Americas Wind Energy Corporation: Exhibit 10.1 - Filed by newsfilecorp.com






SETTLEMENT AGREEMENT AND MUTUAL LIMITED
RELEASES

          This
Settlement Agreement and Mutual Limited Releases (the “Agreement”) is made and
entered into as of this 28th day of April, 2010, by and among Americas Wind
Energy Inc., an Ontario registered company (“AWE”), Americas Wind Energy
Corporation, a Nevada corporation and the parent of AWE (“Parent,” together with
AWE, the “AWE Parties”), Emergya Wind Technologies B.V., a private company with
limited liability organized under the laws of the Netherlands (“Emergya”), and
EWT–Americas Inc., a Delaware corporation (“EWT,” together with Emergya, the
“EWT Parties”). The EWT Parties and the AWE Parties are sometimes collectively
referred to herein as the “Parties.” 

RECITALS

          WHEREAS,
the Parties entered into a written Sublicense Agreement, dated as of March 5,
2009 (the “Sublicense Agreement”), wherein AWE agreed to sublicense to EWT that
certain License Agreement, dated as of April 23, 2004, by and between AWE and
Emergya (the “Master License”) in exchange for certain sublicense payments from
EWT with respect to sales of medium capacity wind turbines to certain specified
customers; 

          WHEREAS,
on or about February 1, 2010, the EWT Parties terminated the Sublicense
Agreement based upon certain breaches by AWE of the Sublicense Agreement, and,
in response, AWE asserted that the EWT Parties did not have the right to
terminate the Sublicense Agreement, that AWE had not breached the Sublicense
Agreement, and that it would have certain counterclaims against EWT arising out
of the Sublicense Agreement in addition to claims against Emergya related to
systems and products purchased from Emergya; 

          WHEREAS,
the Parties have agreed to enter into this Agreement to avoid the time and
expenses of litigation; and




     WHEREAS, the Parties have
mutually and voluntarily chosen to resolve their claims and defenses without
litigation on the terms and conditions hereinafter set forth, in complete and
final settlement of any and all claims, defenses, counterclaims, differences,
and causes of action.

     NOW, THEREFORE, in
consideration of the mutual covenants set forth below and the consideration
hereinafter contained, the receipt and adequacy of which is hereby acknowledged,
and without an admission of liability by any party hereto, the Parties hereby
agree as follows:

     1.      WARRANTIES

     The Parties warrant and represent
to each other that they have made no assignment of any rights or claims which
are the subject of this Agreement and that the individual executing this
Agreement on behalf of each Party is duly authorized to execute this
Agreement.

     2.      PAYMENT
AND OTHER OBLIGATIONS

          2.1
Payment by EWT

     EWT will make payments to AWE in
an amount equal to 3% of Sales Revenues from completed sales of Goods made
during the Settlement Payment Period (the “Settlement Payments”). For purposes
hereof, completed sales of Goods means executed written purchase orders with
customers, provided that any financing condition or other conditions upon which
such orders may have been contingent shall have been waived or satisfied (no
financing contingency). The aggregate Settlement Payments received by AWE
hereunder shall not under any circumstances exceed the Maximum Payment Cap. The
Settlement Payments will only be made to the extent the Sales Revenue has been
actually collected by EWT. All amounts retained, set-off or netted from the
Settlement Payments by EWT in accordance with the terms of this Agreement shall
be deemed not to have been received by AWE for purposes of determining whether
the Maximum Payment Cap has been achieved. Settlement Payments will be due to
AWE within sixty (60) days of the last day of the month,
commencing with the later to occur of (i) month ending April 30, 2010 or (ii)
the month ending after the Effective Date, and shall include 3% of Sales
Revenues generated and collected under the Sublicense Agreement with respect to
the specified customers named therein which were not yet due to be paid to AWE
at the time of termination of said Sublicense Agreement.




          2.2      Definitions
for Purposes of this Section 2

	 	(a) 	
      “Effective Date” shall mean the date of the satisfaction
      or waiver of the conditions set out in Section 5 of this
  Agreement.

	 	 	 
	 	(b) 	
      “Exclusive Rights Territory” shall mean the “Exclusive
      Rights Territory” as defined in the Master License.

	 	 	 
	 	(c) 	
      “Goods” shall mean wind turbines in the size range of 600
      kw to 1 mw defined as “Medium Capacity Wind Turbines” in the Master
      License and components thereof.

	 	 	 
	 	(d) 	
      “Maximum Payment Cap” means Ten Million U.S. Dollars
      ($10,000,000).

	 	 	 
	 	(e) 	
      “Sales Revenue” shall mean revenue recognized from the
      sale of Goods, in accordance with GAAP, on a percentage completion basis,
      generated by EWT or Emergya, or any other entity to whom Emergya or EWT
      has licensed, sold, transferred or disposed of any rights to sell Goods in
      the Exclusive Rights Territory with respect to projects in the Exclusive
      Rights Territory.

	 	 	 
	 	(f) 	
      “Settlement Payment Period” means the period commencing
      on the Effective Date and terminating on the earlier of to occur of (i)
      the fourth anniversary of the Effective Date or (ii) the date upon which
      the payments received by AWE equal the Maximum Payment
  Cap.



          2.3      Amounts
Owing Emergya by AWE Parties

     The AWE Parties acknowledge and
agree that amounts are currently due from AWE to EWT and/or Emergya as reflected
in that certain Exhibit D of the Sublicense Agreement and that the EWT Parties
will have additional obligations to former AWE customers in relation to wind
turbines and components. Accordingly, the AWE Parties consent to a variation of
the sharing of revenues from the sale of Goods to reflect the same. The Parties
hereby agree to fix the total amount recoverable by the EWT Parties from the AWE Parties at
$4,000,000 US. EWT may retain all of the Settlement Payments to be applied
against the amount recoverable until a total of $2,000,000 US has been so
retained. Thereafter, subsequent Settlement Payments will be made to AWE on a
50% basis. For purposes of clarity, during the Settlement Payment Period, AWE
will not receive any Settlement Payments until EWT has retained $2,000,000 US
from the Settlement Payments and thereafter AWE will receive 50% of the
Settlement Payments until EWT has retained $4,000,000. None of the EWT Parties
shall have any right to collect or demand the fixed agreed upon amount of
$4,000,000 US from any of the AWE Parties outside of EWT’s right to retain funds
as set out herein.




     Within sixty (60) days of each
month end with respect to the commencement of Settlement Payments, EWT will
provide AWE with a monthly statement of Sales Revenues and completed sales of
Goods made during that month. To the extent requested by AWE in writing, from
time to time, and at AWE’s expense (which at EWT’s option may be deducted from
Settlement Payments and, notwithstanding anything to the contrary contained in
this Agreement, such deduction will be counted in determining the Maximum
Payment Cap), EWT will have quarterly statements regarding the monthly
information prepared and certified by an independent auditor and delivered to
AWE within sixty (60) days of quarter end. Notwithstanding the foregoing, in the
event that any such quarterly statement discloses a discrepancy in Sales Revenue
or sales of Goods in AWE’s favor by greater than five percent (5%) of that
reported by EWT in the statements to AWE, such auditor certification shall be at
the cost of EWT.

          2.4     
Consulting Agreements

          (a)      
EWT agrees to reinstate the following agreements as of the Effective Date, 

subject to the conditions set forth herein and the execution
and delivery of the General Releases, in the form attached hereto as Exhibit A, by each of the
Consultants named in the following agreements: 




          (1)
That certain Consulting Agreement between Harold Dickout and EWT, dated as of
March 5, 2009; and 

          (2)
That certain Consulting Agreement between Frank Pickersgill and EWT, dated as of
March 5, 2009.

          Section
3.1(a)(ii) of the above-referenced Consulting Agreements will be deemed to be deleted as of the Effective Date.

          (b) Subject to receipt of the
General Releases by each consultant, EWT will make the payments due thereunder
which were not otherwise paid under such Consulting Agreements in a lump sum
equal to $56,250 US to each consultant on the date of execution hereof by all
parties notwithstanding whether the conditions precedent set forth in Section 5
have been satisfied.

          2.5      Termination
and Survival Provisions

     The Sublicense Agreement and the
Master License are terminated effective as of February 1, 2010. Notwithstanding
such termination, the following provisions of the Sublicense Agreement shall
survive the execution and delivery of this Agreement: Section 7.1, Section 7.2
as to claims by third parties (other than claims by AWE’s former customers
listed in Exhibit B hereto), and Article VIII. To the extent any EWT
Parties are entitled to indemnification under the survived Section 7.2 of the
Sublicense Agreement, EWT shall have the absolute right to set-off any such
amounts against any Settlement Payments to be made under this Agreement. Any
such indemnification payments set-off shall not be deemed received by AWE for
purposes of determining whether the Maximum Payment Cap has been achieved.




     3.      GENERAL
PROVISIONS

          3.1      Confidentiality

     The Parties agree that the terms
of this Agreement shall be confidential and shall not be disclosed to third
parties. Notwithstanding the foregoing, the Parties may disclose the terms of
this Agreement (a) if required to do so by any public agency entitled to receive
such information pursuant to its rules and regulations or applicable statute;
(b) to their own investors, accountants, or attorneys; (c) pursuant to a valid
court order, subpoena, or discovery request made during the course of
litigation; (d) as necessary to enforce the terms of this Agreement; and (e) in
respect of filings as set out below. The Parties acknowledge that the terms of
Section 3.1 of this Agreement are material. Notwithstanding the foregoing, the
AWE Parties agree not to issue any press release or other public statements with
respect to this Agreement or the transactions contemplated hereby without first
providing the EWT Parties with an opportunity to review and comment and
furthermore, unless required by law, the AWE Parties shall not reference the EWT
Parties or their affiliates in any business materials, including, without
limitation, web site and general communications. The AWE Parties agree to
include modifications to any such press releases or public statements as the EWT
Parties shall reasonably request so long as the EWT Parties provide such
comments within a reasonable time given any particular filing deadlines. The EWT
Parties acknowledge that, as a company with a class of securities registered
under the Exchange Act, as amended, Parent has certain disclosure obligations
and as such may be required to file a current report on Form 8-K and may be
required by law to disclose other aspects of this Agreement in the future.
Parent agrees to give the EWT Parties and their representatives an opportunity
to review any such reports prior to filing and to include such modifications
thereto as the EWT Parties shall reasonably request so long as the EWT Parties provide such comments within a
reasonable time given any particular filing deadlines. The AWE Parties agree to
seek confidential treatment (if applicable) with respect to any filings which
provide any information which would otherwise be deemed or treated as
confidential under the terms of this Agreement.




     If any Party or individual who is
a recipient of a disclosure pursuant to the terms of Section 3.1 of this
Agreement breaches Section 3.1 of this Agreement, the non-breaching Party shall
be entitled to exercise all rights and remedies in law and equity. The fact that
the Parties have reached a new agreement is not confidential.

     4.      LIMITED
RELEASES

          4.1      Limited
Release by EWT Parties

     The EWT Parties, for themselves,
their respective stockholders, officers, directors, employees, agents,
attorneys, partners, subsidiaries, affiliates, divisions, parents, predecessors,
successors and assigns, hereby: 

          (a)
release and discharge the AWE Parties and each of their respective
representatives, shareholders, officers, directors, employees, agents,
attorneys, partners, subsidiaries, affiliates, divisions, parents, predecessors,
successors and assigns (collectively, the “AWE Released Parties”), from any and
all actions, causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, judgments, extent, executions,
claims and demands whatsoever, in law or equity, whether known or unknown,
foreseen or unforeseen, against the AWE Released Parties that they have, ever
had, or hereafter can, shall or may have for, upon or by reason of any matter,
cause or thing whatsoever from the beginning of the world to the day of the date
of this Agreement, save and except for those duties and obligations of the AWE
Released Parties either expressly set forth in this Agreement
or otherwise recited in this Agreement to survive the execution hereof; and 




          (b)
acknowledge, represent, covenant and warrant that the obligations imposed by
this release shall be forever binding, and that this release may not be
modified, amended, annulled, rescinded or otherwise changed except in a writing
signed by the AWE Parties which expressly refers to this Agreement.

          4.2
Limited Release by the AWE Parties

     The AWE Parties, for themselves
and their respective stockholders, officers, directors, employees, agents,
attorneys, partners, subsidiaries, affiliates, divisions, parents, predecessors,
successors and assigns hereby: 

          (a)
release and discharge the EWT Parties and each of their respective
representatives, shareholders, officers, directors, employees, agents,
attorneys, partners, subsidiaries, affiliates, divisions, parents, predecessors,
successors and assigns, (collectively, the “EWT Released Parties”), from any and
all actions, causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, judgments, extent, executions,
claims and demands whatsoever, in law or equity, whether known or unknown,
foreseen or unforeseen, against the EWT Released Parties that they have, ever
had, or hereafter can, shall or may have for, upon or by reason of any matter,
cause or thing whatsoever from the beginning of the world to the day of the date
of this Agreement, save and except for those duties and obligations of the EWT
Parties either expressly set forth in this Agreement or otherwise recited in
this Agreement to survive the execution hereof; and 

          (b)
acknowledge, represent, covenant and warrant that the obligations imposed by this release shall be forever binding, and that this
release may not be modified, amended, annulled, rescinded or otherwise changed
except in a writing signed by the EWT Parties which expressly refers to this
Agreement.




          4.3      Covenant
Not to Sue

          Each
Party (individually, derivatively and representatively) agrees not to sue or
initiate any proceedings against any other person, firm or corporation released
hereby with respect to any of the claims released pursuant to this Agreement,
and each Party agrees to indemnify each other person, firm or corporation
released hereby against all damages and expenses (including reasonable
attorneys’ fees and other litigation expenses) incurred by any such released
person, firm or corporation in the defense of any such lawsuit or
proceeding.

      5.      CONDITION
PRECEDENT

     Except as otherwise provided in
Section 2.4 of this Agreement, this Agreement is conditioned upon the following:


          (a)
EWT being able to reach satisfactory agreement with the former customers of AWE,
listed on the attached Exhibit B, which agreement shall be in the sole
discretion of EWT, and shall set forth EWT’s obligations going forward and fully
release both the EWT Parties and the AWE Parties fully for all time with respect
to matters arising out of AWE’s agreements with said parties. The AWE Parties,
upon request of EWT, will enter into and execute an accompanying mutual release
of the customer to the extent that such release is a customer condition to
customer’s release of the AWE Parties. The EWT Parties shall have forty-five
days (45) from the date of execution hereof to obtain said agreements. If such
agreements have not been obtained within said time frame and the EWT Parties do
not otherwise waive the condition, this Agreement (save and except for Section 2.4(b)
hereof) shall be deemed void and be of no further force and effect; and 




          (b)
This Agreement is further conditioned upon receipt of the approval of the
supervisory board of Emergya on or before April 30, 2010. 

     6.     
INTEGRATION AND MODIFICATION CLAUSE

     This document contains the
complete agreement between the Parties, and, except as expressly set forth
herein, supersedes any and all prior and contemporaneous communications,
agreements and understandings, written or oral, relating to the matters set
forth herein. This Agreement may not be modified, amended, annulled, rescinded
or otherwise changed except in a writing signed by both Parties which expressly
refers to this Agreement. Notwithstanding the agreement of the parties that this
Agreement does not constitute an admission of liability: (a) this Agreement may
be filed or otherwise produced in any proceedings as may be necessary to
consummate or enforce this Agreement or the settlement referred to herein; and
(b) either Party may file or otherwise produce this Agreement in any action that
may be brought against it in order to support a defense or counterclaim based on
principles of release, good-faith settlement or reduction or any other theory of
claim preclusion or issue preclusion or similar defense or counterclaim.

     7.      VOLUNTARY
EXECUTION

     The EWT Parties and the AWE
Parties acknowledge that each has read this Agreement thoroughly and completely
and understand the rights and remedies under this document, and that the
document is executed voluntarily.

     8.      NEITHER
PARTY THE DRAFTER

     Neither party will be viewed as
the drafter of this Agreement. Both parties participated in the negotiation of its terms.




     9.      REPRESENTATION
BY COUNSEL

     The Parties hereby agree that
they have had the advice of counsel of their choosing in negotiations for and in
the preparation of this Agreement, and they have read the Agreement fully
explained by such counsel, and are fully aware of its contents and legal
effect.

     10.     
EXECUTION IN COUNTERPARTS

     This Agreement may be signed in
one or more counterparts, each such counterpart being as fully effective as if a
single original had been signed, but all of which taken together shall
constitute one and the same Agreement. A photocopy, facsimile or electronic copy
of this Agreement or any signature hereon shall be deemed an original for all
purposes. This Agreement may be maintained by the Parties or either of them
exclusively in electronic form.

     11.      COSTS

     The Parties will bear their own
costs, expenses and attorneys’ fees, whether taxable or otherwise, incurred or
arising out of the termination of the Sublicense Agreement. Any payment required
to be paid by EWT to AWE hereunder that is not paid when due shall bear interest
at the rate of 9% per annum (0.75% per month) from the date such payments are
due until paid.

     12.     
CHOICE OF LAW AND FORUM

     This Agreement shall be governed
and interpreted in accordance with the substantive laws of the State of
Delaware. The Parties agree that the exclusive forum for any action concerning
the Agreement shall be Providence, Rhode Island. All covenants and agreements
contained herein shall be binding upon and inure to the benefit of the Parties
and their respective heirs, executors, administrators, successors and
assigns.




     13.      NOTICES

     All notices hereunder shall be in
writing. Any notice hereunder shall be deemed duly given (i) when delivered
personally to the recipient or by facsimile with evidence of delivery, (ii) one
(1) business day after being sent to the recipient by reputable overnight
courier service (charges prepaid), or (iii) upon actual delivery to the
recipient by certified or registered mail, return receipt requested and postage
prepaid, and addressed to the intended recipient as set forth
below: 

     For the EWT Parties:

Michael F. Sweeney, Esq. 
Duffy
& Sweeney, Ltd. 
1800 Financial Plaza 
Providence, RI 02903

Facsimile: 401-455-0701

     With a copy to:

Eric Bakker, Chief Executive Officer

Emergya Wind Technologies B.V. 
Building ‘Le Soleil’ 
Computerweg
1F
3821 AA Amersfoort 
The Netherlands 
Facsimile: +31 (0)33 456 30
92

     For AWE Parties:

Americas Wind Energy Corporation 
24
Palace Arch Drive 
Toronto, A6 M9A 251 
Hal Dickout, President

Facsimile: 416-233-6493 

with a copy to:

Sutherland Mark Flemming Snyder –
Penner Professional Corporation 
100 675 Queen Street South 
Kitchener,
Ontario 2M 1A1 
Paul Flemming, Solicitor 
Facsimile: 519-725-2525




With a copy to: 
Frank D.
Pickersgill 
48 Oxton Avenue 
Toronto, Ontario M5P 1L9 
Facsimile:
416-481-9626

     Any Party may change the address
to which notices, requests, demands, claims, and other communications hereunder
are to be delivered by giving the other party notice in the manner herein set
forth.

     14.      ASSIGNMENT

     The AWE Parties hereby assign to
EWT any and all rights that they may have under any customer contract, agreement
or understanding relating to (i) receipt of payment from the customer or (2) any
letters of credit or equivalent issued in favor of any AWE Parties in connection
with receipt of payment under the customer agreement; provided, however, EWT
Parties do not assume any obligations of the AWE Parties under any such customer
agreements, contracts or understandings. 

     15.      PRIOR
ASSIGNMENT

     The Parties acknowledge that the
assignment of the G.E. License referenced in that certain Assignment Agreement
dated as of March 5, 2009 remains in full force and effect and is not affected
in any way by this Agreement.

     16.     
EMERGYA

     Emergya and EWT each covenants
and agrees that to the extent that it licenses, sells, transfers, or disposes of
any rights to sell Goods in the Exclusive Rights Territory during the Settlement
Payment Period, the EWT Parties shall forthwith provide written notice to the
AWE Parties of such sale, license, transfer or disposition, and any such sale,
license, transfer or disposition shall be made subject to this Agreement.




EXECUTED as a sealed instrument on the date and year hereinabove
set forth.

	Americas Wind Energy Inc. 	 	EWT-Americas Inc. 
	 	 	 
	By: /s/ H.C.F.
      Dickout	 	By: /s/ Eric Bakker and /s/ Alex Oostvogel
      
	Name: H.C.F.
      Dickout	 	Name: E. Bakker CEO
      &
	 	 	            Alex
      Oostvogel CFO 
	Title:        
      CEO             	 	Title:                                       
	 	 	  
	Americas Wind Energy Corporation 	 	Emergya Wind Technologies B.V. 
	 	 	  
	By: /s/ H.C.F.
      Dickout	 	By: /s/ Eric Bakker and /s/ Alex Oostvogel
      
	Name: H.C.F.
      Dickout	 	Name: E. Bakker CEO & 
	 	 	           
      Alex Oostvogel CFO 
	Title:        
      CEO             	 	Title: