Contract
Exhibit
10.1
THIS
AMENDMENT NO. 1 (THIS "AMENDMENT") TO THE
AMENDED AND RESTATED RESEARCH, DEVELOPMENT AND SUPPLY AGREEMENT (THE "AGREEMENT") IS
ENTERED INTO, AS OF THIS 15th DAY OF
APRIL, 2009, BY AND BETWEEN:
EPIR
Technologies, Inc., a corporation incorporated under the laws of the State of
Illinois and having its main place of business at 000 Xxxxxxxxxxx Xxxxx, Xxxx
X,
Xxxxxxxxxxx,
XX 00000 (hereafter referred to as "EPIR"), as the first
party,
AND
Sunovia
Energy Technologies, Inc., a company incorporated under the laws of the state of
Nevada and having its main place of business at: 0000 Xxxxxxxx
Xxxxx
Xxxxx
000, Xxxxxxxx, Xxxxxxx 00000 (hereafter referred to as "SETI"), as the second
party. EPIR and SETI are jointly referred to hereafter as the "Parties" and
individually referred to as a "Party". Capitalized
terms used but not defined herein shall have the meanings ascribed to such terms
in the Agreement.
PREAMBLE
Whereas,
EPIR and SETI are parties to the Agreement pursuant to which (i) EPIR is
required to develop New Technologies and EPIR Products, develop the necessary
manufacturing processes for the EPIR Products and manufacture and supply EPIR
Independent Products to SETI, and (ii) SETI is required to develop products that
will require the use of EPIR Products or EPIR Independent Products as critical
elements thereof and develop distribution channels for such
products;
Whereas,
as of the date hereof, SETI has made all Scheduled Payments to EPIR pursuant to
the terms and conditions of the Agreement, including Section 6.1 of the
Agreement, in the aggregate amount of approximately (six million, seven hundred
thousand dollars) $6,700,000.00;
Whereas,
all payments received from SETI by EPIR are to be used to cover the operating
expenses of EPIR towards the research, development and creation of the mass
manufacturing processes for the solar technologies;
Whereas,
SETI desires to amend the Agreement and, in consideration thereof, (i)
accelerate its payment of the June 1, 2009 Scheduled Payment and (ii) issue and
deliver to EPIR warrants for the purchase of SETI common stock, as more
specifically described in the Warrant attached hereto as Exhibit A (the “Warrant”);
and
Whereas,
EPIR desires to amend the Agreement and, in consideration thereof, accept (i)
the accelerated payment of the June 1, 2009 Scheduled Payment and (ii) warrants
for the purchase of SETI common stock, as further described below.
NOW,
THEREFORE, in consideration of the mutual covenants contained herein, and other
valuable consideration, the receipt and sufficiency of which is acknowledged,
the Parties hereby agree as follows:
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1.
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SETI
Obligations. In exchange for, and as an integral part
of, EPIR's entering into this Amendment, SETI shall deliver (or caused to
be delivered) to EPIR, for no cash or other consideration (except as set
forth herein):
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a.
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the
June 1, 2009 Scheduled Payment (as set forth in Schedule A-1 of the
Agreement) within seventy-two (72) hours of the Parties' execution of this
Amendment, one million dollars ($1,000,000.00) (the "Accelerated
Payment") by wire transfer of immediately available funds to a bank
account designated by EPIR; and
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b.
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the executed Warrant, and the Warrant shall be in full force and effect. |
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2.
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Amendment to Section
6.1 of the Agreement. Pursuant to Section 21.1 of the
Agreement, immediately upon the date in which EPIR receives the
Accelerated Payment pursuant to Section 1(a)
hereof, and without any further action by the Parties, Section 6.1 of the
Agreement shall be amended by adding the following new paragraph of text
after the second paragraph of text:
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"Notwithstanding
anything to the contrary set forth in this Agreement, SETI, in its sole
discretion, shall, without limitation and subject to the applicability of all of
the forgoing provisions of this Section 6.1 (i.e., accrual of interest for late
payments), satisfy any or all of the August 1, 2009, October 1, 2009, December
1, 2009 and/or March 1, 2010, one million dollars ($1,000,000.00) Scheduled
Payments set forth in Exhibit A-1 by delivering to EPIR one (1) of the
following: (y) one million dollars ($1,000,000.00) cash by wire transfer of
immediately available funds, or (z) a number of shares of restricted common
stock of SETI (the "Scheduled Payment
Shares") equal to the quotient of one million dollars ($1,000,000.00),
divided by the Conversion
Price; provided
that SETI's forgoing optional cash/stock payment rights shall only apply to the
August 1, 2009, October 1, 2009, December 1, 2009 and March 1, 2010 Scheduled
Payments and that SETI shall not have such optional cash/ stock payment rights
with respect to any of the other Scheduled Payments; provided further that to the
extent any Scheduled Payment Shares are to be issued to EPIR pursuant to and in
connection with this paragraph, SETI and EPIR acknowledge and agree to provide
representations and warranties to the other party that are customary in similar
transactions, and that (1) such Scheduled Payment Shares shall be, upon
issuance, duly and validly issued, fully paid and nonassessable, free and clear
of all taxes, liens and charges with respect to the issuance thereof, and (2)
EPIR shall have rights, and SETI shall have obligations, over and in respect of
such Scheduled Payment Shares that are substantially similar to EPIR's rights,
and SETI's obligations, respectively, over and in respect of the SETI
Shares. For purposes of this paragraph, the "Conversion Price"
shall be an amount equal to the product of seventy-five percent (.75), multiplied by the
average closing price on the NASDAQ Over-The-Counter Bulletin Board for shares
of common stock of SETI during the previous twenty (20) trading days prior to
such Scheduled Payment Date. By way of example only, assuming that
the average closing price on the NASDAQ Over-The-Counter Bulletin Board for
shares of common stock of SETI during the previous twenty (20) trading days
prior to a Scheduled Payment Date is ten cents ($0.10), then the number of
Scheduled Payment Shares shall be calculated as follows:
$1,000,000.00
÷ ($0.10 x .75) = 13,333,333 million shares of common stock of
SETI"
Notwithstanding
anything to the contrary set forth in this Amendment, including this Section 2, if the
Accelerated Payment has not been received by EPIR prior to EPIR's receipt of the
Warrants, the Agreement shall not be amended and this Section 2 shall have
no force and effect.
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3.
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No Other
Changes. Except as specifically amended by this
Amendment, the Agreement and the Exhibits and Schedules attached thereto
shall remain in full force and effect. Terms not defined herein
shall have the meaning as defined in the
Agreement.
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4.
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No
Waiver. The execution and delivery of this Amendment
shall not, except as expressly provided herein, constitute a waiver of any
provision of, or operate as a waiver of any right, power or remedy of
either Party under the Agreement.
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5.
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Headings. The
section headings contained in this Amendment are inserted for convenience
only and shall not affect in any way the meaning or interpretation of this
Amendment.
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6.
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Severability. If any
provision of this Amendment is deemed to be invalid, such provision shall
be deemed to be invalid only to extent of such invalidity, without
invalidating the remainder of the
Amendment.
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7.
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Counterparts. This
Amendment may be executed in one or more counterparts each of which shall
be deemed an original but all of which together shall constitute one and
the same instrument.
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8.
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Representations. Each
Party warrants and represents to the other Party, as of the date hereof and as of
the date the Warrants are issued, that: (i) such Party has all necessary corporate power
and authority to execute and deliver this Amendment, to perform its
obligations hereunder and under the Agreement (as amended) and to
consummate the transactions contemplated hereby and thereby, and (ii) the
execution and delivery of this Amendment by such Party and the
consummation by such Party transactions contemplated hereby and under the
Agreement (as amended) (a) have been duly and validly authorized by all
necessary corporate action, and no other corporate proceedings or actions
are necessary to authorize this Amendment or to consummate the
transactions contemplated hereby or under the Agreement (as amended)and
(b) do not and will not, with or without the giving of notice or lapse of
time, or both (1) violate any provision of law, statute, rule or
regulation to which such Party is subject, (2) violate any order, judgment
or decree applicable such Party, or (c) conflict with, or result in a
breach of default under, any term or condition of any agreement or other
instrument to which such Party is a party or by which such Party is
bound.
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[Signature page to
follow]
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IN WITNESS WHEREOF, the Parties have
executed this Amendment as of the date first set forth
above.
| SUNOVIA ENERGY TECHNOLOGIES, INC. | EPIR TECHNOLOGIES, INC: | |||
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SIGNATURE:
/s/ XXXX XXXXX
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SIGNATURE:
/s/ XXXXXXXXXX
XXXXXXXXXXX
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NAME: XXXX
XXXXX
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NAME:
XXXXXXXXXX XXXXXXXXXXX
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TITLE:
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TITLE:
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| DATE: | DATE: |
WITNESS
SIGNATURES:
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/s/
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/s/
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SIGNATURE
OF SETI WITNESS
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SIGNATURE
OF EPIR WITNESS
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PRINTED
NAME OF WITNESS
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PRINTED
NAME OF WITNESS
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