EXHIBIT 99.3
ASSIGNMENT
AND
XXXX OF SALE
This ASSIGNMENT AND XXXX OF SALE ("ASSIGNMENT") is made as of May 28,
2002, from Xxx Xxxx ("Assignor") to Save the World Air, Inc. ("Assignee"), with
reference to the following facts:
WITNESSETH
WHEREAS, Assignor and Assignee have entered into that certain Mutual
Release of even date herewith (the "Release");
WHEREAS, the Release requires that Assignor assign certain rights to
Assignee;
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, that:
1. Assignor for and in consideration of the mutual promises contained in
the Release, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, does hereby irrevocably sell,
assign, convey, give, grant, bargain, transfer and deliver to Assignee whatever
rights, title and interests, if any, Assignor has in or to the property listed
on Schedule 1 hereto (the "PROPERTY").
2. Assignor hereby states to Assignee that, to his knowledge and belief,
he has good and marketable title to all of the Property, subject to no liens or
encumbrances, (other than the claims by Xxxxxxx and Xxxx Xxxxxx, and Patent
Application No. 58057/01, and the claims of the Assignee through them), whether
by mortgage, pledge, lien, conditional sale agreement, encumbrance, charge or
otherwise, and is delivering to Assignee full legal title thereto free and clear
of all such liens and encumbrances.
3. Assignor hereby covenants that it will, at any time and from time to
time upon written request therefor, execute and deliver to Assignee, its
nominees, successors and/or assigns, any new or confirmatory instruments and do
and perform any other acts which Assignee, its nominees, successors and/or
assigns, may request in order to fully assign and transfer to and vest in
Assignee, its nominees, successors and/or assigns, and protect its or their
rights, title and interest in and enjoyment of, all of the Property intended to
be transferred and assigned hereby, or to enable Assignee, its nominees,
successors and/or assigns, to realize upon or otherwise enjoy any such property,
assets and/or property rights.
4. Assignor represents and warrants that except as heretofore disclosed,
there is no litigation, action, claim, investigation or proceeding,
administrative or judicial, pending against Assignor or to Assignor's knowledge,
and without notice to the contrary, threatened against or relating to or
affecting Assignor's rights in or to the Property (other than the claims by
Xxxxxxx and Xxxx Xxxxxx, and Patent Application No. 58057/01, and the claims of
the Assignee through them). To the best of Assignor's knowledge, there is no
outstanding order, writ, injunction or decree of any court, governmental agency
or arbitration tribunal affecting the Property. Assignor hereby agrees to
defend, indemnify and hold Assignee harmless from any and all liabilities,
judgments, penalties, losses, costs, damages, demands and expenses, including
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reasonable attorney's fees, arising prior to the date of this Agreement by
reason of or in connection with the Property (other than the claims by Xxxxxxx
and Xxxx Xxxxxx, and Patent Application No. 58057/01, and the claims of the
Assignee through them).
5. All representations made herein for ownership and property rights are
subject to SWA' resolution of claims at its cost with respect to the pollution
device aka ZEFS device with Xxxxxxx Xxxxxx or his assignees and the release of
the Assignor from the alleged Manufacturing and Marketing Agreement with Xxxxxxx
and Xxxx Xxxxxx. Assignor will cooperate to the extent necessary to resolve any
such claims as may be prosecuted by to resolve these claims.
6. All references to "Assignor" and "Assignee" herein shall be deemed to
include their respective heirs, representatives, nominees, successors and/or
assigns, where the context permits.
7. This Assignment shall be governed by California law in all respects.
Assignor: /S/ XXX XXXX
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Xxx Xxxx
Approval as to Form and Content: /S/ XXXX XXXXXXXXX
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Xxxx Xxxxxxxxx
FREESTONE & XXXXXXX
Solicitors for Xxx Xxxx
Assignee: by: /S/ XXXXXX X XXXXXXX
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For SAVE THE WORLD, INC. ("SWA")
Approval as to Form and Content: /S/ XXXXXX X. XXXXXXXX
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Xxxxxx X. Xxxxxxxx
XXXXXXXX & PARTNERS, Attorneys
Attorneys for SWA
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SCHEDULE 1
TO
ASSIGNMENT AND XXXX OF SALE
PROPERTY
Any and all of Assignor's right, title and interest in and to the following,
whether previously held or hereafter acquired:
(a) Sales, marketing, and distribution rights to a pollution control
device for internal combustion engines, also known as the Zero
Emission Fuel Saver device (the "PRODUCT");
(b) Licenses and licensed rights to the Product, whether as licensor
or licensee;
(c) Patents and patent rights, patent applications, designs, know
how, formula, algorithms and other intellectual property rights
concerning the Product;
(d) Copyrights, copyright registrations and copyright applications
concerning the Product;
(e) Any causes of action at law or in equity concerning the
foregoing or the Product and any judgments arising out of the
foregoing;
(f) The right to the use of the name of Xxx Xxxx, as the inventor,
sponsor and otherwise to reference his affiliation with the
device and any trade names, trademarks and service marks under
which the Product has been, is now, or proposes to be marketed,
in connection with the business of Assignee and the goodwill of
Assignors provided the use of such name, or his visage, is first
approved in writing by the Assignor and only used in conjunction
with the Product;
(g) All rights of Assignor of any kind in or in any way concerning
the Product;
MUTUAL RELEASE
This Mutual Release ("Release") is made and entered into effective as of
the 28th day of May 2002, by and between SAVE THE WORLD AIR, INC., a Nevada
corporation ("COMPANY"), on the one hand, and Xxx Xxxx ("XXXX"), on the other
hand, with reference to the following facts:
X. Xxxx is recognized to have claims to the ownership, interest in and
rights to patent and intellectual property rights of a pollution
mechanism, also known as the Zero Pollution Emission Fuel device to
which SWA has licensing rights and other claimed entitlements and which
SWA intends to market and distribute.
X. Xxxx and SWA have entered into certain contractual arrangements
(collectively, the "RELATED PARTY TRANSACTIONS"). The Related Party
Transactions include a royalty agreement ("ROYALTY AGREEMENT"), stock
option ("Xxxx OPTION") and other terms specified and described herein,
for the purpose to resolve any claims that may currently or in the
future exist between the parties with respect to the ZEFS device or any
rights associated therewith.
C. The parties hereto desire to settle any claims each may have against the
other and to release each other from all claims relating to services,
patents or intellectual property rights, ownership rights of whatever
kind or nature which Xxx Xxxx has or claims to have in the ZEFS device,
as more particularly set forth herein by the assignment and xxxx of
sale.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
herein and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereby agree as follows:
1. Certain Undertakings of the Company.
(a) Company Stock Option. SWA shall, as soon as the Company is in
compliance with SEC requirements, execute and deliver to Xxx
Xxxx or his assignee, a notice of grant and stock option
agreement for 500,000 shares at the exercise price of $1.00 with
an option term of 10 years, and on the normal terms for SWA
required by the Securities laws of the United States.
(b) Royalties. SWA shall execute and deliver to Xxx Xxxx, or his
assignee, a royalty agreement providing the Company's payment to
Xxx Xxxx of an ongoing royalty of $0.20 per unit sold. The
royalty agreement will provide for quarterly written reports as
to the number of units sold with an appropriate royalty
calculation in arrears for the last quarterly time period.
(c) Advisory Board. SWA will appoint Xxx Xxxx to its advisory board
on the same terms and conditions as its other members.
(d) Xxx Xxxx will be provided an agreement to assist SWA other
consultants which will provide for payment of all reasonable
costs and expenses to be borne by SWA.
2. Certain Undertakings of Xxxx.
(a) Assignment and Xxxx of Sale. Xxx Xxxx shall execute an
assignment in the form attached hereto as Annex A.
(b) Indemnification. Xxx Xxxx hereby agrees to indemnity and hold
harmless the Company and its officers, directors, employees,
agents, attorneys, accountants, successors and assigns against
and from any claims, demands, costs, losses, damages,
liabilities, obligations, actions, causes of action, lawsuits
and expenses (including, without limitation, all attorneys' fees
and costs) of every type, kind and character whatsoever, whether
known or unknown, suspected or unsuspected, however arising,
arising from or in any way connected with his actions or
inactions with respect to any claim efforts or activities he has
engaged in with respect to perfecting his interest in the
pollution device before execution of this agreement, but
specifically excluding any claim, or alleged claim, by
Xxxxxxx/Xxxx Xxxxxx, or by the Company claiming, or allegedly
claiming through them.
3. General Release. Subject to the provisions of paragraphs 1 and 2
immediately preceding, Xxx Xxxx, on behalf of himself and all entities
under his control, hereby forever, fully and finally release, acquit and
discharge SWA, its stockholders, partners, directors, officers,
employees, agents, representatives, executors, administrators,
successors, assigns, divisions, subsidiary and affiliated corporations,
affiliates, insurers and underwriters, and each of them past, current or
future, from any and all claims, demands, costs, losses, damages,
liabilities, obligations, actions, causes of action, lawsuits and
expenses (including, without limitation, all attorneys' fees and costs)
of every type, kind and character whatsoever, whether known or unknown,
suspected or unsuspected, however arising, arising from or in any way
connected with any claims for any interest in the pollution device aka
ZEFS, patent and/or intellectual property rights or any activities that
are pending or claims arising from any other claimed interest
(collectively, "CLAIMS"); provided, however, that SWA resolve its claims
against Xxxxxxx Xxxxxx regarding the ZEFS device, as its own cost.
4. Section 1542 Waiver. This Release is not to be construed as an admission
by any party of the validity of any contention made or position taken by
any party of any unlawful or wrongful conduct or of any liability, or
lack thereof, to any other party, all of which is expressly denied. The
parties intend that this Release shall be effective as a full and final
accord and satisfaction and release of each and every released matter.
In furtherance of this intention, they acknowledge that they are
familiar with Section 1542 of the Civil Code of the State of California,
which provides as follows:
A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have
materially affected his settlement with the debtor.
The parties respectively waive and relinquish to the fullest
possible extent every right or benefit which they have or may have under Section
1542 and under any similar or analogous law of any other applicable jurisdiction
with regard to the subject matter of this Release. The parties acknowledge that
they are aware they may hereafter discover facts in addition to or different
from those which they now know or believe to be true with respect to the subject
matter of this Release. Nevertheless, they intend fully, finally and forever, to
settle and release all released matters, known or unknown, suspected or
unsuspected, which now exist, may hereafter exist, or heretofore existed between
them. In furtherance of this intention, the releases given in this Release shall
be in, and shall remain in, effect as full and complete releases,
notwithstanding the discovery or existence of any additional or different facts.
5. No Assignments. Each party warrants and represents that such party has
not previously assigned or transferred or purported to assign or
transfer to any third party any claims or other rights released
hereunder.
6. Separate Counsel. Each party acknowledges, represents and warrants that
such party has been represented by counsel throughout all negotiations
which preceded the execution of this Release; that such party has read
this Release, has consulted with counsel and fully understands its
contents and consequences; that the parties hereto have, through their
respective counsel, mutually participated in the preparation of this
Release, and it is agreed that no provision herein shall be construed
against any party hereto by virtue of the activities of that party, or
attorneys; that this Release is being executed solely in reliance on
such party's judgment, belief and knowledge of the matters set forth
herein and on the advice of their respective attorneys.
7. Successors and Assigns. This Release shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and
assigns, including, without limitation, the persons released pursuant to
this Release.
8. Jurisdiction. The parties agree herein that any claims may be subject to
mandatory arbitration within a court of the State of California having
proper subject matter jurisdiction and that personal service
requirements will by proving notice of claims at the known, or last
known address and place of contact provide by the parties to each other.
IN WITNESS WHEREOF, the parties have executed this Release as of the
date first above written.
SWA: SAVE THE WORLD AIR, INC.,
a Nevada corporation
By: /S/ XXXXXX X. XXXXXXX,
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XXXXXX X. XXXXXXX,
CHIEF OPERATING OFFICER
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(Name and Title)
Approval as to Form and Content: /S/ XXXXXX X. XXXXXXXX 5-28-02
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Xxxxxx X. Xxxxxxxx
XXXXXXXX & PARTNERS, Attorneys
Attorneys for SWA
Xxx Xxxx: /S/ XXX XXXX
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XXX XXXX
APPROVAL AS TO FORM AND CONTENT: /S/ XXXX XXXXXXXXX
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XXXX XXXXXXXXX
FREESTONE & XXXXXXX
Solicitors for Xxx Xxxx
