This Memorandum of Agreement ("Agreement") dated as of this 23rd day of
October, 1998, is executed by the parties identified below, each of which is
referred to individually as a "PARTY" and collectively as the "PARTIES":
a) THE ENERGY NETWORK, INC. ("TEN"), a Connecticut
corporation and wholly-owned subsidiary of CTG
Resources, Inc., with offices at 00 Xxxxxxxx Xxxxxxxxx,
Xxxxxxxx, XX;
b) XXXXX & XXXXXXX CANADA INC. ("P&WC"), a Canadian
corporation, with offices at 0000 Xxxxx-Xxxxxxxx,
Xxxxxxxxx, Xxxxxx, Xxxxxx, X0X 0X0;
c) OXFORD TECHNOLOGIES, INC. ("Oxford"), a Connecticut
corporation, with offices at 000 Xxxxx Xxxxxx, Xxxxxxxx
"X", Xxx Xxxxxxx, XX; 06051; and
d) CARRIER CORPORATION ("Carrier"), a Delaware
corporation, with offices at X.X. Xxx 0000, 0000
Xxxxxxx Xxxxxxx, Xxxxxxxx, XX.
WHEREAS, the Parties have held discussions among themselves concerning the
development, construction and operation of certain district energy and co-
generation facilities; and
WHEREAS, the Parties consider there to exist a market among customers who
will seek to out-source the responsibilities attendant to such facilities;
and
WHEREAS, each of the Parties possesses specific skills, experience and
capabilities that are complementary to the other Parties and that in
combination can, in the opinion of the Parties, enable such district energy
and co-generation facilities to be developed; and
WHEREAS, the Parties now seek to establish their agreement that will
facilitate and enable them to pursue such out-sourcing opportunities;
NOW, THEREFORE, in consideration of the promises and mutual agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
SECTION 1. SCOPE OF AGREEMENT
1.1 OBJECTIVE/SCOPE OF AGREEMENT: The Parties are interested in
entering into a marketing arrangement as set forth herein whereby
the Parties' specific skills, experience, and capabilities are
used to identify, propose and facilitate the implementation of
"out-sourced" (i.e. contracted out development, ownership and
operation) district energy (electric, heating and cooling) and
"out-sourced" co-generation (primary electric power with heat
recovery for value added) power projects for small to medium size
industrial, commercial, and institutional customers, using P&WC's
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0.4 MW - 3.5 MW gas turbines, in either new (greenfield) or
retrofit of existing facilities in the New York State and New
England (i.e. specifically the states of Massachusetts, Maine,
Connecticut, New Hampshire, Rhode Island and Vermont) area (the
"Projects"). The foregoing description shall not preclude the
Parties from unanimously agreeing, from time to time, to jointly
pursue other out-sourced district energy and out-sourced co-
generation opportunities in other geographic areas.
1.2 PRELIMINARY UNDERSTANDING: Each of the Parties shall exercise
reasonable efforts in performing the obligations set forth herein
and co-operate in good faith with the other Parties to that end as
set forth herein. This Agreement represents the preliminary
understanding of the Parties with respect to the subject matter
hereof. Each Project in which the Parties participate is expected
to necessitate contract documents and other arrangements specific
to that Project.
1.3 ROLE OF THE PARTIES: Subject to the terms hereof, each Party
shall have the following roles in respect of any Projects awarded
pursuant hereto:
a) TEN shall serve as the lead entity. TEN may request the
efforts and lead the activities of the other Parties in all
aspects that relate to the preparation of proposals in
respect of Projects, in accordance with the terms hereof.
TEN shall be under no obligation to incur any third party
costs in connection with the preparation or development of
proposals other than as expressly set forth herein or
pursuant hereto. TEN also shall have the right, but not the
obligation, to: i) serve as the Prime Contractor (as
hereafter defined) with individual customers either as the
sole Prime Contractor or co-Prime Contractor with Carrier and
to ii) own and operate the Projects. TEN or an affiliated
company shall be entitled to bid on the provision of natural
gas and transportation service to Projects within the
territory of TEN or its affiliate, and natural gas only to
Projects outside its territory, the whole subject to Section
1.4 hereof.
In its role as owner/operator and/or Prime Contractor, TEN
shall also supply or manage the supply of, as appropriate,
all other engineering design, material and services
procurement, construction services, and initial system check-
out, start-up, and commissioning necessary to create a
"turnkey" facility.
b) P&WC will be entitled to bid on the supply and maintenance of
the gas turbine engines for all Projects whose requirements
dictate engines in the 0.4 MW to 3.5 MW range ("Engines") and
related engineering maintenance services, it being understood
that it shall do so either by supplying same itself or
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through another entity under any packaging agreement it may
enter into (as same may be amended, supplemented, restated or
replaced from time to time the "Packaging Agreement"), which
packager may also become a party to this Agreement. In the
event that the packager becomes a party to this Agreement,
P&WC shall be relieved from its obligations hereunder to the
extent that they are being performed by the packager
including the obligations set forth in Section 5.3 hereof.
It is understood that P&WC s obligations in connection with
any Project under this Agreement shall be subject to P&WC
establishing a Packaging Agreement with a packager suitable,
in P&WC s sole opinion, for packaging its engines. In the
event that i) such Packaging Agreement is not established;
ii) such Packaging Agreement is terminated, iii) the packager
has withdrawn from this Agreement; or iv) the packager has
failed to fully support the goals, objectives and intent of
this Agreement, in P&WC s opinion, P&WC may send a notice to
the packager terminating this Agreement as it relates to the
packager and either aa) nominate a replacement for the
packager, bb) directly supply the Engines itself, or cc)
itself withdraw from this Agreement, at P&WC s sole option.
The Parties also agree that, notwithstanding anything herein
to the contrary, P&WC shall be free to enter into a Packaging
Agreement with and sell Engines to a packager that does not
enter into or adhere to this Agreement, in whole or in part,
and shall not be in breach of this Agreement as a result of
any such Packaging Agreement or sales pursuant thereto,
including where the Engine is ultimately destined for use in
a potential Project. P&WC will use reasonable efforts to
participate in sales presentations, as appropriate. P&WC
shall not, and shall not be obliged to, be the Prime
Contractor or contracting party with any Project customer.
c) Oxford will have a business development role within such
geographic region as the Parties have designated in
accordance with Section 1.1. Oxford will participate in sales
presentations, as appropriate. The Parties expect that TEN
will enter into a sales agreement with Oxford that, among
other things, specifies the nature of the sales activities to
be conducted by Oxford, which such sales agreement, including
the remuneration payable thereunder, to be unanimously
approved by the Parties. Notwithstanding the approval of this
sales agreement by P&WC and Carrier, TEN shall remain solely
responsible for all of its obligations thereunder without
contribution or indemnification from P&WC or Carrier.
d) Carrier will be the supplier of HVAC systems and services
used in Projects. Carrier may act as Prime Contractor, where
applicable. Carrier Regional Sales Offices are expected to be
significant contributors to promotional activity.
None of the Parties shall be obligated to do so, but each of them
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may, with the consent of the other Parties (other than TEN where
such consent is not required), acquire equity in any Project,
provided however that the Parties recognize that TEN is expected
to furnish and own all of the equity in Projects executed
hereunder. All services and materials which any Party (other than
TEN) supplies as an in kind contribution with the consent of the
other Parties pursuant hereto shall be considered by the Committee
as a potential equity investment in the Project in accordance with
Section 5.3b).
This Section sets forth the anticipated functions of the Parties
in respect to any Project without creating any obligation on the
part of any Party which is not evidenced by a contract executed
pursuant to a Prime Contract (as hereafter defined) with a Project
customer.
1.4 COMPETITIVENESS OF PARTY CONTRACTS: The Prime Contractor on any
Project shall use its best efforts to secure customer approval of
the other Parties as sub-contractors. Any such contract proposed
to be entered into between the Prime Contractor with any Party or
affiliate of any Party, must be negotiated in good faith on an
arm s-length basis and must have terms that are reasonable in view
of those available in the market from unaffiliated third parties.
SECTION 2. ACCESS TO INFORMATION; CONFIDENTIALITY
2.1 ACCESS TO INFORMATION: Subject to the terms of this Section 2 and
the Proprietary Information Agreement (as hereafter defined), each
Party shall provide to the other Parties data, documents, and any
other information that is, in the disclosing Party s sole opinion,
pertinent to the objectives stated herein at Section 1.1 and any
particular Project.
2.2 CONFIDENTIALITY: The Parties hereto have entered into a
Proprietary Information Agreement dated April 22, 1998 and
attached hereto and incorporated herein as Annex A (as same may be
amended, renewed, extended, supplemented, restated or replaced
from time to time the "Proprietary Information Agreement"). The
obligations of each Party to the Proprietary Information Agreement
shall remain in effect for the term specified therein,
notwithstanding the termination or expiration of this Agreement,
and the Proprietary Information Agreement is hereby amended to
extend the term thereof to be co-terminous with this Agreement.
The Parties agree that the terms of this Agreement shall
constitute "Proprietary Information" under the Proprietary
Information Agreement and shall be treated as such in accordance
with the terms thereof.
2.3 PROPERTY RIGHTS: It is understood and agreed that no license,
express or implied, under any copyright, patents, trade secrets or
know how ("Know How") of any Party is granted hereunder or by any
disclosure of confidential or proprietary information hereunder or
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under the Proprietary Information Agreement. Each Party shall
retain all of its property rights in any such Know How which it
possessed prior to the date of this Agreement and the property
rights to any new Know How developed by that Party, either alone
or in conjunction with other Parties, during the performance of
its obligations hereunder shall, subject to any restrictions
imposed by any Prime Contract, vest in such Party.
2.4 NO PRESS RELEASES: Each Party agrees that it shall not, without
the other Parties' written consent, issue a press release or have
any contact with or respond to the news media with any sensitive
or confidential information with respect to this Agreement or any
Project or proposed Project.
SECTION 3. EXCLUSIVITY
During the term of the Agreement and any extension thereof agreed to by
the Parties, the Parties hereto agree to refer to TEN potential
Projects (i.e. projects which meet the definition of "Projects" set
forth in Section 1.1) in accordance with Section 5.2 hereof and to work
exclusively with each other to propose and facilitate the
implementation of Projects that have been determined will be pursued
pursuant to the terms hereof. For greater clarity, no Party shall
participate in any competing proposals in respect of Projects that have
been determined will be pursued hereunder, unless it is not awarded a
sub-contract pursuant hereto. It is further agreed that any Party that
has voted to reject a potential Project shall not participate, directly
or indirectly, in such potential Project for a period of twelve (12)
months following formal rejection of such potential Project by such
Party although the Parties who have voted to approve such Project may
nevertheless pursue same, either jointly or individually.
Notwithstanding the foregoing or anything herein to the contrary, if
the Party which voted to reject a Project can demonstrate that it was
actively pursuing such potential Project on a non out-sourced basis or
that the potential Project did not otherwise meet the definition of
"Project" hereunder, including at the time it was brought to the
attention of the Parties for the purposes of a vote hereunder, such
Party may continue to pursue such Project on such basis.
SECTION 4. MANAGEMENT, RELATIONSHIP
4.1 COMMITTEE: The Parties activities hereunder in respect of
Projects shall be directed by an executive committee (the
"Committee") comprised of four (4) members, each one representing
a Party. Each Party may, at any time, change its member of the
Committee or appoint an alternate during its member s absence.
Appointments shall be effected by written notice to the other
Parties. The Committee shall, among other things, meet at least
quarterly (which meetings may include telephonic meetings, and the
minutes of which shall be recorded in writing) to discuss the
status of Project related activities, to schedule and coordinate
future activities, to select consultants and other advisors, to
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prepare budgets, and conduct such other business as the Committee
determines to be consistent with this Agreement.
Each of the Parties hereby designates the following Committee
members:
TEN Xxxxx X. Xxxxxxx
P&WC Xxxxxxx Xxxxx
Oxford Xxxxxxxx X. XxXxxxxx Xx.
Carrier Xxxxx X. Xxxxx
4.2 VOTING: Except as expressly set forth in this Agreement, all
decisions (including all technical and financial decisions and the
approval of Projects and Project proposals) with respect to this
Agreement, as well as all decisions regarding basic policies and
procedures, shall require the unanimous consent of the Parties
acting through the Committee.
4.3 RELATIONSHIP: The business relationship intended by this
Agreement is one of team members with one or more of the Parties
acting as Prime Contractor and some as sub-contractor. This
relationship is not intended to be and shall not be construed as
creating any fiduciary relationship, an agency or joint venture,
partnership, consortium or formal business organization or
association of any kind; each Party is and shall remain an
independent contractor. No other relationship shall be created by
any reference to the parties operating as a "team" for the
purposes hereof. No Party shall have any right, power or
authority to create any obligations, express or implied on behalf
of any other Party. For greater certainty, the Parties hereby
agree that no Party shall be obliged to grant any form of
financial assistance or guarantee pursuant hereto unless it has
expressly agreed to do so. Each Party shall pay all wages,
salaries and other amounts due its respective employees and shall
be responsible for all obligations respecting them relating to
income tax withholdings, unemployment insurance premiums, health
care and pension plan contributions and other similar
responsibilities. Notwithstanding anything herein to the contrary,
the obligations of the Parties shall be limited to the co-
operation set forth herein in respect of the referral, proposal,
and facilitation of the implementation of Projects by way of
appropriate sub-contracts.
SECTION 5. PROJECT DEVELOPMENT PROCESS
5.1 MARKETING: Each Party is expected to designate a marketing/sales
resource person to participate as necessary on a
Marketing/Business Development Team ("Team") led by TEN.
Accordingly, each of the Parties hereby designates the following
Team members which may be changed at any time by the appointing
Party:
TEN Xxxxxxx Xxxx
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P&WC X. X. Xxxxxxx
Oxford Xxxxx X. XxXxxxxx
Carrier Xxxxxxx X. Xxxxxxx
The Team will produce a marketing, sales, and promotional plan
consistent with objectives of the Parties in accordance with this
Agreement and which fully leverages the skills and name brand
recognition of the Parties. Following approval by the Committee,
it is expected that the Parties will share, in the proportions
agreed to by the Committee, all costs thereof, including design
and production of marketing plan materials to be distributed by
the Parties and other Committee pre-approved advertising expenses.
5.2 LEAD GENERATION AND EVALUATION: Each Party will refer to TEN
potential Projects (i.e. projects which meet the definition of
"Projects" set forth in Section 1.1) brought to its attention, for
the consideration of the Committee. Each such potential Project
will be recorded in a log maintained by TEN. The Committee shall
establish criteria by which all such potential Projects are
evaluated, and shall determine whether to submit proposals in all
instances within a specific period. If the Committee determines
that it will not submit a proposal with respect to any potential
Project, then any Party may do so individually or with other
Parties, the whole subject to Section 3 hereof.
No potential Project opportunity shall become a Project governed
by the terms of this Agreement unless unanimously approved by the
Committee.
5.3 PROPOSAL PREPARATION:
a) The Parties shall use reasonable efforts to prepare
competitive proposals in connection with the Projects.
b) TEN will direct the preparation of all Project proposals, and
shall prepare an estimate of i) any third party (including
architectural or application engineering capabilities) costs,
ii) any in kind contribution by the Parties, or iii) any
other costs that fall outside the normal scope of the
Parties' respective roles as set forth in Section 1.3 hereof,
that are necessary to prepare a proposal, such costs and
contributions not to be incurred unless and until the
Committee agrees as to the manner in which they are to be
incurred, evaluated, allocated and assumed. The Parties shall
submit to TEN data and information concerning such Party's
share of the proposed contract including a proposed price
(and, where requested by TEN, a breakdown of the proposed
price as between goods and services supplied) for use in
proposal preparation, shall make available appropriate
personnel to work on its portion of the proposal, and shall
provide reasonable assistance to TEN in preparation of the
proposal. Without limiting the generality of the foregoing,
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each Party commits to use reasonable efforts to provide such
reasonable and appropriate application engineering
capabilities on the preparation of their individual share of
the proposal in respect of Projects identified and accepted
by the Committee as such supplying Party determines in
accordance with their roles identified in Section 1.3.
c) TEN shall prepare the proposal, integrate the information
provided by the other Parties, and, after Committee approval,
submit the proposal to Project customers and shall include in
the proposal each Party's proposed price for each Party's
share of the contract. TEN shall have responsibility for the
content of the proposal and agrees to consult with the other
Parties, before submission of the proposal.
d) TEN shall identify each Party as a proposed sub-contractor
and shall describe in the proposal each Party s role.
e) TEN shall be responsible for any communications with the
Project customer and agrees to give the other Parties an
opportunity to be present at meetings with the Project
customer.
f) TEN agrees to consult with, and obtain the concurrence of the
other Parties, before making any changes in the proposal.
g) TEN agrees to keep the other Parties fully advised of any
changes in the proposal or the Project customer s
requirements and timely advised of the status of the
proposal.
h) TEN shall use efforts that are reasonable and diligent after
submission of the proposal to the customer to obtain the
Project contract award. The other Parties shall assist in
such efforts, as TEN may reasonably request.
5.4 CONTRACT EXECUTION PHASE: Upon acceptance of a proposal by a
Project customer, TEN shall prepare and execute all necessary
documents with the customer (the "Prime Contract"), unless TEN and
the other Parties consider it appropriate that another Party act
in this ("Prime Contractor") capacity, with such Party s consent.
The Prime Contractor shall be solely responsible to the Project
customer for performance under the Prime Contract. Each Party is
obliged to comply with terms of contracts signed by such Party
with any other Party in connection with any Project, pursuant to
receipt of Prime Contract by TEN or Carrier. Upon receipt of
contract, the Prime Contractor (TEN and/or Carrier) will issue
purchase orders and execute other appropriate contract documents
with the other relevant Parties in connection with each such
Party s role as set forth in Section 1.3 hereof, subject to
reasonable negotiations on the terms of such purchase orders and
contract documents and to the terms of the Packaging Agreement it
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being understood that the Project proposal and contract with the
Project customer shall not contain any indemnities, warranties,
covenants, undertakings or obligations which are greater in scope
that those provided pursuant to each individual contract document,
purchase order and/or Packaging Agreement. Upon execution of such
purchase orders, or contract documents, the obligations of the
Parties hereunder, other than those referred to in Section 12.7,
shall cease in respect of such Project.
5.5 POST COMPLETION: TEN expects to, and may at its option, assume
all responsibility for operation and administration of Projects
following their completion.
SECTION 6. COSTS; LIMITATION; REPRESENTATIONS
6.1 COSTS: Each Party is responsible for its own costs and expenses
in respect of this Agreement and any Project except as otherwise
specifically agreed in this Agreement or otherwise in writing.
6.2 LIMITATION: Notwithstanding any other provisions of this
Agreement, in no event shall a Party, or its directors, officers,
employees and agents, by reason of any of their respective acts or
omissions relating to the development, negotiation, design,
financing, acquisition, ownership, construction, operation or
maintenance of any Project or relating to any of their obligations
under this Agreement, be liable to any other Party whether in
contract, tort, misrepresentation, warranty, negligence, strict
liability or otherwise for any special, indirect, incidental,
consequential, punitive or exemplary damages arising out of or in
connection with this Agreement, or the performance, non-
performance or breach thereof, even if such Party has been advised
of the possibility of same or even if same were reasonably
foreseeable.
6.3 REPRESENTATIONS AND WARRANTIES: Each Party represents and warrants
that (a) it is an entity duly organized, validly existing and in
good standing under the laws of the jurisdiction in which it is
organized; (b) it has the necessary power and authority to enter
into and perform its obligations under this Agreement; (c) it has
duly authorized the person(s) signing this Agreement to execute
this Agreement on its behalf; and (d) the execution and delivery
of this Agreement and its performance by such Party will not
violate, result in a breach of or conflict with, its
organizational documents or the terms of any other agreement
binding on such Party. Except as set forth in this Section 6.3,
the Parties make no other representation, warranty or guarantee.
SECTION 7. TERM; TERMINATION; WITHDRAWAL
7.1 TERM: This Agreement shall have an initial term of two (2) years
commencing as of the date hereof. It will renew automatically for
additional terms of one year each, unless terminated by all the
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Parties.
7.2 WITHDRAWAL BY ANY PARTY: Notwithstanding any other provision
contained in this Agreement, any Party, in its sole and absolute
discretion and upon thirty (30) days written notice to the other
Parties, shall have the absolute right to withdraw from this
Agreement at any time. Upon a withdrawal by a Party from this
Agreement, this Agreement shall continue in effect with respect to
the non-withdrawing Parties. Upon withdrawal by any Party, the
other Parties shall be entitled to complete the development of any
Projects for which a contract with a Project customer has been
executed exclusive of the withdrawing Party, and the withdrawing
Party and its affiliates agree not to participate in the
development and acquisition of such Projects for which a contract
with a Project customer has been executed in any manner for a
twelve (12) month period following such withdrawal, including
acting as consultant, and for a period of twelve (12) months in
respect of any Project which it voted to reject pursuant to
Section 3 hereof.
7.3 DEEMED WITHDRAWAL: If any Party (a) suffers a change in control
(i.e. with respect to Parties which are not publicly traded or
whose ultimate parent company is not publicly traded, the direct
or indirect authority to or right, by ownership of voting equity,
contract or otherwise to elect a majority of the board of
directors or other governing body of the subject person), that
would in the other Parties opinion adversely affect this
Agreement (b) files a voluntary petition in bankruptcy or seeks
liquidation, reorganization, stay, moratorium or other form of
debtor's relief under applicable laws, (c) consents to a
bankruptcy or insolvency proceeding involuntarily brought against
it or admits in writing its inability to pay its debt as they
become due, (d) has an involuntary bankruptcy or insolvency
proceeding brought against it and such proceeding is not timely
contested or is not dismissed within sixty (60) days, (e) makes a
general assignment for the benefit of creditors, or a receiver,
trustee, liquidator or officer with similar powers is appointed
with respect to its properties, or (f) materially breaches any of
its material obligations under this Agreement, including, but not
limited to, repeatedly failing to participate in meetings or
decisions without valid cause, paying any costs it has agreed to
pay on a timely basis after written notice, or otherwise
faithfully discharging its material obligations to the other
Parties hereunder or pursuant hereto (including repeated breaches
by any Party of any sub-contract in respect of a Project), then
all the other Parties shall have the right to give written notice
to such Party that it will be deemed to have withdrawn from this
Agreement unless such failure is cured within thirty (30) days.
If the Party receiving such notice does not timely cure the
default, then the other Parties (acting unanimously) may declare
such Party as having withdrawn from this Agreement. A Party that
is deemed to have withdrawn from this Agreement shall not
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participate in the development and acquisition of any Project for
which a Contract with a Project customer has been executed
pursuant hereto or which had been referred to TEN or the Committee
for consideration prior to such deemed withdrawal for a twelve
(12) month period following such withdrawal, including acting as a
consultant.
7.4 CONTINUED PERFORMANCE: Notwithstanding anything herein that may be
construed to the contrary, a withdrawing Party (whether under
Section 7.2 or 7.3 hereof) shall remain fully obligated to
perform all of its obligations under or pursuant to this Agreement
which were incurred prior to withdrawal in respect of a Project
which the Parties have i) accepted to pursue in accordance with
the terms hereof or ii) for which a contract with a Project
customer has been signed.
SECTION 8. FORCE MAJEURE
No Party shall be responsible for any failure to perform or for any
delay in performance of the terms of this Agreement where the failure
or delay is due to acts of God or the public enemy, war, riot, embargo,
fire, explosion, sabotage, flood, accident; strikes, lockouts or other
labour disturbances from whatever cause arising; enactment,
promulgation or issuance of any laws, regulations, orders or decrees of
any competent governmental, regulatory or judicial authority; or,
without limiting the foregoing, any circumstances of like or different
character beyond such Party's control.
SECTION 9. GOVERNING LAW; ARBITRATION; REMEDIES
9.1 GOVERNING LAW: This Agreement shall be interpreted in accordance
with and governed by the laws of the State of Connecticut, without
regard to the conflicts of law principles thereof. The UNITED
NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF
GOODS shall not apply to this Agreement, and the Prime Contractor
shall use its best efforts to exclude same under any contract with
any Project customer.
9.2 ARBITRATION: All disputes arising in connection with or under
this Agreement other than in respect of the Proprietary
Information Agreement or the Packaging Agreement shall be finally
settled by arbitration, using the AMERICAN ARBITRATION ASSOCIATION
RULES then in effect (the "Rules") by arbitrators appointed in
accordance with the Rules. The arbitration shall he held in
Hartford, Connecticut (USA) and the arbitration proceedings shall
be conducted, and the award shall be rendered, in the English
language. All decisions rendered by arbitrators shall be final,
binding and non-appealable. This agreement to arbitrate shall be
binding upon the successors, assigns and any trustee or receiver
of any Party. The arbitrators shall have the right and obligation
to award attorneys fees and costs to the prevailing Party(ies)
arbitration.
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9.3 REMEDIES: In the event of any breach or threatened breach of this
Agreement by any Party hereto, the other Parties shall be entitled
to equitable relief through an injunction in addition to any other
rights and remedies available to it.
9.4 NON-RECOURSE: The obligations of the Parties under this Agreement
are obligations of the Parties only and no recourse shall be
available against any officer, director, stockholder or, except as
permitted under applicable law, partner of any Party.
SECTION 10. COMPLIANCE WITH LAWS
Each Party shall comply with all applicable federal, provincial, state
and municipal laws, rules and regulations in effect or hereafter
adopted (including with the U.S. FEDERAL PROCUREMENT INTEGRITY ACT)
relating to its efforts hereunder and shall defend, indemnify and hold
the other Parties harmless from and against any and all losses, costs,
expenses (including reasonable attorney's fees and disbursements),
taxes, penalties, fines, liabilities, claims or damages resulting from
or in any manner connected with any non-compliance thereto.
SECTION 11. NOTICE
Any notice, demand or other communication required or permitted to be
given to any Party shall be in writing and shall be:
a) personally delivered to such Party;
b) sent by prepaid overnight courier; or
c) sent by facsimile transmission or similar method of
recorded communication, charges prepaid, confirmed by
prepaid overnight courier.
Any notice, demand or other communication given pursuant to
subparagraphs (a), (b) and (c) above shall be delivered or sent to the
intended recipient at its address indicated on the signature pages
hereof.
Any Party may from time to time change its address by written notice to
the other Party given in accordance with the provisions hereof.
Any notice, demand or other communication delivered in accordance with
paragraph (a) above shall be deemed to have been received on the first
business day following the date of its delivery; if sent in accordance with
paragraph (b) above, it shall be deemed to have been received on the second
business day following the date it was so sent; and if sent in accordance
with paragraph c) above, it shall be deemed to have been received on the
first business day following the date of its transmission by facsimile or
similar method of recorded communication. Any notice of change of address
shall be deemed to be received only when actually received.
SECTION 12. GENERAL
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12.1 PREAMBLE; INTEGRATION: The preamble and Exhibits hereto shall
form an integral part hereof as if recited at length. The terms
and provisions contained in this Agreement constitute the entire
agreement between the Parties with respect to the subject matter
hereof.
12.2 NO WAIVER: No amendment or waiver of this Agreement shall be
binding unless executed in writing by all of the Parties. No
waiver of any of the provisions of this Agreement shall constitute
a waiver of any other provision (whether or not similar) nor shall
such waiver constitute a continuing waiver unless otherwise
expressly provided.
12.3 BINDING NATURE AND ASSIGNMENT: This Agreement will be binding on
and enure to the benefit of the Parties hereto and their
respective successors and permitted assigns. No Party may assign
this Agreement or any of their rights or obligations hereunder or
delegate the performance thereof to a third party (subject to the
Packaging Agreement) without the prior written consent of the
other Parties.
12.4 SEVERABILITY: Any provision in this Agreement which is held to be
illegal or unenforceable in any jurisdiction shall be ineffective
to the extent of such illegality or unenforceability without
invalidating the remaining provisions and any such illegal or
unenforceable provision shall be deemed to be restated to reflect
as nearly as possible the original intention of the Parties in
accordance with applicable law.
12.5 EXTENDED MEANINGS: In this Agreement, words importing the
singular number include the plural and vice versa and words
importing gender include all genders. The word "person" includes,
subject to the context in which it appears, an individual,
partnership, association, body corporate, trustee, executor,
administrator or legal representative.
12.6 HEADINGS: The division of this Agreement into Sections,
subsections and Annexes and the insertion of headings are for
convenience of reference only and shall not affect its
construction or interpretation.
12.7 SURVIVAL: The following provisions shall survive the expiration
of termination of this Agreement, including the withdrawal, deemed
or voluntary, of any Party:
SECTION 2.2 Confidentiality
SECTION 2.3 Property Rights
SECTION 6.2 Limitation of Liability
SECTION 7 Termination
SECTION 10 Compliance with Laws
SECTION 12 General
12.8 COUNTERPARTS: This Agreement may be executed in one or more
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counterparts, each of which when so executed shall be deemed an
original, but all of which taken together shall constitute one and
the same complete and executed agreement.
12.9 EFFECTIVE AGREEMENT: If executed in counterparts, this Agreement
shall become effective when each Party to this Agreement shall
have received counterparts hereof signed by all of the other
Parties hereto.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed by their duly authorized representatives as of the day and year
first above written.
The Energy Network, Inc. Oxford Technologies, Inc.
per: S/ Xxxxx Xxxxxxx per: S/ Xxxxxxxx X. XxXxxxxx
-------------------- ------------------------
Name: Xxxxx Xxxxxxx Name: Xxxxxxxx X.
Title: Vice President XxXxxxxx
Business Development Title: President
Address: Address:
00 Xxxxxxxx Xxxxxxxxx 000 Xxxxx Xxxxxx,
P. O. Box 1500 Building "H"
Hartford, CT 06144-1500 Xxx Xxxxxxx, XX, 00000
Fax Number: 000 000-0000 Fax Number: (000) 000-0000
Attention: Vice President Attention: President
Business
Development
Xxxxx & Whitney Canada Inc. Carrier Corporation
Per: S/ Xxxxxxxx X. Xxxxxx Per: S/ Xxxxx X. Xxxxx
------------------------ --------------------
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxx
Title: Vice President Title: Vice President
Finance Business Development
Address: Address:
1000 Xxxxx-Xxxxxxxx X.X. Xxx 0000
Xxxxxxxxx, Xxxxxx 0000 Xxxxxxx Xxxxxxx
Xxxxxx, X0X 0X0 Xxxxxxxx, XX
Fax Number: (000) 000-0000 Fax Number: (000) 000-0000
Attention: General Attention: Vice President
Manager, Business
Industrial Engine Development
Division
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Annex A
Proprietary Information Agreement
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