OPEN ENERGY DISTRIBUTOR AGREEMENT
Exhibit 10.1
*** Confidential treatment has been requested with respect to certain portions of this exhibit. Omitted portions have been filed separately with the Securities and Exchange Commission.
OPEN ENERGY
THIS AGREEMENT is made as of November 16, 2007, by and among Open Energy Corporation, whose offices are located at 514 Xxx xx xx Xxxxx, Xxxxx 000, Xxxxxx Xxxxx, Xxxxxxxxxx 00000 (the “Company”), Tri-Valley Supply, Inc., a California corporation doing business as Tri-Valley Wholesale, having its principal place of business at 0000 Xxxxxxxxxx Xxxxx, Xxxxxx, XX, 00000 (the “Distributor”) and, solely for purposes of its agreements set forth in Section 8(c) hereof, Xxxxxxxx-Xxxx, Inc., having its principal place of business at 0000 Xxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxx 00000, and Xxxxxxxx-Xxxx’x subsidiaries (collectively referred to herein as “Petersendean”). Company offers building-integrated photovoltaic (PV) roofing materials for commercial, industrial, and residential customers. Marketed under the trade name SolarSave(R), the product line includes roofing membranes, roofing tiles, custom architectural PV glass, and balance of systems equipment. This Agreement is primarily concerned with building-integrated PV roofing materials and balance of system equipment (hereinafter “Open Energy Products”). Distributor is a supplier of products to Petersendean. It is the intent of the parties to this Agreement to provide Distributor and Petersendean with a ready, reliable supply of Open Energy Products and to thereby create a demand for such products manufactured by Company.
1. Appointment of Distributor and Territory.
(a) Appointment of Distributor and Location(s)/Territory. Upon the terms and conditions of this Agreement, except as set forth in section 1(b) herein, Company hereby appoints Distributor as an authorized distributor of Open Energy Products for sale to Petersendean, but not for resale to others or by Petersendean. Distributor hereby accepts such appointment, with respect to Distributor’s location(s) and within the territory (“Territory”) set forth in Schedule A, attached hereto and incorporated herein. In such capacity, Distributor will purchase Open Energy Products from Company and will devote its continuing best efforts to the promotion and sale of such Open Energy Products in the Territory.
(b) Reservation of Rights by Company. Company reserves the right to take the following actions within Distributor’s Territory: (i) to sell, on a direct basis, to those customers or specific accounts indentified on Schedule B, which is attached hereto and incorporated herein.
(c) Addition, Discontinuance and Modification of Open Energy Products. Company shall have the right at any time to introduce new Open Energy Products, discontinue the manufacture or sale of any of its Open Energy Products, and make changes in the design or construction of any of such Open Energy Products without incurring any obligation or liability whatsoever. Company will give Distributor sixty (60) days prior notice of any discontinuance of an Open Energy Products.
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(c) Delivery. All products shall be shipped in truckload or greater lots to California destinations FOB destination. Shipments of less than a truckload will be subject to freight charges. On all shipments outside the state of California, title to products and all risk of loss, damage or destruction passes to Distributor at Open Energy’s point of shipment. The shipment destination must be within Distributor’s Territory. Company will not ship Open Energy Products outside of Distributor’s Territory unless Company elects to do so in certain limited situations.
(e) Warranty. Company shall supply a warranty with all Open Energy Products that complies with California law or the law of the Territory where the Open Energy Products is installed.
3. Open Energy Trademarks. Distributor shall have the right to represent that it is “an Authorized Distributor of Open Energy Products.” Any other use by Distributor of the trademark “Open Energy” or any other trademark owned by Company must be in a form and format approved by Company in advance of such usage.
(1) Indicates that confidential treatment has been sought for this information.
(2) Indicates that confidential treatment has been sought for this information.
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Energy Products, including the provision of reasonable quantities of support materials such as product information and sales promotional literature in reproducible digital form.
(b) Storage of Inventory. Distributor agrees to store Open Energy Products in accordance with Company’s storage guidelines.
(c) Inventory Levels. Distributor agrees to maintain an inventory equal to at least [***](3) of the then current Forecast to adequately serve the needs of its customers.
6. Company’s Responsibilities
(3) Indicates that confidential treatment has been sought for this information.
(4) Indicates that confidential treatment has been sought for this information.
(5) Indicates that confidential treatment has been sought for this information.
(6) Indicates that confidential treatment has been sought for this information.
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(a) Promotion and Advertising. Company, at its own cost and expense, shall cooperate with and assist Distributor in promoting the sale of Open Energy Products. The parties agree that the form, content and design of any and all advertisements, public relations or promotional materials featuring the other party shall be subject to such party’s prior final approval in writing.
(b) Sales Training. Company shall provide Distributor’s sales organization with all mutually agreeable product sales training, support and assistance.
(c) Literature. Company shall furnish Distributor with a reasonable supply of product information, including sales literature, specification sheets, catalogues, promotional plans and such other similar information (“Literature”) as Company may prepare for nationwide distribution in reproducible digital form. Company shall also provide Distributor with such training, technical and sales support and assistance (including sales forecasting and planning assistance) as may be reasonably necessary to assist Distributor in effectively carrying out its activities under this Agreement.
(d) Appropriate Use of Open Energy Products. Company shall provide Distributor (and its designees) training as to the proper use, application and installation of Open Energy Products.
(e) Production Rates. Company agrees to maintain a production capacity of Open Energy Products sufficient to deliver to Distributor at least [***](7) of Distributor’s Forecast, on a monthly basis.
(f) Product Supply. Company shall use its best efforts to maintain sufficient quantities of Open Energy Products warehoused in the California so that it can timely fill all orders from Distributor. Company shall expand its warehouse facilities into other states in the Territory when the volume of Distributor’s orders of Open Energy Products makes such expansion commercially reasonable.
(g) On all orders that specify a delivery date that is at least thirty (30) days after Company’s receipt of the order (“Conforming Orders”), no later than seventy-two (72) hours after Company receives such order from Distributor, Company shall notify Distributor whether Company will accept the order, including confirming that Company shall meet the requirements of quantity, location and timing for delivery stated in the order.
(h) For all accepted Conforming Orders, Company shall ship the Open Energy Products for receipt by Distributor on the delivery date specified in the order. In the event Company fails to ship the Open Energy Products so that they will be received by Distributor no later than fifteen (15) days after the delivery date specified on the order (“Timely Delivery”), then Distributor may cancel the order by giving notice to Company using any method permitted in this Agreement for placing an order.
(7) Indicates that confidential treatment has been sought for this information.
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(i) Compliance With Law. Company shall comply with all Federal, state and local laws, ordinances and regulations applicable to Company’s business.
(a) Except for the companies listed on Schedule B to this Agreement, during the term of this Agreement, Company shall not sell its integrated PV tiles to any other person or entity in the residential or commercial roofing or solar products supply and installation business in the Territory.
(a) From the effective date of this Agreement through March 31, 2008, and in each calendar quarter thereafter, subject to the adjustment process described in section 8 (b), Distributor shall order a minimum of [***](8) “[***](9) photovoltaic solar systems comprised of Integrated PV tiles and balance of system equipment”, or the equivalent (hereinafter “Systems”) (the “Minimum Order”.)
(b) In each of the following calendar quarters, if during the immediately preceding period Distributor has transmitted and Company has not accepted Conforming Orders for at least [***](10) Systems and Timely Delivered such Systems, the Minimum Order requirement for the current quarter shall be computed by subtracting from [***](11) the number of Systems that were included on Conforming Orders that Company (i) did not accept, and (ii) accepted but Company did not Timely Deliver. The result of the computation will be the Revised Minimum Order for the calendar quarter. A Revised Minimum Order will be calculated for each calendar quarter. For example, if Distributor submits Conforming Orders for [***](12) Systems for delivery in the first quarter, and Company accepts orders for only [***](13) of the Systems but Timely Delivers only [***](14) Systems, then the Revised Minimum Order for the following quarter will be reduced by [***](15) Systems to [***](16) Systems.
(i) In no event will Distributor be required to order more than [***](17) Systems in any quarter.
(c) During the term of this Agreement, Petersendean agrees to purchase from Distributor all Open Energy Products Distributor purchases from Company.
(d) In the event Distributor fails to place the Minimum Order or the Revised Minimum Order and the cause is not beyond the reasonable control of Distributor, Company’s sole remedy shall be termination of this Agreement. In no event shall Distributor be liable for lost profits, loss of use, loss of opportunity, incidental, consequential or other damages arising out of Distributor’s failure to order Open Energy Products.
(8) Indicates that confidential treatment has been sought for this information.
(9) Indicates that confidential treatment has been sought for this information.
(10) Indicates that confidential treatment has been sought for this information.
(11) Indicates that confidential treatment has been sought for this information.
(12) Indicates that confidential treatment has been sought for this information.
(13) Indicates that confidential treatment has been sought for this information.
(14) Indicates that confidential treatment has been sought for this information.
(15) Indicates that confidential treatment has been sought for this information.
(16) Indicates that confidential treatment has been sought for this information.
(17) Indicates that confidential treatment has been sought for this information.
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(i) Should Distributor fail to place the Minimum Order or the Revised Minimum Order, Company hereby fully and finally releases and forever discharges Distributor and Petersendean, together with all of their respective directors, officers, employees and agents, from all claims, demands, liability, damages, causes of action, costs and expenses of every kind whatsoever, past, present or future, whether known or unknown, arising out of or relating to Distributor’s Minimum Order. With respect to the subject matter of this release, Company expressly and willingly waives and relinquishes all rights and benefits afforded by Section 1542 of the California Civil Code, which provides as follows:
A general release does not extend to claims which a creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the Debtor.
Company acknowledges that by executing this Agreement it understands and acknowledges the significance and consequences of this specific waiver of California Civil Code Section 1542, and that it hereby assumes full responsibility for any injuries, damages, losses, or liability that it may hereafter incur relating to the subject matter of this release.
11. Relationship of Parties: Indemnification of Company.
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(d) No Authority to Bind Distributor. Nothing in this Agreement or otherwise shall be construed as constituting an appointment of Company as an agent, legal representative, joint venturer, partner, employee or servant of Distributor for any purpose whatsoever. Company is not authorized to transact business, incur obligations, sell goods, solicit orders, or assign or create any obligation of any kind, express or implied, on behalf of Distributor, or to bind it in any way whatsoever, or to make any contract, promise, warranty or representation on Distributor’s behalf with respect to products sold by Distributor or any other matter, or to accept any service of process upon Distributor or receive any notice of any nature whatsoever on Distributor’s behalf.
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property rights of third parties. The terms of this indemnity shall survive the termination of this Agreement.
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(b) Complete Agreement. This Agreement (including the Schedules hereto and all documents and papers delivered pursuant hereto and any written amendments hereof executed by the parties to this Agreement) and the Confidentiality Agreement previously executed among the parties, the terms of which shall survive the execution and delivery of this Agreement, constitute the entire agreement, and supersedes all prior agreements and understandings, oral and written, among the parties to this Agreement with respect to the subject matter hereof. This Agreement may be amended only by a written amendment executed by all of the parties hereto. Only the terms of this Distributor Agreement shall govern sales of Open Energy Products to Distributor.
(c) Applicable Law; Jurisdiction and Venue. This Agreement shall be construed under, and governed by, the laws of the state of California. The parties agree that jurisdiction and venue for any legal proceedings arising from or in any way connected to this Agreement will lie in the courts of the State of California, and both parties hereby submit and consent to the jurisdiction and venue of said courts.
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(g) Arbitration. Any controversy or claim arising out of or relating to this Agreement or a breach thereof, shall be settled by arbitration in Alameda County, California, or such other location as agreed to by the parties, in accordance with the rules of the American Arbitration Association, of such other dispute resolution service as agreed to by the parties, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The prevailing party in any legal proceeding including arbitration arising out of this Agreement shall be entitled to recover from the other party all costs and expenses of such proceeding, including reasonable attorneys’ fees.
(h) Post Termination. Notwithstanding any termination, all provisions of this Agreement dealing explicitly with post-termination matters shall survive
Open Energy Corporation |
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Tri-Valley Supply, Inc. |
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/s/ Xxxxx X. Field |
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/s/ Xxxxx Xxx Xxxx |
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President |
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Chief Operations Officer |
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Xxxxxxxx-Xxxx, Inc. |
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/s/ Xxxxx Xxx Xxxx |
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Its: |
Chief Operations Officer |
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SCHEDULE A
Distributor Location(s) and Territory
Distributor Location(s)
CALIFORNIA |
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0000 Xxxxxxxxxx Xxxxx Xxxxxx, XX 00000 510-494-1115 |
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0000 Xxxxxxx Xxx |
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00000 Xxxxx Xxxxxx, Xxxxx 000 |
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00000 Xxxxxx Xxxxxxxx Xxxx |
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0000 Xxxxxxxxx Xxxxxx |
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ARIZONA |
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000 X. 00xx Xxxxxx |
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NEVADA |
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0000 X. Xxxxxx Xxxx |
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TEXAS |
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0000 Xxxxxx Xxxxx Xxxxx |
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00000 Xxxxxxx |
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00000 Xxxxxx Xxxxx |
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FLORIDA |
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0000 XX Xxxxxx Xxxxxxx |
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0000 XX 00xx Xxxxxx, Xxx 9 |
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SCHEDULE A
(cont.)
The states of California, Nevada, Arizona, Florida, Texas and New Mexico.
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Company |
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Distributor |
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SCHEDULE B
Existing Customers /Accounts
Existing Customers / Accounts:
1. Eagle Building Products
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Distributor |
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