JOINT VENTURE AGREEMENT
Exhibit
10.5
This
Joint Venture Agreement (the "Agreement") is entered into this 20th day of
September 2009 by and
between Zero Emission People, LLC ("ZEP") and Sunbeam, LLC.
("Sunbeam")
WHEREAS,
ZEP is engaged in pursuing opportunities in wind energy development;
and
WHEREAS,
ZEP is in the process to merge with Wind Works Power Corp. with associated
development
financing capabilities ("ZEP/Wind Works"); and
WHEREAS,
SUNBEAM is in the developmental stages of six wind farms;
and
WHEREAS,
the parties wish to combine their unique skills and abilities pursuant to the
terms and conditions
of this Agreement
NOW
THEREFORE, in consideration for the mutual covenants contained herein and
other good and
valuable consideration it is agreed:
ARTICLE
1: JOINT VENTURE
The
parties hereto form this joint venture which will be identified as the Sunbeam
-ZEP/Wind Works
Joint Venture (the "Joint Venture"). Specifically, Sunbeam obtaines shares in
ZEP/Wind Works in exchange
for ZEP/Wind Works obtaining shares in the
Project companies that hold the assets of the wind farm projects.
(a) The
parties agree as follows:
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(i)
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SUNBEAM
herewith sells 50% of the projects to ZEP as set forth on Schedule A (the
"Projects").
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(ii)
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ZEP/Wind Works issues
to SUNBEAM, or its nominees, 9,800,000 shares of Wind Works common
stock (the "Shares"). The common stock will be issued pursuant to an
exemption from registration and will be subject to resale limitations as
prescribed by Rule 144 of the Securities Act of
1933.
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(iii)
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ZEP/Wind Works will be required
to fund all development costs, including the FIT
applications.
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(b) ZEP/Wind
Works's equity interest in the Project Companies can increase to up to 100%
by Wind
Works paying to SUNBEAM the fair market value of the increased interest in a
combination of stock
and cash, the exact terms of which will be subject to mutual agreement. If and
when ZEP/Wind
Works increases its stake to a 100% interest, SUNBEAM will sell its
outstanding equity
interest in the Project Companies to ZEP/Wind Works; and all expenses and
revenues shall be
allocated to ZEP/Wind Works.
ARTICLE
2: OTHER AND/OR COMPETING BUSINESSES
Except as
otherwise provided herein, nothing contained in this Agreement shall be deemed
to restrict in any way the freedom of either party or of any affiliate of either
party to conduct, independently of the Joint Venture, and whether or not in
competition with the Joint Venture, any business or activity whatever (other
than the business contemplated to be performed by the Joint Venture under and in
accordance with this Agreement) without any accountability to the Joint Venture
or to the other party.
ARTICLE
3: CONDUCT OF OPERATIONS
It is
hereby understood and agreed by and between all the parties that each one shall
devote its efforts to achieve and insure the successful purpose of the Joint
Development.
5.1 Each
party undertakes to keep strictly confidential any other party's proprietary
information that it may acquire or have acquired or be or have been informed of,
during the term of the present contract.
5.2 Each
party shall be under no obligation with respect to any information:
(a) Which
is at the time of disclosure, available to the general
public;
(b) Which
is disclosed to the recipient without any restriction on disclosure by a third
party who has the lawful right to disclose such information;
(c) Which
has been ordered by any court order or governmental authority or regulation in
compliance with the laws of the countries of anyone of the parties.
5.3 This
article 5 shall remain in full force for a period of two (2) years after the
termination of the present contract.
ARTICLE
5: TERM, DISSOLUTION, TERMINATION
(a) Term
The Joint
Venture shall continue for a term of 25 years or unless terminated in accordance
with the provisions of this article. No party shall have the right to and each
party agrees not to dissolve, terminate or liquidate, or to petition a court for
the dissolution, termination or liquidation of the Joint Venture, except as
provided in this Agreement.
(b) Events
of dissolution
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(i)
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The
Joint Venture shall dissolve:
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(A)
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Upon
the unanimous written agreement of the parties to dissolve the Joint
Venture,
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(B)
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Upon
the dissolution and/or bankruptcy of a
party;
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(C)
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Upon
the occurrence of any of the following: a party becomes insolvent or
generally fails to pay, or admits in writing its inability to pay, debts
as they become due; or a party applies for, consents to, or acquiesces in
the appointment
of, a trustee, receiver or other custodian for such party or any property
thereof, or makes a general assignment for the benefit of creditors; or in
the absence of such application, consent or acquiescence, a trustee,
receiver or other custodian is appointed for a party or for a substantial
part of its property and is not discharged within thirty (30) days; or any
bankruptcy, reorganization, debts arrangement, or other case or proceeding
under any bankruptcy or insolvency law, or any dissolution or liquidation
proceeding is commenced in respect of a party which is not dismissed
within 30 days.
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(ii)
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(c)
Continuing
Conduct of the Joint Venture
During
the pendency of any arbitration or request for arbitration or of the enforcement
of any claim against a party for a breach of or for default under the terms of
this Agreement, the business and affairs of the Joint Venture shall be conducted
so as to maintain and preserve the value of the Joint Venture as a going
concern.
During
any period of winding up, the business and affairs of the Joint Venture shall be
conducted so as to maintain and preserve the assets of the Joint Venture in a
manner consistent with the winding up of the affairs thereof. Each party will
indemnify the Joint Venture and the other party against any claim, loss or
damage to the Joint Venture or such other party which may result from the
party's breach of this section.
This
Joint Venture shall be construed and governed in accordance with the laws of the
province of Ontario, Canada. In the event of any litigation, the prevailing
party shall be entitled to recover all costs including attorneys fee.
Notwithstanding the foregoing, the parties shall use all efforts to settle all
disagreements and disputes which arise concerning, in connection with, or as a
result of, the performance of this Joint Venture agreement, by means of
negotiations.
ARTICLE
7: GENERAL
(a) Notices
All
notices, demands or requests required or permitted to be given pursuant to this
Agreement shall be in writing and shall be deemed to have been given when
delivered personally or when sent by registered or certified mail, with return
receipt requested to the party's then principal place of
business.
(b) Entire
Agreement
This
Agreement constitutes the entire agreement between the parties hereto relating
to the subject matter hereof and there are not other understandings,
representations or warranties, oral or written, relating to the subject matter
of this Agreement, which shall be deemed to exist or to bind any of the parties
hereto, their respective successors or assigns except as referred to
herein.
(c)
Further Assurances
Each
party shall execute such deeds, assignments, endorsements and other instruments
and evidences of transfer give such further assurances and perform such acts as
are or may become necessary or appropriate to effectuate and to carry out the
provisions of this Agreement.
All such
deeds, assignments, endorsements and other instruments and evidences of transfer
and all other acts of any kind which are to be as of the date of this Agreement
shall be delivered or taken as soon as possible following the date of this
Agreement.
(d)
Severability
If any
provisions of this Agreement or the application thereof to any person or
circumstances shall be invalid or unenforceable to any extent, the remainder of
the Agreement and the application of such provisions to other persons or
circumstances shall not be affected thereby and shall be enforced to the
greatest extent permitted by law.
(e)
Binding Agreement
This
Agreement shall inure to the benefit of and be binding upon the undersigned
PARTY and their respective successors an assigns.
(f) Headings
The
headings of articles and sections in this Agreement are for convenience only and
are not part of this Agreement.
IN WITNESS
WHEREOF, the parties have executed this agreement as of the day and year
first above written.
By: Zero
Emission People,
LLC By: Sunbeam,
LLC
/s/Xxxx
Xxxxxxxxx /s/ Xxxxxx
Xxxxxxxxx
Xxxx
Xxxxxxxxx, Managing
Member Xxxxxx
Xxxxxxxxx, Managing Member
Accepted:
/s/Xxxx
Xxxxxxxxx
Xxxx
Xxxxxxxx, CEO
SCHEDULE
A
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1.
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Settlers
Landing Wind Park: 50% interest in Project Company (option to increase to
100%), 10 MW near Pontypool;
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2.
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Zorra
Wind Park: 50% interest in Project Company (option to increase to 100%),
10 MW project north of Woodstock;
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3.
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Pleasant
Bay Wind Park: 50% interest in Project Company (option to increase to
100%), 20 MW project near Trenton;
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4.
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Polar
Bear Wind Park: 50% interest in Project Company (option to increase to
100%), 20 MW project in Ontario;
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5.
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Clean
Breeze Grafton Wind Park: 50% interest in Project Company (option to
increase to 100%), 10 MW project near Grafton;
and
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6.
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Whispering
Xxxxx Wind Park: 50% interest in Project Company (option to increase to
100%), 10 MW project east of
Milbrook
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