CONTRACT REVENUES AGREEMENT
Exhibit
10.33
This
Contract Revenues Agreement (this "Agreement") is entered into this
5th
day of
September, 2006 (the "Effective Date"), by and between SUNDANCE POWER,
LLC, a
Colorado limited liability company, 000 00xx Xxxxxx, Xxxxx X, Xxxxxx, Xxxxxxxx
00000 ("Sundance"); and SOLAR POWER, INC., a California corporation, 0000
Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxx Xxx, Xxxxxxxxxx 00000 ("Solar Power").
RECITALS
A. Sundance
and Xxxx Renewable Consulting, Inc. ("DRCI") entered into an agreement
in which
DRCI agreed to pay Sundance specified percentages of the total revenues
of
certain contracts developed by Sundance and installed by DRCI (the "Joint
Contracts"), according to a revenue sharing schedule (the "Revenue Sharing
Schedule"), in exchange for Sundance providing certain goods and services
(the
"Goods and Services") to DRCI and the Joint Contract customers.
B. Solar
Power acquired certain assets of DRCI, including the Joint Contracts.
C. Solar
Power and Sundance desire to enter into an agreement in which Solar Power
will
retain the revenues that would otherwise be paid to Sundance under the
Revenue
Sharing Schedule, and acquire the service xxxx of Sundance, in exchange
for cash
and stock payments to Sundance.
AGREEMENT
1. Initial
Payment by Solar Power.
On the
Effective Date of this Agreement, Solar Power will power will pay to Sundance
$75,000.00 in cash or certified funds, and will issue to Sundance common
stock
of Solar Power worth $75,000.00 at the current market price.
2. Subsequent
Payment by Solar Power.
Upon
the earlier of (a) the Completion (as defined below) of the Joint Contracts,
which contracts are listed in Exhibit
A attached
to this Agreement and incorporated herein by this reference; or (b) December
31,
2006, provided that Sundance has used reasonable efforts to provide the
Goods
and Services, which goods and services are listed in Exhibit
B attached
to this Agreement and incorporated herein by this reference, and notwithstanding
any termination of any of the Joint Contracts for any reason not within
the sole
control of Sundance, Solar Power will pay to Sundance $175,000.00 in cash
or
certified funds, and will issue to Sundance common stock of Solar Power
worth
$175,000.00 at the Market Price as of the date of Completion (as defined
below).
"Market Price" shall be defined as 1) the median between opening and closing
price on the effective date if the stock is trading on any exchange
at the
time of transfer; or 2) the most recent private transfer price if the stock
is
not yet traded on an exchange.
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3. Completion.
The
"Completion" of the Joint Contracts occurs when Solar Power has received
final
payment under the terms of each contract. Effective on the date of receipt
of
final payment for an individual Joint Contract, Solar Power will make a
payment
to Sundance that is proportional to the percentage of the specific Joint
Contract revenue compared to combined revenue of all Joint Contracts. Such
payment will consist of 50% cash or certified funds and 50% common stock
at the
Market Price.
4. Reduction
of Payment. If
payments to Solar Power under the terms of the Joint Contract(s) are reduced
because of reasons within the sole control of Sundance, the payment of
cash and
issuance of stock to Sundance under Section 2 above will be reduced by
the
following formula: The amount that the payments to Solar Power under a
Joint
Contract are reduced by reasons within the sole control of Sundance will
be
multiplied by the percentage of the total revenues of that Joint Contract
compared to the combined revenue of all Joint Contracts and Solar Power's
payment to Sundance will be reduced by that resulting amount, allocated
evenly
among cash and stock. Provided, however, that under no circumstances will
Sundance owe money to Solar Power. By way of example only, if Sundance
fails to
timely deliver a product under one of the Joint Contracts, and that failure
by
Sundance results in a penalty of a $1,000.00 reduction in the Joint Contract
price, and Joint Contract price is 55% of the combined revenue of all Joint
Contracts, Solar Power's total obligation to Sundance will be reduced by
$550.00, resulting in a reduction in cash of $225.00 and a reduction in
stock
valued at $225.00, at Market Price as specified above.
5. Obligations
of Sundance.
In
exchange for the payments from Solar Power as specified above, but subject
to
the condition subsequent that Solar Power pay to Sundance all of the
consideration specified in this Agreement (the "Consideration"), Sundance
does
all of the following:
a. Relinquishes
its right to obtain any Future Payment constituting a share of the revenues
of
any Joint Contract or other Solar Power Contracts. "Future Payment" shall
mean
any payment to Sundance by a customer, including DRCI, that results from
a
Sundance invoice dated after July 31, 2006.
b. Relinquishes
its right to obtain any Future Payment from the sale or installation of
solar
electric power system Goods and Services.
c. Transfers
to Solar Power all of its rights to the service xxxx of Sundance. The parties
acknowledge and agree that Sundance will retain the right to use its current
entity name, Sundance Power, LLC, subject to its obligation to dissolve,
as
specified below.
d. Agrees
that upon its receipt of all the Consideration, and provided that Solar
Power is
not otherwise in breach of this Agreement, it will cause its Manager to
begin,
and thereafter diligently pursue, the process of distributing its assets
to its
Members and winding up the affairs of the company; and thereafter, it will
dissolve.
6. Default
by Solar Power. In
addition to any other rights available to Sundance under this Agreement
and
applicable law, if Solar Power breaches any of the terms of this Agreement,
and
does not cure the breach within 10 days after written notice from Sundance
specifying the breach, (i) Solar Power's rights to the service xxxx of
Sundance
will automatically be transferred back to Sundance, and Solar Power will
immediately cease all use of the name and xxxx or any similar xxxx or name;
(ii)
Solar Power will be obligated to immediately pay to Sundance the greater
of the
amount due under this Agreement, or under the terms of the agreement between
Sundance and DRCI; and (iii) and Sundance will have no further obligation
under
this Agreement.
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7. Notices.
Any
notices required or contemplated under the terms of this Agreement or by
law may
be given by personal delivery, courier, or certified mail, directed to
the
appropriate party at the address above, or such other addresses as any
party may
designate in writing prior to the time of the giving of such notice. Notices
will be deemed "delivered" when received by the party being notified if
given by
personal delivery or courier; or if given by certified mail, three (3)
days
after being deposited with the U. S. Postal Service with proper address
and
postage paid; unless delivery is refused or the party does not retrieve
the
notice after notification by the Postal Service or courier, in which case
the
notice is effective upon attempted personal delivery, mailing, or deposit
with a
courier service (as applicable).
8. Modifications.
Any
modification to this Agreement must be in writing and signed by both parties.
9. Applicable
Law and Forum.
Except
to the extent that U. S. federal law applies, the construction, validity,
interpretation and enforcement of this Agreement will be governed by and
construed in accordance with the laws of the State of California. The parties
submit to jurisdiction of and venue in the State and Federal Courts located
in
California in any legal proceeding necessary to interpret or enforce this
Agreement or any part of this Agreement.
10.
No
Waiver. Failure
by either party to enforce at any time or for any period of time any of
the
provisions of this Agreement shall not be construed as a waiver of such
provisions, and shall in no way affect that party's right to later enforce
the
provisions.
11. Partial
Invalidity.
If any
of the provisions contained in this Agreement are held by a court of competent
jurisdiction to be invalid, illegal or unenforceable in any respect, that
invalidity, illegality or unenforceability will not affect any other provisions
of this Agreement, and all other provisions will remain in full force and
effect.
12. Attorneys'
Fees and Costs.
If any
legal action is brought to enforce or interpret this Agreement, the prevailing
party in the action is entitled to recover its reasonable attorneys' fees
and
costs from the other party.
13. Assignment.
Neither
party may assign this Agreement or any of its rights or obligations under
the
terms of this Agreement without the prior written consent of the other
party,
which consent will not be unreasonably withheld.
14. Interpretation.
Each
party represents that it has had the assistance of counsel concerning this
Agreement or has had an opportunity to consult with legal counsel of its
choosing concerning this Agreement, and each party agrees that this Agreement
may not be construed or interpreted against any party on the grounds of
authorship.
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15. Captions.
The
headings in this Agreement are for purposes of identification only and
will not
be considered in construing this Agreement.
16. Binding
Effect. All
the
terms and provisions of this Agreement will be binding upon and inure to
the
benefit of the successors and assigns of the parties, to the extent this
Agreement is assignable.
17. Entire
Agreement. This
Agreement, including its exhibits, sets forth the entire understanding
of the
parties with respect to the subject matter of this Agreement, and supersedes
all
prior agreements, understandings and negotiations with respect to the subject
matter hereof.
18. Counterparts.
This
Agreement may be executed in counterparts, each of which constitutes an
original, and all of which together shall constitute one and the same document.
[Signatures
Immediately Follow]
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SIGNATURE
PAGE
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SUNDANCE
POWER, LLC
|
|
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By:/s/
Xxxx
Xxxxxx
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By:
/s/ Xxxxx
Xxxxxxxx
|
|
Print
Name: Xxxx
Xxxxxx
|
Print
Name: Xxxxx Xxxxxxxx
|
|
Title:
President
|
Title:
CFO
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