Unassociated Document


    Exhibit 10.50 

     

    SUPPLY
      AGREEMENT

    Number:
      99150 

     

    FOR
      PURCHASE OF PRODUCTION PARTS AND 

     

    NON-PRODUCTION
      GOODS AND SERVICES 

     

    BETWEEN 

     

    ENERDEL,
      INC. [“SUPPLIER”) 

     

    AND 

     

    THINK
      GLOBAL AS (“THINK”) 

     

    This
      Agreement has the objective of regulating the delivery of production parts
      and/or non-production goods and services from the Supplier to Think in relation
      to the production of an electrical vehicle from Think with the designation
      of
      type: 

    A
      306
      - model year 2007. 

     

    Think
      will purchase and Supplier will manufacture/supply Think’s requirement of the
      components listed in Appendix 2. 

     

    Prices
      set forth in this agreement are based on a forecast of a volume of
      minimum            units
      based on a delivery program running from the fourth quarter of 2008 until
      the end of 2010. Volumes may fluctuate, but the pricing is fixed in the above
      mentioned period. New forecasts (“Rolling Forecast”) will be distributed to the
      Supplier regularly. Think is not obligated to buy any units if design and test
      requirements as per Appendix 1 and its relevant documents attached therein
      are not met. 1 

     

    Think
      Global has the right to on a 6 month notice increase number of units to
      meet the requirements of it business. Enerdel is committed to increase capacity
      inside this period to maximum packs per year. Prices and terms will in this
      case
      be renegotiated. 

     

    This
      Agreement embodies all the terms and conditions agreed upon between the parties
      as to the subject matter of this agreement and supersedes all previous agreement
      or arrangement (if any) between the parties. 

     

    This
      Agreement consists of this Supply Agreement and the following Appendices:


     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      	
              Appendix 1:
                Statement of Work (“SOW”) with relevant annexes.

            
	
              Appendix 2:
                Blanket Purchase Order (with following Rolling
                Delivery Schedules)

               

            


    

    
      
         

            

      

    

    This
      Agreement is entered into between the following parties: 

     

    
      	
              Supplier

            	
               

            
	
              Name:

            	
              EnerDel,
                Inc. (“Supplier”)

            
	
              Registration
                no:

            	 
	
              Address:
                

            	
              8740
                Hague Road

              Indianapolis,
                Indiana 46256

              U.S.A.

            
	
              Attn:
                

            	
              Urik
                Grape

            
	
              E-mail:
                

            	
              Ugrape@enerdel.com

            
	
               

            	
               

            
	
              Telephone:
                

            	
              +
                1
                - 317 585 3400 (Office)

              +
                1
                - 925 285 5692

            
	
              Telefax:
                

            	
              +
                1
                - 317 585 3444

            
	
              Purchaser 

            	 
	
              Name:
                

            	
              Think
                Global AS or a subsidiary of the Think Group (“Think”)

            
	
              Registration
                no: 

            	
              NO
                989 710 796

            
	
              Address:
                

            	
              Sandakerveien
                24 C

              NO-0413
                Oslo

              NORWAY

            
	
              Attn:
                

            	
              Erik
                Skaarnæs

            
	
              E-mail:
                

            	
              esk@think.no

            
	
               

            	
               

            
	
              Telephone:
                

            	 
	
              Telefax:
                

            	 


    

     

    This
      Agreement consists of 13 pages and are in two originals - one to each of the
      parties. 

     

    
      	
              For
                and on behalf of the Supplier

            	
               

            	
               

            	
              For
                and on behalf of Think

            
	
              __

            	
               

            	
               

            	
              
                __

              

            
	
              Name:Ulrik
                Grape 

            	
              Name:
                

            	
               

            	
              Jan
                Olaf Willums

            
	
              Title:CEO
                

            	
              Title:
                

            	
               

            	
              CEO

            
	
              Date:
                

            	
              Date:
                

            	
               

            	 
	
              Place:
                Indianapolis 

            	
              Place:
                

            	
               

            	
              Oslo/Aurskog

            


    

     

    0. GENERAL 

     

    These
      terms and conditions and associated documents are issued on behalf of Think
      and
      will apply to all orders issued to the Supplier for any deliverable
      (“Supplies”).
      

     

    Think
      and
      Supplier agree that the following terms and conditions, which shall be applied
      in the spirit of fairness and good faith, govern the delivery of goods and
      services from the supplier to Think. 

     

    Purchase
      Orders and other associated purchasing documents will be valid without signature
      if issued by Think through its computer system or other electronic means. The
      reference to Purchase Order herein shall include a Blanket Purchase Order,
      Delivery Schedule, Tooling Purchase Order, or similar documents issued by Think
      to Supplier. 

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    1. OFFER,
      ACCEPTANCE 

     

    (a) A
      Purchase Order or Delivery Schedule against a Blanket Purchase Order is an
      offer
      to Supplier by Think to enter into the Purchase Agreement it describes.
      Supplier’s written acceptance of the Purchase Order will constitute acceptance
      of the offer. 

     

    (b) Acceptance
      is expressly limited to the terms of Think’s offer. Once accepted, such Purchase
      Order together with these terms and conditions will be the complete and
      exclusive statement of the Supply Agreement. Any modifications proposed by
      Supplier are expressly rejected by Think and shall not become part of the
      agreement in the absence of Think’s written acceptance. 

     

    2. CHANGES 

     

    (a) Think
      may, at any time, change the design (including drawings, materials and
      specifications), processing, method of packing and shipping, and the date or
      place of delivery of the Supplies. 

     

    (b) If
      any such change affects cost or timing, Think and Supplier will adjust the
      price
      and delivery schedules by mutual written agreement. 

     

    (c) Supplier
      will not make any change in the design, processing, packing, shipping or date
      or
      place of delivery of the Supplies unless done pursuant to Think’s instructions
      or with Think’s written approval. 

     

    3. DELIVERIES
      

     

    (a) Time
      and quantity are of the essence in any Purchase Order. Unless otherwise agreed,
      delivery times specified are the times of delivery of the Supplies at Think’s
      designated place of delivery or destination. 

     

    (b) Supplies
      shall be accompanied by required and agreed documentation specified in the
      Purchase Order. 

     

    (c) Delivery
      will not take place prior to agreed time of delivery without Think’s written
      consent. 

     

    (d) Supplier
      is obliged to use commercially reasonable efforts to meet agreed time of
      delivery. In the event that Supplier understands or has reason to believe that
      delivery will be delayed, Think shall be notified immediately in writing about
      the extent and cause of the delay. Supplier is obliged to do his utmost to
      minimise the extent and damage of any delay. 

     

    (e) Supplier
      is responsible for any loss incurred by the Think and caused solely by a delay,
      other than an excused delay, as defined below, or a delay caused by changes
      made
      to the design, processing, method of packing and shipping and the date or place
      of delivery of the Supplies by Think pursuant to paragraph 2(b) above.


     

    (f) If
      the delivery is material delayed, and the cause of the delay is determined
      to be
      the responsibility of EnerDel, then EnerDel shall have 90 days to rectify
      the reason for the delay and if at the end of the 90 days EnerDel has not
      been able to rectify the cause of the delay Think is entitled to cancel the
      delivery at their own discretion. If the Supplies is non-conformant to an extent
      that makes it not usable for its purpose, this is tantamount to a material
      delay. 

     

    (g) Think
      needs to document the actual loss in order for Supplier to be liable for any
      part of the loss. Supplier will agree to a maximum of 10 per cent of price
      of
      the delayed delivery subject to Think documenting actual loss. 

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    (h) If
      Think is unable to receive the Supplies at the agreed time of delivery, Supplier
      shall be notified immediately with instructions for steps to be taken. Think
      will pay the full purchase price for the Supplies as originally agreed in the
      Purchase Order and any costs incurred by Supplier as a result of the delay,
      provided Supplier has taken commercially reasonable steps to minimise any such
      costs. 

     

    4. PACKING,
      MARKING AND SHIPPING 

     

    (a) Supplier
      will pack, mark and ship Supplies in accordance with all applicable packaging
      standards of Think and, as appropriate, the carrier transporting such Supplies.
      Think will inform and provide Supplier with such standards in writing a minimum
      of 90 days in advance of any shipment. 

     

    (b) Supplier
      will not charge separately for packing, marking, or for materials used therein.
      

     

    (c) Think
      may request shipment of any of the Supplies by a more expeditious method of
      transportation if Supplier fails to meet the delivery requirements of a Purchase
      Order. Supplier will cover the extra costs of such transportation unless such
      failure is due to an excusable delay as specified under Section 19.


     

    5. SHIPPING
      DOCUMENTS 

     

    Freight
      Bill or Bill of Lading and any other legally required documents must accompany
      each material shipment. 

     

    6. INSPECTION
      & CORRECTION 

     

    (a) Think
      is obliged to inspect the Supplies upon delivery without undue delay. This
      inspection is visual and primarily intended to detect any damage to goods under
      transportation. 

     

    (b) In
      the event that non-conformant Supplies are not rejected, the non-conforming
      Supplies will be subject to this Section 6 and Section 10 below.


     

    (c) Think
      may at its own option reject and return at Supplier’s risk and expense, or
      retain and correct, Supplies that fail to conform in any material respect to
      the
      requirements of a Purchase Order even if the non-conformity does not become
      apparent until the manufacturing or processing stage. If Think elects to correct
      the Supplies, it will consult with Supplier on the method of correction.
      Supplier will reimburse Think for reasonable expenses resulting from rejection
      or correction. 

     

    
      
        (d)
          Rejected Supplies are considered not delivered.

      

    

     

    (e) If
      Supplier does not immediately take the necessary steps to correct a
      non-conformance, Think is entitled to cancel the purchase if the non-conformance
      is material for the fulfilment of the Purchase Agreement. Supplier shall have
      90 days to rectify the non-conformance before Think is entitled to cancel
      the purchase. ). 

     

    7. INVOICES,
      PAYMENT 

     

    (a) Supplier’s
      invoices must contain all material information required by Think as detailed
      in
      Purchase Order. Invoices missing material details will be returned to Supplier
      for correction. 

     

    
      (b)
Payment
        terms will be as specified in the relevant Purchase
        Order.

    

     

    (c) All
      payments for Supplies shall be made in the currency specified in the Purchase
      Order. 

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

     

    8. SERVICE
      AND REPLACEMENT PARTS 

     

    Upon
      the
      written acceptance of a Purchase Order by Supplier, Supplier will sell to Think:
      

     

    (i) Supplies
      necessary to fulfil Think’s current model service and replacement requirements
      for such Supplies at the prices specified in the Purchase Order. 

     

    (ii) Service
      and replacement parts of any assemblies. The total price of all parts of the
      assembly shall not exceed the price of the assembly specified in the Purchase
      Order (less assembly costs). 

     

    (iii) Supplies
      in a ten-year period after Think completes current model purchases. The Supplies
      of spare parts shall fulfil Think’s past model service and replacement
      requirements at the prices specified in a Purchase Order plus actual cost
      differentials for packaging and manufacturing. During the tenth year of such
      period, Think and Supplier will negotiate in good faith with regard to
      Supplier’s continued manufacture of service and replacement Supplies.


     

    9. APPLICABLE
      TAXES 

     

    The
      total
      price specified for Supplies on a Purchase Order will include all elements
      of
      freight, duty and tax as specified in the relevant delivery term with the
      exception of value added tax (VAT), which, if applicable, will be shown
      separately on Supplier’s invoice. 

     

    10. WARRANTY 

     

    (a) Supplier
      warrants that Supplies under a Purchase Order will, during the warranty period
      specified below, conform in all material respects to the applicable drawings,
      specifications, or other description furnished pursuant to the Purchase Order,
      be free of defects in design (to the extent that Supplier furnished the
      design), materials, and workmanship that materially affect the uses to be made
      of such Supplies and be suitable for the purpose intended. Upon delivery of
      the
      Supplies Think will be solely responsible to ensure the correct storing,
      handling and usage of the Supplies. 

     

    (b) The
      warranty period for Supplies shall be the period specified on Think’s Purchase
      Order. A valid warranty shall not be shorter than 36 months after the
      electrical vehicle (where the Supplies are assembled) is registered on the
      end-user, or shorter than 42 months from Think has received the Supplies
      from the Supplier, in any case greater than 1000 Full Cycles (one cycle is
      defined as 100% complete charge and 100% complete discharge) with 70% of initial
      capacity remaining after the 1000 Full cycles. 

     

    (c) During
      the warranty period, Supplier will immediately and at his own cost replace
      or
      correct any non-conformant Supplies. The warranty only applies when the Supplies
      have been stored, installed and used in accordance with its intended purpose.
      Think will return to Supplier all non-compliant Supplies that are replaced
      under
      the warranty. 

     

    (d) Supplier
      will indemnify and hold Think harmless in respect of the costs of recall
      campaigns and other corrective service actions that are required to rectify
      non-conformances in Supplies (materials and/or workmanship), other than in
      instances where the Supplies have not been stored, installed or used by Think
      or
      the end-user in accordance with the intended purpose. 

     

    (e) Replaced
      and repaired Supplies are subject to the same warranty conditions as for the
      original Supplies, counted from the time when the replacement or repair was
      completed. 

     

    (f) Supplier
      warrants that the Supplies fulfils official requirements regarding environment,
      quality and safety in the jurisdictions where the vehicle shall be marketed
      and
      sold. Think is responsible for providing in writing to Supplier all necessary
      documents regarding this in order for Supplier to adequately review these
      requirements in advance of accepting any Purchase Order. 

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

     

    11. TITLE
      AND ENGINEERING DRAWINGS, SPECIFICATIONS 

     

    (a) Any
      documents, including drawings and specifications produced or acquired by
      Supplier under a Purchase Order will belong to Think, subject only to Supplier’s
      intellectual property, including and not limited to both foreign and domestic
      pending applications, issued patents, trademarks and copyrights, but without
      any
      other restrictions on Think’s use, including reproduction, modification,
      disclosure or distribution of the documents or the information contained
      therein. To the extent such documents contain original work of authorship
      created in order to comply with a Purchase Order, the copyrights to such work
      shall be owned by Think. Any engineering drawing that Supplier is required
      to
      prepare and furnish to Think shall conform to Think’s local computer hardware
      and software. 

     

    (b) All
      drawings, know-how, and confidential information supplied to Think or Supplier
      by the other party and all rights therein will remain the property of the
      disclosing party and will be kept confidential by the receiving party in
      accordance with Section 13(b). Supplier is licensed to use Think’s
      drawings, know-how, and confidential information produced or acquired by
      Supplier under a Purchase Order and subject only to Supplier’s intellectual
      property, as set forth in paragraph 11 (a) only for the purpose of
      fulfilling its obligations under a Purchase Order. Supplier will inform Think
      of
      any third parties subcontracting any of the work required under a Purchase
      Order. Supplier will ensure that any third party to whom Supplier subcontracts
      any of the work hereunder is bound by all the terms and conditions relating
      to
      such work to which Supplier is bound under a Purchase Order. 

     

    12. INTELLECTUAL
      PROPRIETARY RIGHTS 

     

    (a) Supplier
      represents and warrants that Supplier has no knowledge of any claims of
      infringement filed against Supplier for practicing any existing Intellectual
      Property Right such as patent or patent application, copyright, industrial
      design right or other intellectual property rights. 

     

    (b) This
      agreement does not constitute any transfer of Intellectual Property Right from
      one party to another party. 

     

    13. INFORMATION
      AND DATA 

     

    (a) Supplier
      will furnish to Think all information and data Supplier acquires or develops
      in
      the course of Supplier’s activities under a Purchase Order — without
      restrictions on use or disclosure. Supplier shall also disclose, on Think’s
      request, any potential or real problems with design, quality or manufacturing
      related to the Supplies under a Purchase Order. 

     

    (b) Think
      and Supplier will use reasonable care to prevent disclosing to any third person:
      

     

    (i) the
      technical information and data furnished by Think or Supplier to the other
      party
      or developed or acquired by Think and Supplier under its work related to a
      Purchase Order, 

     

    (ii) information
      relating to any portion of either party’s business that either party may acquire
      in the course of the activities related to a Purchase Order 

     

    These
      confidentiality obligations shall continue as long as any Purchase Order is
      in
      effect and for a minimum period of two years thereafter. This obligation will
      not apply to information that is or becomes publicly known through no fault
      of
      Think or Supplier. Nevertheless, Supplier may disclose the information and
      data
      of subsections (b)(i) and (b)(ii) hereof to relevant third parties if this
      is
      required for Supplier to fulfil its duties under a Purchase Order and such
      third
      parties have agreed to conditions at least as stringent as those contained
      herein. 

     

    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    

     

    14. COPYRIGHTS 

     

    (a) Any
      work of authorship created by Supplier or Supplier’s employees under a Purchase
      Order which is specially ordered or commissioned by Think and which does not
      relate to or is filed as any continuation and/or continuation-in-part and/or
      divisional applications filed outside of the U.S. will be considered as a
“work
      made for hire”
and
      all
      copyrights for such works of authorship will belong to Think. 

     

    (b) All
      works of authorship subject to Sections 14(a) will bear a valid copyright notice
      designating Think as the copyright owner, for example: “Copyright © 2007, THINK
      Global AS”, where “2007” is the year the work was created. 

     

    15.
      SUBCONTRACTS 

     

    In
      each
      subcontract of Supplier’s work performed pursuant to a Purchase Order, Supplier
      will obtain for Think the rights and licenses granted in Sections 11, 13,
      and 14. 

     

    16. ADVERTISING 

     

    Any
      reference to the other party or the use of the other party’s trade marks or
      logos in advertising or publicity materials will be subject to the other party’s
      prior approval. 

     

    Each
      party agrees that it will refrain from issuing any press release or other public
      statement regarding this Agreement or the matters described herein, or disclose
      the existence of this Agreement or the terms hereof to any third party, until
      the Effective Date (as defined below). 

     

    17. AUDIT
      RIGHTS 

     

    Think
      will have the right at any reasonable time during normal business hours, at
      its
      sole expense, to send its authorized representatives to examine all pertinent
      documents and materials in the possession or under the control of Supplier
      relating to any of Supplier’s obligations under a Purchase Order or any payments
      requested by Supplier pursuant to a Purchase Order. Supplier shall maintain
      all
      pertinent books and records relating to a Purchase Order for a period of three
      years after completion of services or delivery of Supplies pursuant to that
      Purchase Order. 

     

    18. ASSIGNMENT 

     

    Except
      for subcontracting by Supplier in the ordinary course of its business, neither
      party will assign or delegate any of its rights or substantive duties under
      this
      agreement or a Purchase Order without the other party’s prior written approval.


     

    19. EXCUSABLE
      DELAYS 

     

    (a) Neither
      Think nor Supplier will be liable for a failure to perform arising from causes
      or events beyond its reasonable control and without its fault or negligence,
      including labour disputes (“excusable delay”). The non-performing party claiming
      an excusable delay shall give notice in writing to the other party as soon
      as
      possible after the occurrence of the cause relied on and after termination
      of
      the condition. 

     

    (b) In
      the event of a delay in performance (excusable or not), Think may acquire
      possession of all finished goods and materials in progress meant to be included
      in a Purchase Order. Supplier will deliver such parts of the Supplies to
      Think, at Think’s chosen point of delivery. Think will pay a price no less than
      the documented costs to Supplier of the goods and materials. Think may also
      obtain the Supplies covered by a Purchase Order elsewhere for the duration
      of the impediment and a reasonable period thereafter. 

     

    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

    

     

    20. TERM
      AND TERMINATION 

     

    (a) This
      Agreement will become effective and enforceable against the parties on
      October 15,2007 (The “Effective Date”). 

     

    (b) This
      Agreement can be terminated with 12 months written notice, but not before
      all pending Purchase Orders are fulfilled. The clauses meant to survive the
      termination (such as clauses 8, 10, 11, 12, 13, 14, 16 and 17), will last until
      the obligations stated in the clauses lapses. 

     

    21. APPLICABLE
      LAW AND ARBITRATION 

     

    (a) This
      Agreement, and any document related to this Agreement (such as a
      Purchase Order), shall be governed by the laws of Norway,
      and
      all
      disputes arising out of this Agreement shall be brought before the ordinary
      Swiss courts with Geneva as the legal venue. 

     

    (b) If
      either party initiates litigation on such contractual causes, the other party
      shall have the right to initiate mediation. The parties agree to participate
      in
      good faith in the mediation and negotiations related thereto for a period of
      30 days. If the parties are not successful in resolving the dispute through
      the mediation, then the parties may agree to submit by mutual written agreement
      the matter to binding arbitration by a sole arbitrator in accordance with the
      Swiss Arbitration Act. 

     

    SUPPLEMENTAL
      PROVISIONS APPLICABLE TO TOOLING 

     

    22. TOOLING
      ORDER 

     

    If
      Think
      issues a Purchase Order for “Tooling”, and such Purchase Order is accepted by
      Supplier, Supplier will design, fabricate and install the Tooling described
      in
      such Purchase Order subject to the terms and conditions contained herein.


     

    23. SAMPLES,
      STATUS 

     

    (a) Supplier
      shall, at its own expense, manufacture a reasonable number of sample parts
      on
      the Tooling for inspection and/or testing by Think to ensure the capability
      of
      the Tooling to produce parts which meet Think’s requirements. 

     

    (b) To
      the extent technically feasible, the Tooling shall be designed and fabricated
      to
      be sufficiently durable to support the manufacture of all production and service
      requirements through the production lifetime of the part. 

     

    (c) The
      Tooling will be deemed to be completed when the necessary samples have been
      submitted and approved by Think. Think may request Supplier to furnish status
      reports on the design, construction and acquisition of the Tooling. Supplier
      will notify Think immediately if the Tooling may not be completed by the
      completion date specified in the Purchase Order. 

     

    24. TITLE,
      IDENTIFICATION 

     

    (a) All
      title to any part of the Tooling under a Purchase Order (“Tooling
      Property”)
      shall
      pass to Think as soon as it is acquired or fabricated in accordance with the
      relevant Purchase Order. During the term of a Purchase Order, all such Tooling
      Property in the possession of Supplier shall be deemed to be bailed and not
      be
      deemed to be a fixture or a part of Supplier’s own real property. 

     

    
      
        
        

      

      
        8

        
          

        

      

      
        
        

      

    

     

    (b) Supplier
      will: 

     

    (i) properly
      house and maintain such property on Supplier’s premises, 

     

    (ii) prominently
      mark it Property of Think, 

     

    (iii) refrain
      from mixing it with the property of Supplier or with that of a third party,
      

     

    (iv) adequately
      insure it against loss or damage, and 

     

    (v) not
      move it to another location whether owned by Supplier or a third party, without
      the prior consent of Think, except in the case of an emergency. Supplier may
      move the Tooling property provided that it gives Think notice that the Tooling
      has been moved and the location of the Tooling as soon as reasonably
      practicable. 

     

    (c) Supplier
      shall indemnify Think against any claim adverse to Think’s ownership of the
      Tooling Property, except as such claims may result from any acts or omissions
      of
      Think. To the extent permitted by law, Supplier waives its right to object
      to
      the repossession of the Tooling Property in the event Supplier is involved
      in
      bankruptcy proceedings. 

     

    (d) While
      in its possession, Supplier shall maintain the Tooling Property in good
      condition and immediately replace any items which are lost or damaged. All
      repaired or replaced Tooling Property shall remain the property of Think.
      None of the Tooling Property shall be sold or used in the production,
      manufacture or design of any goods or materials except to the order of Think.
      

     

    (e) If
      the Tooling Property is not utilized to produce any parts for Think for a period
      of two years, Supplier shall notify Think and request instructions as to the
      disposition of the Tooling Property. 

     

    (f) If
      Supplier subcontracts all or any portion of the manufacture of the
      Tooling Property, Supplier shall ensure that Supplier’ duties under this
      Agreement also are obeyed by his sub-supplier. 

     

    (g) Supplier’s
      responsibility continues beyond the expiry date of the related parts Purchase
      Order. 

     

    25. TOOLING
      PAYMENT 

     

    Any
      payments made by Think for Tooling Property will be made to Supplier, even
      if
      the Supplier uses a sub-contractor. 

     

    
      
        
        

      

      
        9