EXCLUSIVE PROJECT MANAGEMENT, DESIGN AND MARKETINGAGREEMENT
EXCLUSIVE
PROJECT MANAGEMENT, DESIGN AND MARKETINGAGREEMENT
This
EXCLUSIVE PROJECT MANAGEMENT, DESIGN AND MARKETING AGREEMENT (this
“Agreement”) is made as of this 11th day of February, 2008 (the “Effective
Date”), by and between Solar Thin Films, Inc., a Delaware corporation, having
its principal offices at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(“Solar
Thin Films”), and Solar Thin Power, Inc., having its principal offices at ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (“Solar Thin Power”).
Recitals:
A. Solar
Thin Films is a manufacturing and engineering company specializing in: (i)
the
design and construction of turnkey production facilities for the manufacture
of
thin-film photovoltaic modules (the “Technology”), (ii) investment in
photovoltaic module manufacturing systems, and (iii) participation in domestic
and international solar energy power projects.
B. Solar
Thin Power is the majority-owned subsidiary of Solar Thin Films, which was
formed to pursue international and domestic opportunities to participate in
domestic and international solar energy power projects.
C. Solar
Thin Power has agreed to loan the sum of Two Million Five Hundred Thousand
($2,500,000.00) to Solar Thin Films pursuant to the terms of a secured term
note, a copy of which is annexed hereto as Exhibit A (the “Note”).
D. In
consideration for Solar Thin Power providing such funds to Solar Thin Films,
Solar Thin Films has agreed to exclusively provide project management, design
and marketing services (the “Services”) to Solar Thin Power with respect to any
and all solar energy power projects (the “Solar Power Projects”) in the
territories of Greece and Spain (the “Territories”). Solar Thin Films shall not
participate in any Solar Power Projects in the Territories, in any way or
manner, other than through its relationship with Solar Thin Power during the
term of this Agreement. .
Agreement:
In
consideration of the premises and in further consideration of the mutual
promises and undertakings herein contained, and other good and valuable
consideration, the receipt and adequacy of which hereby are acknowledged, the
parties hereto hereby agree as follows:
1. Obligations
of the Parties. During
the term of this Agreement,
|
a.
|
Solar
Thin Power shall:
|
|
i.
|
Use
all commercially reasonable efforts to obtain, at its sole cost and
expense, all governmental and other required approvals required to
participate in Solar Power Projects in the Territories (the “Required
Approvals”);
|
|
ii.
|
Upon
the attainment of the Required Approvals, use its commercially reasonable
best efforts to obtain new and existing licenses in the Territories;
|
|
iii.
|
Solar
Thin Power agrees to seek new and existing licenses in a manner consistent
with the high standards of quality used by Solar Thin Films. Solar
Thin
Power warrants that it possesses the expertise, facilities and ability
to
professionally and successfully seek licenses and to promote the
goodwill
associated with the Solar Thin
Films.
|
|
b.
|
Solar
Thin Films shall:
|
|
i.
|
Use
all commercially reasonable efforts to support Solar Thin Power’s
participation in Solar Power Projects in the Territories. Such support
will include, but not be limited
to:
|
|
1.
|
Solar
Power Project management and
design;
|
|
2.
|
Providing
access and fostering relationships with manufacturers and providers
of:
|
|
a.
|
Photovoltaic
modules
|
|
b.
|
Electronics
|
|
c.
|
Balance
of Systems
|
2. Fee. Solar
Thin Power agrees to pay Solar Thin Films a fee, which shall be determined
on a
project by project basis but shall be at the then existing normal and customary
rate, for each and every project in the Territories
3. Term. The
term
of this Agreement shall be three (3) years effective from the date set forth
above.
4. Termination. This
Agreement may be terminated:
|
a.
|
by
the non-breaching party immediately if the other party shall fail
to
perform any obligation under this Agreement and such failure is incapable
of remedy;
|
|
b.
|
by
the non-breaching party after thirty (30) days notice and opportunity
to
cure if the other party shall fail to perform any obligation under
this
Agreement, such failure is capable of remedy, and such failure continues
unremedied after the expiration of such thirty (30) day period, provided
that if Solar Thin Power is in breach of any term of this Agreement,
Solar
Thin Films shall be entitled to suspend the supply of the Product
to Solar
Thin Power until Solar Thin Power cures the breach;
|
|
c.
|
by
a party immediately if the other party shall file any voluntary petition
or similar proceeding under any bankruptcy act, institute any voluntary
proceeding in any court to declare itself insolvent or unable to
meet
debts, make an assignment for the benefit of creditors, or consent
to the
appointment of a receiver for any of its property;
|
2
|
d.
|
by
a party if the other party shall have filed against it any
involuntary petition or similar proceeding under any bankruptcy act,
have
instituted against it any involuntary proceeding in any court to
declare
it insolvent or unable to meet debts, have all or substantially all
of its
property levied upon or attached by process of law, or have a receiver
appointed for any of its property, and the same is not dismissed,
vacated,
set aside, or released within sixty (60) days thereafter;
or
|
|
e.
|
by
Solar Thin Films should Solar Thin Power (i) make any false
misrepresentations regarding Solar Thin Films or its relationship
with
Solar Thin Films, or (ii) conduct its business in an immoral or
unprofessional manner which could result in liability to Solar Thin
Films.
|
5. Effect
of Termination.
|
a.
|
Termination
by either party shall not prejudice any remedy that either party
may have,
at law, in equity, or under this Agreement.
|
6. Representations
and Warranties. Each
party represents to the other that:
a.
it has
the power, right and authority to enter into this agreement;
b. that
this
Agreement has been duly authorized by all requisite corporate and partnership
actions; and
c. that
it
shall comply with all applicable laws, rules and regulations in performing
its
obligations under this Agreement.
7. Indemnification/Limitation
on Liability.
a. Solar
Thin Films shall indemnify, defend and hold Solar Thin Power and its parents,
subsidiaries, affiliates, officers, directors, employees, agents, and
representatives (the “Solar Thin Power Indemnified Parties”) harmless from and
against any and all claims, liabilities, demands, actions, causes of action,
judgments, settlements, and expenses (including, but not limited to, reasonable
attorneys’ fees, costs, and expenses) (“Damages”) arising out of or in
connection with any (i) third-party claims based upon infringement of any United
States patent, copyright, or other proprietary right by the Technology,
excepting any Damages resulting from the intentionally wrongful or negligent
acts of the Solar Thin Power Indemnified Parties or (ii) third-party
product-liability claim in which the death, personal injury, illness, property
damage or other loss is conclusively determined to have resulted from the proper
use of the Product manufactured by Solar Thin Films and dispensed by a licensed
veterinarian.
b. Solar
Thin Power shall indemnify, defend and hold Solar Thin Films and its parents,
subsidiaries, affiliates, officers, directors, employees, agents, and
representatives (the “Solar Thin Films Indemnified Parties”) harmless from and
against any and all claims, liabilities, demands, actions, causes of action,
judgments, settlements, and expenses (including, but not limited to, reasonable
attorneys’ fees, costs, and expenses) (“Damages”) arising out of or in
connection with Solar Thin Power’ breach of any representation, warranty,
covenant, or agreement made by Solar Thin Power under or in connection with
this
Agreement or the failure of Solar Thin Power to perform any of its covenants
or
agreements contained in this Agreement.
3
c. Upon
obtaining knowledge thereof, the party to be indemnified (the “Indemnified
Party”) shall promptly notify the party which is required to provide
indemnification (the “Indemnifying Party”) in writing of any damage, claim,
loss, liability or expense which the Indemnified Party has determined has given
rise or could give rise to a claim under this Section
7
(such
written notice being hereinafter referred to as a “Notice of Claim”). A Notice
of Claim shall contain a brief description of the nature and estimated amount
of
any such claim giving rise to a right of indemnification. With respect to any
claim or demand set forth in a Notice of Claim relating to a third-party claim,
the Indemnifying Party shall have the power and right to defend, direct the
defense, compromise and settle, in good faith and at its expense, any such
claim
or demand, and the Indemnified Party, at its sole expense, shall have the right
to participate and shall cooperate in the defense of any such third-party claim.
So long as the Indemnifying Party is defending in good faith any such third
party claim, the Indemnified Party shall not settle or compromise such third
party claim.
d. In
no
event shall either party be liable to the other or to any third party for any
special, indirect, incidental, consequential, or punitive damages arising out
of
or in connection with this Agreement or the Technology,
whether
based on breach of contract, breach of warranty, tort (including negligence),
or
otherwise.
8. Confidentiality.
Each
party agrees to hold in strict confidence, and not to disclose to any other
person or to use in any manner, either before or after termination of this
Agreement, any technical or business information, manufacturing technique,
process, experimental work, trade secret, patent, or other confidential matter
belonging to other party, including the Technology (“Confidential Property”),
except as specifically permitted pursuant to the terms of this Agreement, and
shall take all reasonable measures to maintain the confidentiality of such
Confidential Information, which will in no event be less than the measures
it
uses to maintain the confidentiality of its own information of similar
importance. Confidential Information shall include the terms of this
Agreement.
9. Injunctive
Relief.
Both
parties agree that, in the event of a breach or alleged breach of Sections
2 and 7,
Solar
Thin Films shall be irreparably harmed and shall not have an adequate remedy
at
law, including monetary damages, and that Solar Thin Films shall consequently
be
entitled to seek a temporary restraining order, injunction, or other form of
equitable relief, without bond, against the continuance of such breach. Such
relief shall be in addition to any other rights or remedies of Solar Thin Films
under this Agreement, including, but not limited to, rights of termination
under
Section
4.
10. Recitals. The
parties agree that the recitals to this Agreement are true and accurate and
hereby incorporate them into this Agreement.
4
11. Force
Majeure. For
the
period and to the extent that a party hereto is disabled from fulfilling in
whole or in part its obligations hereunder, where such disability arises by
reason of an event of force
majeure
(including, but not limited to, any law or government regulation, or any act
of
God, flood, war, terrorism, revolution, civil commotion, political disturbance,
fire, explosion, or any other cause whatsoever over which such party has no
control), such party shall be released from its obligations hereunder until
the
cessation of such disability. Notice of any such disability and cessation
thereof shall forthwith be given by the party claiming the benefits thereof
to
the other. The provisions of this Article shall not be applicable to any
obligation involving the payment of money.
12. Assignment. Neither
this Agreement, nor any of the rights or interests of Solar Thin Films or Solar
Thin Power hereunder, may be assigned, transferred or conveyed by operation
of
law or otherwise without the prior written consent of the other party, which
consent shall not be unreasonably withheld, provided, however, that either
party
(the “Selling Party”) may assign its rights and interest under this Agreement to
any acquirer of such Selling Party in any transaction that constitutes a Change
of Control for such Selling Party. A Change of Control shall mean the sale
of
substantially all of the assets of such Selling Party, the sale of substantially
all of the stock of such Selling Party or the merger or consolidation of such
Selling Party with a third party in which the Selling Party is not the surviving
entity.
13. Independent
Contractors. In
performing their respective duties under this Agreement, each of the parties
shall be operating as an independent contractor. Nothing contained herein shall
in any way constitute any association, partnership, or joint venture between
the
parties hereto, or be construed to evidence the intention of the parties to
establish any such relationship. Neither party shall have the power to bind
the
other party or incur obligations on the other part’s behalf without the other
party’s prior written consent.
14. Successors
And Assigns. Subject
to Section
12
above,
this Agreement shall be binding upon, and shall inure to the benefit of, each
of
the parties hereto and their respec-tive permitted successors and
assigns.
15. Survival
of Rights of Parties. The
termination of this Agreement shall not release either party from any liability,
obligation, or agreement which, pursuant to any provision of this Agreement,
is
to survive or be performed after such expiration or termination.
16. Notices. All
notices or other communications pursuant to this Agreement shall be in writing
and shall be deemed valid and sufficient if delivered by personal service or
overnight courier or dispatched by registered mail, postage prepaid, in any
post
office, or if dispatched by telefax, promptly confirmed by letter dispatched
as
above provided, to the parties at the addresses as set forth above. A party
hereto may change its address by notice to the other in the manner set forth
above. Notices and other communications rendered as herein provided shall be
deemed to have been given on the day on which personally served or sent by
telefax or, if sent by overnight courier, on the second (2nd) day after being
posted, or if sent by registered mail, on the fifth (5th) day after being
posted, or in either case the date of actual receipt, whichever date is the
earlier.
5
17. Partial
Invalidity. If
any
term, covenant or provision contained herein shall be invalid or illegal, such
invalidity or illegality shall not impair, invalidate or nullify the other
provisions of this Agreement.
18. Applicable
Law. All
questions concerning the construction, validity, enforcement and interpretations
of this agreement shall be governed and construed and enforced in accordance
with the internal laws of the State of New York, without regard to the
principles of conflict of law thereof. All proceedings concerning the
interpretations, enforcement and defense of the transactions contemplated by
this Agreement shall be commenced exclusively in the state and federal courts
sitting in the City of New York, Borough of Manhattan. The parties hereby
irrevocably submit to the exclusive jurisdiction of the state and federal courts
sitting in the City of New York, Borough of Manhattan for the adjudication
of
any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein, and hereby irrevocably waives, and
agrees not to assert in any proceeding, any claim that it is not personally
subject to the jurisdiction of any such court or that such proceeding is
improper. Each party hereto hereby irrevocably waives personal service of
process and consents to process being served in any such proceeding by mailing
a
copy thereof via registered or certified mail or overnight delivery (with
evidence of delivery) to such party at the address in effect for notices to
it
under this Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained herein
shall
be deemed to limit in any way any right to serve process in any manner permitted
by law. Each party hereto hereby irrevocably waives, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any legal
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby. If any party shall commence a proceeding to enforce any
provisions of this Agreement, then the prevailing party in such proceeding
shall
be reimbursed by the other party for its reasonable attorney’s fees and other
reasonable costs and expenses incurred with the investigation, preparation
and
prosecution of such proceeding.
19. Subject
Headings. The
subject headings on this Agreement have been placed thereon for the convenience
of the parties and shall not be considered in any question of interpretation
or
construction of this Agreement.
20. Complete
Agreement, Waivers, And Amendments. This
Agreement, in combination with the Secrecy Agreement previously signed by the
parties and the purchase orders and invoices issued pursuant hereto, constitutes
the entire agreement between the parties relative to the subject matter hereof,
and supersedes and replaces all prior or contemporaneous agreements, written
or
oral, between the parties regarding such subject matter. The failure of either
party to enforce at any time or for any period of time any provision of this
Agreement shall not be construed as a waiver of such provision or of the right
of such party thereafter to enforce such provision. In addition, no terms or
provisions of this Agreement may be changed, waived, discharged, or terminated
orally but only by an instrument in writing signed by the party against whom
the
enforcement of such change, waiver, discharge, or termination is sought. Solar
Thin Power and Solar Thin Films agree to renegotiate in good faith any provision
of, or addition to, this Agreement.
6
21. Counterparts. This
Agreement may be executed in any number of counterparts, each of which when
executed and delivered shall be deemed to be an original and all of which
counterparts when taken together shall constitute but one and the same
instrument.
22. Rules
of Construction. The
rules
of construction which require the terms of an agreement to be construed most
strictly against the drafter of such and agreement are hereby waived and
relinquished by each party.
23. Further
Assurances. From
and
after the date hereof the parties agree to take or cause to be taken such
further action and executed, deliver and file such further documents and
instruments as the other party may reasonably request from time to time to
effectuate the intent and purposes of this Agreement.
IN
WITNESS WHEREOF,
the
parties hereto have duly executed this Agreement the day and year first above
written.
By:/s/
▇▇▇▇▇ ▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇
Title: Chief
Executive Officer
Solar
Thin Power, Inc.
By:/s/
▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇▇▇▇▇
Title:
Chief
Financial Officer
7