deltawind & Nordic Group Released
Parties, whether known or unknown, foreseen or unforeseen, based on any
act or omission occurring prior to the date of the signing of this
Agreement, to the maximum extent permitted by
law.
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2.2
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Release by Nordic
Group and Deltawind. Excepting
(i) the obligations imposed by this Agreement, (ii) any claims relating to
any infringement or violation of any patent right of the Nordic Group or
Deltawind, including without limitation WO 02079643A1 (“System for a
Turbine with a Gaseous or Liquideous Working Medium”) and any patent
throughout the world that claims priority thereto, and (iii) any claims
that may arise out of the breach of this Agreement (including any
representation, warranty or covenant contained herein), and the other
consideration set forth in this Agreement, the Deltawind & Nordic
Group Released Parties, on behalf of themselves, respectively, and their
past and present respective predecessors, subsidiaries, parent companies,
affiliates, divisions, successors and assigns, and all of their past and
present respective officers, directors, agents, insurers, security
holders, attorneys, servants and employees, do hereby covenant not to xxx
and do hereby completely waive and forever release, cancel, forgive,
discharge and generally release the GC China Group and their past and
present respective predecessors, subsidiaries, affiliates, divisions,
successors and assigns, and all of their officers, directors, agents,
attorneys, beneficiaries, insurers, servants and employees (the “GC China
Group Released Parties”) from all Claims of any kind or nature whatsoever
anywhere in the world, of any and every kind and description, in law or in
equity, which any of them ever had, now has, or hereafter can, shall or
may have or assert against all or any of the GC China Group Released
Parties, known or unknown, foreseen or unforeseen, based on any act or
omission occurring prior to the date of the signing of this Agreement, to
the maximum extent permitted by
law.
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2.3
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No
Claims. No
Party hereto nor anyone on its behalf, shall assert or file any claim,
complaint, arbitration proceeding, charge, suit or action against any
other Party hereto or person released pursuant hereto (“Releasee”) arising
out of any matter released pursuant to Section 2.1 (Release by GC China
Group) or Section 2.2 (Release by Nordic Group and Deltawind)
above. In the event that any such claim, complaint, arbitration
proceedings, charge, suit or action is asserted or filed in breach of this
Section 2.3 (No Claims), each affected Party hereto or Releasee shall be
entitled to recover from the releasing Party or Parties his, her or its
costs, including attorneys’ fees, incurred in defending against such
action. Claims released pursuant to this Agreement include
without limitation claims based on or arising out of all common law and
statutory claims, including (but not limited to) breach of contract,
negligence, gross negligence, libel, slander or other tortious acts on the
part of any Party hereto or Releasee; provided, however, that fraud and
intentional misrepresentation Claims related to this Agreement are not
released hereunder.
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2.4
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Release and California
Civil Code Section 1542 Waiver. The
Parties expressly acknowledge and agree that this Agreement fully and
finally releases and forever resolves all Claims, including those that are
unknown, unanticipated or unsuspected or that may hereafter arise as a
result of the discovery of new or additional facts. Each Party
acknowledges that it has had the benefit of independent legal advice with
respect to the advisability of entering into this Agreement, and fully
understands and knowingly and expressly waives any rights or benefits
which it otherwise might have under California Civil Code Section 1542 (or
any other similar local, state, federal or foreign statute, doctrine or
principle of law), which
provides:
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A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH
THE DEBTOR.
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3.
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Mutual
Confidentiality; Non-Use and
Non-Disparagement
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The terms
of this Agreement are intended by the Parties to be
confidential. Other than any disclosure that may be required by law
or order of a court, or may be made to a Party’s lawyers or accountants or other
advisors, who are bound by the same duty of confidentiality, as reasonably
necessary for the rendering of professional services to a Party, the terms of
this Agreement are strictly confidential. Each Party shall not use or
disclose trade secrets, confidential or proprietary information of the other
Parties that it received, if any, prior to the Effective Date.
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4.
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Additional
Representations and Warranties of the
Parties
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4.1
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No
Reliance. Except
as expressly stated in this Agreement, no Party (nor any officer, agent,
employee, representative, nor attorney) has made any statement or
representation to any other Party regarding any fact relied upon in
entering into this Agreement, and no Party is relying upon any statement,
representation, or promise of any other Party (nor any officer, agent,
employee, representative, nor attorney) in executing this Agreement or in
making this settlement, except as expressly stated in this
Agreement.
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4.2
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Independent
Advice. Each
Party represents and declares that in executing this Agreement such Party
has relied solely upon its own judgment, belief, and knowledge after it
has obtained the advice of such Party’s own independently-selected
counsel, concerning the nature, extent, and duration of its rights and
claims.
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4.3
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Investigation. Each
Party has made a reasonable investigation of the facts pertaining to this
Agreement, and all of the matters pertaining to
it.
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4.4
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Agreement
Read. Each
Party has read this Agreement and understands its contents and
consequences.
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4.5
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No Assignments of
Claims. No
Party has assigned, transferred or conveyed any of the claims, demands,
rights, judgments, defenses, actions, charges or causes of action that are
settled and resolved by this
Agreement.
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4.6
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Contractual
Terms. Each
term of this Agreement is contractual and not merely a
recital.
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4.7
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Full
Authority. This
Agreement constitutes valid and legally binding obligations of each of the
Parties, and this Agreement is enforceable according to its
terms. Each Party is duly organized, validly existing and in
good standing under the laws of their respective states of incorporation
or formation, and each has the full right, power, and authority to execute
and deliver this Agreement.
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4.8
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Necessary
Entities.
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(i)
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By GC China
Group. The
GC China Group represents and warrants that GC China, Luckcharm, WGST, ZJN
and Wuhan are all of the entities necessary or appropriate (i) to
terminate any and all agreements, arrangements, understandings and other
rights or obligations between Deltawind and the Nordic Group, on the one
hand, and the GC China Group, on the other hand, which includes, but is
not limited to, termination of the revised Equity Joint Venture Contract,
which was cancelled in early 2007, termination of the Technical License
and termination of all other China JV Agreements, and (ii) to assign all
of the rights, transfer all of the property and perform all of the
obligations set forth in this Agreement for the GC China
Group. No other person or affiliate of the GC China Group is
necessary or appropriate to include as a party to this Agreement to
terminate all of the agreements, arrangements, understandings and other
rights or obligations between the Parties or to assign all of the rights,
transfer all of the property and perform all of the obligations set forth
in this Agreement or to otherwise fully effectuate the terms and
conditions set forth in this
Agreement.
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(ii)
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By
Deltawind. Deltawind
represents and warrants that Deltawind is the only entity necessary or
appropriate (i) to terminate any and all agreements, arrangements,
understandings and other rights or obligations between Deltawind, on the
one hand, and the GC China Group, on the other hand, which includes, but
is not limited to, termination of the revised Equity Joint Venture
Contract, which was cancelled in early 2007, termination of the Technical
License and termination of all other China JV Agreements, and (ii) to
assign all of the rights, transfer all of the property and perform all of
the obligations set forth in this Agreement for Deltawind. No
other person or affiliate of Deltawind is necessary or appropriate to
include as a party to this Agreement to terminate all of the agreements,
arrangements, understandings and other rights or obligations between the
Parties or to assign all of the rights, transfer all of the property and
perform all of the obligations set forth in this Agreement or to otherwise
fully effectuate the terms and conditions set forth in this
Agreement.
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(iii)
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By Nordic
Group. The
Nordic Group represents and warrants that Nordic USA, Nordic UK, and
Nordic Holdings are all of the entities necessary or appropriate (i) to
terminate any and all agreements, arrangements, understandings and other
rights or obligations between the Nordic Group, on the one hand, and the
GC China Group, on the other hand, which includes, but is not limited to,
termination of the Technical License, and (ii) to assign all of the
rights, transfer all of the property and perform all of the obligations
set forth in this Agreement for the Nordic Group. No other
person or affiliate of the Nordic Group is necessary or appropriate to
include as a party to this Agreement to terminate all of the agreements,
arrangements, understandings and other rights or obligations between the
Parties or to assign all of the rights, transfer all of the property and
perform all of the obligations set forth in this Agreement or to otherwise
fully effectuate the terms and conditions set forth in this
Agreement.
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5.
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Assignment of
Trademarks and Logos
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5.1
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Assignment of
Non-China Marks. The
GC China Group represents and warrants that it is the sole legal and
beneficial owner of the XxxxxxXxxxxxxx.xxx website and domain name and
that it has full right, power and authority to assign, sell, transfer and
convey all of its right, title and interest in and to the domain
XxxxxxXxxxxxxx.xxx. For good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the GC China
Group hereby assigns, sells, transfers and conveys to Nordic UK or its
designee, and Nordic UK or its designee hereby purchases, acquires and
receives from the GC China Group, all of the GC China Group’s right, title
and interest in and to the domain XxxxxxXxxxxxxx.xxx and any and all logos
or marks that include the term “Nordic” and any common law rights in and
to the term “Nordic” outside of China for wind-related power generating
devices or wind-related power generating technologies together with all of
the goodwill of the business symbolized by the xxxx “Nordic” and together
with all rights to recover for damages and profits and all other rights
and remedies for infringement of the xxxx “Nordic,” whether past, present
or future infringement. As of the Effective Date, Nordic UK or
its designee shall own and be the sole owner of all of the rights title
and interest in and to the “Nordic” xxxx for wind-related power generating
devices or wind-related power generating technologies (the “Non-China
Marks”) to be held and enjoyed by Nordic UK or its designee and each of
their respective affiliates, successors, heirs and assigns as fully and
entirely as the GC China Group held and enjoyed immediately before this
assignment was made. The Parties understand and agree that the
foregoing assignment is as to the Non-China Marks only, and that marks in
China are not included in such assignment. The Parties
understand and agree that on and as of the Effective Date, Nordic UK or
its designee shall solely and exclusively own and hold all of the GC China
Group’s right, title and interest in and to the Non-China
Marks. The GC China Group shall not retain any right, title or
interest in or to the Non-China Marks or any right therein or thereof or
registration therefor. For the avoidance of doubt, Nordic UK or
its designee shall solely and exclusively have the right and be entitled,
in its sole discretion, in and under the laws of any country and
jurisdiction outside China, to (i) initiate any action, litigation,
arbitration or other proceeding, and seek, enforce, and benefit from any
right, remedy or award, in connection with the Non-China Marks, or any
infringement thereof before, on or after the Effective Date, and (ii)
maintain, cancel or let expire the registrations for the Non-China
Marks. It is the intent of the Parties that these assignments
shall be effective pursuant to the applicable federal and state laws of
the United States.
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5.2
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Assignment of China
Marks. For
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Nordic Group hereby assigns, sells, transfers and
conveys to GC China Group or its designee, and GC China Group or its
designee hereby purchases, acquires and receives from the Nordic Group,
all of the Nordic Group’s right, title and interest in and to any and all
logos or marks that include the term “Nordic” and any common law rights in
and to the term “Nordic” in China together with all rights to recover for
damages and profits and all other rights and remedies for infringement of
the xxxx “Nordic,” whether past, present or future
infringement. As of the Effective Date, the GC China Group
shall own, and be the sole owner of, all of the rights, title and interest
in and to the “Nordic” xxxx in China for wind-related power generating
devices or wind-related power generating technologies (the “China Marks”)
to be held and enjoyed by the GC China Group or its designee and each of
their respective affiliates, successors, heirs and assigns as fully and
entirely as the Nordic Group held and enjoyed immediately before this
assignment was made. The Parties understand and agree that the
foregoing assignment is as to the China Marks only, and that any other
logos or marks (including without limitation any logos or marks outside
China) are not included in such assignment. The Parties
understand and agree that on and as of the Effective Date, the GC China
Group or its designee shall solely and exclusively own and hold all of the
Nordic Group’s right, title and interest in and to the China
Marks. The Nordic Group shall not retain any right, title to
interest in or to the China Marks or any right therein or thereof or
registration therefor in China. For the avoidance of doubt, the
GC China Group or its designee shall solely and exclusively have the right
and be entitled, in its sole discretion, in and under the laws of China,
to (i) initiate any action, litigation, arbitration or other proceeding,
and seek, enforce, and benefit from any right, remedy or award, in
connection with the China Marks, or any infringement thereof before, on or
after the Effective Date, and (ii) maintain, cancel or let expire the
registrations for the China Marks. It is the intent of the
Parties that these assignments shall be effective pursuant to the laws of
China.
|
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6.
|
Ownership of Domain
Names
|
|
6.1
|
GC China
Group. The
GC China Group represents and warrants that it has ceased to use, own and
operate the website and domain name XxxxxxXxxxxxxx.xxx and further
covenants that it will not use, own or operate XxxxxxXxxxxxxx.xxx or any
other website or domain name that uses or incorporates the term “Nordic”,
excepting websites and domain names using the .cn country code top level
domain and using the word or xxxx GC NORDIC or GUOCE NORDIC, but not
NORDIC by itself. The GC China Group agrees that it has not and
will not register any website or domain name that uses or incorporates the
term “Nordic”, excepting (i) xxx.xx-xxxxxx.xxx and (ii) websites and
domain names using the .cn country code top level domain and using the
work or xxxx GC NORDIC or GUOCE NORDIC, including xxxxxxxx.xx,
xx-xxxxxx.xx,
xxxxxxxxxxxxxxxx.xx and xxxxxxxxxxx.xx, but not NORDIC by
itself. Within seven (7) days of the Effective Date, the GC
China Group shall execute and deliver evidence of its assignment of the
XxxxxxXxxxxxxx.xxx domain name to Nordic
Holdings.
|
|
6.2
|
Nordic
Group. The
Nordic Group represents and warrants that it does not use, own or operate
any website or domain name in China that uses the .cn top level domain and
that uses or incorporates the term “Nordic” by itself. The
Nordic Group further covenants and agrees that it will not grant any third
party rights to conduct targeted internet marketing efforts in China for
sales of wind turbines using “Nordic
Windpower.”
|
|
6.3
|
Allowable
Uses. The
Parties understand and agree that because of the nature of the Internet
and the Worldwide Web, websites in both generic top level domains (such as
.com) and also country code top level domains (such as .cn) may be visible
to users anywhere on earth. Accordingly, any use of the word or
xxxx “GC Nordic” or “Guoce Nordic” by any GC China Group member on any
website or in a domain name otherwise permissible under this Agreement
shall not be deemed a prohibited use of the xxxx outside China, regardless
of whether visible to users outside of
China.
|
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7.
|
Additional
Covenants
|
|
7.1
|
Destruction of
Infringing Materials. The
GC China Group shall destroy all sales, advertisement, marketing,
packaging, labeling and promotional material, including without limitation
investor presentation material, which use the Non-China Marks that are in
the possession of the GC China Group. The GC China Group shall
undertake reasonable efforts to destroy all sales, advertisement,
marketing, packaging, labeling and promotional material, including without
limitation investor presentation material, which use the Non-China Marks
that the GC China Group has provided to third
parties.
|
|
7.2
|
Use of
Name. Except
as set forth in Section 6 (Ownership of Domain Names) and except to the
extent legally required for non-marketing identification purposes, the GC
China Group covenants and agrees that outside China commencing on the
Effective Date and continuing in perpetuity, none of the GC China Group
shall be referred to as “Nordic Turbines” or any other name or word that
uses or incorporates Nordic in any materials, documents, filings or
reports, including without limitation any press release or U.S. Securities
and Exchange Commission filing, except if and to the extent it is legally
required by applicable laws in the relevant jurisdiction. In
addition, the Parties understand and agree that the GC China Group may use
the term “Nordic” and the names of the Nordic Group members in a factual
manner in public disclosures, including those on any websites owned or
operated by the GC China Group, where required or advisable under
applicable law. For the avoidance of doubt, the GC China Group
shall not use the language “formerly known as NORDIC TURBINES” except if
and to the extent it is legally required to do so by applicable laws in
the relevant jurisdiction.
|
|
7.3
|
Disassociation. The
GC China Group covenants and agrees that it will not claim any association
or affiliation with the Nordic Group commencing on the Effective Date and
continuing in perpetuity except if and to the extent it is legally
required by laws in the applicable
jurisdiction.
|
|
7.4
|
Further
Assurances. Each
Party covenants and agrees that it will execute and deliver such further
certifications, documents, other instruments and take such further actions
as are reasonably requested by another Party from time to time to effect
the trademark and domain name assignments, registrations, cancellations
and other rights granted pursuant to this Agreement; provided, however,
that any costs or fees required with respect to the foregoing shall be
borne solely by the requesting
Party.
|
|
8.
|
Limitation of
Liability
|
NO PARTY
SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL
OR SPECIAL DAMAGES, LOST PROFITS, LOST REVENUES, LOST OPPORTUNITIES, REPLACEMENT
COSTS OR SUBSTITUTION OF GOODS UNDER THIS AGREEMENT.
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9.
|
No
Warranties
|
ANY AND
ALL TECHNOLOGY, KNOW-HOW OR OTHER ITEMS PROVIDED BY A PARTY TO ANY OTHER PARTY
PRIOR TO THE EFFECTIVE DATE HAVE BEEN PROVIDED ON AN “AS IS” BASIS, AND NO PARTY
MAKES ANY WARRANTIES TO ANY OTHER PARTY, EXPRESS OR IMPLIED, EITHER IN FACT OR
BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, AND INCLUDING WITHOUT LIMITATION
ANY IMPLIED WARRANTY OF QUALITY, WARRANTY OF MERCHANTABILITY, ERROR-FREE
PERFORMANCE, SAFETY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR ANY
WARRANTY AS TO THE VALIDITY OF ANY PATENT OR THE NON- INFRINGEMENT OF ANY
INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES. EACH PARTY REPRESENTS,
WARRANTS AND COVENANTS THAT ITS PAST, PRESENT OR FUTURE USE OR OTHER
EXPLOITATION OF ANY SUCH ITEMS, INCLUDING WITHOUT LIMITATION DISTRIBUTION TO
THIRD PARTIES, WAS, IS AND SHALL FOREVER BE, AT ITS OWN RISK. EACH
PARTY ACKNOWLEDGES AND AGREES THAT IT WAS, IS AND SHALL FOREVER BE SOLELY
RESPONSIBLE FOR ENSURING HUMAN AND ENVIRONMENTAL SAFETY RELATED TO ANY AND ALL
PAST, PRESENT OR FUTURE USE OR OTHER EXPLOITATION OF ANY SUCH
ITEMS. EACH PARTY REPRESENTS, WARRANTS AND COVENANTS THAT IT SHALL BE
SOLELY LIABLE FOR ANY BODILY INJURY, PERSONAL INJURY, DEATH OR PROPERTY DAMAGE
DIRECTLY OR INDIRECTLY CAUSED BY SUCH PARTY’S PAST, PRESENT OR FUTURE USE OR
OTHER EXPLOITATION OF ANY SUCH ITEMS.
|
10.
|
Indemnification
|
|
10.1
|
Indemnification by the
GC China Group. The
GC China Group will, at its expense and the Nordic Group’s request,
defend, indemnify and hold harmless the Nordic Group and their respective
officers, directors, employees, contractors and agents against any and all
Claims (including reasonable attorneys’ and other reasonable
professionals’ fees and costs) arising, in whole or in part, in connection
with any breach of this Agreement (including any representation, warranty
or covenant contained herein) by the GC China Group; provided that the
Nordic Group shall promptly notify the GC China Group in writing about any
such claim and if prejudice occurs as a result of the Nordic Group’s delay
in providing notice, then the GC China Group shall not be liable for any
losses that directly result from the delay of providing such notice to the
extent of such prejudice.
|
- 14
-
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10.2
|
Indemnification by the
Nordic Group. The
Nordic Group will, at its expense and the GC China Group’s request,
defend, indemnify and hold harmless the GC China Group and their
respective officers, directors, employees, contractors and agents against
any and all Claims (including reasonable attorneys’ and other reasonable
professionals’ fees and costs) arising, in whole or in part, in connection
with any breach of this Agreement (including any representation, warranty
or covenant contained herein) by the Nordic Group; provided that the GC
China Group shall promptly notify the Nordic Group in writing about any
such claim and if prejudice occurs as a result of the GC China Group’s
delay in providing notice, then the Nordic Group shall not be liable for
any losses that directly result from the delay of providing such notice to
the extent of such prejudice.
|
|
10.3
|
Indemnification
Procedure. A
person or entity that intends to claim indemnification under this Section
10 (an “Indemnitee”) must promptly notify the other Party (the
“Indemnitor”) in writing of any Claim in respect of which the Indemnitee
intends to claim such indemnification, and the Indemnitor will assume the
defense thereof whether or not such Claim is rightfully brought; provided,
however, that an Indemnitee will have the right to take sole control of
the defense and retain its own counsel, with the fees and expenses to be
paid by the Indemnitee, unless Indemnitor does not assume the defense, in
which case the reasonable fees and expenses of counsel retained by the
Indemnitee will be paid by the Indemnitor. The Indemnitee, and
its employees and agents, will cooperate fully with the Indemnitor and its
legal representatives in the investigations of any Claim. The
Indemnitor may not enter into any settlement or compromise unless such
settlement or compromise unconditionally releases the Indemnitee from all
liability for all Claims or unless such settlement or compromise is
consented to in writing by the Indemnitee, which consent shall not be
unreasonably withheld or delayed. The Indemnitor will not be
liable for the indemnification of any Claim settled or compromised by the
Indemnitee without the written consent of the Indemnitor, which consent
shall not be unreasonably withheld or
delayed.
|
|
11.
|
Deltawind and the
Nordic Group
|
Notwithstanding
anything to the contrary contained in this Agreement, as between only Deltawind
and the Nordic Group, each of Deltawind and the Nordic Group agrees that nothing
in this Agreement amends, terminates, changes, modifies or alters the rights or
obligations of Deltawind and the Nordic Group with respect to the Asset Transfer
Agreement, or any other provision thereof, and that the Asset Transfer Agreement
shall continue to be in full force and effect between Deltawind and the Nordic
Group, without regard to this Agreement.
- 15
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12.
|
Notices
|
All
notices and other communications given or made pursuant to this Agreement shall
be in writing and shall be deemed effectively given upon the earlier of actual
receipt or: (a) personal delivery to the Party to be notified, (b) if within the
United States of America, either five (5) days after having been sent by
registered or certified mail, return receipt requested, postage prepaid, or one
(1) business day after the business day of deposit with a nationally recognized
overnight courier, freight prepaid, specifying next-day delivery, with written
verification of delivery, or (c) if outside of the United States of America,
three (3) business days after the business day of deposit with an
internationally recognized courier, freight prepaid, for delivery within the
specified period, with written verification of delivery within said
period. All communications shall be sent to the attention of each
Party’s Chief Executive Officer to such Party’s address as set forth on the
first page of this Agreement, or such other address as subsequently modified by
such Party by written notice given in accordance with this
Section. If notice is given to any member of the Nordic Group, a
copy, which shall not constitute notice, shall also be sent to Xxxxx &
XxXxxxxx LLP, c/o Xxxxx X. Xxxxxx, Esq., 00000 Xxxx Xxxxx Xxxxx, 0xx Xxxxx, Xxx
Xxxxx, XX 00000. If notice is given to any member of the GC China
Group, a copy, which shall not constitute notice, shall also be sent to
Xxxxxxxxx Xxxxxxx, LLP, c/o Xxxx Xxx, Esq., 0000 X Xxxxxx, Xxxxx 0000,
Xxxxxxxxxx XX 00000.
|
13.
|
Counterparts
|
This
Agreement may be executed in counterparts, all of which, when taken together,
shall constitute a fully-executed original. Facsimile signatures will
be effective and binding. A Party providing a facsimile signature
shall promptly provide an original signature to the other Party’s
counsel.
|
14.
|
Entire
Agreement
|
This
Agreement constitutes the final and exclusive agreement between the Parties with
respect to the subject matter, and all prior and contemporaneous agreements,
representations, negotiations, and understandings of the Parties regarding the
same, whether oral or written are superseded and merged into this
Agreement.
|
15.
|
Modification
|
No
modification, waiver, amendment, discharge or change of this Agreement shall be
valid unless the same is in writing and signed by the Parties.
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|
16.
|
Construction and
Section Headings
|
This
Agreement shall be written in English and Mandarin Chinese; provided, however,
that the English language version shall control in the event of any
conflict. This Agreement was not drafted by any one Party and shall
not be construed or interpreted against any one Party. The Section
headings in this Agreement are provided for convenience only and will not affect
its construction or interpretation. All references to “Section” or
“Sections” refer to the corresponding section or sections of this Agreement
unless otherwise specified. All words used in this Agreement will be
construed to be of such gender or number as the circumstances
require. Unless otherwise expressly provided, the word “including”
does not limit the preceding words or terms.
|
17.
|
Severability
|
If any
provision or any portion of this Agreement shall become illegal, null, or void
or against public policy, for any reason, or shall be held by any court of
competent jurisdiction to be illegal, null, or void or against public policy,
then the remainder of this Agreement shall not be affected and shall remain in
full force and effect in such jurisdiction to the extent permissible by
applicable law, and the entire Agreement shall remain in full force and effect
in all other jurisdictions to the extent permissible by the applicable laws in
such jurisdictions.
|
18.
|
No Admission of
Liability
|
This
Agreement constitutes a compromise disposition of controverted claims, and by
executing this Agreement, the Parties do not admit liability for any of the
matters discussed in the course of negotiating this Agreement. Except
as specified or otherwise provided for in this Agreement, no statements made in
this Agreement may be used against any Party for any purpose, and no statements
of the Parties (nor their officers, agents, employees, representatives, nor
attorneys) in the course of negotiating this Agreement may be admissible as
evidence for any purpose in any proceeding.
|
19.
|
Successors and
Assigns
|
Each and
all covenants and conditions of this Agreement shall inure to the benefit of and
shall be binding upon successors and interest, assigns and legal representatives
of the Parties.
|
20.
|
Governing Law;
Arbitration of Disputes
|
|
20.1
|
Choice of
Law. Notwithstanding
anything to the contrary contained herein, this Agreement shall be
construed in accordance with and governed by the substantive laws of the
State of New York and the applicable federal laws of the United States of
America, without giving effect to any choice of law rule that would cause
the application of the laws of any jurisdiction other than the substantive
laws of the State of New York and the applicable federal laws of the
United States of America to the rights and duties of the
Parties. The United Nations Convention on Contracts for the
International Sale of Goods shall not apply to this
Agreement.
|
- 17
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|
20.2
|
Arbitration. All
disputes arising out of or in connection with the present contract shall
be submitted to the International Court of Arbitration of the
International Chamber of Commerce and shall be finally settled under the
Rules of Arbitration of the International Chamber of Commerce by one (1)
or three (3) arbitrator(s) appointed in accordance with the said
rules. The place of arbitration shall be
Singapore. The arbitration will be conducted in English, with a
translator provided for those persons who speak Mandarin
Chinese. The award rendered by the arbitrator(s) shall be final
and judgment may be entered thereon in any court having jurisdiction
thereon.
|
|
21.
|
Authorization to
Bind
|
The
Parties warrant that their respective signatories have full authority to enter
into this Agreement on behalf of any entities for whom they are
signing.
[THE
REST OF THIS PAGE INTENTIONALLY LEFT BLANK
- 18
-
IN WITNESS OF THE FOREGOING,
the Parties execute this Termination, Release and Settlement Agreement as
of the Effective Date:
|
Nordic
Windpower USA, Inc.
|
||||
|
By:
|
/s/ Xxxxxx X. Xxxxxxx
|
By:
|
/s/ Qi Na
|
|
|
Name
Xxxxxx X. Xxxxxxx
|
Name
Qi Na
|
|||
|
Its:
|
CEO
|
Its:
|
CEO
|
|
|
Date:
|
11/30/10
|
Date:
|
11/30/10
|
|
|
Nordic
Windpower Limited
|
Luckcharm
Holdings Limited
|
|||
|
By:
|
/s/ Xxxxxx X. Xxxxxxx
|
By:
|
/s/ Qi Na
|
|
|
Name
Xxxxxx X. Xxxxxxx
|
Name
Qi Na
|
|||
|
Its:
|
CEO
|
Its:
|
Authorized Signatory
|
|
|
Date:
|
11/30/10
|
Date:
|
11/30/10
|
|
|
Nordic
Windpower Holdings, Inc.
|
Wuhan
Guoce Nordic New Energy Co., Ltd.
|
|||
|
By:
|
/s/ Xxxxxx X. Xxxxxxx
|
By:
|
/s/ Qi Na
|
|
|
Name
Xxxxxx X. Xxxxxxx
|
Name
Qi Na
|
|||
|
Its:
|
CEO
|
Its:
|
General Manager
|
|
|
Date:
|
11/30/10
|
Date:
|
11/30/10
|
|
|
Deltawind
AB
|
Wuhan
Guoce Science & Technology Co., Ltd.
|
|||
|
By:
|
/s/ Xxxx X. Xxxx
|
By:
|
/s/ Qi Na
|
|
|
Name
Xxxx X. Xxxx
|
Name
Qi Na
|
|||
|
Its:
|
Chairman
|
Its: | Authorized Signatory | |
|
Date:
|
11/30/10
|
Date:
|
11/30/10
|
|
|
and
|
Wuhan
Zhongjieneng New Energy Investment Ptd.
|
|||
|
By:
|
/s/ Xxxx Xxxxx
|
By:
|
/s/ Qi Na
|
|
|
Name
Xxxx Xxxxx
|
Name
Qi Na
|
|||
|
Its:
|
Director
|
Its:
|
Authorized Signatory
|
|
|
Date:
|
11/30/10
|
Date:
|
11/30/10
|
|
[SIGNATURE
PAGE TO TERMINATION, RELEASE AND SETTLEMENT
AGREEMENT]
