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Exhibit 6
STOCK OPTION AND RIGHT OF FIRST REFUSAL AGREEMENT
THIS STOCK OPTION AND RIGHT OF FIRST REFUSAL AGREEMENT (the
"Agreement") is dated as of May 2, 2002, by and between Environmental Power
Corporation, a Delaware corporation ("EPC"), and Xxxxxxxx X. Xxxxx (the
"Stockholder").
WHEREAS, the Stockholder owns beneficially and of record 2,753,066
shares, par value $0.01 per share, of common stock (the "Common Stock") of EPC
consisting of (i) 1,802,486 shares currently represented by Certificate No. 7629
(the "Option Shares"), (ii) 197,514 shares currently represented by Certificate
No. 7631 (the "Guaranty Shares") and (iii) 753,066 shares currently represented
by certificate No. 7630 (the "Standstill Shares" and, together with the Option
Shares, the ROFR Shares (as hereinafter defined) and the Guaranty Shares, the
"Shares");
WHEREAS, the Shares are "restricted securities" under applicable
securities laws not capable of being resold by the Stockholder in the absence of
(i) the effectiveness of the Company's registration statement on Form S-2 filed
on April 1, 2002 contemplated by the Registration Rights Agreement dated as of
July 23, 2001 (the "Registration Rights Agreement"), (ii) an exemption from
registration becoming available or (iii) inclusion in an effective registration
contemplated by Section 2(c) of the Registration Rights Agreement;
WHEREAS, the Common Stock has been the subject of limited trading
volume on the OTC Bulletin Board;
WHEREAS, in light of the foregoing, the Stockholder desires to provide
for, and the Company desires to agree to, the option to purchase Option Shares,
and minimum required repurchases by the Company thereunder, at fixed prices as
provided herein;
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises, representations, warranties, covenants and agreements contained
herein, the parties hereby agree as follows:
1. The Option; Minimum Purchase. The Stockholder hereby agrees as
----------------------------
follows:
(a) Grant of Option. Subject to the terms of this Section
---------------
1, the Stockholder hereby grants to EPC (or its designee or designees from time
to time), an irrevocable option (the "Option") to purchase all or any part of
the Option Shares at a purchase price per Option Share equal to $0.35.
(b) Escrow of Option Share Certificate. Concurrently with
----------------------------------
the execution of this Agreement (i) the parties are entering into an escrow
agreement in the form of Exhibit A hereto (the "Escrow Agreement") with U.S.
Bank Trust National Association, as escrow agent (the "Escrow Agent") and (ii)
the Stockholder is depositing with the Escrow Agent the certificate representing
the Option Shares, together with
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fifteen stock powers duly endorsed in blank. The Stockholder shall deliver to
the Escrow Agent additional stock powers as reasonably requested by EPC form
time to time.
(c) Exercise of Option. Unless the Option is sooner
------------------
terminated as provided herein, EPC and/or its designee(s) may exercise the
Option, in whole or in part, at any time and from time to time, during the
period (the "Exercise Period") ending on April 30, 2003 (the "Expiration Date").
Following each exercise, the Option shall remain available for future exercise
with respect to the remaining Option Shares through the close of business on the
Expiration Date.
(d) Manner of Exercise. To exercise the Option, EPC (or
------------------
its designee(s), as the case may be) shall, prior to the close of business on
the Expiration Date, give written notice (each, an "Exercise Notice") to the
Escrow Agent and the Stockholder specifying the number of Option Shares it is
purchasing and EPC (or its designees) shall pay, by check or wire transfer to
the Escrow Agent an amount equal to the product of (x) $0.35 and (y) the number
of Option Shares being purchased. Upon receipt of the Exercise Notice and
purchase price, the Escrow Agent shall deliver the certificate representing the
Option Shares to EPC's transfer agent (American Stock Transfer & Trust Co., 00
Xxxx Xxxxxx, Xxx Xxxx, XX 00000, Attn: Xxxxx Xxxxx/Xxxx Xxxxx) (the "Transfer
Agent"), accompanied by an executed stock power deposited by the Stockholder,
which shall be dated and completed by the Escrow Agent, together with
instructions to the transfer agent to deliver a new certificate for the Option
Shares being purchased to EPC (or its designee(s), as the case may be) and to
deliver a new certificate registered in the name of the Stockholder for the
balance of the Option Shares to the Escrow Agent. Such new certificates shall
bear the same restrictive legends as the certificate submitted to the transfer
agent, except that the certificate issued to EPC or its designee(s) shall not
bear the legend provided for in Section 7(b) below. Promptly after submitting
the stock certificate and power and instruction letter to the transfer agent,
the Escrow Agent shall remit the purchase price received from EPC to the
Stockholder. Promptly following the Expiration Date and the processing of any
Option exercise made prior to the close of business on the Expiration Date, the
Transfer Agent shall deliver the certificate for any unpurchased Option Shares
to the Stockholder.
(e) Transferability of Option. EPC may sell or transfer
-------------------------
the Option (or any portion thereof) and any Shares acquired upon exercise of the
Option at any time, without the written consent of the Stockholder, to a third
party or any affiliate or affiliates of EPC; provided, that no such transfer
shall relieve EPC of its obligations hereunder (it being understood that
exercises by a transferee shall count towards the minimum purchases under
Section 1(f) below) and provided further that the transferee shall agree in
writing to be bound by the provisions of this Agreement applicable to the Option
(or portion thereof) assigned.
(f) Minimum Purchase. On or before the last business day
----------------
of each month set forth below EPC shall be required to have purchased (and/or
arranged for its designee(s) to purchase), by exercise of the Option, on a
cumulative basis, the following number of Option Shares:
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Date Cumulative Minimum Option Shares
---- --------------------------------
April 2002 120,000
May 2002 140,260
June 2002 160,520
July 2002 180,780
August 2002 201,040
September 2002 221,300
October 2002 241,560
November 2002 261,820
December 2002 282,080
January 2003 302,340
February 2003 322,600
March 2003 342,857
Notwithstanding the foregoing, in the event the Option Shares and stock powers
are not delivered to the Escrow Agent (or directly to the Transfer Agent if the
parties agree to arrange for the initial exercise in that manner) by April 30,
2002, the initial date set forth in the table above shall be delayed until the
business day after delivery and receipt thereof is confirmed to EPC. Therefore
for example, if EPC purchased 120,000 Option Shares in April 2002 and 50,000
Option Shares in May 2002 (i.e. 170,000 Option Shares on a cumulative basis), it
would not be required to purchase additional Option Shares until the last
business day in July, when it would be required to purchase a minimum of 10,780
Option Shares.
In the event EPC defaults in the purchase of the cumulative minimum
purchase requirements set forth above (by not making timely payments to the
Escrow Agent) and such default continues for five (5) business days after
written notice by Stockholder to EPC and the Escrow Agent of such default, the
parties shall instruct the Escrow Agent to return the escrowed stock certificate
and all other escrow deposits to the Stockholder and, without limitation of the
Stockholder's rights and remedies, the Option for any remaining Option Shares
shall terminate. In such event, such shares shall be free of the legend provided
in Section 7 below and not subject to any restrictions under this Agreement.
(g) Guaranteed Obligations. The parties agree that 197,514 of the
----------------------
Option Shares shall be transferred by the Stockholder to the Company
concurrently with execution of this Agreement to satisfy the Stockholder's
guaranty, under a Guaranty
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Agreement dated June 14, 2001, with respect to $69,129.92 of principal and
interest payments due from Integrated Information Utility Systems ("I2US") to
Microgy Cogeneration Systems, Inc. ("Microgy") on loans made by Microgy to I2US.
All other obligations of Stockholder under the Guaranty Agreement, including
indemnification obligations, shall remain in full force and effect.
2. Right of First Refusal. In the event (i) any Option Shares
----------------------
remain unpurchased by EPC (and/or its designees) as of the end of the Exercise
Period and (ii) the Option has not terminated prematurely as a result of an
uncured default in accordance with the last paragraph of Section 1(f) above, any
Option Shares remaining unpurchased shall be deemed to be "ROFR Shares" subject
to this Section 2. In the event that at any time after the Expiration Date of
the Option and prior to the twenty-four (24) month anniversary of this Agreement
the Stockholder should decide to sell or otherwise dispose of any of the ROFR
Shares, it shall first give written notice to EPC of its intention to sell such
ROFR Shares, together with the price at which it is willing to sell such Shares.
EPC shall then have fifteen (15) days from the date it receives such notice to
evaluate such offer. If, at or prior to the end of such 15-day period, EPC gives
notice to the Stockholder that it accepts such offer, then the Stockholder
shall, within fifteen (15) days of receipt of such notice, sell to EPC, and EPC
shall purchase for cash, all such ROFR Shares. If, at the end of such 15-day
period, EPC declines such offer or does not respond to such offer in writing,
then the Stockholder shall be free to sell such Shares at any time during the
succeeding fifteen (15) days (starting the day following the end of the previous
15-day period) to a third party or through the trading market, but only at a
price per share equal to or higher than 100% of the price per share at which
such Shares were first offered to EPC and only in compliance with the
Stockholders Agreement; provided, however, that if market conditions have
changed adversely during the 15-day period during which EPC had to evaluate the
offer or during the succeeding 15-day period, the reference in this sentence to
100% shall be reduced to such percentage, not lower than 90%, as is commensurate
with the change in market conditions. If the Stockholder does not complete the
sale of such Shares in such manner during such 15-day period, then the Right of
First Offer described in this Section 2 shall again be applicable. The
Stockholder shall provide EPC with such information and documentation as EPC
reasonably requests from time to time to verify compliance with this Section 2.
3. Standstill Shares; Standstill on Future Public Market Sales.
-----------------------------------------------------------
Until the twenty-four (24) month anniversary of this Agreement, or such earlier
date as the Option is terminated prematurely as a result of an uncured default
in accordance with the last paragraph of Section 1(f) above, Stockholder agrees
not to sell any of the Standstill Shares into a public market (including the
over the counter market). Such standstill shall terminate if EPC sells all or
substantially all of its assets to a third party. This Section 3 shall not
prevent or restrict private sales or dispositions of the Standstill Shares not
involving use of a public market, which private transactions comply with
applicable securities laws. Pledges of the Standstill Shares shall only be
permitted if the pledgee agrees in writing with EPC to comply with the
provisions of this Section 3 in connection with any sale or disposition of the
Standstill Shares it makes or arranges.
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4. Covenants, Representations and Warranties. The Stockholder
-----------------------------------------
hereby represents and warrants to EPC as follows:
(a) Ownership of Shares. Stockholder is the record and
-------------------
beneficial owner of the number of shares of Common Stock described in the
whereas clauses of this Agreement. On the date hereof, the Shares described in
the whereas clauses of this Agreement constitute all of the shares of Common
Stock owned of record or beneficially by the Stockholder. The Stockholder owns
the Shares free and clear of all liens, claims, charges, security interests,
mortgages or other encumbrances, and the Shares are subject to no rights of
first refusal, put rights, other rights to purchase or encumber the Shares, or
to any agreements other than this Agreement and a Stockholders Agreement among
EPC and certain of its stockholders dated as of July 23, 2001 (the "Stockholders
Agreement") as to the encumbrance or disposition of the Shares. The Shares are
duly and validly issued, fully paid and non-assessable. The Stockholder has sole
power of disposition and sole power to agree to all of the matters set forth in
this Agreement, in each case with respect to all of the Shares, with no
limitations, qualifications or restrictions on such rights.
(b) Power; Binding Agreement. The Stockholder has the
------------------------
legal capacity, power and authority to enter into and perform all of the
Stockholder's obligations under this Agreement. The execution, delivery and
performance of this Agreement by the Stockholder will not violate any other
agreement to which such Stockholder is a party including, without limitation,
any voting agreement, shareholder agreement or voting trust. This Agreement has
been duly and validly executed and delivered by the Stockholder and constitutes
a valid and binding agreement of the Stockholder, enforceable against the
Stockholder in accordance with its terms, except as such enforceability may be
limited by any applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally, and
except as the availability of equitable remedies may be limited by the
application of general principles of equity (regardless of whether such
equitable principles are applied in a proceeding at law or in equity). There is
no beneficiary or holder of a voting trust certificate or other interest of any
trust of which the Stockholder is trustee who is not a party to this Agreement
and whose consent is required for the execution and delivery of this Agreement
or the consummation by the Stockholder of the transactions contemplated hereby.
If the Stockholder is married and the Shares constitute community property, this
Agreement has been duly authorized, executed and delivered by, and constitute a
valid and binding agreement of, the Stockholder's spouse, enforceable against
such person in accordance with its terms, except as such enforceability may be
limited by any applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally, and
except as the availability of equitable remedies may be limited by the
application of general principles of equity (regardless of whether such
equitable principles are applied in a proceeding at law or in equity).
(c) No Conflicts. (i) No filing with, and no permit,
------------
authorization, consent or approval of, any state or federal public body or
authority is necessary for the execution of this Agreement by the Stockholder
and the consummation by the
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Stockholder of the transactions contemplated hereby and (ii) none of the
execution or delivery of this Agreement by the Stockholder, the consummation by
the Stockholder of the transactions contemplated hereby or compliance by the
Stockholder with any of the provisions hereof shall (A) result in a violation or
breach of, or constitute (with or without notice or lapse of time or both) a
default (or give rise to any third party right of termination, cancellation,
material modification or acceleration) under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, license, contract,
commitment, arrangement, understanding, agreement or other instrument or
obligation of any kind to which the Stockholder is a party or by which the
Stockholder or, to the best of the Stockholder's knowledge, any of the
Stockholder's properties or assets may be bound, or (B) violate any order, writ,
injunction, decree, judgment, order, statute, rule or regulation applicable to
the Stockholder or any of the Stockholder's properties or assets.
(d) No Finder's Fees. No broker, investment banker,
----------------
financial adviser or other person is entitled to any broker's, finder's,
financial adviser's or other similar fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of the Stockholder.
(e) Restriction on Transfer, Proxies and Non-Interference.
-----------------------------------------------------
For so long as this Agreement remains in effect, the Stockholder shall not,
directly or indirectly: (i) except as contemplated or permitted by this
Agreement, offer for sale, sell, transfer, tender, pledge, encumber, assign or
otherwise dispose of, or enter into any contract, option or other arrangement or
understanding with respect to or consent to the offer for sale, sale, transfer,
tender, pledge, encumbrance, assignment or other disposition of, any or all of
the Shares or any interest therein; (ii) grant any proxies or powers of
attorney, deposit any Shares into a voting trust or enter into a voting
agreement with respect to any Shares; or (iii) take any action that would make
any representation or warranty of the Stockholder contained herein untrue or
incorrect or have the effect of preventing or disabling the Stockholder from
performing the Stockholder's obligations under this Agreement.
(f) Information; Accredited Investor.
--------------------------------
(i) The Stockholder, as a Director of
EPC and recent officer of Microgy, is knowledgeable concerning the business and
affairs of EPC. The Stockholder confirms that EPC made available to such
Stockholder, and his representatives and agents, (A) any requested information
about EPC, (B) the opportunity to ask questions of the officers and employees of
EPC and (C) the opportunity to acquire such additional information about the
business and financial condition of EPC as the Stockholder has requested, and
such information has been received.
(ii) The Stockholder was, at the time of
its purchase of the Shares, and currently is an "accredited investor" within the
meaning of Regulation D under the Securities Act.
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(g) Reliance by EPC. The Stockholder understands and
---------------
acknowledges that EPC is relying upon the foregoing representations by the
Stockholder, (i) in entering into this Agreement and (ii) in purchasing Shares
hereunder.
5. Further Assurances. From time to time, at the other party's
------------------
reasonable request and without further consideration, each party agrees to
execute and deliver such additional documents and take all such further lawful
action as may be necessary or desirable to consummate and make effective, in the
most expeditious manner practicable, the transactions contemplated by this
Agreement.
6. Failure to Deliver Shares. If the Stockholder becomes
-------------------------
obligated to sell any Shares to EPC under this Agreement and fails to deliver
such Shares in accordance with the terms of this Agreement, EPC may, at its
option, in addition to all other remedies it may have, send to the Stockholder
the purchase price for such Shares as is herein specified. Thereupon, EPC upon
written notice to the Stockholder, (a) shall cancel on its books the certificate
or certificates representing the Shares to be sold and (b) shall issue, in lieu
thereof, in the name of EPC or its designee(s), as the case may be, a new
certificate or certificates representing such Shares, and thereupon all of the
Stockholder's rights in and to such Shares shall terminate.
7. Stop Transfer; Form of Legend.
-----------------------------
(a) The Stockholder agrees with, and covenants to, EPC
that the Stockholder shall not request that EPC register the transfer
(book-entry or otherwise) of any certificate or uncertificated interest
representing any of the Shares, unless such transfer is made in compliance with
this Agreement. In the event of a stock dividend or distribution, or any change
in the Common Stock, by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or the like, the terms "Option
Shares," "ROFR Shares," "Standstill Shares" and "Shares" shall be deemed to
refer to and include the Option Shares, ROFR Shares, Standstill Shares and/or
Shares, as the case may be, as well as all such stock dividends and
distributions and any shares into which or for which any or all of the Option
Shares, ROFR Shares and/or Shares may be changed or exchanged.
(b) All certificates representing any of the Shares shall
contain the following legend (in addition to any other legend required by law,
the Stockholders Agreement or any other contract):
"The securities represented by this certificate are subject to
certain restrictions on transfer and other terms of a Stock
Option and Right of First Refusal Agreement, dated as of April
29, 2002, between Environmental Power Corporation and Xxxxxxxx
X. Xxxxx, a copy of which is on file in the principal office
of Environmental Power Corporation.
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8. Prohibition. To the extent that EPC is prohibited (at any time
-----------
scheduled for a purchase of Option Shares) under applicable law or regulation
from purchasing the Option Shares, EPC shall promptly so notify the Stockholder
and, shall be entitled to suspend its performance hereunder until EPC is no
longer prohibited from performing, at which time EPC shall promptly act to bring
its performance up to date. If the prohibition on EPC's performance lasts for
more than 180 days, then either party may, by written notice to the other,
terminate this Agreement (other than the provisions of Sections 9, 10 and 11,
which shall survive termination).
9. Covenant Not to Compete; Non-Solicitation.
-----------------------------------------
(a) From the date hereof until six (6) months after the
date of termination of his ownership of Shares (the "Restriction Period"), the
Stockholder covenants and agrees with EPC that he will not compete, or render
any services to or become interested in (as a partner, proprietor, shareholder
(except as a no more than 2% shareholder in a public company), principal,
employee, consultant, officer, director, manager or member) any natural or
corporeal Person or business which competes, either directly or indirectly, with
EPC or Microgy in the business of providing services, technology, research or
development relating to the production of energy through anaerobic digestion or
any other technology utilized or being developed by Microgy and listed in
Schedule 4.15 to the Share Exchange Agreement dated as of June 20, 2001 (the
-------------
"Exchange Agreement") among EPC, Microgy, the Stockholder and the other
Principal Microgy Stockholders referred to therein. During the Restriction
Period, the Stockholder agrees that he shall not make any contracts with or
otherwise deal with any persons, whether natural or corporeal, who have been
introduced to the Stockholder by Microgy or as a result of such Person's
activities on behalf of or involving Microgy.
(b) During the Restriction Period, the Stockholder
covenants and agrees with EPC that he will not, either directly or indirectly,
(A) hire, solicit or encourage any employee to leave the employment of EPC,
Microgy or any Microgy subsidiary, or (B) induce or attempt to induce any
customer, client, supplier, licensor, licensee or other business relation of
EPC, Microgy or any Microgy subsidiary to enter into a business relationship
with the Stockholder or any affiliate thereof.
(c) The Stockholder acknowledges and agrees that he will
receive a direct, material and substantial benefit from the consummation of the
transactions contemplated by this Agreement and that such direct, material and
substantial benefit is good and sufficient consideration to him for the
performance of his respective obligations under this Section 8.
(d) The Stockholder recognizes and acknowledges that this
Section 9 is necessary in order to protect and maintain the proprietary
interests and other legitimate business interests of EPC and Microgy and is a
material inducement to EPC entering into this Agreement and that Section 9
hereof is reasonable in all respects.
(e) The parties hereto agree that the obligations
contained in this Section 9 are of a special and unique character which gives
them a peculiar value, and
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that EPC and Microgy may not be reasonably or adequately compensated in damages
in an action at law in the event that the Stockholder breaches such obligations.
The Stockholder, therefore, expressly agrees that EPC and Microgy shall be
entitled to preliminary and permanent injunctive and other equitable relief to
prevent a breach of said obligations, in addition to any other rights and
remedies that EPC or Microgy may have.
10. Confidentiality. The Stockholder hereby confirms and agrees to
---------------
be bound by the confidentiality obligations contained in Section 9.5(a) of the
Exchange Agreement. Furthermore, the Stockholder agrees not to disclose any
information concerning this Agreement to any person, except his attorneys,
accountants, tax advisors or similar advisors or to a prospective purchaser of
the ROFR Shares or Standstill Shares or as may be required by law, including
applicable securities laws.
11. Miscellaneous.
-------------
(a) Entire Agreement. This Agreement constitutes the
----------------
entire agreement between the parties with respect to the subject matter hereof
and supersede all other prior agreements and understandings, both written and
oral, between the parties with respect to the subject matter hereof.
Notwithstanding anything to the contrary contained herein, the Exchange
Agreement, the Stockholders Agreement and the Registration Rights Agreement
shall remain in full force and effect.
(b) Certain Events. The Stockholder agrees that this
--------------
Agreement and the obligations hereunder shall attach to the Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of such
Shares shall pass, whether by operation of law or otherwise, including, without
limitation, the Stockholder's heirs, guardians, administrators or successors.
Notwithstanding any transfer of Shares, the transferor shall remain liable for
the performance of all obligations under this Agreement of the transferor.
(c) Assignment. Except as expressly permitted herein, this
----------
Agreement shall not be assigned by operation of law or otherwise without the
prior written consent of the other party, provided that EPC may assign, in its
sole discretion, its rights and obligations hereunder to any direct or indirect
wholly-owned subsidiary of EPC, but no such assignment shall relieve EPC of its
obligations hereunder if such assignee does not perform such obligations.
(d) Amendments, Waivers, Etc. This Agreement may not be
------------------------
amended, changed, supplemented, waived or otherwise modified or terminated,
except upon the execution and delivery of a written agreement executed by the
parties hereto.
(e) Notices. All notices, requests, claims, demands and
-------
other communications hereunder shall be in writing and shall be given (and shall
be deemed to have been duly received if so given) by hand delivery, telecopy
(confirmed by a copy mailed as provided below), or by mail (registered or
certified mail, postage prepaid, return receipt requested) or by any courier
service, such as Federal Express, providing
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proof of delivery. Notices shall be deemed given when received. All
communications hereunder shall be addressed to the respective parties at the
following addresses:
If to the Stockholder: Xxxxxxxx X. Xxxxx
0000 X. Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
If to EPC: Environmental Power Corporation
0 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: Xxxxxx & Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxxx, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(f) Severability. Whenever possible, each provision or
------------
portion of any provision of this Agreement will be interpreted in such manner as
to be effective and valid under applicable law, but if any provision or portion
of any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
(g) Specific Performance. Each of the parties hereto
--------------------
recognizes and acknowledges that a breach by it of any covenants or agreements
contained in this Agreement will cause the other party to sustain damages for
which it would not have an adequate remedy at law for money damages, and
therefore each of the parties hereto agrees that in the event of any such breach
the aggrieved party (including any designee of EPC hereunder) shall be entitled
to the remedy of specific performance of such covenants and agreements and
injunctive and other equitable relief in addition to any other remedy to which
it may be entitled, at law or in equity.
(h) Remedies Cumulative. All rights, powers and remedies
-------------------
provided under this Agreement or otherwise available in respect hereof at law or
in equity shall be cumulative and not alternative, and the exercise of any
thereof by any party shall not
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preclude the simultaneous or later exercise of any other such right, power or
remedy by such party.
(i) No Waiver. The failure of any party hereto to exercise
---------
any right, power or remedy provided under this Agreement or otherwise available
in respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
(j) No Third Party Beneficiaries. This Agreement is not
----------------------------
intended to be for the benefit of, and shall not be enforceable by, any person
or entity who or which is not a party hereto (other than a designee or permitted
assignee of EPC or Microgy).
(k) Governing Law. This Agreement shall be governed and
-------------
construed in accordance with the laws of the State of Delaware, without giving
effect to the principles of conflicts of laws thereof.
(l) Waiver of Jury Trial. EACH PARTY IRREVOCABLY WAIVES
--------------------
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(m) Descriptive Headings. The descriptive headings used
--------------------
herein are inserted for convenience of reference only and are not intended to be
part of or to affect the meaning or interpretation of this Agreement.
(n) Counterparts. This Agreement may be executed in
------------
counterparts, each of which shall be deemed to be an original, but all of which,
taken together, shall constitute one and the same Agreement. Signature of either
party transmitted by facsimile shall constitute effective execution and be
deemed to be its original signature.
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IN WITNESS WHEREOF, EPC has caused this Agreement to be duly executed,
and the Stockholder has duly executed this Agreement, as of the day and year
first above written.
ENVIRONMENTAL POWER CORPORATION
By: _________________________
Name:
Title:
_______________________________
Xxxxxxxx X. Xxxxx
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