**Exhibit 10.25**

 

*** Confidential treatment has been requested with respect to certainportions of this exhibit. Omitted portions have been filed separately with theSecurities and Exchange Commission.

 

**OPEN ENERGY CORPORATION**

514 Via de la Valle, Suite 200

Solana Beach, California 92075

 

April 9, 2008

 

Burlingame Industries, Inc.,

DBA Eagle Roofing Products

3546 N. Riverside Avenue

Rialto, California 92377

 

Re:          Amendment to JointMarketing and Distribution Agreement

 

Dear Seamus,

 

This letter agreement will serve as an amendment (this “Amendment”) to,and forms a part of, the Joint Marketing and Distribution Agreement  (the “JMDA”), dated as of April 6, 2007 byand between Open Energy Corporation (“OEC”) and Burlingame Industries, Inc.,DBA Eagle Roofing Products (“Eagle”). This Amendment is binding upon both parties in accordance with its termsand is supported by consideration the adequacy of which is acknowledged by bothparties.  Except as specifically setforth herein, this Amendment does not alter or amend the JMDA in any way, andall such terms remain in full force and effect. Capitalized terms used herein and not otherwise defined shall have therespective meanings ascribed to such terms in the JMDA.

 

1.                                       **Net Pricing Provisions**. The parties acknowledge that pursuant to the JMDA a portion of thepricing for product sold by OEC to Eagle for use in certain jurisdictions hasbeen eliminated in exchange for the assignment to OEC of the state rebate (eacha “Rebate”) associated with such product pursuant to various state incentiveprograms (“Net Pricing”).  In order togive greater certainty to OEC regarding the timing of the collection of theRebates, and to enable OEC to continue to offer Net Pricing, the parties haveagreed to the terms set forth below.

 

a.               *Product Invoiced Prior to the Date Hereof*.

 

i.                  Exhibit A,entitled “Eagle Rebate Status” sets forth a matrix of variouspreviously-invoiced product shipped by OEC to Eagle.  For those categories where Eagle’s percentageis listed as 100%, Eagle hereby agrees that if on or prior to the date that is 150days immediately following the date hereof, OEC has not received allinformation necessary to submit rebate claim paperwork applicable to any Rebatein such category to the proper utility or other governmental agency responsiblefor rebate payments (e.g., the California Energy Commission) (the “Rebate 

 

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Information”), then Eagle shall remit theestimated Rebate portion of the Net Pricing associated with the applicableinvoice to OEC within 5 business days immediately following such 150-day period(such invoices, the “Fully Paid Past Invoices”).  Upon receipt of such payment, OEC will assignthe applicable Rebate to Eagle, and Eagle shall be entitled to all proceeds ofsuch Rebates upon collection.

 

ii.     OECwill continue to process the Rebate associated with Fully Paid Past Invoicesfollowing the payment thereof by Eagle.

 

iii.    Forthe avoidance of doubt, OEC and not Eagle shall remain responsible for all categoriesset forth on Exhibit A where Eagle’s percentage is zero and OEC’spercentage is listed as 100%.

 

b.              *ProductInvoiced on and After the Date Hereof*.

 

i.      Forinvoices dated April 1, 2008 or later for which Net Pricing is extended,if OEC has received all Rebate Information applicable to any such invoice on orprior to the 150th day immediately following the invoicedate (the “Rebate Deadline”), Eagle shall have no further obligation withrespect to such invoice (other than reconciliation for the Rebate amountultimately approved and paid by the applicable utility or government agency).

 

ii.     IfOEC has not received all Rebate Information applicable to any invoice for whichNet Pricing is extended on or prior to the applicable Rebate Deadline, thenEagle shall remit the estimated Rebate portion associated with the applicableinvoice to OEC within 5 business days immediately following the applicableRebate Deadline (such Rebates, “Fully Paid Rebates”).  Upon receipt of such payment, OEC will assignthe applicable Rebate to Eagle, and Eagle shall be entitled to all proceeds ofsuch Rebates upon collection.

 

iii.    AnyFully Paid Rebate shall be tracked and reconciled on a monthly basis betweenrepresentatives of Eagle and OEC.  Ifwithin 90 days after OEC receives payment from Eagle in respect of any FullyPaid Rebate, such Fully Paid Rebate remains uncollected, then OEC shall creditto the account of Eagle an amount equal to 20% of such uncollected Fully Paid Rebate(the “True Up”).  If any Fully PaidRebate is received following the applicable True Up: (1) by Eagle, thenEagle shall remit an amount equal to 20% thereof to OEC; and (2) by OEC,then OEC shall remit an amount equal to 80% of such Rebate to Eagle.  Eagle shall use commercially reasonable bestefforts to cause the collection of any Rebate at the earliest practicable timefor which a True Up has been effected pursuant to this paragraph.

 

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iv.           Notwithstandingparagraph 3(c) above, in the event that OEC has not received a signed copyof the Solar Rebate Processing Agreement in the form set forth on Exhibit Bhereto from the developer (in the case of new construction) or the applicablehomeowner (in the case of custom re-roof projects) on or prior to the applicable Rebate Deadline, then Eagleshall remit an amount equal to 100% of the estimated Rebate portion associatedwith the applicable invoice to OEC within 5 business days of the applicableRebate Deadline.  Upon receipt of suchpayment, OEC will assign the applicable Rebate to Eagle, and Eagle shall beentitled to all proceeds of such Rebates upon collection.

 

c.               OEC agrees to usecommercially reasonable best efforts to process all Rebates assigned to it inrespect of Net Pricing offered to Eagle to cause the collection thereof as soonas reasonably practicable.  Eagleacknowledges that OEC’s Rebate processing efforts are dependent in part onreceipt of information and signatures from Eagle’s customers and others in itsdistribution channel.

 

2.                                       **Minimum Purchase Commitment**.

 

a.               *Baseline Minimum Purchase Amounts*.  Eagle hereby agrees that it shall purchasefrom OEC the following product amounts (expressed both in numbers of tiles aswell as total wattage)  on a monthlybasis from April 2008 through December 2008:

 

| i.   |   | April 2008: |   | 4,000 tiles, 136,000 watts; |
|------|--------|------------------|--------|-----------------------------|
| ii.  |   | May 2008:   |   | 5,000 tiles, 169,400 watts; |
| iii. |   | June 2008:  |   | 6,000 tiles, 201,600 watts; |

Quarterly Minimum Total: 15,000 tiles, 507,000 watts

 

| iv. |   | July 2008:      |   | 8,000 tiles, 301,000 watts;  |
|-----|--------|----------------------|--------|------------------------------|
| v.  |   | August 2008:    |   | 10,000 tiles, 400,000 watts; |
| vi. |   | September 2008: |   | 12,000 tiles, 498,000 watts; |

Quarterly Minimum Total: 30,000 tiles, 1,199,000 watts

 

| vii.  |   | October 2008:  |   | 13,000 tiles, 506,000 watts;     |
|-------|--------|---------------------|--------|----------------------------------|
| viii. |   | November 2008: |   | 14,000 tiles, 514,000 watts; and |
| ix.   |   | December 2008: |   | 15,000 tiles, 522,000 watts.     |

Quarterly Minimum Total: 42,000 tiles; 1,542,000 watts

 

b.              *AdjustedMinimum Purchase Amounts*.  Itis anticipated that OEC will introduce and make available for purchase by Eaglea Generation 2 Asphalt Shingle PV product (the “Gen 2 Shingle Product”) on orprior to October 1, 2008 (the “Asphalt Shingle Condition”).  If the Ashpalt Shingle Condition issatisfied, Eagle agrees, in addition to the baseline minimum purchase amountsset forth above in paragraph 2(a), to purchase at least the following quantitiesof such Gen 2 Shingle Product from OEC during the applicable periods:

 

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| i.   |   | October 2008:  |   | 2,500 tiles, 105,000 watts;     |
|------|--------|---------------------|--------|---------------------------------|
| ii.  |   | November 2008: |   | 3,500 tiles, 147,000 watts; and |
| iii. |   | December 2008: |   | 5,000 tiles, 210,000 watts.     |

 

c.               *Effect of Failure to Purchase Minimum Amounts*.  In the event that Eagle fails to purchase theQuarterly Minimum Total on or prior to the end of any calendar quarter setforth above under paragraph 2(a), as increased (as applicable) by the minimumpurchase amounts set forth above under paragraph 2(b) in the event theAsphalt Shingle Condition is satisfied (a “Minimum Purchase Failure”), then thepricing extended to Eagle set forth below under paragraph 3 for all productpurchased in the applicable calendar quarter shall be increased by $0.02 perwatt for every 1,000 tiles less than the Quarterly Minimum Total that Eaglepurchases in the applicable calendar quarter from OEC.  In addition to the foregoing and not in lieuthereof, following the date of the Florida Launch (as defined below), upon theoccurrence of any Minimum Purchase Failure, OEC shall be permanently releasedfrom any and all exclusivity provisions set forth in the JMDA and shall bepermitted to sell product in any amount to any party without restriction.

 

i.                  Notwithstandingthe foregoing, until the earlier to occur of (1) the 30th dayfollowing the date on which Miami-Dade County, Florida approves the use of OECproduct in such County, or (2) the date on which Eagle actually begins tooffer its product for purchase in Florida (the “Florida Launch”), which FloridaLaunch is expected to occur on or prior to July 30, 2008, the per wattincrease in pricing set forth in paragraph 2(c) shall be limited to $0.01per watt.

 

ii.               Notwithstanding theforegoing, in the event that Eagle attempts to purchase and OEC fails todeliver at least the Quarterly Minimum Total to Eagle for any calendar quarterdescribed in paragraph 2(a) above, then Eagle shall be entitled to a $0.02per watt discount for each 1,000 tiles that OEC delivers below the applicableQuarterly Minimum Total, applicable to all product purchased during suchcalendar quarter.

 

3.                                       **Tiered Pricing**.

 

a.               The followingpricing shall apply for product and services purchased by Eagle from OEC fromand after April 1, 2008:

 

i.                  4 Foot BlueTiles:

 

1.               Panel-only price: [***](1)per watt (includes no ancillary services or support).

 

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(1)  Indicates thatconfidential treatment has been sought for this information.

 

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2.     TractBuilders: [***](2) per watt (includes full rebate processing, net pricing andengineering and customer service support).

 

3.     CustomRe-Roofs: [***](3) per watt (includes full rebate processing, net pricing andengineering and customer service support).

 

ii.               4 Foot Gold Tiles:

 

1.     Panel-onlyprice:  [***](4) per watt (includes noancillary services or support).

 

2.     TractBuilders: [***](5) per watt (includes full rebate processing, net pricing andengineering and customer service support).

 

3.     CustomRe-Roofs: [***](6) per watt (includes full rebate processing, net pricing andengineering and customer service support).

 

iii.            Services Pricing:

 

1.     RebateProcessing/Net Pricing:  [***](7) perwatt.

 

2.     Engineering/CustomerService  [***](8) per watt (includesLevels I-III customer service and training).

 

4.                                       **Co-Op Marketing Program**. The parties expressly agree to continue the co-op marketing program setforth in the JMDA, including, without limitation, the contribution by OEC of anamount equal to 1.5% of each calendar quarter’s sales to Eagle to a commonmarketing fund.

 

 

IN WITNESS WHEREOF, the parties have causedthis Amendment to be executed by their duly authorized representatives as ofthis 10th day of April, 2008.

 

 
| OPEN ENERGY CORPORATION | BURLINGAME INDUSTRIES, INC. |
|-------------------------|-----------------------------|
|                    |                        |
|                    |                        |
| By:                     | /s/ David A. Field          |   | By: | /s/ Richard Jones |
|                    |                        |
|                    |                        |
| Name:                   | David A. Field              |   | By: | Richard Jones |
|                    |                        |
|                    |                        |
| Title:                  | President                   |   | Title: | CFO |
|                         |                             |  |  |  |  |  |  |  |  |  |

 

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(2)  Indicates thatconfidential treatment has been sought for this information.

(3)  Indicates thatconfidential treatment has been sought for this information.

(4)  Indicates thatconfidential treatment has been sought for this information.

(5)  Indicates thatconfidential treatment has been sought for this information.

(6)  Indicates thatconfidential treatment has been sought for this information.

(7)  Indicates thatconfidential treatment has been sought for this information.

(8)  Indicates thatconfidential treatment has been sought for this information.

 

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**Exhibit A**

 

Eagle Rebate Status

 

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**Exhibit B**

 

Solar Rebate Processing Agreement

 

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