Attached files
| file | filename |
|---|---|
| 10-Q/A - 3Power Energy Group Inc. | v180322_10qa.htm |
| EX-32.1 - 3Power Energy Group Inc. | v180322_ex32-1.htm |
| EX-31.1 - 3Power Energy Group Inc. | v180322_ex31-1.htm |
| EX-10.19 - 3Power Energy Group Inc. | v180322_ex10-19.htm |
| EX-10.16 - 3Power Energy Group Inc. | v180322_ex10-16.htm |
| EX-10.18 - 3Power Energy Group Inc. | v180322_ex10-18.htm |
Project
Puglia
Advisory
Agreement
DATE
7TH
APRIL 2009
Marcus
Hewland LLC
and
Prime
Sun Power Inc.
Information
marked with an asterisk herein has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
1
This
agreement (the “Agreement”) is entered
into on 7th
April 2009 between:
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(1)
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Marcus
Hewland LLC, an company duly incorporated under the laws of NY, United
States, with registered office at 301 East, 79th
Street, Suite 24-H, New York, NY, USA, TF Id: TF6946106, represented by
its sole director Mrs. Pamela Marion Randall, duly empowered to enter into
this Agreement (the “Advisor”); and
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(2)
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Prime Sun Power Inc., an
US Company with registered office at 104, Summit Avenue, Summit - NJ
07902-0080, represented by its Chief Operations Officer, Mr. Frank Jürgens,
and its Chief Technology Officer, Prof. Cesare Boffa, duly empowered to
enter into this Agreement (the “Company”)
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The
Advisor and the Company are hereinafter jointly referred to as the “Parties” and severally as the “Party”.
WHEREAS
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(A)
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The
Advisor is a company providing advisory services for the development of
photovoltaic energy production plants and has proposed to the Company the
possibility to invest, directly or through any of its affiliates, in a
green field project consisting of the construction of two individual PV
Plants in the Lands located in Apricena (Foggia), Localitá
Selva della Rocca, and Foggia, Localitá
Salsola, Italy according to the relevant Option Contracts, STMGs and Plans
(the Project).
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(B)
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Subject
to the effective implementation of the Project and based on the
representations made by the Advisor, the Company is interested in
investing in the Project, directly or through any of its affiliates, and
in paying to the Advisor a success
fee.
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IT IS AGREED as
follows:
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1.
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DEFINITIONS
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1.1
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The
Parties agree that, unless otherwise specified in this agreement (the
“Agreement”), all capitalized terms shall
have the same meaning attributed to them in the contract entered into on
7th
April 2009 by the Company or any of its affiliates - in the context
of the Project – with the owner of Option Contracts, the STMGs and
the Plans (such owner is hereinafter referred to as the “Transferor” and such contract is
hereinafter referred to as the “Transfer Contract”).
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2.
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FEE
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2.1
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As
consideration for:
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(a)
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the
advisory services already provided by the Advisor and its shareholders to
the Company up to the date of this Agreement and consisting of inter
alia the feasibility study of the Project, the assistance to the
Company in structuring the deal, in the relationships with the Transferor
and in entering into the relevant Transfer Contract;
and
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(b)
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for
the introduction of the Project and the Transferor to the
Company;
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2
at the terms and conditions set forth
by this Agreement and subject to Completion, the Company shall pay to the Advisor a
success fee equal to [___]* of the estimated aggregate building and
installing costs of the PV Plants. The building and installing costs shall be
jointly determined by the Parties within 3 (Three) months from the date of
signing of this Agreement based on the best price and conditions offer out of
three offers made to the Company by three independent companies (the “Offers”) concerning the entering into and the
performance of an Engineering Procurement Construction contract for the
implementation of the Project. The Offers shall be transmitted by the Company to
the Advisor within the aforementioned 3 (Three) months term. Should the Company
fail to transmit to the Advisor a written copy of the Offers within the term as
provided above, and/or should the Offers do not comply with an offer made on an
arm’s length basis and at terms and conditions which are customary for these
kind of services the Parties hereby agree that the estimated aggregate building
and installing costs of the PV Plants shall be equal to [___]* per watt and
on such amount shall be calculated the success fee equal to [___]* that
shall be paid by the Company to the Advisor. The Fee, calculated according to
the above, shall be subject to Fee Adjustment pursuant to Article
3.
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2.2
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The
Fee, as eventually adjusted pursuant to Article 3, shall become due
subject to and upon Completion pursuant to art. 5.3 of the Transfer
Contract, and shall be paid by the Company to the Advisor as
follows:
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(a)
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[___]*,
subject to any Fee Adjustment, shall be paid at Completion provided that
at Closing a bankable payment instrument, to be agreed in good faith by
the Parties prior to Closing, up to the above amount with a five-month
expiration in favour of the Advisor shall be issued. Such payment
instrument shall be deposited into a trust account managed, at the
Company’s expenses, by Wuersch & Gering LLP, 100 Wall Street, 21st
Floor, New York, NY 10005, in the interest and for the benefit of the
Parties, and released for drawing to the Advisor, subject to any Fee
Adjustment under Article 6 below, at Completion. In case of disputes
between the Parties pursuant to Article 3.2, the above mentioned payment
instrument shall remain deposited in the above trust account and released
upon final settlement of such dispute by mutual agreement of the Parties
or pursuant to Article 8, subject to the relevant maturity being
accordingly and automatically
extended.
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(b)
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subject
to any Fee Adjustment under Article 6 below, the remaining part of the Fee
shall be paid within 45 days from Completion in restricted shares of PSP
Inc. (the “PSP Shares”). The
exchange value of PSP Shares shall be determined as the average market
price fixed 30 days prior and 30 days after the oldest of the Unified
Authorizations’ issuing dates.
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2.3
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Any
payment in cash from the Company to the Advisor shall be made by
irrevocable wire transfer in immediately available funds into the
Advisor’s account on or before the date the payment is due for value on
that date. The details of the Advisor’s account shall be communicated in
advance by the Advisor to the
Company.
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2.4
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The
Parties expressly acknowledge that, except for the Fee to be paid at the
terms and conditions set forth in this Agreement, no fees,
indemnifications or other payments of whatever nature shall be due by the
Company to the Advisor with respect to the Project or the services
provided by the Advisor to the Company in relation to the
Project.
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*
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This
information has been omitted and filed separately with the Commission
pursuant to a request for confidential
treatment.
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3
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2.5
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In
the event PSP Shares are not listed on the NASDAQ within December 31,
2009, the Company
shall have the right to -
and,
upon request of the Advisor, shall be obliged to –
repurchase, directly or through any nominated entity, all PSP
Shares transferred to the Advisor pursuant to Article 2.2(b) at the same
exchange value thereof. Such transfer shall occur within 30 days from the
request of the Company or the Advisor. For the purposes of this Article
2.5, (i) until December 31, 2009, the Advisor shall not transfer to any
third party nor shall constitute any third party’s right over the PSP
Shares and (ii) PSP Shares shall be deposited into a trust account
managed, at the Company’s expenses, by Wuersch & Gering LLP, 100 Wall
Street, 21st Floor, New York, NY 10005 in the interest and for the benefit
of the Parties and released, unless repurchased by the Company pursuant to
the above, to the Advisor on January 1,
2010.
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3.
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FEE
ADJUSTMENT
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3.1
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The
Fee shall be adjusted on the basis of the following provisions, to be
applied progressively:
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(a)
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should
Completion not occur for any reason not depending on the Company or the
Transferee in relation to one or more PV Plants, the Fee shall be reduced
(i) of a percentage equal to the percentage of non-compliant PV Plants
with respect to the number of the PV Plants envisaged in the Project and
(ii) of the amounts of the lump sums eventually paid by the Company or any
of its affiliates with respect to the non-compliant PV Plants at the time
of entering into the Building Lease Contracts;
and
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(b)
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should,
after the adjustment under letter (a) above, Completion occur with respect
to one ore more of non-compliant PV Plants, the Fee shall be increased to
cancel the effects of the adjustment made under letter (a) above with
respect to such PV Plants; and
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(c)
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after
the adjustments set out at letters (a) and (b) above, the Fee shall then
be deducted by:
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(i)
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all
expenses incurred by the Transferee under Article 4.5 of the Transfer
Contract; and
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(ii)
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any
indemnification or penalty which might result payable to the Transferee
under the relevant Transfer Contract, provided that in this case any
deduction shall be subject to the Transferee waiving its relevant rights
under the Transfer Contract.
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(the
“Fee Adjustment”).
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3.2
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Any
Fee Adjustment to be applied to any of the payments under Article 3.1
above shall be notified by the Company to the Advisor at least five days
prior to the term of such payment. In case of disputes between the Parties
the relevant payment shall remain suspended with respect to the disputed
amount until final settlement or decision pursuant to Article
8.
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4.
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TERMINATION
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4.1
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This
Agreement shall automatically terminate in case of early termination of
the Transfer Contract in its entirety pursuant to its terms and
conditions. The Parties expressly agree that only in case of termination
of this Agreement according to the above, no Fee, compensation,
indemnification for whatever reason shall be due by the Company to
the
Advisor.
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4
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5.
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CONFIDENTIALITY
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5.1
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Without
the prior written consent of the other Party, the Parties expressly
undertake to treat as strictly confidential and not disclose to any third
party except to its affiliates, advisors and third party to which the
information have to be transferred for the implementation of the Project,
this Agreement and its content as well as any information concerning the
Project received by the other Party in the performance of the Agreement.
The Company shall be free to (i) make any public announcement on the
Project without the need to obtain the prior authorisation of the Advisor,
(ii) to transfer any confidential information relating to this Agreement
or the Project to its affiliates, investors and to any third party
directly or indirectly involved in the Project (including advisors, third
party contractors, financial institutions and in general any third party
to which the information have to be transferred for the implementation of
the Project).
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5.2
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The
obligations contained in this Article shall survive for 10 (ten) years
after termination or ceasing of this
Agreement.
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6.
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NOTICES
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6.1
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Any
notice or other document to be served under this Agreement shall be sent
by registered mail, anticipated by fax or email, to the following
addresses:
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(a)
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to
the Advisor:
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·
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PM
Randall&Co., 62 Priory Road, Noak Hill, Romford, Essex, RM3 9AP,
United Kingdom, Mrs. Pamela Marion Randall - Fax +44 1708
375977;
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(b)
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to
the Company:
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·
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PSP
Inc. - European Headquarters, 4 Paradeplatz – 9 Tiefenhoefe, CH-8001
Zurich – Frank Jürgens
– Fax: +41 43 544 80 89;
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or at
such other address each Party may have notified to the other Party in accordance
with this clause.
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7.
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MISCELLANOUS
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7.1
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Entire
Agreement
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This
Agreement (including any Schedule hereto) and the agreements, documents and
instruments to be signed and delivered pursuant hereto or thereto, are intended
to function as the final, complete and exclusive agreement among the Parties
with respect to the Project and related transactions, and are intended to
supersede all prior agreements, understandings and representations written or
oral, with respect thereto and may not be contradicted by evidence of any such
prior or contemporaneous agreement, understanding or representation, whether
written or oral.
5
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7.2
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Amendments
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No
amendment, modification or waiver of any provision of this Agreement shall be
valid and binding unless approved in writing by the Party against which such
amendment, modification or waiver is invoked. No waiver of the Parties shall
constitute a waiver of any other provision unless such waiver is otherwise
expressly provided.
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7.3
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Severability
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Any
Article or other provisions of this Agreement which is or becomes illegal,
invalid or unenforceable shall be severed from this Agreement, to the extent
permitted under applicable law, and be ineffective to the extent of such
illegality, invalidity or unenforceability and shall not affect the remaining
provisions hereof and be replaced by a provision reflecting the intent of the
Parties.
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7.4
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Assignment
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This
Agreement and all related rights, interests, and obligations shall not be
assigned by the Advisor without the prior written consent of the Company and any
attempt of transfer or assignment of this Agreement by the Advisor without the
consent of the Company shall be deemed void and with no effect.
The
Company shall have the right to transfer and assign, totally or partially - and
without any need to obtain the prior consent of the Advisor - to any third party
this Agreement and all related rights, interests and obligations, provided that
the Company shall remain fully and jointly responsible with the transferee for
the fulfilment by the transferee of all its obligations under this
Agreement.
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8.
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GOVERNING
LAW AND JURISDICTION
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8.1
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This
Agreement is governed by and shall be construed in accordance with English
laws for what not expressly or impliedly provided for under this
Agreement.
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8.2
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Unless
settled by mutual agreement, any dispute whatsoever that might arise out
of or in connection with the performance or the construction of this
Agreement or in connection with any other matter of whatsoever nature
concerning this Agreement shall be submitted to arbitration and finally
settled in accordance with and subject to the Rules of Arbitration of the
International Chamber of Commerce of London. The panel of arbitrators will
be composed of three members, two of them appointed, each, by each Party
and the third one, who shall act as Chairman, appointed jointly by the two
appointed arbitrators or, in case of disagreement, according to the Rules
of Arbitration of the International Chamber of Commerce of London. Unless
otherwise agreed in writing by the Parties, the arbitration will take
place in London, in English language. The costs of the arbitration,
including counsel’s fees and cost, will be assessed against the
unsuccessful Party, with respect to any claim unsuccessfully disputed by
the relevant Party, and the arbitrators shall make such costs allocation
in their decisions. For the purposes of the arbitration proceedings, the
Company and the transferee under Article 7.4 of this Agreement shall
constitute a single party. Therefore, the appointment signed just by one
or more of the above parties - or the appointment received just by one or
more of them - will
however duly institute the arbitration
proceeding.
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***
6
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Marcus
Hewland LLC
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/s/
Pamela Marion Randall
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| Name: Pamela Marion Randall | ||
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Capacity
: Director
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For
and on behalf of the Company
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/s/ Frank Jürgens
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Mr.
Frank Jürgens
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/s/ Cesare Boffa
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Prof.
Cesare Boffa
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7