EXHIBIT 19
[*] INDICATES CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT AND HAS BEEN FILED SEPARATELY WITH
THE COMMISSION
STRATEGIC ALLIANCE AGREEMENT
THIS STRATEGIC ALLIANCE AGREEMENT is entered into and effective
as of February 7, 2003 by and between Chapeau, Inc. d/b/a BluePoint
Energy, Inc., a Utah corporation ("BluePoint") and URS Corporation, a
Nevada corporation ("URS"). BluePoint and URS are sometimes referred
to herein, individually, as a "Party" and, together, as the "Parties."
RECITALS
WHEREAS, BluePoint has developed the BluePoint Lean-One
Cogeneration System (the "System").
WHEREAS, URS has significant expertise in engineering,
environmental permitting studies and construction management.
WHEREAS, there is recognition that there is a need for an
institutional approach to distributed generation system installations.
WHEREAS, URS will benefit from this Agreement due to the
increased engineering and environmental work opportunities, new
opportunities to serve existing URS clients, opportunities to develop
new client relationships and additional experience in the under 5 Mw
cogeneration market resulting from or growing out of this Agreement.
WHEREAS, BluePoint will benefit from this Agreement due to the
additional credibility gained for BluePoint's products, access to URS
technical expertise, access to URS' global network and significant
marketing support resulting from or growing out of this Agreement.
WHEREAS, BluePoint and URS desire to enter into this Agreement to
(i) formalize a management structure for the strategic alliance, (ii)
establish guiding principles and objectives for marketing the System,
(iii) define the roles and responsibilities of BluePoint and URS and
(iv) establish performance metrics to enable the Parties to monitor
progress under this Agreement.
NOW, THEREFORE, in consideration of the obligations herein made
and undertaken, the Parties, intending to be legally bound, covenant
and agree as follows:
1. URS Obligations. URS shall have the following obligations
under this Agreement:
(a) Engineering, Design and Management Assistance. URS
will provide engineering design, construction management and
permitting services relating to installations of the System.
(b) [*] Engineering Staff. In return for URS being a [*]
provider of engineering design, construction management and permitting
services relating to BluePoint product installations, URS will
establish [*] engineering and permitting capability in connection with
this Agreement based in the URS [*] office. Resources from other URS
offices will be used as appropriate and URS will employ local staff
for each System installation to perform tasks that can best provided
locally. This approach will keep costs lower and utilize local
knowledge of regulations, etc. It is expected this [*] engineering
group will take advantage of its experience by implementing a
continuous improvement process. This will enable the Parties to offer
more competitive pricing and provide exceptional consistency and
quality of service delivery.
(c) Marketing Assistance. URS will assist BluePoint in
marketing the System and other BluePoint cogeneration products
primarily by [*]. URS may use other techniques as well, such as [*].
URS will provide credibility to BluePoint and its products through the
joint marketing initiatives and other activities conducted pursuant to
this Agreement.
(d) Key URS Personnel. Key URS personnel will initially
include [*].
2. BluePoint Obligations. BluePoint shall have the
following obligations under this Agreement:
(a) Marketing Activities. BluePoint will perform marketing
services, economic analysis of opportunities, prepare proposals,
deliver product, and arrange for operation and maintenance of
installed Systems. In selected situations, Blue Point will also
arrange for financing.
(b) Financing Activities. BluePoint will use its best
commercially reasonable efforts to arrange for competitive financing
options for those customers referred to BluePoint by URS that prefer
to have a third party owner/operator own and operate the System. In
addition, BluePoint or a subsidiary may also offer this option.
(c) Technical Training. BluePoint will provide technical
training and marketing materials to URS personnel.
(d) Key BluePoint Personnel. Key BluePoint personnel will
initially include Xxx X. Xxxxxxxx, Chief Executive Officer of
BluePoint, Xxxxxx X. Xxxx and other senior management personnel as
required, such as BluePoint's quality control manager, etc.
3. Contact Persons. Each of URS and BluePoint shall designate
a contact person for purposes of monitoring performance of each Party
under this Agreement. Initially, the contact person for BluePoint
will be Xxx X. Xxxxxxxx and the contact person for URS will be [*].
4. Early Installation. BluePoint and URS agree that they shall
use their best efforts to complete at least one installation of a
System on or before May 31, 2003.
5. Strategic Planning Session. No later than February 28, 2003
BluePoint and URS shall conduct a half-day strategic planning session
with key personnel from both companies in attendance to develop an
action plan for implementing the goals of this Agreement.
6. [*] Alliance. [*] URS is not precluded from doing business
with other firms who sell cogeneration equipment.
7. Nonexclusive Arrangement for Engineering Services.
BluePoint and URS acknowledge and agree that while URS will be
BluePoint's preferred choice for engineering, construction and
management services in connection with the installation of the System
and any other cogeneration projects developed by BluePoint, this is
not an exclusive arrangement and BluePoint, in its sole discretion,
may select other entities to provide these services.
8. Relationship of the Parties. The relationship of BluePoint
and URS 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.
9. Fees, Expenses, and Payment.
(a) Fees. The Parties acknowledge that URS will be
compensated by its customer at agreed upon rates for performing
engineering, construction management and permitting services for each
installation.
(b) [*]
(c) [*]
10. 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 as of
January 22, 2003 executed by BluePoint and URS and that such
Nondisclosure Agreement shall continue in full force and effect for so
long as this Agreement has not been terminated.
11. 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 URS 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 URS
is granted or implied by operation of this Agreement.
(b) Improvements to the BluePoint System. URS 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 URS.
(c) Other URS Intellectual Property. URS shall retain
ownership rights to any and all intellectual property created by URS
prior to the date of this Agreement or created by URS outside the
scope of this Agreement (collectively referred to as "URS Other
Works"). Portions of URS 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 URS Other Works to
BluePoint.
(d) Records and Reports. URS 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) URS Assistance. URS 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 URS 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.
URS' 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.
12. Milestones. Both Parties agree to allow a six-month "grace
period" after execution of this Agreement to define specific
performance milestones ("Milestones") for URS. Prior to or upon
expiration of the six-month grace period, the Parties shall agree upon
Milestones which shall be reflected as an exhibit to this Agreement.
Progress towards meeting the Milestones shall be reviewed every six
months thereafter.
13. Term and Termination.
(a) This Agreement will commence on the date first written
above and will continue until the earlier of (i) February 7, 2008,
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 10 (Protection of Confidential Information), Section 11
(Ownership of Intellectual Property), Section 14 (Returning Documents)
and Section 15 (Indemnification) shall survive termination of this
Agreement.
14. 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.
15. 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.
16. 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 does 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.
17. 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:
If to BluePoint: Chapeau, Inc.
d/b/a BluePoint Energy Systems, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxx Xxx, Xxxxxxxxxx 00000
If to URS: URS Corporation
[*]
[*]
(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.
CHAPEAU, INC.
D/B/A BLUEPOINT ENERGY, INC.
By: /s/ Xxx X. Xxxxxxxx
------------------------------
Name: Xxx X. Xxxxxxxx
Title: Chief Executive Officer
URS CORPORATION
By: [*]_______________________
Name: [*]
Title: [*]
