This agreement dated this 10th day of
July, 2009, with effect as of the 19th day
of February, 2009, by and among Rainbow
Solar Inc. ("RSI") and Novagen Solar
(Canada) Ltd. ("NOVAGEN"), and
Novagen Solar Inc. ("PUBCO").
Whereas:
A. RSi is a company
incorporated under the laws of the State of Delaware;
B. Novagen is a
company incorporated under the laws
of Canada;
C. Pubco is a company
incorporated under the laws of the State of Nevada,
having its shares quoted on the NASD Over-the-counter
Bulletin Board under the
symbol NOVZ.
D. RSi by itself
and through its affiliates, owns, or has
acquired or
obtained certain intellectual property
rights, including without limitation,
patent rights, trade secrets, technical
information, confidential information
and know-how, relating to photovoltaic and electrical technology,
and is engaged
in the design, manufacture,
production and sale of photovoltaic
products
utilizing such intellectual property;
E. RSi desires to appoint
Novagen as the exclusive sales representative of
RSi in Canada, and a non-exclusive sales representative
outside of Canada; and
F. Novagen is willing to accept such
appointment upon the terms and subject
to the conditions hereinafter
contained.
Now therefore in consideration of the
premises and the mutual agreements and
covenants herein contained, the
parties hereto hereby covenant and agree as
follows:
1. INTERPRETATION
1.1 DEFINED TERMS. In this
agreement and in the Schedules, unless there is
something in the subject matter or context inconsistent therewith,
the following
terms and expressions will have
the following meanings:
"BUSINESS DAY" means any day other than a day that is a
Saturday, a Sunday or a
statutory holiday in Toronto, Ontario.
"CHANGE OF CONTROL" means the
occurrence of any of the following events:
(1) the approval by
shareholders of Pubco of a merger or consolidation of
Pubco with any other corporation,
other than a merger or consolidation that
would result in the voting securities of
Pubco outstanding immediately prior
thereto continuing to represent (either by
remaining outstanding or by being
converted into voting securities of the surviving entity)
more than 60 per cent
of the total voting power represented by the voting
securities of Pubco or such
surviving entity outstanding immediately
after such merger or consolidation;
(2) any "person" (as such term is used in
Sections 13(d) and 14(d) of the
Exchange Act) becoming the "beneficial owner" (as defined in Rule
13d-3 under
the Exchange Act), directly or indirectly, of securities of Pubco
representing
40 per cent or more of the total voting power represented by
Pubco's then
outstanding voting securities; or
(3) a change in the composition of the
board of directors of Pubco, as a
result of which fewer than a majority of the directors are
Incumbent Directors.
"COMMON SHARES" means the common
shares of the capital stock of Novagen.
"CONFIDENTIAL INFORMATION" means all data and
information that is of value to
RSi, that is not generally known to
competitors of RSi, that is or has been
communicated or conveyed to Novagen by RSi in contemplation
of the execution of
this agreement or in the performance of either
party's obligations hereunder,
and shall include the Sale Procedures and all other
information concerning the
Products, the Intellectual Property or the current or proposed
business plans of
RSi; but Confidential Information does not include any data or
information that:
(1) is or becomes public knowledge other
than by breach of the provisions
hereof;
(2) is in the possession of Novagen with
the full right to disclose prior to
its receipt from the RSi, as evidenced by written records;
(3) is independently received by Novagen
from a third party, with no
restrictions on disclosure; or
(4) that Novagen is required by law to
disclose.
"CUSTOMER" means any Person who
purchases and pays for Products.
"EFFECTIVE DATE" means February 19,
2009.
"EXCHANGE ACT" means the United
States Securities Exchange Act of 1934, as
amended.
"INCUMBENT DIRECTORS" means directors
who are either:
(1) directors of Pubco
as of the date hereof, or
(2) elected, or nominated for election, to
the Board with the affirmative
votes of at least a majority of those directors whose election or
nomination was
not in connection with any Change of Control or in connection with
an actual or
threatened proxy contest relating to the election of directors of
Pubco.
"INTELLECTUAL PROPERTY" means all rights and interest
in and to the following:
(1) all trademarks that
are applied to the Products and applications for
registration of any such marks;
(2) all trade names under which the
Products are sold;
(3) all patents that relate to the Products
or their manufacture and
applications for the grant of any such patents;
(4) all know-how, including all technical
and other information or
experience or trade secrets applied in the manufacture or sale of
the Products;
(5) all copyright in any written material,
plans, designs or other work
relating to the manufacture or sale of the Products;
(6) all designs, whether or not registered
or protected by copyright,
applied in the manufacture or sale of the Products; and
(7) all other proprietary information that
relates to the Products or the
manufacture thereof.
"LAB" means a facility suitable for demonstrating and testing the
performance of
the SuperPV, or such other Products as may be approved by RSi from
time to time.
"NET SELLING PRICE" means with respect to the sale of
any of the Products, the
Wholesale Price plus any applicable Regional
Royalties, discounts, freight or
shipping charges, and any taxes
payable with respect to the sale.
"PERSON" means and includes any
individual, corporation, partnership, firm,
joint venture, syndicate, association, trust, government,
governmental agency or
board or commission or authority, and any other form of
entity or organization.
"PRODUCTS" means all products and merchandise
sold or distributed by RSi from
time to time, whether in the
form of finished goods, parts, accessories,
supplies, packaging or related
material.
"PURCHASE PRICE" means the cash value equivalent of any
consideration paid by a
Customer in respect of the
purchase of Products.
"REGIONAL ROYALTIES" means such
royalties, fees and commissions as may be
contractually payable to any sales
representative of RSi in respect of any
exclusive sales rights to a
geographical area, industry segment or certain
Products.
"SUPERPV" means that Product known
as, and sold under the trade name of,
SuperPV.
"WHOLESALE PRICE" means with respect to the
sale of any of the Products, the
price charged by RSi for such
Products from time to time.
1.2 SCHEDULES. Any
reference herein to a "Schedule"
refers to the
corresponding schedule attached to this
agreement. All Schedules attached to
this agreement are incorporated by reference and
shall be deemed to be a part
hereof.
1.3 CURRENCY. Unless otherwise
indicated, all cash and dollar amounts
referred to in this agreement are in lawful money of the United
States of
America.
1.4 INTERPRETATION NOT AFFECTED BY HEADINGS
OR PARTY DRAFTING. The division
of this agreement into articles, sections, paragraphs,
subparagraphs and clauses
and the insertion of headings are for convenience of reference only
and shall
not affect the construction or interpretation of this
agreement.
1.5 EXTENDED MEANING. In this
agreement, unless there is something in the
subject matter or context inconsistent therewith, words in the
singular number
include the plural and such words shall be construed as if the
plural had been
used; and words in the plural include the singular and such words
shall be
construed as if the singular had been used. Unless otherwise
stated in this
agreement, any reference herein to an article, section, paragraph,
subparagraph
or clause refers to the corresponding article, section, paragraph,
subparagraph
or paragraph hereof. The terms "this agreement", "hereof",
"herein",
"hereunder" and similar expressions refer to this agreement and the
Schedules
hereto and not to any particular article, section, paragraph,
subparagraph,
clause or other portion hereof and include any agreement or
instrument
supplementary or ancillary hereto.
1.6 NO CONTRA PROFERENTEM. Each party
hereto acknowledges that it and its
legal counsel have reviewed and participated in settling the terms
of this
agreement, and the parties hereby agree that any rule of
construction to the
effect that any ambiguity is to be resolved against the drafting
party shall not
be applicable in the interpretation of this agreement.
2. REPRESENTATION RIGHTS.
2.1 APPOINTMENT OF NOVAGEN
(1) RSi hereby appoints
Novagen as:
(a) its exclusive sales
representative in Canada for the
purpose of
assisting RSi in selling and
distributing the Products in Canada;
and
(b) its non-exclusive sales representative
outside of Canada for the purpose
of assisting RSi in selling and distributing the Products outside
of Canada;
upon the terms and conditions hereinafter set forth and
Novagen hereby accepts
such appointment (the "APPOINTMENT").
(2) Except as herein
provided, all expenses in connection with Novagen's
performance of this agreement and its
activities as sales representative for
RSi, including but not limited to travel expenses, salaries
and supplies, shall
be borne by Novagen and it shall be solely responsible for
the payment thereof.
2.2 SALES PROCEDURES
(1) From time to time, RSi may
promulgate procedures and protocols for the
sale of the Products (the "SALE
PROCEDURES").
(2) In processing sales of the Products,
Novagen shall comply with the Sale
Procedures in force from time to time. RSi shall give Novagen
at least 30 days
written notice of any change in the Sale Procedures.
(3) All enquiries concerning the Products
or orders for the purchase of
Products that are received by RSi from Canada shall be referred to
Novagen in
accordance with the terms of this Agreement.
(4) Novagen shall not solicit orders for
Products from Persons outside of
Canada, except with the prior written consent of RSi.
(5) An enquiry or order shall be deemed to
be received from Canada if:
(a) Products sold as
a result of such enquiry or order are delivered in
Canada; or
(b) the Person initiating such enquiry or
order is domiciled or otherwise
has its head office or principal place of business in Canada,
notwithstanding
that Products sold as a result of such enquiry or order may be
delivered outside
Canada.
(6) All orders for and payments
for Products shall be made through RSi, in
accordance with the Sales Procedures.
Orders received by Novagen for the
purchase of Products shall not bind RSi until accepted by
RSi. RSi reserves the
sole and exclusive right to accept or reject any order
in accordance with fair
and reasonable business practices and
RSi's disclosed policies.
2.3 SHOWROOM. Novagen shall, at
its own cost and expense, establish within
12 months of the Effective Date and maintain thereafter
throughout the entirety
of the Term a facility approved by
RSi for the display and promotion of the
Products, such approval not to
be unreasonably withheld (the "SHOWROOM").
Without limiting the generality of the
foregoing, the Showroom will feature:
(1) available, secure, roof-top
space suitable for the installation of not
less than 36 solar panels of
3x5 feet;
(2) floor space of not less than 300
m2;
(3) located in a commercially desirable
location; and
(4) top quality finishing.
2.4 COMMISSION
(1) RSi shall pay to Novagen an
amount equal to the difference obtained by
subtracting the Net Selling Price of any Products sold by or
through the efforts
of Novagen or its authorized representatives from
the Purchase Price paid for
such Products ("COMMISSION"). Commission shall be
paid in accordance with the
Sale Procedures.
(2) Any Commission payable as a result of
the cooperative efforts of one or
more representatives of RSi will be allocated by RSi in accordance
with the
Sales Procedures, RSi's disclosed practices and policies, and the
principles of
reasonable value for services, equity and fairness.
(3) All matters in difference between
Novagen and any other sales
representative of RSi in relation to Commission shall be referred
to RSi for
determination in accordance with all applicable agreements, the
Sale Procedures,
RSi's stated practices and policies, and the principles of
reasonable value for
services, equity and fairness. Novagen shall abide by such
determination by
RSi.
(4) RSi shall promptly send to Novagen a
confirmation of any order placed by
a Customer and in respect of which Commission is or may become
payable.
(5) Any Commission payable hereunder will
be paid by RSi in the currency of
the relevant sales transaction, by bank draft payable to Novagen or
wire
transfer to such account or accounts as may be designated by
Novagen in writing.
2.5 SAMPLES. RSi shall
provide Novagen with one sample of each of
the
Products that RSi deems in its sole and absolute
discretion to be appropriate
for sale in Canada (the "SAMPLES"). RSi acknowledges
the receipt of payment of
the sum of $50,000 from
Novagen, as compensation for the
Samples.
2.6 RELATIONSHIP BETWEEN PARTIES. The
status of Novagen hereunder shall be
that of an independent contractor and Novagen shall have no
authority to assume
or create any obligation whatsoever, expressed or implied, in the
name of RSi,
nor to bind RSi in any manner whatsoever. Novagen shall have
no authority
hereunder to enter into any contract of sale or employment on
behalf of RSi, nor
to endorse RSi's cheques, nor to make allowances or adjustments on
accounts for
the return of merchandise, except pursuant to written authorization
of RSi.
Nothing in this agreement shall be deemed to create any
association,
partnership, joint venture, or relationship of principal and agent
or employer
and employee between the parties hereto or to provide either party
with the
right, power or authority, whether express or implied, to create
any such duty
or obligation on behalf of the other party. Neither party
hereto shall make any
representation to the contrary of this p
