Exhibit 10.20
Affiliation Agreement
This Affiliation Agreement ("Agreement") is entered into as of this the 8th
day of October, 2008, by and between Sustainable Power Corp., a Nevada
corporation ( "SSTP" ), with its principal business address of 0000 Xxxxxxx 000
Xxxxx, XXXX, XX 00000 and Amecks, Inc., a Missouri corporation ("Amecks"), with
its principal business address of 0000 Xxx 000, Xxxxxxxx, XX 00000;
WITNESSETH:
WHEREAS, Amecks and SSTP desire to jointly work together to commercialize
the production of biofuels and electricity from municipal solid waste ("MSW")
which shall reflect the intellectual property of SSTP; and
WHEREAS, Amecks shall be responsible for obtaining and delivering to SSTP's
facilities MSW for use in the SSTP process; and
WHEREAS, SSTP is the owner or exclusive licensee of the intellectual
property related to its own unique breakthrough technology for production of
biocrude from sustainable biomass sources; besides the biocrude, i.e., liquid
biofuel, the output will be biogas as well as ash-fertilizer, which can then be
utilized to produce electricity; and
WHEREAS, SSTP shall utilize the Intellectual Property to develop the
products;; and
WHEREAS, the parties hereto acknowledge that SSTP and its affiliates own
and control an undisclosed catalytic process which shall be used in the process,
but shall not be in any way transferred, licensed or otherwise attachable as
part of the obligations hereunder (the "Catalyst");
NOW THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, and the mutual promises and benefits to be derived by the
parties, they do hereby agree to the following terms and conditions:
ARTICLE 1
RIGHTS AND DUTIES UNDER THIS AGREEMENT.
Section 1.1 RIGHTS AND DUTIES OF AMECKS. Amecks shall:
(a) Working with the "Xxxxxxx process" developed by Xxxxxxx Enterprises,
Inc. in Cherokee, Iowa, prepare MSW for delivery to SSTP through a process which
removes substantially all metal and glass, in which the MSW is densitized and
pellitized, to specifications mutually agreed upon by SSTP and Amecks.
(b) Provide a minimum of 300 tons of MSW each day to the SSTP production
facility. Amecks shall undertake such agreements as are required that SSTP is
paid a minimum of $35 for each ton of MSW delivered.
(c) Contribute _______ US Dollars ($_______) immediately upon execution of
this Agreement in consideration for _____ shares of SSTP common stock.
(d) Working together with SSTP, use its best efforts to obtain further
capitalization and funding required for operations through Municipal Revenue
Bonds or otherwise, including without limitation development, manufacture and
commercialization of the Technology.
(e) Provide SSTP with accounts which shall be compiled in accordance with
generally accepted accounting principles consistently applied in the United
States, and which shall be subject to an annual audit. Amecks shall provide such
accounting on a quarterly basis and SSTP may inspect such books upon reasonable
notice and at any reasonable time. It is understood and agreed that the method
of accounting used shall be the accrual method and that the accounting year
shall be the calendar year. Amecks acknowledges and agrees that SSTP shall have
formal reporting obligations with the United States Securities and Exchange
Commission and any and all books and records shall be required to comply with
the rules and regulations required for such periodic financial reporting.
Section 1.1 RIGHTS AND DUTIES OF SSTP. SSTP shall:
(a) Provide access to any and all information, patents, backup and
research related to the Technology in accordance with the terms of the License
Right hereunder.
(b) Provide access to all necessary related technology and supplies,
including supplies for the catalytic process.
(c) Advance the ongoing development, maintenance and prosecution of any and
all intellectual property relating to the Technology, including without
limitation future improvements and related intellectual property.
(e) Prepare plants with up to four hundred reactors for production of the
fuel.
(f) SSTP shall be responsible for any and all operations in the completion,
development, manufacture and commercialization of the Technology for the term of
this Agreement.
(g) Undertake appropriate and necessary business development activities in
relation to the commercialization of the Technology.
(h) Provide Amecks with accounts which shall be compiled in accordance with
generally accepted accounting principles consistently applied in the United
States, and which shall be subject to an annual audit. SSTP shall provide such
accounting on a quarterly basis and Amecks may inspect such books upon
reasonable notice and at any reasonable time. It is understood and agreed that
the method of accounting used shall be the accrual method and that the
accounting year shall be the calendar year. SSTP acknowledges and agrees that it
shall have formal reporting obligations with the United States Securities and
Exchange Commission and any and all books and records shall be required to
comply with the rules and regulations required for such periodic financial
reporting.
ARTICLE 2
COMPENSATION TO AMECKS
Section 2.1 STOCK CONSIDERATION. SSTP will issue and deliver _________ shares
of common stock of Sustainable Power Corp. (the "Stock Consideration") to Amecks
or assigns. Amecks acknowledges and agrees that: (i) The Stock Consideration
to be issued to Amecks or assigns is being issued without registration under
applicable federal and state securities laws in reliance upon certain exemptions
from registration under such securities laws; (ii) Amecks and its officers and
directors have had the opportunity to ask questions of and receive answers from
SSTP, its respective executive officers concerning its businesses and all such
inquiries have been completed to his satisfaction; (iii) Each certificate to be
issued to Amecks or assigns will bear a legend restricting its transfer, sale,
conveyance or hypothecation, unless such shares of SSTP Stock is either
registered under applicable securities laws or an exemption from such
registration is applicable, and provided that if an exemption from registration
is claimed; (iv) Amecks shall not transfer any of the Stock Consideration except
in compliance with all applicable securities laws; (v) Amecks is acquiring the
Common Stock for its own account, for investment purposes only and not with a
view to the sale or distribution thereof; (vi) Amecks has not received any
general solicitation or general advertising regarding the acquisition of the
Stock Consideration; and (vii) Amecks is capable of evaluating
the merits and risks of an investment in the Stock Consideration because Amecks,
through its shareholders, officers and directors, is a sophisticated investor by
virtue of its prior investments and have experience in investments similar in
nature to the Stock Consideration, including investments in unlisted and
unregistered securities, and have knowledge and experience in financial and
business matters in general. Amecks acknowledges and agrees that any and all
recipients of the Stock Consideration may be required to enter into lockup
agreements with the Company restricting sales and other transferability of the
Stock Consideration for up to three years.
Section 2.2 PROFIT PARTICIPATION. Amecks shall be entitled to a participation
in the net profits from operations for SSTP relating to MSW commercialization
supplied by Amecks equal to 20% (twenty percent) during the term of this
Agreement. Net profits shall be as defined under generally accepted accounting
principals consistently applied and reflected in the financial statements of
SSTP as filed with the US Securities and Exchange Commission.
Section 2.3 BOARD OF DIRECTORS. Upon execution of this Agreement, SSTP will
appoint Xxxxx Xxxxxxxx of Amecks to its Advisory Board of Directors.
Section 2.4 OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS AND IMPROVEMENTS.
Amecks acknowledges that SSTP is the exclusive owner of the Technology. Amecks
acknowledges agrees and understands that the Technology may not be the only
Patents, Intellectual Property Rights, Know how or other Products utilized in
either SSTP's business.
Section 2.5 SSTP OPERATIONS. This Agreement shall in no way whatsoever affect
the business activities of the SSTP anywhere in the World outside of North
America and shall not constitute any restriction upon such activities.
Section 2.6 TERM. Unless terminated in accordance with Section 2.7 of of this
Agreement, this Agreement shall be effective as of the date of execution of this
Agreement and shall remain in effect for the remainder of the year 2008 and the
twenty (20) calendar year period thereafter ("Initial Term"). Provided that
neither Amecks nor SSTP is in default of any material obligation to the other in
accordance with the terms of this Agreement, and provided that this Agreement
has not previously been terminated in accordance with the provisions here, the
parties shall have the right to renew this Agreement for an additional twenty
(20) calendar year period following the Initial Term by giving the other party
notice, in writing, of its election to renew this Agreement, which such notice
shall be given not more than 180 days nor less than 60 days prior to the
expiration of the Initial Term of this Agreement. In the event either party
determines that the other may not renew this Agreement because of a default in a
material obligation, it shall immediately provide notice of such default and
shall provide the other party the right to cure such default within 60 days,
upon satisfaction of which the election to renew this Agreement shall be
immediately effective.
Section 2.7 TERMINATION OF AGREEMENT Notwithstanding any other provision of
this Agreement, this Agreement may be terminated by either Party upon written
notice to the other Party if:
(a) the other Party fails to cure a material breach of any provision of
this Agreement within 60 calendar days from its receipt of written notice from
said Party (unless such breach cannot be reasonably cured within said 60
calendar days and the other Party is actively pursuing curing of said breach);
or
(b) the other Party commits fraud or serious neglect or misconduct in the
discharge of its respective duties hereunder or under the law; or
(c) the commencement by or against a party of any voluntary or involuntary
proceeding under any bankruptcy, reorganization, arrangement, insolvency,
readjustment or debt, receivership, dissolution, or liquidation law or statute
or any jurisdiction, whether now or hereafter in effect; or the adjudication of
such party as insolvent or bankrupt by a decree of a court of competent
jurisdiction.
Section 2.8 EFFECT OF TERMINATION. On the termination of this Agreement, all
rights and obligations of the parties hereunder shall automatically terminate
except for such rights of action as shall have accrued prior
to such termination and any obligation which expressly or by implication may be
intended to come into or continue in force on or after such termination.
Amecks shall, (i) at its own expense, return to SSTP or otherwise dispose of as
SSTP may instruct, all technical and promotional materials and other documents
and papers whatsoever sent to SSTP and relating to the Patents, Confidential
Information, Products or the business of SSTP (other than correspondence between
the parties, copies of which shall be delivered to SSTP) and all property of
SSTP in Amecks' possession or under its control, and (ii) immediately cease any
use of the Technology.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
Section 3.1 REPRESENTATIONS AND WARRANTIES OF SSTP. SSTP hereby makes the
following representations and warranties to Amecks.
(a) SSTP has full power and authority to provide access to the Technology
and, such Technology is owned or otherwise licensed to SSTP free and clear
without any liens or encumbrances.
(b) The execution, delivery and performance of this Agreement by SSTP, and
the consummation of the transactions contemplated hereby, will not with or
without the giving of notice of the lapse of time or both, (i) violate any
material provision of law, statute, rule or regulation to which SSTP is subject,
(ii) violate any judgment, order, writ or decree to which SSTP is a party or by
which it is or may be bound; or (iii) result in any material breach of or
conflict with any term, covenant, condition or provision of, or result in the
modification or termination of, or constitute a default under or result in the
creation or imposition of any lien, security interest, charge or encumbrance
upon the Technology being licensed hereunder, under the corporate charter or
by-laws or any other agreement, understanding or instrument to which SSTP is a
party or by which it is or may be bound or affected.
(c) All necessary action has been taken by SSTP to authorize the
execution, delivery and performance of transactions contemplated by this
Agreement. This Agreement has been duly and validly authorized, executed and
delivered by SSTP and constitutes the valid and binding obligation of SSTP
enforceable against it in accordance with its terms, except as enforceability is
limited by (1) any applicable bankruptcy, insolvency, reorganization, moratorium
or similar law affecting creditors' rights generally or (2) general principles
of equity, whether considered in a proceeding in equity or at law.
(d) All necessary consents and approval required to enter into this
Agreement have been obtained or will be obtained, including without limitation
any and all approvals required by any agency of the United States government.
No consent of any court, governmental agency or other public authority is
required as a condition to the enforceability of the transactions contemplated
by this Agreement.
(e) There is no action of law, in equity, arbitration proceeding,
governmental proceeding or investigation pending, or to SSTP's knowledge
threatened against SSTP.
(f) SSTP has conducted its business in compliance with all material
national, state and local laws, regulations and ordinances.
(g) SSTP has no actual knowledge at the date of this Agreement and has no
reason to believe that the Technology will not provide the technology and
information necessary to effectuate the business intended in this Agreement.
Section 3.2. AMECKS REPRESENTATIONS. Amecks hereby makes the following
representations and warranties to SSTP.
(a) Amecks is a Company duly organized, validly existing and in good
standing under the laws of the State of Missouri and is qualified or licensed as
a foreign corporation in any other jurisdiction where said licensing is
required. Amecks has the full power and authority to conduct the business in
which it is engaged and will be engaged upon completion of the transaction
contemplated herein.
(b) The execution and delivery of this Agreement by Amecks and the
performance of Amecks's obligations hereunder have been duly authorized and
approved by all requisite corporate action on the part of Amecks pursuant to
applicable law. Amecks has the power and authority to execute and deliver this
Agreement and to perform all its obligations hereunder.
(c) This Agreement and any other documents, instruments and agreements
executed by Amecks in connection herewith constitute the valid and legally
binding agreements of Amecks, enforceable against Amecks in accordance with
their terms, except that (i) enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws of general
application affecting the enforcement of the rights and remedies of creditors;
and (ii) the availability of equitable remedies may be limited by equitable
principles.
(d) Neither the execution, delivery nor performance of this Agreement or
any other documents, instruments or agreements executed by Amecks in connection
herewith, nor the consummation of the transactions contemplated hereby: (i)
constitutes a violation of or default under (either immediately, upon notice or
upon lapse of time) the Articles of Incorporation or Bylaws of Amecks, any
provision of any contract to which Amecks may be bound, any judgment or any law;
or (ii) will or could result in the creation or imposition of any encumbrance
upon, or give to any third person any interest in or right to, the any capital
stock of Amecks; or (iii) will or could result in the loss or adverse
modification of, or the imposition of any fine or penalty with respect to, any
license, permit or franchise granted or issued to, or otherwise held by or for
the use of, Amecks; or (iv) violate any applicable law or order currently in
effect to which Amecks is subject.
(e) Amecks is not a party to, the subject of, or threatened with any
litigation nor, to the best of Amecks's knowledge, is there any basis for any
litigation. Amecks is not contemplating the institution of any litigation.
ARTICLE 4
GENERAL PROVISIONS
Section 4.1 COMPLETE AGREEMENT; AMENDMENT; NOTICE.
(a) ENTIRE AGREEMENT. This Agreement embodies the entire understanding of
the parties, and any changes must be made in writing and signed by all parties.
(b) AMENDMENT. This instrument may be amended or modified only by an
instrument of equal formality signed by all of the respective parties hereto.
(c) NOTICE. All notices under this Agreement shall be in writing and shall
be delivered by personal service, or by certified or registered mail, postage
prepaid, return receipt requested, to the Parties of the Agreement (and where
required, to the person required to be copied with the notice) at the addresses
herein or at such other address as the addressee may designate in writing, and
to the Agreement at its principal place of business as set forth below, and
shall be effective upon receipt (or refusal to accept).
The addresses for notices to the Parties of the Agreement are as follows:
If to SSTP:
Sustainable Power Corp.
0000 Xxx 000 Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxx
Copy to
Xxxxxx Law Group
place3206 West Wimbledon Dr
placeplaceAugusta, placeGA place30909
Attn: M. Xxxxxxx Xxxxxx
If to Amecks:
Amecks, Inc.
0000 Xxx 000
Xxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx
Section 4.2 ATTORNEYS FEES.
Should any litigation be commenced between the parties hereto or their
representatives, or should any party institute any proceeding in a bankruptcy or
similar court which has jurisdiction over any other party hereto or any or all
of his or its property or assets concerning any provision of this Agreement or
the rights and duties of any person or entity in relation thereto, the party or
parties prevailing in such litigation shall be entitled, in addition to such
other relief as may be granted, to a reasonable sum as and for his or its or
their attorneys fees and court costs in such litigation or in a separate action
brought for that purpose.
Section 4.3 VALIDITY.
In the event that any provision of this Agreement shall be held to be
invalid or unenforceable, the same shall not affect in any respect whatsoever
the validity or enforceability of the remainder of this Agreement.
Section 4.4 SURVIVAL OF RIGHTS.
Except as provided herein to the contrary, this Agreement shall be binding
upon and inure to the benefit of the parties signatory hereto, their respective
heirs, executors, legal representatives, and permitted successors and assigns.
Section 4.5 GOVERNING LAW.
This Agreement has been entered into in the state of Texas, and all
questions with respect to this Agreement and the rights and liabilities of the
parties hereto shall be governed by the laws of Texas, and the venue of any
action brought hereunder shall be in the State of Tevada.
Section 4.6 WAIVER.
No consent or waiver, express or implied, by a Party of the Agreement to or
of any breach or default by another Party of the Agreement in the performance by
such other Party of the Agreement of its obligations hereunder shall be deemed
or construed to be a consent or waiver to or of any other breach or default in
the performance by such other Party of the Agreement hereunder. Failure on the
part of a Party of the Agreement to complain of any act or failure to act of
another Party of the Agreement or to declare another Party of the Agreement in
default, irrespective of how long such failure continues, shall not
constitute a waiver by such Party of the Agreement of its rights hereunder. The
giving of consent by a Party of the Agreement in any one instance shall not
limit or waive the necessity to obtain such Party of the Agreement consent in
any future instance.
Section 4.7 REMEDIES IN EQUITY.
The rights and remedies of any of the Parties of the Agreement hereunder
shall not be mutually exclusive, i.e., the exercise of one or more of the
provisions hereof shall not preclude the exercise of any other provisions
hereof. Each of the Parties of the Agreement confirm that damages at law may be
an inadequate remedy for a breach or threatened breach of this Agreement and
agree that, in the event of a breach or threatened breach of any provision
hereof, the respective rights and obligations hereunder shall be enforceable by
specific performance, injunction, or other equitable remedy, but nothing herein
contained is intended to, nor shall it, limit or affect any rights at law or by
statute or otherwise of any party aggrieved as against the other for a breach or
threatened breach of any provision hereof, it being the intention by this
Section to make clear the agreement of the Parties of the Agreement that the
respective rights and obligations of the Parties of the Agreement hereunder
shall be enforceable in equity as well as at law or otherwise.
Section 4.8 SUCCESSORS AND ASSIGNS.
The rights and obligations of this Agreement may be not assigned by Amecks
or SSTP to any successor or assignee without the express written agreement of
the other, which agreement may be withheld in such party's sole discretion.
Section 4.9 CONFIDENTIAL INFORMATION.
Each of SSTP and Amecks hereby acknowledges and agrees that all information
disclosed to each other whether written or oral, relating to the other's
business activities, its customer names, addresses, all operating plans,
information relating to its existing services, new or envisioned products or
services and the development thereof, scientific, engineering, or technical
information relating to the others business, marketing or product promotional
material, including brochures, product literature, plan sheets, and any and all
reports generated to customers, with regard to customers, unpublished list of
names, and all information relating to order processing, pricing, cost and
quotations, and any and all information relating to relationships with
customers, is considered confidential information, and is proprietary to, and is
considered the invaluable trade secret of such party (collectively "Confidential
Information"). Any disclosure of any Confidential Information by any party
hereto, its employees, or representatives shall cause immediate, substantial,
and irreparable harm and loss to the other. Each party understands that the
other desires to keep such Confidential Information in the strictest confidence,
and that such party's agreement to do so is a continuing condition of the
receipt and possession of Confidential Information, and a material provision of
this agreement, and a condition that shall survive the termination of this
Agreement. Consequently, each party shall use Confidential Information for the
sole purpose of performing its obligations as provided herein.
Section 4.10 COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original and all of which shall constitute one and the
same Agreement.
Section 4.11 FURTHER ASSURANCES.
Each party hereto agrees to do all acts and things and to make, execute,
and deliver such written instruments as shall from time to time be reasonably
required to carry out the terms and provisions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above set forth.
SUSTAINABLE POWER CORP.
\s\ M. Xxxxxxx Xxxxxx
---------------------
By: M. Xxxxxxx Xxxxxx, President and Chief Executive Officer
AMECKS, INC.
\s\ Xxxxx X. Xxxxxxxx
---------------------
By: Xxxxx X. Xxxxxxxx, President
The undersigned has reviewed the foregoing agreement and agrees with the
conditions, terms and other provisions contained therein.
L SOLE' , S.A.
\s\ Xxxxxx Sole'
----------------
By: Xxxxxx Sole'
