EXHIBIT 10.1
ASSIGNMENT OF INTANGIBLE ASSETS AND ASSUMPTION OF LIABILITIES
This Assignment of Intangible Assets and Assumption of Liabilities (the
"Assignment") is entered into this 28th day of June 2011 by and between Solar3D,
Inc., a Delaware corporation (the "Assignor"), and Wideband Detection
Technologies, Inc., a Florida corporation ("Assignee"), and Roland F. Bryan, an
individual ("RFB"), with respect to the following facts:
RECITALS
--------
A. Assignee is a wholly owned subsidiary of the Assignor that owns
certain proprietary rights to the architecture for a wireless communication
network of sensors comprising a system for detecting movement over specified
areas. Assignor owns its own proprietary technology (the "Technology") for the
design and manufacture of wireless, radio-based networks of sensors and other
devices capable of communicating among themselves to provide and transmit
information, and to monitor environmental conditions, vibration and other
physical conditions. Assignor owns intangible assets related to the Technology
(collectively, the "Intangible Assets"). A list of the Intangible Assets is
attached to this Assignment as Exhibit A.
B. In consideration for the assumption of certain liabilities (the
"Liabilities") of Assignor by the Assignee, the Assignor will assign all of its
right, title and interest in and to the Intangible Assets to the Assignee.
C. All of the Liabilities are owed to RFB, the Chairman of the Board of
Directors and an executive officer of the Assignor and the Assignee.
D. By the execution of this Assignment, (1) Assignor hereby assigns to
Assignee and Assignee hereby accepts from the Assignor the assignment of all of
Assignor's right, title and interest in and to the Intangible Assets pursuant to
this Assignment, (2) Assignee hereby assumes the Liabilities from the Assignor,
and (3) RFB hereby releases and forever discharges the Assignor from liability
for the Liabilities, and will seek payment for them solely from the Assignee.
NOW, THEREFORE, in consideration of the mutual agreements herein and in
light of the recitals stated above, the parties hereto agree as follows:
1. ASSIGNMENT OF OWNERSHIP OF INTANGIBLE ASSETS
--------------------------------------------
In consideration for the assumption of Liabilities as specified in
Section 2 of this Assignment, Assignor hereby assigns and conveys to Assignee
title to all of the Intangible Assets in perpetuity, free and clear of all
liens, encumbrances and claims, effective on the date first above written.
Accordingly, to the full extent of the Intangible Assets, Assignee will have the
right to license and sell the Technology, to own the copyright to the Technology
and to utilize, commercially exploit, modify, enhance, sublicense, program,
customize, create derivative works, produce, reproduce, broadcast, publish, copy
and depict the Technology on a worldwide royalty-free basis in perpetuity in any
medium and for any commercial or noncommercial purpose, including but not
limited to transmission of digital data in any medium and for any purpose.
-1-
2. ASSUMPTION OF LIABILITIES - NOVATION
------------------------------------
In consideration for the Intangible Assets assigned and conveyed to
Assignee by Assignor pursuant to Section 1 of this Assignment, Assignee hereby
assumes liability to pay all of the following liabilities owed by Assignor to
RFB as of June 30, 2011 (collectively, the "Liabilities"): all accrued interest,
which was approximately $107,074 as of March 31, 2011; all accrued salary, which
was approximately $444,000 as of March 31, 2011; and all accrued vacation pay,
which was approximately $9,232 as of March 31, 2011. In order to accomplish a
novation of the Liabilities, simultaneously with such assumption, RFB hereby
releases and forever discharges Assignor from all liability for the Liabilities,
effective on the date first above written, and will seek payment for such
liabilities only from Assignee and not from Assignor.
3. INTENTIONALLY LEFT BLANK
------------------------
4. INDEMNIFICATION
---------------
Each party to this Assignment hereby agrees to indemnify and hold
harmless the other party and its affiliates from any liability, claims, damages,
losses or expenses incurred by them as a result of any breach by the party of
any of its covenants, representations or warranties in this Assignment.
5. COVENANTS OF THE ASSIGNOR
-------------------------
After the execution of this Assignment by both parties hereto and upon
issuance of the consideration to Assignor provided in Section 2 of this
Assignment, Assignor (a) agrees to deliver all source code, computer software
and other materials comprising the Technology to the Assignee, and (b) agrees to
deliver all other materials comprising the Intangible Assets to the Assignee.
6. FURTHER ACTS
------------
All parties agree to execute and, if necessary or appropriate, to
record with government agencies, any other documents, agreements, instruments,
assignments or certificates and take any other action reasonably necessary in
order to implement the terms and intent of this Assignment, including but not
limited to assignment and recordation of patents, copyrights, trademarks,
tradenames and other intellectual property.
7. REPRESENTATIONS AND WARRANTIES OF ASSIGNOR
------------------------------------------
Assignor hereby represents and warrants to Assignee that (a) it has
full and complete authority to enter into this Assignment and to perform its
covenants and to make the representations and warranties made by it in this
Assignment, (b) it has good and valid title to the Intangible Assets, free and
clear of all liens, encumbrances and claims except as specifically disclosed in
the recitals or exhibits of this Assignment, (c) Assignor will, pursuant to this
Assignment, convey good, valid and marketable title to the Intangible Assets to
the Assignee, free and clear of all liens, encumbrances or claims, and (d) this
Assignment is a valid and binding agreement of the Assignor, enforceable in
accordance with its terms.
8. REPRESENTATIONS AND WARRANTIES OF ASSIGNEE
------------------------------------------
Assignee hereby represents and warrants to Assignor that (a) Assignee's
sole director has authorized the execution of and performance by the Assignee of
its covenants, representations and warranties in this Assignment, and (b) the
Assignee has full and complete authority to enter into this Assignment and to
perform its covenants and to make the representations and warranties made by it
in this Assignment, including but not limited to the assumption of Liabilities.
-2-
9. NOTICE
------
Notice will deemed to be given by one party to the other parties of
this Assignment upon personal delivery by messenger, air courier, express mail
or certified registered mail, return receipt requested, or upon facsimile or
email, or three days after mailing by first class mail by the party giving the
notice, addressed to the parties as follows, or to any other address or
facsimile numbers provided to the parties in writing in accordance with this
Assignment by the party making the change:
IF TO ASSIGNOR: Solar3D, Inc.
6500 Hollister Avenue, Suite 130
Goleta, California 93117
Attention: James B. Nelson,
Chief Executive Officer
Telephone Number: (206) 919-9981
IF TO THE ASSIGNEE OR RFB: Wideband Detection Technologies, Inc.
6500 Hollister Avenue, Suite 130
Goleta, California 93117
Attention: Roland F. Bryan, President
Telephone Number: (805) 448-7576
10. INJUNCTIVE RELIEF
-----------------
10.1 DAMAGES INADEQUATE
------------------
Each party acknowledges that it would be impossible to measure
in money the damages to the other party if there is a failure to comply with any
covenants or provisions of this Assignment, and agrees that in the event of any
breach of any covenant or provision, the other party to this Assignment will not
have an adequate remedy at law.
10.2 INJUNCTIVE RELIEF
-----------------
It is therefore agreed that the other party to this Assignment
who is entitled to the benefit of the covenants and provisions of this
Assignment which have been breached, in addition to any other Intangible Assets
or remedies which they may have, shall be entitled to immediate injunctive
relief to enforce such covenants and provisions, and that in the event that any
such action or proceeding is brought in equity to enforce them, the defaulting
or breaching party will not urge as a defense that there is an adequate remedy
at law.
11. WAIVERS
-------
If any party shall at any time waive any Intangible Assets hereunder
resulting from any breach by the other party of any of the provisions of this
Assignment, such waiver is not to be construed as a continuing waiver of other
breaches of the same or other provisions of this Assignment. Resort to any
remedies referred to herein shall not be construed as a waiver of any other
Intangible Assets and remedies to which such party is entitled under this
Assignment or otherwise.
-3-
12. SUCCESSORS AND ASSIGNS
----------------------
Each covenant and representation of this Assignment shall inure to the
benefit of and be binding upon each of the parties, their personal
representatives, assigns and other successors in interest.
13. ATTORNEY'S FEES
---------------
In the event that either party must resort to legal action in order to
enforce the provisions of this Assignment or to defend such action, the
prevailing party shall be entitled to receive reimbursement from the
nonprevailing party for all reasonable attorney's fees and all other costs
incurred in commencing or defending such action, or in enforcing this
Assignment, including but not limited to post judgement costs.
14. ENTIRE AND SOLE ASSIGNMENT
--------------------------
This Assignment constitutes the entire agreement between the parties
and supersedes all agreements, representations, warranties, statements, promises
and undertakings, whether oral or written, with respect to the subject matter of
this Assignment. This Assignment may be modified only by a written agreement
signed by all parties.
15. GOVERNING LAW
-------------
This Assignment shall be governed by and construed in accordance with
the laws of the State of California. The venue for any proceedings under this
Assignment will be in the proper legal forum in the County of Santa Barbara, in
the State of California.
16. SEVERABILITY
------------
The provisions of this Assignment are meant to be enforced severally so
that the determination that one or more provisions are enforceable or invalid
shall not affect or render invalid any other provision of this Assignment, and
such other provisions shall continue to be in full forced in accordance with
their terms.
17. REMEDIES CUMULATIVE
-------------------
All remedies under this Assignment are cumulative, and none is intended
to be exclusive of another remedy. No delay or omission in insisting upon the
strict observance of performance of any provision of this Assignment, or in
exercising any right or remedy, shall be construed as a waiver or relinquishment
of such provision, nor shall it impair such right or remedy. Every right and
remedy may be exercised from time to time and as often as deemed expedient.
18. CAPTIONS
--------
The paragraph and other headings contained in this Assignment are for
reference purposes only, and shall not limit or otherwise affect the meaning of
this Assignment.
19. LEGAL HOLIDAYS
--------------
In the case where the date on which any action required to be taken,
document required to be delivered or payment required to be made is not a
business day in Santa Barbara, California, such action, delivery or payment need
not be made on that date, but may be made on the next succeeding business day.
-4-
20. COUNTERPARTS
------------
This Assignment may be executed simultaneously in any number of
counterparts, each of which counterparts shall be deemed to be an original, and
such counterparts shall constitute but one and the same instrument.
21. PARTIES
-------
This Assignment shall inure solely to the benefit of and shall be
binding upon the parties hereto and their respective successors, legal
representatives and assigns, and no other person shall have or be construed to
have any equitable right, remedy or claim under or in respect of or by virtue of
this Assignment or any provision contained herein.
22. AUTHORITY
---------
All signatories to this Assignment do hereby declare that they have the
authority to execute this Assignment on behalf of the parties to this
Assignment.
ASSIGNOR: SOLAR3D, INC., A DELAWARE CORPORATION
By:
-------------------------------------------------
James B. Nelson, Chief Executive Officer
ASSIGNEE: WIDEBAND DETECTION TECHNOLOGIES, INC., A FLORIDA CORPORATION
By:
-------------------------------------------------
Roland F. Bryan, President
RFB: ROLAND F. BRYAN
By:
-------------------------------------------------
Roland F. Bryan, an Individual
-5-
EXHIBIT A
LIST OF MACHINETALKER INTANGIBLE ASSETS
BEING CONVEYED TO WIDEBAND DETECTION TECHNOLOGIES, INC.
1. The tradename and trademark "MachineTalker(R)".
2. Patent Number 7,184,423.
3. The proprietary rights and trade secrets relating to the MachineTalker
Business, including but not limited to all designs, concepts, drawings,
architecture, prototype designs, knowhow, processes, test results,
presentations, computer software, programming, protocols and related
Intangible Assets.
4. All copyrights and trademarks identifying the Company's products
whether registered or, if not, by identification ((TM)) in product
literature and in practice which are owned by the Company related to
the MachineTalker Business.
5. The business goodwill of the MachineTalker Business.