Exhibit 10.22
AMENDMENT AND SUPPLEMENT
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This Amendment and Supplement (this "Amendment"), is entered into and
effective this as of the 29th day of November, 2008, and is by and between
Sustainable Power Corp., a Nevada corporation ("SSTP") and Borneo Energy
Sendirian Berhad, a Malaysian corporation ("Borneo"),
WHEREAS, SSTP and Borneo entered into that certain Stock Subscription
Agreement dated as of February __, 2008 (the "Subscription Agreement"), which
provided for a total payment of Two Million Dollars US ($2,000,000 USD) for
shares of SSTP restricted stock; and
WHEREAS, Borneo delivered to SSTP $1,000,000 towards such subscription but as of
the date of this Amendment has not delivered the remainder of the required
payment; and
WHEREAS, SSTP has not delivered the stock to Borneo because of the failure
of complete consideration; and
WHEREAS, SSTP and Borneo now desire to amend and supplement the
Subscription Agreement to resolve the dispute.
NOW, THEREFORE, the parties hereto hereby agree as follows:
CONFLICT. In the event there is a conflict between the terms of the
Subscription Agreement with this Amendment, the terms of this Amendment shall
control any interpretation. Unless this Amendment expressly amends or
supplements the language of the Subscription Agreement, the Subscription
Agreement shall remain in full force and effect. Unless otherwise defined in
this Amendment, terms defined in the Subscription Agreement shall be similarly
defined herein.
CONDITION TO, AMOUNT OF AND TIMING OF REMAINING PAYMENT. SSTP
acknowledges and agrees that it intends to prepare and file a Form 10
Registration Statement (or similar form) (the "Form 10") with the US Securities
and Exchange Commission. As required by SEC rules, the Form 10 shall contain
audited financial statements for SSTP. Borneo agrees to deliver a total of
$1,000,000 to SSTP within three months of the date the Form 10 is first filed
with the SEC. Such funds shall be wired to or at the direction of Xxxxxx Law
Group, counsel to SSTP, as Escrow Agent.
DELIVERY OF SHARES AND PRICE. Xxxxxx Law Group shall be appointed as
Escrow Agent with respect to delivery of shares of SSTP restricted stock to
Borneo and delivery of the payment to SSTP. Xxxxxx Law Group shall hold
25,000,000 shares with respect to the original $1,000,000 investment pursuant to
the Subscription Agreement (the "Initial Shares"). Xxxxxx Law Group shall cause
the transfer agent for SSTP to issue and deliver into escrow such number of
shares for the second full payment of $1,000,000 as shall equal the lesser of
(i) 25,000,000 shares (equivalent to $.04 per share) or (ii) $1,000,000 divided
by the market price of the common stock of the Company which shall be calculated
based on the average closing price of SSTP stock on the principal stock
market on which it is traded for the seven trading days immediately preceding
the date on which the full $1,000,000 payment is made (the "Second Shares").
Xxxxxx Law Group shall hold the Initial Shares and the Second Shares in Escrow
and shall deliver any and all shares to Borneo within 7 days of delivery of the
full $1,000,000 payment.
MODIFICATIONS. This Amendment may not be amended, canceled, revoked or
otherwise modified except by written agreement subscribed by all of the Parties.
BINDING ON SUCCESSORS. This Amendment shall be binding upon and shall
inure to the benefit of the Parties hereto and their respective partners,
employees, agents, servants, heirs, administrators, executors, successors,
representatives and assigns.
CHOICE OF LAW. This Amendment and the rights of the parties hereunder
shall be governed by and construed in accordance with the laws of the State of
Texas including all matters of construction, validity, performance, and
enforcement and without giving effect to the principles of conflict of laws.
ENTIRE AGREEMENT. This Amendment together with the Subscription
Agreement sets forth the entire agreement and understanding of the Parties
hereto and supersedes any and all prior agreements, arrangements and
understandings related to the subject matter hereof. No understanding, promise,
inducement, statement of intention, representation, warranty, covenant or
condition, written or oral, express or implied, whether by statute or otherwise,
has been made by any party hereto which is not embodied in this Amendment or the
Subscription Agreement and no Party hereto shall be bound by or liable for any
alleged understanding, promise, inducement, statement, representation, warranty,
covenant or condition not so set forth.
COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which when executed and delivered shall be an original,
and all of which when executed shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the
date first set forth above.
SUSTAINABLE POWER CORP.
A Nevada corporation
\s\ M. Xxxxxxx Xxxxxx
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By: M. Xxxxxxx Xxxxxx, President and Chief Executive Officer
Borneo Energy Sendirian Berhad, a Malaysian corporation
BORNEO ENERGY SENDIRIAN BERHAD
A Malaysian corporation
\s\ Abd Xxxxx Xxxxxxx
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By: Abd Xxxxx Xxxxxxx, Director
