STRATEGIC ALLIANCE AGREEMENT
EXHIBIT
10.1
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INDICATES
CONFIDENTIAL PORTION HAS BEEN
OMITTED
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PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT
AND
HAS BEEN FILED SEPARATELY WITH THE COMMISSION
THIS
STRATEGIC ALLIANCE AGREEMENT is entered into and effective as of January
11,
2006 by and between Cummins West, Inc., a California corporation (“CWI”) and
Chapeau, Inc. d/b/a BluePoint Energy, Inc., a Utah corporation (“BluePoint”).
CWI and BluePoint are sometimes referred to herein, individually, as a “Party”
and, together, as the “Parties.”
RECITALS
WHEREAS,
CWI has superior expertise in marketing, selling, distributing, servicing
and
maintaining Cummins, Inc. power generation and related products (“Cummins
Products”); and
WHEREAS,
BluePoint has superior expertise in developing, financing, packaging, and
engineering cogeneration and tri-generation products and projects; and
WHEREAS,
BluePoint has developed the Lean-One® CHP Module line of products (the “System”)
and has expertise in integrating and packaging the System; and
WHEREAS,
CWI desires for BluePoint to integrate, manufacture and supply Systems
integrating Cummins Products, both diesel and natural gas prime mover-based,
supplied by CWI to be commercially branded as or similar to Lean-One®
CHP Module - Powered by Cummins Inside;
and
WHEREAS,
CWI desires to sell, service and maintain Systems; and
WHEREAS,
CWI and BluePoint desire to develop cogeneration and tri-generation projects
utilizing BluePoint’s build, own, operate, and maintain (“BOOM”) discount energy
purchase agreements (“DEP”) throughout [*]
areas
encompassed within CWI service territory as defined between CWI and Cummins,
Inc. for cogeneration and tri-generation purposes; and
WHEREAS,
CWI and BluePoint desire to have CWI derive a [*]
benefit
in connection with projects that CWI has substantially developed the customer
lead resulting in a completed project [*];
and
WHEREAS,
CWI desires to be BluePoint’s service and maintenance provider for Systems;
and
WHEREAS,
BluePoint desires to have CWI as the service and maintenance provider for
Systems contemplated within the scope of this alliance; and
WHEREAS,
CWI and BluePoint desire to share CWI’s service and maintenance expertise
servicing Systems integrated with Cummins Products with other Cummins Inc.
service and maintenance dealers outside of CWI territory worldwide;
and
WHEREAS,
CWI and BluePoint desire to develop, manufacture and sell Systems integrating
Cummins Products; and
WHEREAS,
the Parties will mutually benefit from this Agreement due to the additional
credibility and revenues achieved; and
WHEREAS,
CWI and BluePoint desire to enter into this Agreement to formalize a strategic
alliance relationship;
NOW,
THEREFORE, in consideration of the obligations herein made and undertaken,
the
Parties, intending to be legally bound, covenant and agree as
follows:
1. CWI
Obligations.
CWI
shall have the following obligations under this Agreement:
(a) Marketing
Activities.
CWI
will assist in activities to jointly market the System and related cogeneration
products, services and support, with initial emphasis in the hospitality,
healthcare, food processing and manufacturing industry sectors [*].
(b) Integration
Assistance.
CWI
will provide to BluePoint [*]
assistance
related to integration of Cummins Products into the System.
(c) [*]
Customer Status.
CWI
will designate BluePoint as [*]
similar
status and provide commensurate [*]
terms
and conditions.
(d) Technical
Training.
CWI
will provide technical training to BluePoint personnel with respect to Cummins
Products.
(e) Service
and Maintenance.
CWI
will serve as BluePoint service provider for each System integrated with
a
Cummins Product prime mover [*],
subject
to terms and conditions to be mutually agreed. [*]
(f)
Supply
Cummins Products to BluePoint [*].
CWI
will use its best efforts to provide to BluePoint on terms and conditions
to be
mutually agreed, certain Cummins Products [*].
(g) Key
CWI Personnel.
Key CWI
personnel will initially include [*]
and
[*]
or
their
designees and other senior management personnel as required.
2. BluePoint
Obligations.
BluePoint shall have the following obligations under this
Agreement:
(a) Marketing
Activities.
BluePoint will assist in activities to jointly market the System and related
cogeneration products, services and support. In certain circumstances, BluePoint
will prepare economic analyses and proposals in connection with opportunities
utilizing BluePoint’s BOOM DEP model for those customers that prefer not to
undertake the capital investment to build, own, operate and maintain the
System.
(b) Financing
Activities.
BluePoint will use its best commercially reasonable efforts to promote and
enable the BluePoint BOOM DEP model for those customers referred to BluePoint
by
CWI that prefer not to undertake the capital investment to build, own, operate
and maintain the System.
(c) [*]
(d) Manufacturing.
BluePoint will assemble, manufacture, package and deliver Systems incorporating
Cummins Products.
(e) Technical
Training.
BluePoint will provide technical training and marketing materials with respect
to the Systems to CWI personnel.
(f)
Evaluate
Cummins Products.
BluePoint will assess Cummins Products for potential integration in Systems,
[*]
(g) Key
BluePoint Personnel.
Key
BluePoint personnel will initially include Xxx X. Xxxxxxxx, Chief Executive
Officer of BluePoint and Xxxx X. Xxxxxxxx, Executive Vice President or their
designees and other senior management personnel as required.
3. Contact
Persons.
Each of
CWI and BluePoint shall designate a contact person for purposes of monitoring
performance of each Party under this Agreement. Initially, the contact person
for CWI will be [*]
and the
contact person for BluePoint will be Xxx X. Xxxxxxxx.
4. Initial
Installation.
CWI and
BluePoint agree that they shall use their best efforts to generate and secure
one or more BOOM DEP agreements on or before January 31, 2006; [*]
5. Mutually
Beneficial Alliance.
[*]
6. Relationship
of the Parties.
The
relationship of CWI and BluePoint established by this Agreement is solely
that
of independent contractors, and nothing in this Agreement shall be construed
to
(i) give either party the power to direct and control the day-to-day activities
of the other or (ii) constitute the parties as joint venturers, co-owners
or
otherwise as participants in a joint or common undertaking or (iii) make
either
party an agent of the other for any purpose whatsoever.
7. Protection
of Confidential Information.
The
Parties acknowledge and agree that they are bound and shall continue to be
bound
by the terms of that certain Nondisclosure Agreement dated concurrent with
this
Agreement executed by CWI and BluePoint and that such Nondisclosure Agreement
shall continue in full force and effect for so long as this Agreement has
not
been terminated.
8. Ownership
of Intellectual Property.
(a) Ownership
of BluePoint System.
All
right, title, and interest in and to any designs, plans, reports,
specifications, drawings, schematics, prototypes, models, inventions, trade
secrets, technology, know-how, other intellectual property and all other
information and items disclosed to CWI by BluePoint pursuant to this Agreement
are and shall remain the exclusive property of BluePoint and no license of
technology or intellectual property by BluePoint to CWI is granted or implied
by
operation of this Agreement.
(b) Improvements
to the BluePoint System.
CWI
agrees that all designs, plans, reports, specifications, drawings, schematics,
prototypes, models, inventions, work in progress and all other information
and
items made during the course of this Agreement arising solely from the services
performed pursuant to this Agreement and incorporated in the BluePoint System
(hereinafter referred to as “New Developments”) shall be and are assigned to
BluePoint as its sole and exclusive property. [*]
Nothing
in this Agreement is intended to create or constitute a sale or transfer
of any
portion of new developments to CWI.
(c) Other
CWI Intellectual Property.
CWI
shall retain ownership rights to any and all intellectual property created
by
CWI prior to the date of this Agreement or created by CWI outside the scope
of
this Agreement (collectively referred to as “CWI Other Works”). Portions of CWI
Other Works may be incorporated in the New Developments,
[*].
Nothing
in this Agreement is intended to create or constitute a sale or transfer
of any
portion of CWI Other Works to BluePoint.
(d) Records
and Reports.
CWI
agrees to keep and maintain adequate and current records of all New Developments
made by it (in the form of notes, sketches, drawings or other means as may
be
specified by BluePoint) for a period of five years after termination of this
Agreement which records shall be available to and remain the sole property
of
BluePoint at all times.
(e) CWI
Assistance.
CWI
further agrees as to all New Developments to assist BluePoint in every proper
way (but at BluePoint’s expense) to obtain and from time to time enforce
patents, copyrights, mask works and other rights and protections relating
to New
Developments in any and all countries, and to that end CWI will execute all
documents for use in applying for and obtaining such patents, copyrights,
mask
works and other rights and protections on and enforcing New Developments
as
BluePoint may request, together with any assignments thereof to BluePoint
or
persons designated by it. CWI’ obligation to assist BluePoint in obtaining and
enforcing patents, copyrights, mask works and other rights and protections
relating to New Developments in any and all countries shall continue beyond
the
termination of this Agreement.
9. Term
and Termination.
(a) This
Agreement will commence on the date first written above and will continue
until
the earlier of (i) January 11, 2009, provided that this Agreement will
automatically renew for successive one (1) year terms thereafter, unless
one
Party delivers a notice of termination to the other Party not later than
thirty
(30) days prior to such termination date or yearly anniversary thereafter,
or
(ii) termination as provided below.
(b) Either
Party may terminate this Agreement upon thirty (30) days written notice to
the
other Party if such other Party refuses to, is unable to perform or is in
breach
of any material provision of this Agreement.
(c) Upon
any
such termination of this Agreement all rights and duties of the Parties toward
each other shall cease except: Section 7 (Protection of Confidential
Information), Section 8 (Ownership of Intellectual Property), Section 10
(Returning Documents) and Section 11 (Indemnification) shall survive termination
of this Agreement.
10.
Returning
Documents.
Each
Party agrees that, upon termination of this Agreement, it shall deliver to
the
other Party (and will not keep in its possession or deliver to anyone else)
any
and all devices, records, data, notes, reports, proposals, lists,
correspondence, specifications, drawings, blueprints, sketches, materials,
equipment, other documents or property, or reproductions of any of the
aforementioned items belonging to such other Party, its successors or assigns.
11.
Indemnification.
Each
Party (the “Indemnifying Party”) shall indemnify, defend and hold harmless, the
other Party and its affiliates, officers, directors, employees and shareholders
(collectively, the “Indemnified Party”) against and in respect of any and all
damages, losses, claims, penalties, liabilities, costs and expenses (including,
without limitation, all fines, interest, reasonable legal fees and expenses
and
amounts paid in settlement), that arise from or relate or are attributable
to
any breach of any representation, warranty, covenant or agreement on the
part of
the Indemnifying Party in this Agreement. Promptly after the assertion of
any
claim by a third party or occurrence of any event which may give rise to
a claim
for indemnification from the Indemnifying Party, the Indemnified Party shall
notify the Indemnifying Party in writing of such claim. The Indemnifying
Party
shall have the right to assume the control and defense of any such action,
provided,
that
the Indemnified Party may participate in the defense of such action subject
to
the Indemnifying Party’s reasonable direction and at the Indemnified Party’s
sole cost and expense. The Party contesting any such claim shall be furnished
all reasonable assistance in connection therewith by the other Party and
be
given full access to all information relevant thereto. In no event shall
any
such claim be settled without the Indemnifying Party’s consent.
12.
Representations
and Warranties.
Each
Party hereby represents and warrants to the other Party as follows:
(a) Corporate
Status.
Such
Party is a corporation duly incorporated, validly existing, and in good standing
under the laws of its state of incorporation, and has all requisite corporate
power and authority to own, operate and lease its properties and to carry
on its
business as and in the places where such properties are now owned, operated
and
leased or such business is now being conducted.
(b) Authorization;
Validity.
When
executed and delivered by such Party, this Agreement will constitute the
valid
and legally binding obligation of such Party, enforceable against such Party
in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization and moratorium laws and other laws of general application
affecting the enforcement of creditors' rights generally and general principles
of equity.
(c) No
Conflict.
The
execution, delivery and performance of this Agreement do not and will not
violate any material agreements to which such Party is a party.
(d) Approvals
and Consents.
No
action, approval, consent or authorization, including, but not limited to,
any
action, approval, consent or authorization by any governmental or
quasi-governmental board, agency, commission, bureau, or instrumentality
is
necessary or required in order to constitute this Agreement as the valid,
binding and enforceable obligation of such Party in accordance with its
terms.
13.
Miscellaneous.
(a) Entire
Agreement.
This
Agreement, together with the exhibits attached hereto, constitutes the entire
agreement between the Parties relating to the subject matter hereof and
supersedes all prior, written or oral negotiations, representations or
agreements. No modification of this Agreement shall be binding on either
Party
unless it is in writing and signed by both Parties.
(b) Severability.
The
provisions of this Agreement are severable, and if one or more provisions
are
judicially determined to be illegal or otherwise unenforceable, in whole
or in
part, the remaining provisions or portions of this Agreement shall nevertheless
be binding on and enforceable by and between the Parties hereto.
(c) Assignment.
This
Agreement shall inure to the benefit of and be binding upon the successors
and
assigns of the Parties hereto.
(d) Governing
Law.
The
rights and obligations of the Parties to this Agreement shall be governed
by and
construed in accordance with the laws of the State of California, without
regard
to its conflict of laws, rules or provisions.
(e) Heading.
Section
headings are for convenience of reference only and shall not be considered
in
the interpretation of this Agreement.
(f) Unavoidable
Delays.
Either
Party shall be excused for any delays or defaults in the performance of this
Agreement (except the payment of amounts due and payable hereunder) unavoidably
caused by the act of the other, the act of any agent of the other, the act
of
any governmental authority, acts of God, the elements, war, litigation, strikes,
walkouts, or any other cause beyond its reasonable control. Each Party shall
use
all reasonable diligence to avoid any such delay or default and to resume
performance under this Agreement as soon as practicable after such delay
or
default.
(g) Notices.
All
notices and other communications required or permitted hereunder shall be
in
writing and shall be deemed effectively given upon personal delivery or on
the
day sent by facsimile transmission if a true and correct copy is sent the
same
day by first class mail, postage prepaid, or by dispatch by an internationally
recognized express courier service, and in each case addressed as
follows:
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If
to BluePoint:
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Chapeau,
Inc.
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d/b/a
BluePoint Energy, Inc.
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0000
Xxxxxxx Xxxx, Xxxxx 0
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Xx
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
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If
to CWI:
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Cummins
West, Inc.
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[*]
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(h) Counterparts.
This
Agreement may be executed in one or more counterparts, and when so executed
each
counterpart shall be deemed to be an original, and said counterparts together
shall constitute one and the same instrument.
IN
WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date
first above written.
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CUMMINS
WEST, INC.
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By:
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/s/
[*]
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Name:
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[*]
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Title:
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[*]
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CHAPEAU,
INC.
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D/B/A
BLUEPOINT ENERGY, INC.
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By:
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/s/
Xxx X.
Xxxxxxxx
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Name:
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Xxx
X. Xxxxxxxx
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Title:
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Chief
Executive Officer
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