U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (date of earliest event reported): March 27, 2009
5G WIRELESS COMMUNICATIONS, INC.
(Exact Name of Registrant as Specified in Its Charter)
Nevada 0-30448 20-0420885
(State or Other Jurisdiction (Commission File Number) (I.R.S. Employer
of Incorporation) Identification No.)
409 North Pacific Coast Highway, Suite 799, Redondo Beach, California 90277
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (949) 873-8071
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under
any of the following provisions (See General Instruction A.2 below):
[ ] Written communications pursuant to Rule 425 under the
Securities Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the
Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-
2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-
4(c) under the Exchange Act (17 CFR 240.13e-4(c))
ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.
(a) Effective on March 27, 2009, the Company entered into its
first LLC Formation Agreement for a Solar Project to be deployed in
the Czech Republic. The Agreement calls for the formation of a Nevada
LLC which will operate as a subsidiary of the Company. The proposed
solar project is to be located in Kajove, Czech Republic. The
proposed project will require addition funding before it can be fully
realized. A portion of the capitalization for this proposed project by
the company is a condition stated in the LLC Formation Agreement.
(b) Effective on April 3, 2009, the Company entered into its
first LLC Formation Agreement for a Solar Project to be deployed in
the Czech Republic. The Agreement calls for the formation of a Nevada
LLC which will operate as a subsidiary of the Company. The proposed
solar project is to be located in Kaplice, Czech Republic. The
proposed project will require addition funding before it can be fully
realized. A portion of the capitalization for this proposed project by
the company is a condition stated in the LLC Formation Agreement.
(c) Effective on April 20, 2009, the Company entered into a
strategic alliance agreement with the German Solar Company Sunworx
GmbH. The agreement states that the Company, under its new business
model "Clean Energy and Power," and Sunworx are desirous to work
together for the purpose of financing, engineering, installing and
operating solar power projects in Europe to produce green electricity.
ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS
Exhibits.
Exhibits included are set forth in the Exhibit Index pursuant
to Item 601of Regulation S-K.
SIGNATURE
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the Registrant has duly caused this
report to be signed on its behalf by the undersigned, thereunto duly
authorized.
5G Wireless Communications, Inc.
Dated: May 11, 2009 By: /s/ Bo Linton
Bo Linton, President
EXHIBIT INDEX
Number Description
10.1 LLC Formation Agreement between the Company and Yury
Rahubin, dated March 27, 2009 (filed herewith).
10.2 LLC Formation Agreement between the Company and Yury
Rahubin, dated April 3, 2009 (filed herewith).
10.3 Strategic Alliance Agreement between the Company and
Sunworx Projects International UG, dated April 20, 2009
(filed herewith).
EX-10.1
LLC FORMATION AGREEMENT
LLC FORMATION AGREEMENT
THIS LLC FORMATION AGREEMENT (the "Agreement") is entered into
as of March 27 2009 by and between 5G Wireless Communication, Inc.
name change pending to "Clean Energy and Power Inc.," a Nevada
corporation ("CEP") trading on the Pink Sheets, on the one hand, and
Yury Rahubin ("YR"), the controlling party of the ASSETS of the SOLAR
PARK, KAJOV, on the other hand.
RECITALS
WHEREAS, YR is the controlling owner of the ASSETS of the SOLAR
PARK, KAJOV, hereafter, ("SPK") (ATTACHMENT A, signed by YR and CEP)
held by the company SunWorx s.r.o, based out of Czech Republic in
which YR is a managing partner.
WHEREAS, CEP will form a Nevada LLC named ("Clean Energy and
Power Solar CZ1", hereafter CZ1) with the ASSETS of SPK (ATTACHMENT A)
WHEREAS, CEP proposed to fund equity for CZ1 in the amount of
$550,000 and whereas CEP understands that this equity funding is
necessary to be provided by May 15th, 2009 for which CEP is prepared
to make a good faith effort to succeed on time
NOW, THEREFORE, in consideration of the promises and respective
mutual agreements, covenants, representations and warranties
contained herein, and intending to be legally bound hereby, the
parties hereto agree as follows:
AGREEMENTS
1. Purchase and Sale. At the Closing, subject to the
terms and conditions contained in this Agreement, and on the
basis of the representations, warranties and agreements herein
contained, YR shall sell to CEP, and CEP shall purchase from YR,
the assets of SPK and place the SPK assets into the newly formed CZ1.
2. Purchase Price with Option. As consideration for the
purchase of SPK, CEP shall issue to YR, as set forth in Exhibit
A, a total of twelve million five hundred thousand (12,500,000)
shares of CEP restricted common stock (the "CEP Shares").
2.1. YR has the option to return the twelve million five
hundred thousand (12,500,000) shares and receive 100%
of the SPK assets exchanged with CEP before the six
(6) month period ending September 29, 2009. All funds
invested in CZ1 will be returned to CEP, or investors
introduced by CEP, upon the completion of the share return.
2.2. The option to return the shares as described in
section 2.1 is automatically rescinded if CZ1 receives
the funding of $550,000 USD by CEP's efforts on or
before the agreed date specified in section 2.1
2.3. YR will be responsible to fund CZ1 $1,644,000 USD or
more through 3rd party institutions based on market
rate and conditions, in order to complete CZ1.
2.4. In the event YR does not fund CZ1 as described in 2.3,
YR agrees to return the shares listed in 2.1 to CEP.
All funds invested in CZ1 will be returned to CEP upon
the completion of the share return.
2.5. At anytime within the 6-month option prior to the
100% complete funding of $550,000 by CEP for CZ1, YR
has the right to cancel this agreement and reclaim the
original assets listed in Attachment A. (subject to
"a" or "b" below)
a. In the event 2.5 is exercised, YR will replace the
assets of SPK with the assets of a similar solar
project. This replacement is subject to approval by CEP.
b. Or, Energy Partners LLC must assign its original 50%
ownership of CZ1 to CEP. The restricted shares of
CEP listed in (2. Purchase Price and Option) will be
cancelled. All funding raised by CEP, under this
agreement, for CZ1 shall remain in CZ1 for future
projects or returned to the original investors.
3. Closing. The closing of the sale and purchase of SPK
(the "Closing") shall take place on April 3, 2009 or at such
other date, time and place as may be agreed upon in writing by
the parties hereto, but not later than April 10, 2009 (the"
Termination Date"). The date of the Closing is sometimes herein
referred to as the "Closing Date."
4. LLC OWNERSHIP AND STRUCTURE
4.1 50% - CEP
50% - Energy Partners LLC
4.2 As a subsidiary of CEP, CZ1 will use its revenues to
pay project operations of CZ1, remaining profits will
be split between CEP and YR respective to 4.1 and 4.2
ownership interests.
4.3 Yuri Rahubin shall be President of CZ1.
4.4 Upon execution of the Agreement, CEP will begin the
funding of CZ1 with the cooperation of YR.
4.5 In the event of a tie vote in any event related to CEP
and YR Dennis Shen will cast the tie breaking vote.
5. Representations and Warranties of YR. To induce CEP
to enter into this Agreement and to consummate the transactions
contemplated hereby, YR represents and warrants as of the date
hereof and as of the Closing, as follows:
5.1. Authorization. YR has the requisite power and
authority to execute and deliver this Agreement and to
perform the transactions hereunder. This Agreement,
and all of the exhibits attached hereto, constitutes
the legal, valid and binding obligation of YR.
5.2. Books and Records. YR shall supply CEP accounting and
agreements sufficient to prove the viability of the
CZ1 project with a specific dollar amount necessary to
begin the project.
5.3 Legal Proceedings and Compliance with Law. There is
no litigation that is pending or, to YR's knowledge,
threatened against YR. To YR's knowledge, there has
been no default under any laws applicable to YR, YR
has not received any notices from any governmental
entity regarding any alleged defaults under any laws,
and there has been no default with respect to any
court order applicable to YR.
5.3. Corporate Status. CEP is a corporation duly
organized, validly existing and in good standing under
the Laws of the State of Nevada and is qualified to do
business in any jurisdiction where it is required to
be so qualified. The articles and bylaws of CEP that
have been delivered to YR as of the date hereof are
current, correct and complete.
5.4 Authorization. CEP has the requisite power and
authority to execute and deliver this Agreement and to
perform the transactions hereunder. This Agreement,
and all of the exhibits attached hereto, constitutes
the legal, valid and binding obligation of CEP.
5.5 Capitalization. The issued and outstanding capital
stock of CEP consists of (122,629,871) shares of
common stock, par value $.001.
5.6 Books and Records. CEP keeps its books, records and
accounts (including, without limitation, those kept
for financial reporting purposes and for tax purposes)
in accordance with GAP and in sufficient detail to
reflect the transactions and dispositions of their
assets, liabilities and equities. The minute books of
CEP contain records of their Shareholders' and
directors' meetings and of action taken by such
Shareholders and directors. The meetings of directors
and Shareholders referred to in such minute books were
duly called and held, and the resolutions appearing in
such minute books were duly adopted. The signatures
appearing on all documents contained in such minute
books are the true signatures of the persons
purporting to have signed the same.
5.7 Legal Proceedings and Compliance with Law. There is
no litigation that is pending or, to CEP's knowledge,
threatened against CEP. To CEP's knowledge, there has
been no default under any laws applicable to CEP, CEP
has not received any notices from any governmental
entity regarding any alleged defaults under any laws,
and there has been no default with respect to any
court order applicable to CEP.
5.8 Accuracy of Information. To CEP's knowledge, no
representation or warranty by CEP made herein contains
any untrue statement of a material fact or omits to
state any material fact necessary in order to make the
statements contained herein not misleading in light of
the circumstances under which such statements were made.
6. Mutual Covenants. Without limiting any covenant,
agreement, representation or warranty made, each of the parties
covenants and agrees as follows:
6.1 Fulfillment of Closing Conditions. At and prior to
the Closing, each party shall use commercially
reasonable efforts to fulfill, and to cause each other
to fulfill, the conditions specified in this Agreement
to the extent that the fulfillment of such conditions
is within its or his control.
6.2 Disclosure of Certain Matters. YR on the one hand,
and CEP, on the other hand, shall give CEP and YR,
respectively, prompt notice of any event or
development that occurs that (a) had it existed or
been known on the date hereof would have been required
to be disclosed by such party under this Agreement,
(b) would cause any of the representations and
warranties of such party contained herein to be
inaccurate or otherwise misleading, except as
contemplated by the terms hereof, or (c) gives any
such party any reason to believe that any of the
conditions set forth in this Agreement will not be
satisfied prior to the Termination Date.
6.3 Confidentiality. If the transactions contemplated
hereby are not consummated, each party shall treat all
information obtained in its investigation of the other
party or any affiliate thereof, and not otherwise
known to them or already in the public domain, as
confidential and shall not use or otherwise disclose
such information to any third party and shall return
to such other party or affiliate all copies made by it
or its representatives of confidential information
provided by such other party or affiliate.
7. Conditions Precedent. This Agreement, and the
transactions contemplated hereby, shall be subject to the
following conditions precedent:
7.1 The obligations of YR to deliver the assets of SPK and
to satisfy their other obligations hereunder shall be
subject to the fulfillment (or waiver by YR), at or
prior to the Closing, of the following conditions,
which CEP agrees to use its best efforts to cause to
be fulfilled:
A. Representations and Warranties. The
representations and warranties of CEP contained in
this Agreement shall be true and correct on the date
hereof and (except to the extent such representations
and warranties speak as of an earlier date) shall also
be true and correct on and as of the Closing Date with
the same force and effect as if made on and as of the
Closing Date.
B. Agreements, Conditions and Covenants. CEP
shall have performed or complied with all agreements,
conditions and covenants required by this Agreement to
be performed or complied with by it on or before the
Closing Date.
C. Legality. No Law or Court Order shall have
been enacted, entered, promulgated or enforced by any
court or governmental authority that is in effect and
has the effect of making the transactions contemplated
by this Agreement illegal or otherwise prohibiting the
consummation of such purchase and sale.
D. The obligations of CEP to pay the Purchase
Price and to satisfy their other obligations hereunder
shall be subject to the fulfillment (or waiver by
CEP), at or prior to the Closing, of the following
conditions, which YR agrees to use its best efforts to
cause to be fulfilled:
E. Representations and Warranties. The
representations and warranties of YR contained in this
Agreement shall be true and correct on the date hereof
and (except to the extent such representations and
warranties speak as of an earlier date) shall also be
true and correct on and as of the Closing Date with
the same force and effect as if made on and as of the
Closing Date. The executed Agreement is not a
guarantee of funding by CEP.
F Agreements, Conditions and Covenants. YR
shall have performed or complied in all material
respects with all agreements, conditions and covenants
required by this Agreement to be performed or complied
with by them on or before the Closing Date.
G. Legality. No Law or Court Order shall have
been enacted, entered, promulgated or enforced by any
court or governmental authority that is in effect and
has the effect of making the transactions contemplated
by this Agreement illegal or otherwise prohibiting the
consummation of such purchase and sale.
8. Termination.
Notwithstanding anything to the contrary contained in this
Agreement, this Agreement may be terminated and the transactions
contemplated hereby may be abandoned prior to the Closing Date
only by the mutual consent of all of the Parties. Following the
Closing Date, in the event the Closing does occur within ten
(10) days of the Closing Date, this Agreement may be terminated
by either Party upon delivery of written notice to the other Party.
9. General.
9.1 Expenses. Except as otherwise specifically provided
for herein, whether or not the transactions
contemplated hereby are consummated, each of the
parties hereto shall bear the cost of all fees and
expenses relating to or arising from its compliance
with the various provisions of this Agreement and such
party's covenants to be performed hereunder, and
except as otherwise specifically provided for herein,
each of the Parties hereto agrees to pay all of its
own expenses (including, without limitation, attorneys
and accountants' fees and printing expenses) incurred
in connection with this Agreement, the transactions
contemplated hereby, the negotiations leading to the
same and the preparations made for carrying the same
into effect, and all such fees and expenses of the
Parties hereto shall be paid prior to Closing.
9.2 Notices. Any notice, request, instruction or other
document required by the terms of this Agreement, or
deemed by any of the Parties hereto to be desirable,
to be given to any other Party hereto shall be in
writing and shall be delivered by facsimile or
overnight courier to the following addresses:
To YR:
Yury Rahubin - Energy Partners LLC
8500 Mt. Olympus Ave
Vancouver, WA 98667
(714) 747 7841
yury@keyindustrial.net
To CEP Inc.:
Bo Linton
5G Wireless Communications, Inc.
409 N. PCH #799
Redondo Beach, CA 90277
(949) 873-8071 tel
(310) 844-7800 fax
The persons and addresses set forth above may be
changed from time to time by a notice sent as
aforesaid. Notice shall be conclusively deemed given
at the time of delivery if made during normal business
hours, otherwise notice shall be deemed given on the
next business day.
9.3 Entire Agreement. This Agreement, together with the
schedules and exhibits attached hereto, sets forth the
entire agreement and understanding of the Parties with
respect to the transactions contemplated hereby, and
supersedes all prior agreements, arrangements and
understandings related to the subject matter hereof.
No understanding, promise, inducement, statement of
intention, representation, warranty, covenant or
condition, written or oral, express or implied,
whether by statute or otherwise, has been made by any
Party hereto which is not embodied in this Agreement,
or the exhibits attached hereto or the written
statements, certificates, or other documents delivered
pursuant hereto or in connection with the transactions
contemplated hereby, and no Party hereto shall be
bound by or liable for any alleged understanding,
promise, inducement, statement, representation,
warranty, covenant or condition not so set forth.
9.4 Survival of Representations. All statements of fact
(including financial statements) contained in the
schedules, the exhibits, the certificates or any other
instrument delivered by or on behalf of the Parties
hereto, or in connection with the transactions
contemplated hereby, shall be deemed representations
and warranties by the respective Party hereunder. All
representations, warranties, agreements, and covenants
hereunder shall survive the Closing and remain
effective regardless of any investigation or audit at
any time made by or on behalf of the Parties or of any
information a Party may have in respect thereto.
Consummation of the transactions contemplated hereby
shall not be deemed or construed to be a waiver of any
right or remedy possessed by any Party hereto,
notwithstanding that such Party knew or should have
known at the time of Closing that such right or remedy
existed.
9.5 Incorporated by Reference. All documents (including,
without limitation, all financial statements)
delivered as part hereof or incident hereto are
incorporated as a part of this Agreement by reference.
9.6 Remedies Cumulative. No remedy herein conferred upon
any Party is intended to be exclusive of any other
remedy and each and every such remedy shall be
cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing at
law or in equity or by statute or otherwise.
9.7 Execution of Additional Documents. Each Party
hereto shall make, execute, acknowledge and deliver
such other instruments and documents, and take all
such other actions as may be reasonably required in
order to effectuate the purposes of this Agreement and
to consummate the transactions contemplated hereby.
10. Finders' and Related Fees. Each of the Parties hereto
is responsible for, and shall indemnify the other against, any
claim by any third party to a fee, commission, bonus or other
remuneration arising by reason of any services alleged to have
been rendered to or at the instance of said Party to this
Agreement with respect to this Agreement or to any of the
transactions contemplated hereby.
11. Governing Law. This Agreement has been negotiated and
executed in the State of California and shall be construed and
enforced in accordance with the laws of such state.
12. Forum. Each of the Parties hereto agrees that any
action or suit which may be brought by any Party hereto against
any other Party hereto in connection with this Agreement or the
transactions contemplated hereby may be brought only in a
federal or state court in Orange County, California.
13. Attorneys' Fees. Except as otherwise provided herein,
if a dispute should arise between the Parties including, but not
limited to arbitration, the prevailing Party shall be reimbursed
by the non-prevailing Party for all reasonable expenses incurred
in resolving such dispute, including reasonable attorneys' fees
exclusive of such amount of attorneys' fees as shall be a
premium for result or for risk of loss under a contingency fee
arrangement.
14. Binding Effect and Assignment. This Agreement shall
inure to the benefit of and be binding upon the Parties hereto
and their respective heirs, executors, administrators, legal
representatives and assigns.
15. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
In making proof of this Agreement, it shall not be necessary to
produce or account for more than one such counterpart.
16. Indemnification CEP agrees to indemnify, hold
harmless, reimburse and defend YR and its agents against any
claim, cost, expense, liability, obligation, loss or damage
(including reasonable legal fees) of any nature, incurred by or
imposed upon YR or any such person which results, arises out of
or is based upon (i) any material misrepresentation by CEP or
breach of any warranty, covenant, of agreement by CEP in this
Agreement; or (ii) after any applicable notice and/or cure
periods, any breach or default in performance by CEP of any
covenant or undertaking to be performed by CEP hereunder, or any
other agreement entered into by CEP and YR relating hereto.
YR agrees to indemnify, hold harmless, reimburse and defend CEP
and each of its officers, directors, agents, affiliates, and
control persons against any claim, cost, expense, liability,
obligation, loss or damage (including reasonable legal fees) of
any nature, incurred by or imposed upon CEP or any such person
which results, arises out of or is based upon (i) any material
misrepresentation by YR or breach of any warranty, covenant, of
agreement by YR in this Agreement; or (ii) after any applicable
notice and/or cure periods, any breach or default in performance
by YR of any covenant or undertaking to be performed by YR
hereunder, or or any other agreement entered into by YR and CEP.
Promptly after receipt by an indemnified party hereunder of
notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the
indemnifying party hereunder, notify the indemnifying party in
writing thereof, but the omission so to notify the indemnifying
party shall not relieve it from any liability which it may have
to such indemnified party other than under this Section and
shall only relieve it from any liability which it may have to
such indemnified party under this Section, except and only if
and to the extent the indemnifying party is prejudiced by such
omission. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of
the commencement thereof, the indemnifying party shall be
entitled to participate in and, to the extent it shall wish, to
assume and undertake the defense thereof with counsel
satisfactory to such indemnified party, and, after notice from
the indemnifying party to such indemnified party of its election
so to assume and undertake the defense thereof, the indemnifying
party shall not be liable to such indemnified party under this
Section for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other
than reasonable costs of investigation and of liaison with
counsel so selected, provided, however, that, if the defendants
in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have
reasonably concluded that there may be reasonable defenses
available to it which are different from or additional to those
available to the indemnifying party or if the interests of the
indemnified party reasonably may be deemed to conflict with the
interests of the indemnifying party, the indemnified parties, as
a group, shall have the right to select one separate counsel and
to assume such legal defenses and otherwise to participate in
the defense of such action, with the reasonable expenses and
fees of such separate counsel and other expenses related to such
participation to be reimbursed by the indemnifying party as incurred.
IN WITNESS WHEREOF, the Parties hereto have executed this
Agreement as of the date first written hereinabove.
"YR" "CEP"
An individual owning and 5G Wireless Communication, Inc.
controlling the assets of SPK a Nevada corporation
"Clean Energy and Power, Inc."
/s/ Yury Rahubin /s/ Bo Linton
By: Yury Rahubin By: Bo Linton
Its: President Its: President
Date: March 27, 2009 Date: March 27, 2009
EX-10.2
LLC FORMATION AGREEMENT
LLC FORMATION AGREEMENT
THIS LLC FORMATION AGREEMENT (the "Agreement") is entered into
as of April 3, 2009 by and between 5G Wireless Communication, Inc.
name change pending to "Clean Energy and Power Inc.," a Nevada
corporation ("CEP") trading on the Pink Sheets, on the one hand, and
Yury Rahubin ("YR"), the controlling party of the ASSETS of the SOLAR
PARK, KAPLICE, on the other hand.
RECITALS
WHEREAS, YR is the controlling owner of the ASSETS of the SOLAR
PARK, KAPLICE, hereafter, ("SPK") (ATTACHMENT A, signed by YR and
CEP) held by the company SunWorx s.r.o, based out of Czech Republic
in which YR is a managing partner.
WHEREAS, CEP will form a Nevada LLC named ("Clean Energy and
Power Solar CZ2", hereafter CZ2) with the ASSETS of SPK (ATTACHMENT A)
WHEREAS, CEP proposed to fund equity for CZ2 in the amount of
$2,300,000 and whereas CEP understands that this equity funding is
necessary to be provided by May 20th, 2009 for which CEP is prepared
to make a good faith effort to succeed on time
NOW, THEREFORE, in consideration of the promises and respective
mutual agreements, covenants, representations and warranties
contained herein, and intending to be legally bound hereby, the
parties hereto agree as follows:
AGREEMENTS
1. Purchase and Sale. At the Closing, subject to the
terms and conditions contained in this Agreement, and on the
basis of the representations, warranties and agreements herein
contained, YR shall sell to CEP, and CEP shall purchase from YR,
the assets of SPK and place the SPK assets into the newly formed CZ2.
2. Purchase Price with Option. As consideration for the
purchase of SPK, CEP shall issue to YR, as set forth in Exhibit
A, a total of twelve million five hundred thousand (12,500,000)
shares of CEP restricted common stock (the "CEP Shares").
2.1 YR has the option to return the twelve million five
hundred thousand (12,500,000) shares and receive 100%
of the SPK assets exchanged with CEP before the six
(6) month period ending October 3,, 2009. All funds
invested in CZ2 will be returned to CEP, or investors
introduced by CEP, upon the completion of the share return.
2.2 The option to return the shares as described in
section 2.1 is automatically rescinded if CZ2 receives
the funding of $2,300,000 USD by CEP's efforts on or
before the agreed date specified in section 2.1
2.3 YR will be responsible to fund CZ2 $6,900,000 USD or
more through 3rd party institutions based on market
rate and conditions, in order to complete CZ2.
2.4 In the event YR does not fund CZ2 as described in 2.3,
YR agrees to return the shares listed in 2.1 to CEP.
All funds invested in CZ2 will be returned to CEP upon
the completion of the share return.
2.5 At anytime within the 6-month option prior to the 100%
complete funding of $2,300,000 by CEP for CZ2, YR and
CEP has the right to cancel this agreement and the
original assets listed in Attachment A. (subject to
"a" or "b" below) will return to YR.
a. In the event 2.5 is exercised, YR will replace the
assets of SPK with the assets of a similar solar
project. This replacement is subject to approval by CEP.
B Or, Energy Partners LLC must assign its original 50%
ownership of CZ2 to CEP. The restricted shares of
CEP listed in (2. Purchase Price and Option) will be
cancelled. All funding raised by CEP, under this
agreement, for CZ2 shall remain in CZ2 for future
projects or returned to the original investors.
3. Closing. The closing of the sale and purchase of SPK
(the "Closing") shall take place on April 3, 2009 or at such
other date, time and place as may be agreed upon in writing by
the parties hereto, but not later than April 15, 2009 (the"
Termination Date"). The date of the Closing is sometimes herein
referred to as the "Closing Date."
4. LLC OWNERSHIP AND STRUCTURE
4.1 50% - CEP
50% - Energy Partners LLC
4.2 As a subsidiary of CEP, CZ2 will use its revenues to
pay project operations of CZ2, remaining profits will
be split between CEP and YR respective to 4.1 and 4.2
ownership interests.
4.3 Yuri Rahubin shall be President of CZ2.
4.4 Upon execution of the Agreement, CEP will begin the
funding of CZ2 with the cooperation of YR.
4.5 In the event of a tie vote in any event related to CEP
and YR Dennis Shen will cast the tie breaking vote.
5. Representations and Warranties of YR. To induce CEP
to enter into this Agreement and to consummate the transactions
contemplated hereby, YR represents and warrants as of the date
hereof and as of the Closing, as follows:
5.1 Authorization. YR has the requisite power and
authority to execute and deliver this Agreement and to
perform the transactions hereunder. This Agreement,
and all of the exhibits attached hereto, constitutes
the legal, valid and binding obligation of YR.
5.2 Books and Records. YR shall supply CEP accounting and
agreements sufficient to prove the viability of the
CZ1 project with a specific dollar amount necessary to
begin the project.
5.3 Legal Proceedings and Compliance with Law. There is
no litigation that is pending or, to YR's knowledge,
threatened against YR. To YR's knowledge, there has
been no default under any laws applicable to YR, YR
has not received any notices from any governmental
entity regarding any alleged defaults under any laws,
and there has been no default with respect to any
court order applicable to YR.
5.4 Corporate Status. CEP is a corporation duly
organized, validly existing and in good standing under
the Laws of the State of Nevada and is qualified to do
business in any jurisdiction where it is required to
be so qualified. The articles and bylaws of CEP that
have been delivered to YR as of the date hereof are
current, correct and complete.
5.5 Authorization. CEP has the requisite power and
authority to execute and deliver this Agreement and to
perform the transactions hereunder. This Agreement,
and all of the exhibits attached hereto, constitutes
the legal, valid and binding obligation of CEP.
5.6 Capitalization. The issued and outstanding capital
stock of CEP consists of (122,629,871) shares of
common stock, par value $.001.
5.7 Books and Records. CEP keeps its books, records and
accounts (including, without limitation, those kept
for financial reporting purposes and for tax purposes)
in accordance with GAP and in sufficient detail to
reflect the transactions and dispositions of their
assets, liabilities and equities. The minute books of
CEP contain records of their Shareholders' and
directors' meetings and of action taken by such
Shareholders and directors. The meetings of directors
and Shareholders referred to in such minute books were
duly called and held, and the resolutions appearing in
such minute books were duly adopted. The signatures
appearing on all documents contained in such minute
books are the true signatures of the persons
purporting to have signed the same.
5.8 Legal Proceedings and Compliance with Law. There is
no litigation that is pending or, to CEP's knowledge,
threatened against CEP. To CEP's knowledge, there has
been no default under any laws applicable to CEP, CEP
has not received any notices from any governmental
entity regarding any alleged defaults under any laws,
and there has been no default with respect to any
court order applicable to CEP.
5.9 Accuracy of Information. To CEP's knowledge, no
representation or warranty by CEP made herein contains
any untrue statement of a material fact or omits to
state any material fact necessary in order to make the
statements contained herein not misleading in light of
the circumstances under which such statements were made.
6. Mutual Covenants. Without limiting any covenant,
agreement, representation or warranty made, each of the parties
covenants and agrees as follows:
6.1 Fulfillment of Closing Conditions. At and prior to
the Closing, each party shall use commercially
reasonable efforts to fulfill, and to cause each other
to fulfill, the conditions specified in this Agreement
to the extent that the fulfillment of such conditions
is within its or his control.
6.2 Disclosure of Certain Matters. YR on the one hand,
and CEP, on the other hand, shall give CEP and YR,
respectively, prompt notice of any event or
development that occurs that (a) had it existed or
been known on the date hereof would have been required
to be disclosed by such party under this Agreement,
(b) would cause any of the representations and
warranties of such party contained herein to be
inaccurate or otherwise misleading, except as
contemplated by the terms hereof, or (c) gives any
such party any reason to believe that any of the
conditions set forth in this Agreement will not be
satisfied prior to the Termination Date.
6.3 Confidentiality. If the transactions contemplated
hereby are not consummated, each party shall treat all
information obtained in its investigation of the other
party or any affiliate thereof, and not otherwise
known to them or already in the public domain, as
confidential and shall not use or otherwise disclose
such information to any third party and shall return
to such other party or affiliate all copies made by it
or its representatives of confidential information
provided by such other party or affiliate.
7. Conditions Precedent. This Agreement, and the
transactions contemplated hereby, shall be subject to the
following conditions precedent:
7.1 The obligations of YR to deliver the assets of SPK and
to satisfy their other obligations hereunder shall be
subject to the fulfillment (or waiver by YR), at or
prior to the Closing, of the following conditions,
which CEP agrees to use its best efforts to cause to
be fulfilled:
A. Representations and Warranties. The
representations and warranties of CEP contained in
this Agreement shall be true and correct on the date
hereof and (except to the extent such representations
and warranties speak as of an earlier date) shall also
be true and correct on and as of the Closing Date with
the same force and effect as if made on and as of the
Closing Date.
B. Agreements, Conditions and Covenants. CEP
shall have performed or complied with all agreements,
conditions and covenants required by this Agreement to
be performed or complied with by it on or before the
Closing Date.
C. Legality. No Law or Court Order shall have
been enacted, entered, promulgated or enforced by any
court or governmental authority that is in effect and
has the effect of making the transactions contemplated
by this Agreement illegal or otherwise prohibiting the
consummation of such purchase and sale.
D. The obligations of CEP to pay the Purchase
Price and to satisfy their other obligations hereunder
shall be subject to the fulfillment (or waiver by
CEP), at or prior to the Closing, of the following
conditions, which YR agrees to use its best efforts to
cause to be fulfilled:
E. Representations and Warranties. The
representations and warranties of YR contained in this
Agreement shall be true and correct on the date hereof
and (except to the extent such representations and
warranties speak as of an earlier date) shall also be
true and correct on and as of the Closing Date with
the same force and effect as if made on and as of the
Closing Date. The executed Agreement is not a
guarantee of funding by CEP.
F. Agreements, Conditions and Covenants. YR
shall have performed or complied in all material
respects with all agreements, conditions and covenants
required by this Agreement to be performed or complied
with by them on or before the Closing Date.
G. Legality. No Law or Court Order shall have
been enacted, entered, promulgated or enforced by any
court or governmental authority that is in effect and
has the effect of making the transactions contemplated
by this Agreement illegal or otherwise prohibiting the
consummation of such purchase and sale.
8. Termination.
Notwithstanding anything to the contrary contained in this
Agreement, this Agreement may be terminated and the transactions
contemplated hereby may be abandoned prior to the Closing Date
only by the mutual consent of all of the Parties. Following the
Closing Date, in the event the Closing does occur within ten
(10) days of the Closing Date, this Agreement may be terminated
by either Party upon delivery of written notice to the other Party.
9. General.
9.1 Expenses. Except as otherwise specifically provided
for herein, whether or not the transactions
contemplated hereby are consummated, each of the
parties hereto shall bear the cost of all fees and
expenses relating to or arising from its compliance
with the various provisions of this Agreement and such
party's covenants to be performed hereunder, and
except as otherwise specifically provided for herein,
each of the Parties hereto agrees to pay all of its
own expenses (including, without limitation, attorneys
and accountants' fees and printing expenses) incurred
in connection with this Agreement, the transactions
contemplated hereby, the negotiations leading to the
same and the preparations made for carrying the same
into effect, and all such fees and expenses of the
Parties hereto shall be paid prior to Closing.
9.2 Notices. Any notice, request, instruction or other
document required by the terms of this Agreement, or
deemed by any of the Parties hereto to be desirable,
to be given to any other Party hereto shall be in
writing and shall be delivered by facsimile or
overnight courier to the following addresses:
To YR:
Yury Rahubin
Energy Partners LLC
8500 Mt. Olympus Ave
Vancouver, WA 98667
(714) 747 7841
yury@keyindustrial.net
To CEP Inc.:
Bo Linton
5G Wireless Communications, Inc.
409 N. PCH #799
Redondo Beach, CA 90277
(949) 873-8071 tel
(310) 844-7800 fax
The persons and addresses set forth above may be
changed from time to time by a notice sent as
aforesaid. Notice shall be conclusively deemed given
at the time of delivery if made during normal business
hours, otherwise notice shall be deemed given on the
next business day.
9.3 Entire Agreement. This Agreement, together with the
schedules and exhibits attached hereto, sets forth the
entire agreement and understanding of the Parties with
respect to the transactions contemplated hereby, and
supersedes all prior agreements, arrangements and
understandings related to the subject matter hereof.
No understanding, promise, inducement, statement of
intention, representation, warranty, covenant or
condition, written or oral, express or implied, whether
by statute or otherwise, has been made by any Party
hereto which is not embodied in this Agreement, or the
exhibits attached hereto or the written statements,
certificates, or other documents delivered pursuant
hereto or in connection with the transactions
contemplated hereby, and no Party hereto shall be bound
by or liable for any alleged understanding, promise,
inducement, statement, representation, warranty,
covenant or condition not so set forth.
9.4 Survival of Representations. All statements of fact
(including financial statements) contained in the
schedules, the exhibits, the certificates or any other
instrument delivered by or on behalf of the Parties
hereto, or in connection with the transactions
contemplated hereby, shall be deemed representations
and warranties by the respective Party hereunder. All
representations, warranties, agreements, and covenants
hereunder shall survive the Closing and remain
effective regardless of any investigation or audit at
any time made by or on behalf of the Parties or of any
information a Party may have in respect thereto.
Consummation of the transactions contemplated hereby
shall not be deemed or construed to be a waiver of any
right or remedy possessed by any Party hereto,
notwithstanding that such Party knew or should have
known at the time of Closing that such right or remedy
existed.
9.5 Incorporated by Reference. All documents (including,
without limitation, all financial statements) delivered
as part hereof or incident hereto are incorporated as a
part of this Agreement by reference.
9.6 Remedies Cumulative. No remedy herein conferred upon
any Party is intended to be exclusive of any other
remedy and each and every such remedy shall be
cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing at
law or in equity or by statute or otherwise.
9.7 Execution of Additional Documents. Each Party
hereto shall make, execute, acknowledge and deliver
such other instruments and documents, and take all such
other actions as may be reasonably required in order to
effectuate the purposes of this Agreement and to
consummate the transactions contemplated hereby.
10. Finders' and Related Fees. Each of the Parties hereto
is responsible for, and shall indemnify the other against, any
claim by any third party to a fee, commission, bonus or other
remuneration arising by reason of any services alleged to have
been rendered to or at the instance of said Party to this
Agreement with respect to this Agreement or to any of the
transactions contemplated hereby.
11. Governing Law. This Agreement has been negotiated and
executed in the State of California and shall be construed and
enforced in accordance with the laws of such state.
12. Forum. Each of the Parties hereto agrees that any
action or suit which may be brought by any Party hereto against
any other Party hereto in connection with this Agreement or the
transactions contemplated hereby may be brought only in a
federal or state court in Orange County, California.
13. Attorneys' Fees. Except as otherwise provided herein,
if a dispute should arise between the Parties including, but not
limited to arbitration, the prevailing Party shall be reimbursed
by the non-prevailing Party for all reasonable expenses incurred
in resolving such dispute, including reasonable attorneys' fees
exclusive of such amount of attorneys' fees as shall be a
premium for result or for risk of loss under a contingency fee arrangement.
14. Binding Effect and Assignment. This Agreement shall
inure to the benefit of and be binding upon the Parties hereto
and their respective heirs, executors, administrators, legal
representatives and assigns.
15. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
In making proof of this Agreement, it shall not be necessary to
produce or account for more than one such counterpart.
16. Indemnification CEP agrees to indemnify, hold
harmless, reimburse and defend YR and its agents against any
claim, cost, expense, liability, obligation, loss or damage
(including reasonable legal fees) of any nature, incurred by or
imposed upon YR or any such person which results, arises out of
or is based upon (i) any material misrepresentation by CEP or
breach of any warranty, covenant, of agreement by CEP in this
Agreement; or (ii) after any applicable notice and/or cure
periods, any breach or default in performance by CEP of any
covenant or undertaking to be performed by CEP hereunder, or any
other agreement entered into by CEP and YR relating hereto.
YR agrees to indemnify, hold harmless, reimburse and defend CEP
and each of its officers, directors, agents, affiliates, and
control persons against any claim, cost, expense, liability,
obligation, loss or damage (including reasonable legal fees) of
any nature, incurred by or imposed upon CEP or any such person
which results, arises out of or is based upon (i) any material
misrepresentation by YR or breach of any warranty, covenant, of
agreement by YR in this Agreement; or (ii) after any applicable
notice and/or cure periods, any breach or default in performance
by YR of any covenant or undertaking to be performed by YR
hereunder, or or any other agreement entered into by YR and CEP.
Promptly after receipt by an indemnified party hereunder of
notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the
indemnifying party hereunder, notify the indemnifying party in
writing thereof, but the omission so to notify the indemnifying
party shall not relieve it from any liability which it may have
to such indemnified party other than under this Section and
shall only relieve it from any liability which it may have to
such indemnified party under this Section, except and only if
and to the extent the indemnifying party is prejudiced by such
omission. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of
the commencement thereof, the indemnifying party shall be
entitled to participate in and, to the extent it shall wish, to
assume and undertake the defense thereof with counsel
satisfactory to such indemnified party, and, after notice from
the indemnifying party to such indemnified party of its election
so to assume and undertake the defense thereof, the indemnifying
party shall not be liable to such indemnified party under this
Section for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other
than reasonable costs of investigation and of liaison with
counsel so selected, provided, however, that, if the defendants
in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have
reasonably concluded that there may be reasonable defenses
available to it which are different from or additional to those
available to the indemnifying party or if the interests of the
indemnified party reasonably may be deemed to conflict with the
interests of the indemnifying party, the indemnified parties, as
a group, shall have the right to select one separate counsel and
to assume such legal defenses and otherwise to participate in
the defense of such action, with the reasonable expenses and
fees of such separate counsel and other expenses related to such
participation to be reimbursed by the indemnifying party as incurred.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement
as of the date first written hereinabove.
"YR" "CEP"
An individual owning and "Clean Energy and Power, Inc."
controlling the assets of SPK 5G Wireless Communication, Inc.
a Nevada corporation
/s/ Yury Rahubin /s/ Bo Linton
By: Yury Rahubin By: Bo Linton
Its: President Its: President
Date: April 3, 2009 Date: April 3, 2009
EX-10.3
STRATEGIC ALLIANCE AGREEMENT
STRATEGIC ALLIANCE AGREEMENT
This Strategic Alliance Agreement ("SAA") is entered into by and
between 5G Wireless Communications, Inc. (Name Change pending to
"Clean Energy and Power" ("CEP") and Sunworx Projects International
UG ("SUN") on this 20th day of April, 2009.
1. Recitals
Whereas, CEP is a corporation organized and existing under the
law of the State of Nevada with its principle place of business
in the state of California.
Whereas SUN is a German, limited liable, company.
Whereas CEP and SUN are desirous to work together for the
purpose of financing, engineering, installing and operating
solar power projects in Europe to produce green electricity.
Whereas the solar power projects may reach a volume of up to 20
mln USD per year.
2. Responsibilities for a Strategic Alliance
a) CEP will provide project financing for European Markets.
b) SUN will provide ECPM for solar power projects
3. Scope of Alliance
a) Focused on incentive driven European solar markets in Italy,
Czech Republic, Germany, and Spain
b) Expanding into US market
4. This is a NON-EXCLUSIVE Agreement.
5. Website Links and Image Authorization.
CEP and SUN authorize each other to be named as a "Partner" on
each others website with a corporate logo linking to its website.
CEP and SUN have the right to withdraw from this agreement at
any time. The other party has to delete all or partially logos,
references or links from its website on written demand not later
than 3 days after receiving this demand by e-mail and/or fax.
DATED: April 19, 2009 5G Wireless Communications, Inc.
By: /s/ Bo Linton
Bo Linton, CEO
DATED: April 24, 2009 Sunworx Projects International UG
By: /s/ Willi Wohlfart
Willi Wohlfart, President