1 INTRODUCTIONANDPARTIES
ThisMemorandumofUnderstanding("MOU") ismadebyandbetweenUltralifeCorporation,aDelaware corporation with an addressat2000Technology Parkway,Newark,New York 14513 (hereinafter referred to as "Ultralife") and IDS Industries,Inc.,aNevada Corporation doing business as Charge! Energy Storage with an addressat533Birch Street,LakeElsinore,CA 92530(hereinafter referred to as"Company"),on thisdate ofJanuary 22,2014("Effective Date").UltralifeandCompany are eacha"Party,"and together,the"Parties".
The Partiescurrentlyintendthattheirorganizationsshallcollaborateinaspiritofpartnershipforthepurposes and inaccordance with thisMOU,and therefore nowagreeasfollows:
2 PURPOSE
The purpose of this MOU is to summarize the general concepts, understandings and anticipated business terms that will serve as a framework within which Ultralife and Company will explore a potential collaboration between them (the "Transaction "). This MOU evidences the current mutual intention of Ultralife and Company to continue their initial discussions and proceed negotiating a potential written definitive agreement concerning the Transaction. Except as provided in Section 8: Scope of Obligations, this MOU shall not constitute a binding agreement or obligation between the Parties with respect to the Transaction or any subject encompassed within this MOU, but shall only express the current thoughts and considered expectations of the Parties. Any agreement or binding obligation between the Parties shall be created and evidenced by a definitive agreement or agreements executed by authorized representatives of Ultralife and Company ("Definitive Agreement "). The Transaction is more fully described as follows:
· SALES
o Jointly engage in selling and marketing, in accordance with the marketing and sales policies and practices of Ultralife, an "Ultralife Portable Power System" product to Company's current and future customer base, including Company targets within the consumer market for portable power solutions and residential commercial and industrial markets for stationary power solutions. Ultralife will not knowingly engage directly with Company's customers to the extent they are not: (i) current or prior customers of Ultralife or (ii) identified or targeted as prospective customers by Ultralife, unless directed by Company.
o Ultralife and Company will jointly develop a simple business map to outline both marketing strategies and growth expectations.
o The contemplated collaboration will be for coverage of the North American Market with targeted focus in California for the portable and stationary energy storage products.
o Ultral ife will provide reasonable levels of marketing collateral and resources to support these efforts, including a video clip(s) featuring the portable power solutions' features/benefits/applications n multiple markets.
· PRODUCT CUSTOMIZATION & PURCHASE COMMITTMENT
o Ultralife currently intends to develop customized products in accordance with a product priority roadmap for: a) private label portable power solution (I Q14 initial execution) and b) turnkey energy storage solutions for residential/commercial/industrial applications (2Q 14 initial execution).
o Company will make a committed minimum initial purchase of the private label portable power solution of ten (I0) units in the first calendar quarter of 2014, and ten (10) additional units in the second calendar quarter of 2014 PO's must be issued by March l, 2014 for first calendar quarter delivery and by June 1, 2014 for second calendar quarter delivery. Note any trigger the release of the second calendar quarter Purchase Order.
3 COSTS
Each Party shall be responsible for meeting its own costs incurred in fulfilling its own responsibilities unless subsequently expressly agreed otherwise in writing in particular instances. No broker, investment banker, financial advisor or other person is entitled to any broker's, finder's, financial advisors or other similar fee or commission in connection with the Transaction or other agreements contemplated bythisMOU.
4 PROPRIETARY RIGHTS;LOANEDEQUIPMENT
Each Partywillretainallright,title,andinterestinandtoits own products, technology,collateral,inventions,hardware,software,other equipment,documentation anddataused or generated bysuch Party inthe performance of this MOU,including,with respect to Ultralife,alloff-the-shelf andcustomizedpowersolutiontechnology. WherethePartiesagree that anysuchitemsshould bereviewedloaned or otherwise employed inany fashion by oneParty to orby theotherParty tofacilitate thecontemplated collaboration (e.g. items neededtodevelop ademonstration system) then theseshall be so reviewed, loaned or otherwise employed without charge,and ownership of sameshallat all timescontinuetoreside with theParty whichcontributedthe said items.ThePartywhichborrows any itemsfromtheother Partyshall beobliged to exercise all duecare of loaned items while initspossession orunder itscontrol,and to return said items promptlyupon receiptof written request by the Party which loaned saiditems.
5 NON-EXCLUSIVITY
Ultralife andCompanyacknowledgeandacceptthatintheparticularcaseofpromotinganddeliveringsolutionsinthemarketplacebasedonthescopeofcollaboration described herein,and inothermoregeneral areasofcommerce,eitherParty may collaborate in any way with othercompanies ororganizations aslongas suchcollaboration does not infringe on therights and ownership issuesof theotherParty. NeitherParty herebyformsor hasanyintention offorming anexclusive relationship withthe other Party.
6 TERM &TERMINATION
This MOUiseffectivefortwelve(12) monthsfromtheEffectiveDate.EitherPartymayearlierterminatethis MOU or any p011ion of thecollaborationwhich is described inthis MOU,by giving written noticeto the other Pai1y inaccordance with Section 9below.In theevent that,for any reason whatsoever, aDefinitive Agreement is not executed onor prior toexpiration or termination ofthisMOU,this MOUshall become void uponthe expiration or terminationdate shallbe noliability orfurther obligation hereunderon the part of either Party (or to the extentapplicabletheir respective shareholders, officers,employees ordirectors),except asset forth in Section 8: ScopeofObligations and the NDA,which obligations shallcontinue for theterm stated,or inthe absence ofsame,the applicablestatute oflimitations.
7 CONFIDENTIALITY
The PartieshaveexecutedaMutualNon-Disclosure Agreement datedOctober29,2013("NOA"). The Partiesagree that this MOU and all communications between thePartiesand other disclosures in connection
with theTransactionshallbecoveredbytheNOAandundernocircumstancesdoesthisMOUlimittheeffect oftheNDA.
8 SCOPEofOBLIGATIONS
TheintentoftheMOUistoprovideacommonframeworkofunderstandingwithinwhichthePartiescanpursuecollaborativeefforts,andeach mayi nitsown discretion determinetheextent towhich it believes same is to be of mutualbenefit. Therefore this documentdoes not createany binding obligationsupon eitherParty,including without limitation,the execution ofany Definitive Agreement,and neither Party shall have any liability to theother Patty under thisdocument,excepthowever,that Company's minimum purchase commitment inSection2,and Sections3,4,7,9,and 10 aremutuallyacceptedasobligatory uponandbinding between the Parties.
9 COMMUNICATION
o Exceptto theextentrequiredbylaw,withoutthe priorapprovalofbothParties,neither Partywillmake any publicannouncement ordisclosure concerning this MOUortheTransaction unless and until a DefinitiveAgreementis concluded,and atsuchtime,the Parties shall reasonably cooperate with one anotherregarding anypublic announcement,which cooperation may bemore particularly described in the Definitive Agreement.If a Partyis required by law tomake any suchdisclosure, such Partyshall first provide to the other the content of the proposed disclosure (to the extent legally permitted),the reasonsthat such disclosure is required bylaw,and the time and place that the disclosure willbemade,and eitherPatty may seek confidential treatmentof same. The Patties agree to cooperate witheach other to issue a joint press release regarding the Transaction contemporaneous with the closing of such Transaction.
o Communication betweenthePartiesshallbe conductedprimarilythroughthosenamedbelowormembersof their respective organizations whichtheunder-named nominatefor this purpose. Any noticesgiven hereunder shall be inwriting and shall be addressed tothe intended Party atthe addressset out below or to such other addressas shallbe given to the otherPartybynotice in compliance with this Section,and: (i)delivered in person;or (ii) mailed by U.S.certified mail,postage prepaid,return receiptrequested;or (iii) forwarded by reputable express courier,providing written receipt of delivery.Notice shall be deemed given when actually delivered orwhen delivery is refused.
| Ultralife Corporation | Company Name |
| Contact | Mike Morse | George Rodriguez |
| Job Title | OEM Account Executive | VP Operations |
| Address | 2000 Technology Parkway; Newark, NY 14513 | 833 Birch Street, Lake Elsinore, CA 92530 |
| Email Address | mike.morse@ulbi.com | George.rodriguez@idssolartech.com |
| Company URL | www.ultralifecorp.com | www.chargeenergystorage.com |
| Phone #: | 503-686-5171 | 951-814-1231 |
| Fax #: | 315-331-7800 | 951-674-5091 |
10 GENERAL
· The MOU and the Definitive Agreement will be governed by and construed in accordance with the laws of the State of New York. The Parties will first attempt to resolve any dispute between them amicably and pursuant to good faith negotiations. To the extent resolution is not reached by such efforts, either Party may submit its claim to the exclusive jurisdiction and venue of a court of competent jurisdiction located in the State of New York.
· To the extent this MOU constitutes a binding agreement between the Parties, this MOU shall be binding upon and inure to the benefit of their respective successors, and is the sole agreement of the Parties regarding the subject matter hereof, and supersedes all prior agreements and understandings, written or oral, between the Parties as to such subject matter.
· Neither Party may assign its rights or obligations under this MOU without the prior written consent of the other Party.
· This MOU may not be amended or supplemented except by written agreement of the Parties hereto.
| Agreed and Accepted: | |
| |
| Ultralife Corporation: | IDS Industries d/b/a Charge! Energy Storage |
| /s/ Steve Szamocki | /s/ Scott Plantinga |
| Steve Szamocki – EVP Global Sales | Scott Plantinga – President & CEO |
