EXHIBIT 10.22
AGREEMENT
FOR
DISTRIBUTION OF GLOBAL ENERGY PRODUCTS
This agreement is made on the 26th day of September, 2003, by and
between Global Energy Group, Inc. ("Global Energy") a Delaware Corporation
having its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
and Global Energy Distribution Group, L.L.C an Oklahoma Limited Liability
Company, whose principal address is ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
("Distributor"). This agreement will become effective only upon its approval by
the Board of Directors of Global Energy. Distributor may void this agreement if
it is not approved by the Board within thirty (30) days after the date shown
above.
Global Energy has developed new technologies that improve the energy
efficiency of existing products and processes with a focus on thermodynamics,
heat transfer and heat exchange, which are important to the heating,
ventilation, air conditioning, and refrigeration ("HVACR") industries (the
"Technology") exhibiting performance in a wide variety of energy-storage
applications and markets, including those described below. The Technology is now
employed by Global Energy in the design and manufacture of the applications
described below. The term "Products" as used in this agreement means all
products manufactured by Global Energy using the Technology. To date, the
Company has completed development of four products with the two principle
products being the EER(+)Plus and Inventor Series 1400 units. The EER(+)Plus is
a retrofit unit, designed to be added to existing air conditioning units to
boost their performance very cost effectively. The Inventor Series 1400 is a
complete unitary packaged air conditioning unit, with Global Energy's patented
technologies incorporated into it. Both of these products utilize generally
wasted condensate water and exhaust air, produced by all standard air
conditioning systems, to provide increased capacity and to reduce power
consumption. This produces improvements in energy efficiency of at least 25%,
compared to typical other new equipment. This efficiency improvement reduces
energy consumption for air conditioning while maintaining the same cooling
level. In May 2002, a sample Inventor Series 1400 unit was certified by the Air
Conditioning and Refrigeration Institute ("ARI"), the independent industry group
which certifies the energy efficiency ratings of air conditioning units. Global
Energy's 7.5-ton unit was rated 13.5 EER. Current plans call for Global Energy
to offer both the EER+ product and the Inventor Series 1400 units in several
cooling sizes.
The parties wish to jointly develop the Products, and believe that Distributor's
relationships with potential purchasers of the Products and with sources of
capital to support the manufacture and distribution of the Products will
contribute to rapid growth of sales of the Products to the benefit of both
parties.
1
Therefore the parties agree to the following:
1. Distribution Rights: Subject to any rights previously granted to
third parties and scheduled on Exhibit A, Global Energy grants to Distributor an
exclusive, worldwide right to distribute the Products.
Reference is made to the License Agreement of even date herewith
between the parties, a copy of which is appended to this Agreement as Exhibit B
(the "License Agreement"). The License Agreement shall not be or become
effective, and Distributor shall have no rights thereunder, except during any
period during which Distributor is exercising its rights under Section 11 or
Section 17 of this Agreement, to manufacture Products or have them manufactured
exclusively for Distributor by a third party.
2. Term. The term of this Agreement shall be one year, subject to
automatic renewal at the end of each one-year term for successive additional
one-year terms if Distributor's sales of Products during the then preceding year
have aggregated at least $50,000. Notwithstanding the foregoing, at such time as
GEAG shall have made loans to Global Energy in the aggregate amount of at least
$500,000 as contemplated by the Funding Agreement (as described in the following
paragraph), the initial term of this Agreement shall be automatically extended
to five years, which will automatically renew for an unlimited number of
additional five-year terms so long as Distributor continues to exercise all
commercially reasonable efforts to distribute the Products. If Distributor fails
to exercise all commercially reasonable efforts to market and distribute the
Products, Global Energy may terminate the exclusivity provisions of this
Agreement by giving six-months written notice of termination of exclusivity.
This agreement will terminate six months after such notice is given unless
Distributor undertakes all commercially reasonable efforts to market and
distribute the Products within the six-month period. Provided, however, Global
Energy cannot terminate this agreement on the basis of Distributor's failure to
exercise all commercially reasonable efforts to market and distribute the
Products if conduct by Global Energy that is inconsistent with the intent of
this agreement contributes to Distributor's failure to exercise all commercially
reasonable efforts in any material way. If Distributor's sales of Products
exceeds 75% of the Sales Goal of each year during the term of this Agreement, it
will be presumed that Distributor is using all commercially reasonable efforts
to distribute the Products. Distributor may terminate this Agreement by
providing six (6) months prior written notice to Global Energy.
For the purposes of this Agreement, "Funding Agreement" shall mean an
agreement between Global Energy and Global Energy Acquisition Group, L.L.C., an
Oklahoma limited liability company ("GEAG") that requires GEAG to lend to Global
Energy at least $2,500,000 in the aggregate over the next 18 months and that is
agreed in writing by Global Energy and GEAG to be the Funding Agreement referred
to in this Agreement. Notwithstanding anything herein to the contrary, unless
and until such time as (i) Global Energy and GEAG shall have entered into the
Funding Agreement, and (ii) GEAG shall have made loans to Global Energy in the
aggregate amount of at least $500,000 as contemplated by the Funding Agreement,
this Agreement and all rights of Distributor hereunder shall be and remain
nonexclusive. If, after the Funding Agreement becomes effective, GEAG fails to
make any loan required to be made by it under or pursuant to the Funding
Agreement, this Agreement and all rights of
2
Distributor hereunder shall become and thereafter remain nonexclusive. During
any period of time during which the rights of Distributor hereunder shall be
nonexclusive, Global Energy shall then be permitted to engage other distributors
and otherwise arrange for sales of its products and other products incorporating
its intellectual property, under terms similar to or different from those under
this Agreement and in the same or different territories.
3. Territory: This territory in which Distributor has the right to
market and sell the Products is worldwide.
4. Products: Distributor's distribution rights include all Products
currently in production and all Products developed or manufactured by Global
Energy in the future. Global Energy and Distributor will cooperate in assessing
demand and performance requirements for each of Products. Global Energy will,
upon the reasonable request of Distributor, use commercially reasonable efforts
to design and manufacture Products that satisfy such demand and performance
requirements; provided, however, Global Energy will have no obligation under
this sentence until Global Energy and distributor have agreed on the allocation
and payment of the cost of design, testing, retooling, etc. to be incurred in
complying with Distributor's request. If Global Energy is unwilling or unable to
undertake the design of a new Product or redesign of an existing Product,
Distributor can engage a third party to undertake the task. In that event,
Global Energy will have the first opportunity to manufacture the newly designed
or redesigned Product, but, if Global Energy declines that opportunity,
Distributor can engage a third party to manufacture the Product.
5. Market Research: Distributor and Global Energy will cooperate in
researching markets proposed to be served by Distributor for the purpose of
identifying pricing, performance and other product parameters necessary to
establish sales projections and production priorities for the markets and each
will share such data with the other on a prompt and regular basis; provided that
Distributor will pay expenses involved in such research to the extent they are
owed to third parties. Distributor and Global Energy each agree to communicate
its market research and sales projections information to the other on a schedule
mutually agreed for the purpose of coordinating Global Energy production
capability and priorities and Distributor's sales commitments.
6. Product Certifications: Distributor and Global Energy will cooperate
and coordinate efforts to obtain, at Global Energy's expense, certifications for
the Products which Distributor in its discretion determines to be necessary or
desirable to support Distributor's sale of the Products.
7. Production Planning: Distributor acknowledges that it understands
Global Energy's current production capabilities, as well as the considerable
capital cost of expanding its production capabilities to satisfy increases in
sales of the Products. Accordingly, as soon as practicable and in any case
within thirty (30) days after this
3
agreement becomes effective, Distributor and Global Energy will agree upon
projections of anticipated sales of the Products in the markets for the initial
five-year term of this Agreement (as they may be adjusted by agreement of the
parties from time to time, the "Sales Goals"). The Parties will meet quarterly
to discuss the Sales Goals, and based on those discussions, will revise the
Sales Goals for the remainder of each five-year term of this Agreement to
reflect reasonably achievable goals for each market. At least eighteen months
prior to the end of each five-year term of this Agreement, the Parties will
establish initial Sales Goals for the next succeeding five-year term of this
Agreement.
Global Energy agrees to use commercially reasonable efforts to complete
capital improvements to its production facilities during each year of the term
of the Agreement which are adequate to support the manufacture of the volume of
Products required to meet the Sales Goals.
8. Distributor Assistance: Distributor agrees to assist Global Energy
in accomplishing timely expansion of its production capability to meet the
demand for Global Energy's Products required by this Agreement by working with
Global Energy to develop sales and manufacturing plans to support Global
Energy's expansion of production capability for the Products, by introducing
Global Energy to sources of capital known to Distributor and, if Distributor
develops or acquires any independent capabilities to manufacture the Products,
making available any excess production capability of such facility beyond that
required for the manufacture of Products for sale to the markets for the
manufacture of products for other markets served by Global Energy. Subject to
the confidentiality provisions of this agreement, Global Energy agrees to
support such Distributor efforts with detailed technical and cost information
relating to all matters required to increase expeditiously production capability
for the Products.
9. Global Energy Assistance: Global Energy, at its sole expense, will
provide a reasonable number of products required for customer qualifications and
usage specifications and industry certifications in the markets. Global Energy
will provide Distributor with technical, marketing, sales and field support as
reasonably necessary to assure that the Products are performing for users within
their specifications established by Global Energy and to maintain customer
satisfaction with the Products. The products and support required under this
section will be provided as promptly as practicable by Global Energy.
10. Distributor's Duties: In addition to the foregoing, with respect to
each target market Distributor also agrees to:
a. Organize, train and maintain a competent sales force that
is consistent with the Sales Goals and the volume of Products made
available to Distributor by Global Energy.
b. Provide finished-goods inventory warehousing, distribution
services, credit extension, billing and other facilities and services
as may be required to support sales of the Products in each of the
markets in a manner that is consistent
4
with the Sales Goals, the volume of Products made available to
Distributor by Global Energy, and reasonable commercial practices.
c. Comply in a commercially reasonable manner with legal
requirements pertaining to the conduct of its business and refrain from
illegal, deceptive, misleading or unethical acts and practices, in each
case to the extent that failure to do so would have a material adverse
effect upon sale of the Products or the business reputation of Global
Energy or the Products.
d. Provide weekly report to Global Energy regarding potential
and actual sales activity, including Product models, quantities, and
expected order date.
11. Orders: Global Energy will exert all commercially reasonable
efforts to supply Products to Distributor in the quantities ordered by
Distributor in accordance with this agreement. To the extent it can do so
without defaulting on earlier delivery commitments to third parties, Global
Energy will give priority to Distributor's orders. In any event, as long as
Distributor is current in its payments to Global Energy, Global Energy will not
fill any order placed by a third party while a Distributor order is pending if
filling the third-party order would prevent Global Energy from delivering
Products under the Distributor order on time.
Each time Distributor places an order with Global Energy under this agreement,
Global Energy must promptly determine whether it can fill the order within a
timely fashion, which could be as long as eight weeks but generally will be more
quickly. If Global Energy determines that it cannot, it must then given written
notice of that fact to Distributor within ten business days after receiving the
order. The notice must state the extent to which Global Energy is unable to fill
the order and must specify the reasons for that inability. To the extent Global
Energy's inability to perform is caused by a lack of production capacity (as
distinguished from a bona-fide shortage of materials, energy, or labor), it will
be regarded as a "capacity shortage".
If the total of all capacity shortages that occur in any one calendar quarter
exceeds 10% of the total of all Products ordered by Distributor under this
agreement during such quarter (based on aggregate dollar amount) (a "Major
Shortage"), then Distributor will be authorized, under the License Agreement, to
manufacture Products or have them manufactured exclusively for Distributor by a
third party to meet all or any part of Distributor's requirements for Products.
Global Energy's obligation to accept and deliver orders for Products is
conditioned upon Distributor's adherence to such reasonable and customary credit
and payment terms and conditions as Global Energy and Distributor may agree upon
from time to time.
Global Energy agrees to provide semi-monthly reports to Distributor of its
progress in completing each order for Products and any developments which would
adversely affect its ability to accept or timely fill Distributor's orders.
Global Energy and Distributor will cooperate in developing an online "supply
chain management system" that will allow
5
Distributor and Distributor's customers to monitor Global Energy's manufacturing
and inventory status with respect to all orders for Products by Distributor.
12. Minimum Orders: The Parties agree to establish a Basic Ordering
Agreement (BOA) relating to Distributor's purchase of Products for each year
during the term of this Agreement. Each BOA will be substantially in the form
attached to this Agreement as Exhibit C. The initial BOA will be agreed upon and
executed within thirty days after the effective date of this agreement.
Distributor and Global Energy will cooperate in establishing a revised BOA for
each year during the term of this Agreement at least 90 days prior to the
anniversary date of this Agreement which will be applicable to the next
succeeding year.
13. Product Prices: The price to Distributor of each Product line will
be determined from time to time by a BOA. The initial agreed prices are set
forth as part of the BOA attached to this Agreement as Exhibit C.
14. Payment: Distributor will pay Global Energy for Products in
accordance with the BOA that applies to the Products purchased.
15. Shipment: Products will be shipped FOB the manufacturing plant
loading dock to destinations designated by Distributor. The Products will be
prepared for shipment at Global Energy's expense in accordance with good
commercial practice. Risk of loss or damage during transfer, use, handling,
storage or disposal of Products will pass to Distributor once Global Energy
releases the Products to a shipper designated by Distributor.
16. Product Alterations: Distributor and Global Energy will cooperate
in establishing packaging and labeling for the Products. Distributor agrees not
to repackage or otherwise alter or modify the packaging or labeling of the
Products without prior notice to and written consent of Global Energy, which
will not be unreasonably delayed or withheld. It is an objective of the Parties
to sell the Products for use or sale by mass merchandisers, common carriers,
manufacturers of products using the Products and others who may request that the
packaging and labeling of the Products be modified to meet their more
distinctive brand names for the Products ("Private Labeling"). Global Energy
agrees to implement such Private Labeling requirements as Distributor and Global
Energy agree upon from time to time, provided Global Energy is given reasonable
prior notice and specifications for the Private Labeling. Private Labeling will
be implemented at no additional cost to Distributor provided such Private
Labeling does not produce material additional costs to Global Energy; if Global
Energy determines at the time of any request for Private Labeling that material
additional costs will be incurred, it will promptly notify Distributor. Global
Energy and Distributor will then cooperate in establishing an equitable basis
for sharing such additional costs or passing them on to the customer.
17. Alternative Source Products. If Global Energy refuses, becomes
unable, or persistently fails:
6
(a) to exert commercially reasonable efforts to supply
Products to Distributor in quantities ordered by Distributor in
accordance with this agreement;
(b) to exert commercially reasonable efforts to deliver
Products to Distributor in quantities ordered by Distributor in
accordance with applicable Sales Goals and BOA's; or
(c) to exert commercially reasonable efforts to minimize its
cost of goods sold consistent with producing Products that meet the
quality standards of both Global Energy and Distributor,
then, Distributor may notify Global Energy of Distributor's intent to obtain an
alternate source of Products. Such notice must specify the refusal, inability,
or failures upon which it is based. If Global Energy then fails or refuses to
fully cure each specified refusal, inability, or failure within thirty (30) days
after the date of such notice, Distributor will then be entitled, in addition to
its other rights under this agreement, to exercise the right under the License
Agreement to manufacture Products or have them manufactured exclusively for
Distributor by a third party.
18. Intellectual Property: Global Energy grants to Distributor for the
term of this Agreement a non-exclusive, worldwide, royalty-free right and
license to use and reproduce the trademarks, trade names and service marks owned
by Global Energy and associated with the Products within the markets (the
"Licensed Marks") and to copy, reproduce and use copyrighted material furnished
by Global Energy to Distributor ("Copyrighted Material"); provided that the same
are used only in connection with the marketing, distribution, sale and service
of Products. Use of the Licensed Marks is strictly conditioned upon
Distributor's use of the Licensed Marks in accordance with the terms and
conditions of this Agreement. Distributor may market Products under one or more
trade names selected by it pursuant to the private labeling terms set forth in
Section 16 and provided that Global Energy consents to such name, which consent
will not be unreasonably withheld or delayed.
Any modifications or improvements made to the Products or the Licensed Marks by
or at the request of Distributor, including any patentable inventions or other
intellectual property enhancements, shall become the property of Global Energy.
19. [Intentionally Omitted]
20. Representations and Warranties:
a. Global Energy represents and warrants to Distributor that,
except as Distributor is otherwise advised in writing: (i) the Products
do and will conform with all warranties and performance and testing
data provided by Global Energy to Distributor prior to or after the
date of this Agreement, whether such testing data is developed by
Global Energy or third parties; (ii) the Products sold to Distributor,
the Licensed Marks and the Copyrighted Material do not and will not
7
infringe upon any copyrights, trademarks, patents or any other rights
of any person; (iii) Global Energy has all requisite corporate power
and authority to enter into and perform its obligations under this
Agreement, including its exhibits, each of which has been duly
authorized, validly executed and delivered and constitutes a binding
and enforceable obligation of Global Energy; (iv) the execution,
delivery and performance of this Agreement by Global Energy does not
violate or conflict with any applicable law, rule, regulation, or any
order or judgment to which Global Energy is a party or by which it is
bound; (v) Global Energy is in compliance with all laws, rules,
regulations and ordinances of any governmental authority which are
applicable to the manufacture, storage and sale of the Products.
b. Distributor represents and warrants to Global Energy that:
(i) Distributor has all requisite corporate power and authority to
enter into and perform its obligations under this Agreement, including
its exhibits, each of which has been duly authorized, validly executed
and delivered and constitutes a binding and enforceable obligation of
Distributor; (ii) the execution, delivery and performance of this
Agreement by Distributor does not violate or conflict with any
applicable law, rule, regulation, or any order, judgment or agreement
to which Distributor is a party or by which it is bound; (iii)
Distributor is in compliance with all laws, rules, regulations and
ordinances of any governmental authority which are applicable to the
purchase, storage and sale of the Products; and (iv) Distributor will
not falsely represent the performance capabilities of the Products as
documented by Global Energy.
21. Product Warranties:
a. Global Energy agrees that it is solely responsible for
warranty claims made with respect to the Products which are within the
terms of its standard product warranties as may be in effect from time
to time pursuant to the terms of this Agreement ("Warranty Claims").
Global Energy agrees to indemnify and hold harmless Distributor from
all Warranty Claims. Distributor agrees that it will not make any
warranties concerning the Products other than those authorized by
Global Energy in its standard product warranty.
b. The Parties will within ninety (90) days of the date of
this Agreement agree upon the terms of a warranty plan for dealing with
Warranty Claims which will provide Distributor and its customers with
reasonable procedures for submitting and being reimbursed for Warranty
Claims.
c. The current Global Energy standard product warranties
applicable to the Products subject to this Agreement are attached
hereto as Exhibit D. Global Energy may modify the terms of its standard
product warranties from time to time by providing not less than 90 days
prior written notice to Distributor of such modifications, provided
that such standard product warranties remain competitive with the terms
and coverages of product warranties offered by manufacturers of
8
products that compete with the Products. Global Energy and Distributor
will cooperate in establishing specifications, recommended uses and
standard product warranties for individual lines of Products as new or
special uses of the Products are identified by the Distributor and its
customers, and Global Energy agrees to provide to Distributor for
delivery to its customers standard warranties reflecting such
additional specifications and recommended usages on a reasonably prompt
and responsive basis. To the extent that one or more material customers
of Distributor request special or modified warranty terms, Global
Energy will cooperate with Distributor in commercially reasonable
efforts to satisfy such customer(s) as to such requests.
22. Nature of Relationship: Distributor and Global Energy agree that
their relationship is one of independent contractors and that neither has any
authority to obligate the other Party in connection with any order, contract,
sales agreement or credit agreement or otherwise, and Distributor will not make
any warranties concerning the Products except those provided by Global Energy
and shall not otherwise act or be considered as an employee or agent of Global
Energy. On the other hand, the relationship intended to be created by this
agreement demands high standards of commercial reasonableness, candor, and good
faith. When any circumstance arises under which this agreement requires,
contemplates, or implies the need for the consent or agreement of a party, that
consent or agreement will not be unreasonably withheld or delayed. When any
circumstance arises under which this agreement requires, contemplates, or
implies the need for the parties to reach agreement on issues where their
interests or opinions diverge, the parties will negotiate continuously,
candidly, and in good faith until an agreement based on principles of commercial
reasonableness is reached.
23. Books and Records: Distributor will provide Global Energy with
monthly reports of its sales and inventory within thirty (30) days after the end
of each month with respect to Products for which Distributor holds exclusive
marketing rights.
24. Exports: The Parties hereto are subject to United States laws and
regulations controlling exports, and any exports hereunder must comply with any
applicable United States export laws and regulations. Export of commodities to
certain foreign countries may also require a license or permission from relevant
United States agencies. Distributor agrees that it will not engage in exports
without obtaining all necessary and applicable Governmental approvals and then
only in compliance with all applicable laws.
25. Assignment: Distributor may not assign this agreement or any of its
rights or obligations hereunder without the prior written consent of Global
Energy, which consent will not be unreasonably withheld.
26. Confidentiality: Each Party agrees to protect information
identified by either party as confidential in accordance with the
Confidentiality Agreement attached hereto as Exhibit E.
9
27. Opportunity to Cure Defaults. Upon any breach of or default under
this Agreement by any party, no action shall be taken with respect thereto
against the breaching or defaulting party unless and until such breach or
default remains uncured thirty (30) days after written notice thereof to the
party in breach or default.
IN WITNESS WHEREOF the Parties have executed this agreement as of the
day first above written.
Global Energy Group, Inc. Distributor:
By: By:
--------------------------------- ------------------------------
Name: Name:
------------------------------- ----------------------------
Title: Title:
------------------------------ ---------------------------
Date: Date:
------------------------------- ----------------------------
10
EXHIBIT A
GLOBAL ENERGY GROUP, INC.
Schedule of Existing Distribution Agreements
CONTRACT
EXPIRATION
COMPANY DATE
------- ----------
REACT Industries 12/20/2003
▇▇▇▇▇ Motor Leasing 12/20/2003
▇.▇. ▇▇▇▇▇▇▇▇ Company 2/10/2004
▇▇▇▇▇▇ Associates 4/8/2004
EcoTech Consultants 5/5/2004
Smart Building Products 7/8/2004
Mackie Development 1/10/2004
Energy Systems & Automation 1/10/2004
Princeton Energy Systems 1/16/2004
▇▇▇▇▇▇▇▇ Co. of Texas 2/27/2004
Innovative Performance Contacting 6/19/2004
Pacific Energy Technologies 1/7/2004
▇▇▇▇▇▇ ▇▇▇▇▇▇ Air Conditioning Supply 2/4/2004
Specialty A/C Products 4/23/2004
▇▇▇▇ UK, Ltd. 3/31/2004
EXHIBIT B
LICENSE AGREEMENT
This License Agreement is made on the 26th day of September, 2003, by
Global Energy Group, Inc. a Delaware Corporation, whose principal place of
business is ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Licensor") and Global Energy
Distribution Group, L.L.C. an Oklahoma Limited Liability Company, whose
principal address is ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Licensee").
Licensor desires to conditionally license to Licensee and Licensee
desires to conditionally license from Licensor certain intellectual property
owned by Licensor (whether acquired or developed internally, and whether
previously or in the future) in accordance with this agreement and in accordance
with the Agreement for Distribution of Global Energy Products ("Distribution
Agreement") executed by Licensor and Licensee contemporaneously with this
agreement.
Therefore, the parties agree as follows:
ARTICLE 1. DEFINITION OF TERMS
The following definitions apply in this agreement:
1.1 "LICENSED PRODUCT" means any product or component thereof
manufactured as contemplated by this agreement and incorporating any
intellectual property owned by Licensor (whether acquired or developed
internally, and whether previously or in the future), including but not limited
to the intellectual property embodied within the Licensed Patents and/or
Licensed Technology:
1.1.1 Global currently holds the exclusive rights to seven
U.S. patents and seven patent-pending applications pursuant to a series
of agreements with the inventors of the underlying technologies. Under
the terms of these agreements, Licensee has the exclusive right to
pursue commercial development of the patented technologies. A brief
summary of each patent follows:
USP# 4,599,870 (RECENTLY EXPIRED)
A refrigeration heat recovery system for producing usable hot water
from a refrigeration system's waste heat, using a natural force to
provide water flow through the heat exchanger (thermosyphon effect)
rather than using a pump.
USP# 5,970,728
Utilization of multiple staged common circuit compressors to
provide for higher heat output from a heat pump at low outside
ambient conditions. Heat output is maintained, or even
increased, as outside temperatures fall.
USP# 6,070,423
A system to provide first, liquid refrigerant subcooling by
means of evaporative cooling utilizing the condensate water,
and second, a system for providing hot gas discharge
refrigerant precooling by means of evaporative cooling. Both
combining to give greater capacity without requiring an
increase in input power, and even possibly decreasing the
required input power.
USP# 6,116,048
An evaporator design that provides counterflow temperature
conditions to the direction of air flow by sectionalizing the
various temperature gradients found in evaporators and
arranging the sections to provide a temperature gradient that
places the warmest section in front of colder and subsequently
colder sections. Provides for optimized heat exchange as well
as improved dehumidification.
USP# 6,167,715 B1
A direct refrigerant to ground (geothermal) heat exchange
system for subcooling and desuperheating (or postheating in
the heat mode of a heat pump) the refrigerant of an air-cooled
air conditioner, refrigeration system or heat pump. No
secondary fluid or pumping system required. Provides near full
geothermal system efficiency.
USP# 6,237,359 B1
Provides liquid refrigerant subcooling by utilizing the cold
harvest water and/or meltwater discharging from the ice
machine to increase ice production capacity of the ice
machine.
USP# 6,000,170 (RELEASED BACK TO INVENTOR)
A system consisting of multiple parallel reflectively coated
tubes whose inflation is controlled by a controller that
provides for controlled shading in a greenhouse system during
times of high solar loading of the greenhouse, and provides
for minimized heat loss at night, especially in cold climates.
USP# 6,442,903 B1
The structural construction methodology for a greenhouse
inflatable insulative covering to be used to reduce heat
losses and overheating of greenhouses.
USP# 6,460,358 B1
A heat exchanger that reduces an evaporator's flash gas loss
region and reduces the superheat region, allowing for improved
heat exchange by the evaporator itself, thereby allowing for
increased refrigeration mass flow and therefore increased
system refrigeration capacity.
2
1.2 "LICENSED PATENTS" means all U.S. and foreign patents owned by
Licensor that are necessary to or useful in the manufacture of Licensed
Products, including without limitation those described in Section 1.1.1 of this
License Agreement.
1.3 "LICENSED TECHNOLOGY" means all technology, technical information,
trade secrets, know-how, ideas, and other intellectual property now owned or
hereafter acquired by Licensor and necessary to or useful in the manufacture of
Licensed Products. The term Licensed Technology includes all of Licensor's
right, title, and interest in all future rights that Licensor may acquire from
any other person that are necessary to or useful in the manufacture of the
Licensed Products.
1.4 "LICENSED MARKS" means all trademarks, trade names, and service
marks owned by Licensor and associated with the Licensed Products.
1.5 "AFFILIATE," when used in reference to a party, means any person,
firm, corporation, or other entity that (i) directly, indirectly, partially, or
wholly owns or controls the party; (ii) is directly, indirectly, partially, or
wholly owned or controlled by the party; (iii) is directly, indirectly,
partially, or wholly under common control with the party; (iv) is in a specially
favored relationship or course of dealing with the party; (v) is an agent,
employee, partner, or joint venturer of the party; or (vi) has a fiduciary or
other special relationship with the party; provided, however, that, for the
purposes of this Agreement, Licensor and Licensee shall be deemed not to be
Affiliates of each other.
ARTICLE 2. LICENSE GRANTS
2.1 LICENSE. Licensor grants to Licensee a worldwide license to use the
Licensed Patents, the Licensed Technology, and the Licensed Marks in connection
with Licensee's production, service, and sale of Licensed Products. Licensor
further authorizes Licensee to copy, reproduce and use copyrighted material
furnished by Licensor to Licensee ("Copyrighted Material"). However, Licensee's
use of the Licensed Patents, the Licensed Technology, the Licensed Marks, and
the Copyrighted Material is strictly limited to uses that conform to this
Agreement, and the Licensee's sales of Licensed Products will be strictly in
accordance with the Distribution Agreement.
2.2 EXCLUSIVITY. This agreement does not in any way affect Licensor's
own right to use the Licensed Patents, the Licensed Technology, the Licensed
Marks, and the Copyrighted Material. With that exception, the license is
exclusive.
2.3 DURATION. This agreement and the license it grants will become and
remain effective, if at all, only while the Distribution Agreement is in effect,
and then only if and during such periods as provided in the Distribution
Agreement. If this agreement becomes effective, the license will be perpetual
but subject to termination under this agreement.
2.3.1 The license will terminate as to rights under any patent
or copyright upon the expiration of that patent or copyright.
3
2.3.2 The license is terminable at Licensor's option if
Licensee does not pay any royalty owed to Licensor under this agreement
when it is due and then fails to cure the non-payment within ten days
after receiving written notice of non-payment from Licensor.
2.3.3 Licensee may terminate this agreement in its entirety by
giving written notice of termination to Licensor at least 90 days
before the intended termination date and paying Licensor all royalties
owed to Licensor through such date. Notice of termination given by
Licensee will be binding on all affiliates and sublicensees of
Licensee.
2.3.3 Notwithstanding anything herein to the contrary, unless
and until such time as (i) Global Energy and Global Energy Acquisition
Group, L.L.C., an Oklahoma limited liability company ("GEAG") shall
have entered into the "Funding Agreement" (as contemplated by the
Distribution Agreement), and (ii) GEAG shall have made loans to Global
Energy in the aggregate amount of at least $500,000 as contemplated by
the Funding Agreement, this Agreement and all rights of Licensee
hereunder shall be and remain nonexclusive. If, after the Funding
Agreement becomes effective, GEAG fails to make any loan required to be
made by it under or pursuant to the Funding Agreement, this Agreement
and all rights of Licensee hereunder shall become and thereafter remain
nonexclusive. During any period of time during which the rights of
Licensee hereunder shall be nonexclusive, Global Energy shall then be
permitted to license all rights licensed hereunder to other licensees
and otherwise arrange for manufacture and sale of its products and
other products incorporating its intellectual property, under terms
similar to or different from those under this Agreement and in the same
or different territories.
2.4 LOCATIONS. Licensee may use the Licensed Patents and Licensed
Technology at one or more plant sites (each, a "Licensed Site"). Licensee will
notify Licensor of each Licensed Site promptly after it is selected. If Licensee
terminates operations at a Licensed Site, Licensee will move all records and
equipment incorporating the practice of any of the Licensed Patents or Licensed
Technology to another Licensed Site or will cause all such records and equipment
to be destroyed.
2.5 COOPERATION AND SUPPORT. Promptly after this agreement takes
effect, Licensor will (a) deliver to Licensee copies of the relevant documents
of Licensor documenting the Licensed Technology and the practice of the Licensed
Technology and the Licensed Patents, and (b) make available to Licensee
Licensor's personnel, both employees and independent contractors, who are
knowledgeable with respect to the manufacture of the Licensed Products and the
use and development of the Licensed Technology ("Support Personnel") to assist
Licensee at the Licensed Sites during the term of this Agreement. The time
required by Licensee under this provision will not exceed one man-month during
any twelve-month period for each of up to five Support Personnel. Licensee will
reimburse Licensor for the direct salary cost of each of the
4
Support Personnel for the time they are assisting Licensee. Licensor agrees that
any of its personnel whose employment is terminated by Licensor for any reason
may be employed by the Licensee to assist Licensee with its use of the Licensed
Technology and the manufacture of the Licensed Products.
2.6 LIMITED RIGHT TO SUBLICENSE. The license granted in this agreement
includes a limited right to sublicense the Licensed Patents and the Licensed
Technology to another person for the sole purpose of allowing that person to
produce Licensed Products exclusively for sale by Licensee, and/or to service or
sell Licensed Products exclusively for Licensee. It is a condition precedent to
Licensee's right to grant a sublicense that: (i) Licensor be given prior written
notice identifying the proposed sublicensee; (ii) the sublicense enter into a
written sublicense agreement approved by Licensor, which approval will not be
unreasonably withheld or delayed; and (iii) Licensee guarantee in writing
sublicensee's due and faithful compliance with the sublicense agreement.
2.7 ROYALTY. Licensee shall pay Licensor a quarterly royalty equal to
10% of total manufacturing costs for Products produced and/or sold under this
Agreement. Licensee agrees to provide to Licensor quarterly reports of such
manufacturing costs. Licensee will afford a certified public accounting firm
designated by Licensor and reasonably acceptable to Licensee the opportunity to
audit such manufacturing costs and the related data and calculations from time
to time. Licensee will pay the cost of each audit in which the auditor
determines that the total royalties required to have been paid for a particular
quarter exceed royalties actually paid (prior to commencement of the audit) for
such quarter by more than 2%.
2.8 REPRESENTATIONS AND WARRANTIES.
2.8.1 Licensor represents and warrants to Licensee that (i)
the Licensed Technology, the Licensed Marks and the Copyrighted
Material do not and will not infringe upon any copyrights, trademarks,
patents or any other rights of any person; (ii) Licensor has all
requisite corporate power and authority to enter into and perform its
obligations under this Agreement, including its exhibits, each of which
has been duly authorized, validly executed and delivered and
constitutes a binding and enforceable obligation of Licensor, and (iii)
the execution, delivery and performance of this Agreement by Licensor
does not violate or conflict with any applicable law, rule, regulation,
or any order, judgment or agreement to which Licensor is a party or by
which it is bound.
2.8.2 Licensee represents and warrants to Licensor that: (i)
Licensee has all requisite corporate power and authority to enter into
and perform its obligations under this Agreement, including its
exhibits, each of which has been duly authorized, validly executed and
delivered and constitutes a binding and enforceable obligation of
Licensee; (ii) the execution, delivery and performance of this
Agreement by Licensee does not violate or conflict with any applicable
5
law, rule regulation, or any order judgment or agreement to which
Licensee is a party or by which it is bound.
ARTICLE 3. CONFIDENTIALITY
3.1 TITLE TO LICENSED TECHNOLOGY. The Licensed Technology includes
confidential and proprietary information and trade secrets. The Licensed
Technology and all related documents, drawings, designs, and prototypes that are
disclosed or furnished to Licensee under this agreement will remain the property
of Licensor.
3.2 NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. Licensee will hold all
Licensed Technology in strict confidence and, except as expressly allowed by
this agreement, will not disclose the existence or content of any Licensed
Technology to any third party. Licensee may disclose Licensed Technology to
Licensee's employees, agents, contractors, and advisers who have first executed
a confidentiality agreement approved as to form by Licensor and then only to the
extent necessary for Licensee to exercise its rights under this agreement. If it
becomes necessary for Licensee to disclose any of the Licensed Technology to a
sublicensee, Licensee will first obtain from the sublicensee a duly executed
non-disclosure agreement approved as to form by Licensor. Licensee will assure
compliance with and will indemnify Licensor for breaches of non-disclosure
covenants by Licensee's employees, agents, contractors, advisors, and
sublicensees. The confidentiality obligations under this section will not apply
to information that can reasonably be demonstrated:
(a) was at the time of disclosure part of the public domain or
thereafter becomes part of the public domain through no act or
omission in breach of this License Agreement;
(b) was lawfully received after disclosure from a third party,
provided, however, that such information was not wrongfully
obtained by said third party, directly or indirectly, from the
disclosing party or a person under a duty of confidentiality
to the Licensor;
(c) was required to be disclosed pursuant to official governmental
process, order or demand.
3.3 USE OF LICENSED TECHNOLOGY. Licensee and each sublicensee to whom
Licensee discloses Licensed Technology, will use the Licensed Technology solely
for the purposes specified in this agreement.
3.4 PROTECTION OF CONFIDENTIAL INFORMATION. Licensee will take all
reasonable precautions to protect and preserve the confidentiality of the
Licensed Technology and all related evaluation materials, documents, drawings,
sketches, designs, products, and samples. Such precautions will be at least as
rigorous as those used by Licensee in the protection of its own confidential
information. Licensee further covenants and agrees that it will obtain from each
of its employees given access to
6
Licensed Technology an agreement with respect to the protection of such
proprietary information and trade secrets adequate to protect the
confidentiality thereof and Licensee accepts responsibility for assuring
compliance with such agreement by its employees. Licensee shall be responsible
for assuring compliance by each sublicensee with its obligation to protect
confidential information.
ARTICLE 4. ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS
4.1 NO OBLIGATION TO ACT. Neither Licensee nor Licensor shall have the
obligation under this License Agreement to bring suit for the infringement of
any Licensed Patent or the misappropriation of the Licensed Technology against
third parties. Notwithstanding the foregoing, Licensee agrees to promptly notify
Licensor in the event that it becomes aware of any infringement or
misappropriation of the Licensed Patents or the Licensed Technology, together
with all facts and particulars related thereto of which it has knowledge.
4.2 PROSECUTION OF ACTIONS. Licensor shall have the right to take
whatever action Licensor in its sole discretion deems appropriate, including
appropriate court action, to terminate the infringement or misappropriation, or
to enter into a settlement agreement with the infringing or misappropriating
party or parties. Such action shall include the defense of any action in which
the validity or infringement of any paten right is placed in issue by a third
party, e.g. by way of a declaratory judgment action, opposition, re-examination
request or nullity suit. Any such action shall be under the sole control of
Licensor, at Licensor's expense, and with counsel of Licensor's choosing. To the
extent that any such infringement or misappropriation bears directly upon the
rights granted the Licensee hereunder, the Licensee shall, at its expense, be
entitled to have co-counsel of its choice observe the progress of such action.
Licensee agrees to cooperate fully with Licensor and to provide, at Licensor's
expense, any reasonable assistance that Licensor might require in said action,
including joining with Licensor as a named party in any lawsuit in which
Licensor may become involved in its efforts to terminate the infringement or
misappropriation or confirm the validity of any Licensed Patent. Licensor agrees
that it will not enter into any agreement in settlement of any such action that
would restrict or impair the rights granted the Licensee hereunder or require
any material payment by Licensee to any person in order to exercise such rights
without the consent of the Licensee.
4.3 DAMAGES. Notwithstanding other provisions of this Agreement, any
damages received by Licensor as a result of action taken under Section 4.2, or
any amounts received by Licensor pursuant to a settlement thereof, including any
royalties received by Licensor under a settlement sublicense, shall belong to
Licensor.
ARTICLE 5. RESOLVING CHARGES OF INFRINGEMENT
AND MISAPPROPRIATION
5.1 DEFENSE OF CLAIMS. If a charge of infringement or misappropriation
shall be brought by a third party against either Licensor or Licensee or both of
them alleging
7
that the sale, use, or manufacture of products under the Licensed Patents or the
Licensed Technology infringes the intellectual property rights of such third
party, Licensor shall indemnify, defend and hold harmless Licensee, and Licensor
shall take all necessary actions to resolve the charge of infringement or
misappropriation in such a manner as to avoid disturbance of Licensee's rights
under this Agreement, except to the extent, if any, as may result from the
wrongful act or omission of Licensee and/or its Affiliates. To the extent that
any such claim of infringement or misappropriation might impair the Licensee's
exercise of the license granted hereunder, Licensor shall give Licensee prompt
notice of such claim and the relevant particulars relating thereto of which
Licensor is aware; Licensee shall also be entitled, at its expense, to have
co-counsel of its choice observe the progress of such action.
5.2 PATENT APPLICATIONS. Licensor shall have the right to determine
whether a United States or foreign patent application should be filed with
respect to a product or process that is included in the Licensed Technology. In
the event that Licensee believes that it would be desirable to file a U.S. or
foreign patent application with respect to a product or process that is included
in the Licensed Technology, it shall so notify Licensor in writing including
with such notice the form of proposed application to be filed. Licensor shall
have a right of first refusal to prepare, file and prosecute such patent
application. If Licensor declines to exercise such right of first refusal, then
Licensee shall have the right, at its cost and expense, to prepare, file and
prosecute such patent application for the ownership and account of the Licensor.
Upon the issue of any patent as a result of such action, such patent shall be
the sole and exclusive property of Licensor, but subject to the license granted
by Section 2.1 above.
5.2.1 Each of Licensor and Licensee shall provide reasonable
cooperation to the preparation, filing and prosecution of a patent
application under this Section 5.2 by the other; such cooperation shall
include access to correspondence with and proposed responses to the
U.S. Patent Office and any applicable foreign patent offices with
respect to the progress of any such application. Such cooperation shall
also include the execution, without the payment of any compensation
therefor, of all such applications, instruments and documents as may be
reasonably requested in order to carry out the purpose and intent of
this Section 5.2.
5.2.2 As the owner of any patent issued under this Section
5.2, Licensor shall have the responsibility for any maintenance or
other periodic fees or expenses necessary to maintain the validity or
effectiveness of any such patent, the costs of which will be paid by
Licensee from time to time upon submission to Licensee of invoices
therefore, provided however, that if the Licensor shall give Licensee
written notice of its intent to abandon any such patent in any foreign
jurisdiction, Licensee may preserve such patent in such jurisdiction by
committing in writing to such maintenance or other periodic fees or
expenses in such jurisdiction, in which case Licensor shall continue
the effectiveness of such patent in such jurisdiction for so long as
Licensee continues to pay such amounts.
8
ARTICLE 6. MISCELLANEOUS PROVISIONS
6.1 NOTICES. Unless otherwise specifically provided in this License
Agreement, all notices required or permitted to be given hereunder shall be in
writing and shall be transmitted; (I) by registered or certified mail, return
receipt requested; (II) by a nationally recognized express courier service, with
receipt confirmed; or (III) by telecopier, with receipt confirmed. In each case,
such transmission shall be addressed to the party to whom such notice is
required or permitted to be given:
If to Licensor: At its principal office in Odessa, Florida.
If to Licensee: Global Energy Distribution Group, L.L.C.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or to any such other person or address as may be designated by notice given in
accordance with this Section 6.1. All notices shall be deemed to have been given
when received.
6.2 GOVERNING LAW. This License Agreement shall be governed by and
construed in accordance with the laws of the State of Oklahoma.
6.3 ARBITRATION. All disputes which may arise between the parties out
of or in connection with this Agreement, or the interpretation or breach
thereof, shall be settled by binding arbitration in Tulsa, Oklahoma pursuant to
the commercial arbitration rules of the American Arbitration Association (the
"AAA"), by a single arbitrator selected in accordance with the rules of the AAA.
Judgment on the arbitration award may be entered into any court having
jurisdiction thereof. Either party may seek any interim or preliminary relief
from a court of competent jurisdiction in Tulsa, Oklahoma necessary to protect
its rights or property pending the completion of arbitration. Should either
party file an action contrary to this provision, the other party may recover
attorneys fees and costs of responding to such action. Upon any breach of or
default under this Agreement by any party, no action shall be taken with respect
thereto against the breaching or defaulting party unless and until such breach
or default remains uncured thirty (30) days after written notice thereof to the
party in breach or default.
6.4 SEVERABILITY. The parties hereto do not intend to violate any
public policy, statutory or common law. However, if any sentence, paragraph,
clause or combination of this Agreement is in violation of any state or federal
law or is found to be otherwise unenforceable by a court from which there is no
appeal, or no appeal is taken; such sentences, paragraphs, clauses, or
combinations of the same shall be deleted or amended in a mutually agreeable
manner, and the remainder of this Agreement shall remain binding.
6.5 ASSIGNMENT. This License Agreement and the rights granted hereunder
may be assigned by Licensee only with prior consent of Licensor, which will not
be
9
unreasonably withheld, provided that Licensee may assign its rights under this
Agreement to any person acquiring substantially all assets of Licensee in a
merger, sale of assets or comparable transaction. The covenants herein contained
shall be binding upon and inure to the benefit to the parties hereto and their
heirs, permitted assigns, successors and legal representatives.
6.6 HEADINGS. The headings or titles of Articles and Sections in this
License Agreement are for convenience of reference only and are not intended to
be conclusive as to the meaning or construction of the provisions of this
Agreement.
6.7 SEVERABILITY. Any provision or clause hereof which shall be
invalidated by virtue of the fact that it is prohibited by law shall be
ineffective to the extent of such illegality; however, this shall in no way
affect the remaining provisions of this Agreement, and this Agreement shall be
interpreted as if such clause or provision were not contained herein, unless
such ineffective provision or clause shall be so significant as to materially
affect this Agreement.
6.8 COUNTERPARTS. This Agreement may be executed and delivered in a
number of counterparts, each of which, when so executed and delivered, shall be
an original and all of such counterparts shall together constitute one and the
same Agreement.
6.9 ENTIRE AGREEMENT; MODIFICATION. This Agreement and the annexes
hereto contains the entire agreement and understanding of the parties hereto
with respect to the subject matter hereof and supersedes any other oral or
written agreements or understandings with respect thereto, which agreements or
understandings, if any, are hereby terminated. This Agreement has been entered
into for the independent consideration recited in this Agreement and is not to
be construed to be a part of, or subject to, any other agreement or
understanding between the parties, except as expressly provided herein or
therein. This Agreement may not be modified in any manner whatsoever except by a
writing signed by Licensor and Licensee.
Except where the context otherwise requires, words imparting the
singular shall include the plural and vice versa, words denoting any gender
shall include all genders and words denoting persons shall include bodies
corporate and vice versa.
The parties have read, understand, and agree to the foregoing terms and
conditions and have executed this License Agreement this ___ day of September,
2003.
LICENSOR: LICENSEE:
BY: BY:
---------------------------- ------------------------------
NAME: NAME:
-------------------------- ----------------------------
TITLE: TITLE:
------------------------- ---------------------------
10
STATE OF )
-------------------
)
COUNTY OF ) ss, , 20
------------------- ------------ ---
Then personally appeared before me, a notary in and for the State and
County aforesaid, the within named _________________ to me known or sufficiently
identified, and did affirm that he is duly-elected and acting
_______________________ of ___________________ and that he executed the within
document as the free act and deed of said corporation.
[Notarial Seal]
--------------------------------
Notary Public
My commission expires:
------------------------
LICENSEE:
BY:
------------------------------------
NAME:
----------------------------------
TITLE:
---------------------------------
STATE OF FLORIDA )
)
COUNTY OF ) ss, , 20
------------------ ----------------- --
The foregoing instrument was acknowledged before me this ____ day of
September, 2003, by _______________________, in his capacity as
_______________________ of Global Energy Group, Inc., a Delaware corporation,
who [ ] has produced _______________________ as identification or [ ] is
personally known to me.
--------------------------------------------
Print Name:
---------------------------------
Notary Public, State of Florida
My commission expires:
----------------------
11
EXHIBIT C
BASIC ORDER AGREEMENT (BOA)
This agreement is made this 26th day of September, 2003 (the
"Agreement"), by and between Global Energy Group, Inc. a Delaware Corporation,
having its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
and Global Energy Distribution Group, L.L.C. an Oklahoma Limited Liability
Company, whose principal address is ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
("Distributor").
Global Energy and Distributor have entered into an Agreement for
Distribution of Global Energy Products ("Distribution Agreement") dated of even
date herewith, providing for the purchase by Distributor from Global Energy of
Products on terms and conditions described therein. Section 12 of the
Distribution Agreement provides that the parties will from time to time enter
into Basic Order Agreements which establish terms and conditions addressing
specifically the Product prices, production and delivery schedules, and payment
terms for orders placed from time to time by Distributor with Global Energy for
the Products.
Therefore the Parties agree as follows:
1. Distribution Agreement. This agreement has been entered into
pursuant to the Distribution Agreement. Capitalized terms not otherwise defined
in this agreement which are defined in the Distribution Agreement have the
meanings given them in the Distribution Agreement. This agreement and the
Distribution Agreement are to be construed together as a single agreement and
this agreement shall be deemed incorporated into the Distribution Agreement. In
the event of any conflict between the terms of this agreement and the
Distribution Agreement, the terms in the Distribution Agreement will control.
2. Purchase Orders. Purchase orders placed by Distributor with Global
Energy and executed under this BOA will have a minimum quantity equal to one
truckload lot.
3. Pricing. The price to Distributor for an order placed with the
Company during any calendar month will be determined on the basis of the
Company's total manufacturing cost ("TMC") of each Product and on Distributor's
cumulative sales of Products during the then preceding twelve calendar months
("LTMS"), according to the following schedule:
a) If LTMS is less than or equal to $1,000,000: Product Price = 1.3 x
TMC;
b) If LTMS is greater than $1,000,000 but less than or equal to
$5,000,000: Product Price = 1.25 x TMC; and
c) If LTMS is greater than $5,000,000: Product Price = 1.2 x TMC.
Global and Distributor will provide each other with monthly written reports of
LTMS and TMC.
4. Sales Goals. At this time, the Distributor is engaged in obtaining
initial customer commitments, and accordingly no Sales Goals have been set.
After Sales Goals are set for the remainder of 2003, they will be set forth in a
revised Agreement.
5. Delivery Schedule. Global Energy agrees to deliver and Distributor
agrees to accept delivery of Products ordered under this BOA in accordance with
a mutually agreed delivery schedule (Delivery Schedule) that specifies minimum
monthly deliveries of Products in coordination with the Sales Goals established
for 2003.
6. Payment Terms. Products will be invoiced when shipped. Payment of
the net amount owed to Global Energy under each invoice will be due 30 days
after the date of the invoice, with a 5% discount for payment within 10 days of
the date of invoice. Distributor will pay interest to Global Energy on invoiced
balances not paid when due at the rate of 0.5% per month.
7. Term of Agreement. This BOA will expire simultaneously with the
expiration or termination of the Distribution Agreement unless mutually agreed
in writing by both Parties, and subject to the rights of the Parties as set
forth in the Distribution Agreement to request or require that the terms of this
BOA be modified from time to time.
8. Opportunity to Cure Defaults. Upon any breach of or default under
this Agreement by any party, no action shall be taken with respect thereto
against the breaching or defaulting party unless and until such breach or
default remains uncured thirty (30) days after written notice thereof to the
party in breach or default.
IN WITNESS WHEREOF the Parties have executed this agreement as of the
day first above written.
Global Energy Group, Inc. Distributor:
By: By:
------------------------------ ------------------------------
Name: Name:
---------------------------- ----------------------------
Title: Title:
--------------------------- ---------------------------
Date: Date:
---------------------------- ----------------------------
Exhibit D
GLOBAL ENERGY GROUP, INC.
LIMITED WARRANTY
Global Energy Group, Inc. ("GEG") warrants this product to be free from defects
in factory workmanship and material under normal use and service for the time
period set forth in the table below. Time periods are measured from the date of
installation or, if such date cannot be determined, from the date of shipment of
the product from the GEG factory.
Compressors (if applicable)---5 years All other parts--------------1 year
This Limited Warranty extends only to the original consumer purchaser and is
non-transferable. For this Limited Warranty to apply, the product must be
installed according to GEG recommendations and specifications, and in accordance
with all local, state and national codes, and the product must not be removed
from its original place of installation. This warranty shall apply only within
the boundaries of the continental United States.
GEG's obligation during the term of this warranty shall be limited to repair or
replacement (at GEG's option) of any parts of the product that are demonstrated
to be defective. The warranty period for repair or replacement parts provided
hereunder shall not extend beyond the warranty period stated above.
For the Buyer's benefit and protection, return the Warranty Registration Card to
GEG promptly after installation. This will allow GEG to contact you with product
information, should it become necessary.
The following are expressly excluded from the limited warranty set forth above:
1. Damage resulting from transportation, installation or servicing.
2. Damage resulting from accident, abuse, fire, flood, alteration, or acts of
God.
3. Tampering, altering, defacing or removing the product serial number will
serve to void this warranty.
4. Damage resulting in use of the product in a corrosive atmosphere.
5. Damage resulting from inadequate or interruption of electrical service or
fuel supply, improper voltage conditions, blown fuses, or other like damages.
6. Cleaning or replacement of filters.
7. Damage resulting from failure to properly and regularly clean coil surfaces
or failure to properly maintain the unit or its components.
8. Damage resulting from freezing conditions.
9. Damage resulting from operation with inadequate supply of air and/or water.
10. Damage resulting from use of components or accessories not approved by GEG.
11. Damage resulting from any use of the product outside its normal use or from
improper use of the product.
THIS LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED,
INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. GEG DOES NOT ASSUME OR AUTHORIZE ANY OTHER PERSON TO ASSUME FOR GEG,
ANY OTHER LIABILITY FOR THE SALE OF THIS PRODUCT.
SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTY, SO THAT THE ABOVE
DISCLAIMER MAY NOT APPLY TO YOU.
SOME STATES ALLOW ONLY PARTIAL LIMITATION ON IMPLIED WARRANTIES TO LIMIT THE
DURATION OF IMPLIED WARRANTIES TO THE DURATION OF THE EXPRESS WARRANTY. IN SUCH
STATES, THE DURATION OF IMPLIED WARRANTIES IS HEREBY EXPRESSLY LIMITED TO THE
DURATION OF THE EXPRESS WARRANTY ON THE FACE HEREOF.
IN NO EVENT, WHETHER AS A RESULT OF BREACH OF WARRANTY OR CONTRACT, TORT
(INCLUDING NEGLIGENCE) STRICT LIABILITY OR OTHERWISE, SHALL GEG BE LIABLE FOR
SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS
OF USE OF THE EQUIPMENT OR ASSOCIATED EQUIPMENT, LOST REVENUES OR PROFITS, COST
OF SUBSTITUTE EQUIPMENT OR COST OF FUEL OR ELECTRICITY.
THE ABOVE LIMITATIONS SHALL INURE TO THE BENEFIT OF GEG'S SUPPLIERS AND
SUBCONTRACTORS.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR
CONSEQUENTIAL OR INCIDENTAL DAMAGES OR FOR STRICT LIABILITY IN TORT, SO THAT THE
ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY ALSO HAVE OTHER RIGHTS
THAT VARY FROM STATE TO STATE.
TO OBTAIN WARRANTY SERVICE, notify your installing or servicing dealer, in
writing, of the problem as soon as possible after its discovery. Be sure to
include product model number, serial number, installation date and the nature of
the problem. If response is not received within a reasonable time, notify GEG
Customer Service Department by mail at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, or by email at gegcustomer service @ ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.
Exhibit E
JOINT CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
THIS JOINT AGREEMENT is by and between Global Energy Group, Inc., a corporation
formed under the laws of the state of Delaware, with primary offices located at
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and Global Energy Development Group,
L.L.C. with primary offices located at ________________, herein after
collectively referred to as the "Parties".
WHEREAS the Parties desire to consider the possibility of exploring
certain business opportunities including, but not limited to
investment, service providing, and other business arrangements, and for
this purpose one of the Parties (the "Discloser") may disclose to the
other Party (the "Recipient") information, data, and know-how relating
to the business of the Discloser and to existing or potential service
offerings, business models, financial plans, customers, processes,
industry or trade secrets, and contacts of Discloser (all such
information, data, and know-how being referred to herein as the
"Information").
NOW, THEREFORE, for good and valuable consideration, the Parties do hereby
jointly agree as follows:
1. Global has publicly registered and traded securities and the
Confidential Information contains information that is material and
non-public with respect to Global. Recipient (i) is aware that the
United States securities laws prohibit any person who has material
non-public information about a company from purchasing or selling
securities of such company, or from communicating such information to
any other person under circumstances in which it is reasonably
foreseeable that such person is likely to purchase or sell such
securities and (ii) Recipient shall neither use, nor cause or permit
any third party to use, any Confidential Information in contravention
of the Securities Exchange Act of 1934 or the rules and regulations
thereunder.
2. Recipient acknowledges that the Information is confidential and that
the Information is the sole and exclusive property of Discloser.
Recipient agrees to hold the Information in strict confidence and
agrees not to disclose or transfer, directly or indirectly, any
Information. Access to Information by Recipient's employees shall be
limited to those persons who are directly involved in discussions or
work with the Discloser and who, in addition, require such Information
in the performance of their duties.
3. Recipient shall not make any direct or indirect use, commercial or
otherwise, of any Information except as may be expressly permitted by
subsequent written agreement.
4. The foregoing limitations on disclosure and use of the Information
shall not apply to any Information which is (a) known to Recipient
prior to the date it is received, (b) known to the general public or
available to the general public prior to the date it is received, (c)
known to the general public or available to the general public
subsequent to the date it is received, provided that such Information
becomes available to the general public other than through a breach of
this agreement, (d) independently developed by the Recipient without
use of such Information and through no breach of this Agreement, or (e)
received from third parties having the bona fide right to disclose such
Information without the prior consent of the Discloser, (f) disclosed
by the owner to a third party without restriction, (g) disclosed by the
Recipient with the owner's written consent, (h) disclosed pursuant to a
court order or governmental subpoena, or (i) not marked "Confidential"
or "Proprietary" if disclosed in tangible form.
5. The Information shall be deemed to be the property of the Discloser and
the Recipient shall not reproduce or copy such Information except as
required for the purposes outlined
--------------------------------------------------------------------------------
Global Energy Group, Inc. - Confidential Information - Page 1 of 2
above. Any such copy shall be marked with the same proprietary and/or
confidential notices that appear on the originals. Upon request by the
Discloser, and in any event upon termination of discussions for any
reason, all such information in tangible form possessed by the
Recipient will be returned to the Discloser.
6. In case one or more provisions contained in this Agreement shall for
any reason be held to be invalid, illegal, or unenforceable in any
respect, the same shall not affect any other provision in this
Agreement, and this Agreement shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein.
7. The waiver by one Party of a breach of any provision of this Agreement
by the other Party shall not operate or be construed as a waiver of any
subsequent breach of the same or any other provision by the other
Party.
8. This Agreement shall continue until one of the Parties notifies the
other Party in writing that discussions have terminated. Thereafter,
the provisions in this Agreement in Paragraphs 1,2,3,4,5, 6 and 7 shall
survive the termination for a period of three years thereafter.
9. No license to any Recipient under any trademark, patent, or copyright
is either granted or implied by the Discloser's disclosure of such
Information to the Recipient.
10. This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof. The rights and obligations of a
Party hereunder shall not be sold, assigned, or otherwise transferred
by said party. No amendment or modification of this Agreement shall be
valid or binding unless made in writing and signed by the Parties
hereto.
11. This Agreement shall be governed by and construed in accordance with
the laws of the State of Florida.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date and year last written below:
GLOBAL ENERGY GROUP, INC. GLOBAL ENERGY DEVELOPMENT GROUP, L.L.C.
By: By:
------------------------------ -----------------------------------------
Name: Name:
---------------------------- ---------------------------------------
Title: Title:
--------------------------- --------------------------------------
Date: Date:
---------------------------- --------------------------------------
--------------------------------------------------------------------------------
Global Energy Group, Inc. - Confidential Information - Page 2 of 2