JOINT VENTURE MASTER AGREEMENT
Exhibit
10.1
*** Indicates
material has been omitted pursuant to a Confidential Treatment Request filed
with the Securities and Exchange Commission. A complete copy of this
agreement has been filed separately with the Securities and Exchange
Commission.
THIS
JOINT VENTURE MASTER AGREEMENT, dated June 11, 2010 (this “Master Agreement”),
is entered into by COMVERGE,
INC., a Delaware corporation (“Comverge”);
and PROJECTS INTERNATIONAL,
INC., a District of Columbia corporation (“PI”).
BACKGROUND
Comverge
and PI have determined that they would benefit from a strategic alliance
arrangement between their respective organizations under which the parties will
identify and jointly pursue opportunities for demand response, smartgrid and
energy efficiency projects in the specific countries identified in this Master
Agreement. PI, directly or through its designated Affiliate, will
have primary responsibility for identifying, pursuing, negotiating, and
executing such projects in the identified countries, and Comverge will provide
key operations consulting, hardware and software technology, marketing support,
trade name and intellectual property licensing as contemplated under this Master
Agreement.
Defined
terms used in this Master Agreement have the meaning specified in Exhibit
A (Defined Terms).
The
Parties agree as follows:
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1.
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Local Country Joint
Venture Entities. PI will *** in the
Territory. The Parties anticipate that if they mutually agree
to pursue a Project in a country in the Territory, then the Parties (or
their respective Affiliates) will form a joint venture entity in such
country (each, a “Local Country JV
Entity”) to execute the Project (if a Local Country JV Entity does
not already exist in that country). PI (or a PI Affiliate) will
*** of each Local Country JV Entity, and Comverge (or a Comverge
Affiliate) will *** of each Local Country JV Entity. The
Parties will mutually agree upon the precise legal structure of the Local
Country JV Entity in each case (which could include a local office of a
regional legal entity), taking into account relevant legal, tax,
accounting, regulatory and other issues affecting the structure of the
Local Country JV Entity. Each Local Country JV Entity will
incorporate, at a minimum, the terms and conditions (including control and
governance rights) set forth on Exhibit B
(Local Country JV Entities).
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2.
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Territory.
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(a)
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The
territory for this Master Agreement (the “Territory”)
will consist of
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i.
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***
(defined as those countries listed on Exhibit
C (Territory) as the “***”),
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ii.
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***
(defined as those countries listed on Exhibit C
(Territory) as the “***”),
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iii.
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***
(defined as those countries listed on Exhibit C
(Territory) as the “***”), and
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iv.
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***
(defined as those countries listed on Exhibit C
(Territory) as the “***”).
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(b)
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The
Parties intend that if PI is successful at identifying and contracting for
Projects within a particular Country Group (e.g., in the ***), then the
Territory will be expanded to include other countries within the
region. PI may propose to Comverge an expansion of the
Territory to include other countries within the applicable
region. Any such proposal must be accompanied by a detailed
business plan for the additional country or countries. Any such
proposal to add a country or countries to the Territory will be subject to
the prior written approval of Comverge, in its sole
discretion. If the Parties mutually agree to modify the
Territory, they will update Exhibit
C (Territory) accordingly.
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3.
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Exclusivity.
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(a)
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During
the applicable Term for each Country Group (as specified in Section 9), PI
will have the exclusive right to pursue Projects in the countries included
in that Country Group through a Local Country JV
Entity. However, if Comverge proposes a Project in the
Territory and PI elects not to pursue the Project, then Comverge may
pursue that Project in the Territory independently (i.e., outside of this
Master Agreement and the Local Country JV
Entity).
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(b)
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During
the applicable Term for each Country Group (as specified in Section 9)
***, neither PI nor any PI Affiliate will engage in any Competitive
Business in any of the countries in the respective Country
Group. However, if Comverge terminates this Agreement with
respect to a particular country in a Country Group in accordance with
Section 9, then the foregoing restriction will apply in the affected
country only during the Term applicable to that country (and not
***). In addition, as of the Effective Date, each of Xxxx.
Xxxxxxx, Jr. and Xxxxx X.X. Xxxxx will enter into a non-competition
agreement with the business of Comverge in the Territory, in form
satisfactory to Comverge. The provisions of this Section 3(b)
will apply even if Comverge has elected not to pursue a Project proposed
by PI. Competitive products and services will include products
and services that compete with new products and services offered by
Comverge after the Effective Date. However, if Local Country JV
Entities begin dealing in products and services that were not competitive
at the time originally offered by the Local Country JV Entity, but
Comverge subsequently launches a product or service that competes, the
Local Country JV Entity will not be deemed in breach of this Section 3(b)
(unless Comverge has previously advised PI of the impending launch of the
Comverge product or service).
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(c)
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The
Parties will each be free to pursue projects in countries outside of the
Territory either directly, through other alliances, or through third
parties (e.g., partners, distributors or
resellers).
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(d)
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Neither
PI nor any PI Affiliates will have the right to offer, sell, market,
distribute or promote any of the products or services of Comverge outside
of the Territory either during the Term or at any time
thereafter.
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4.
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Provision of Project
Products and Services by Comverge. Comverge will provide
products and services for Projects in the Territories at *** for municipal
and co-operative utility customers in the United
States. Comverge will enter into a Comverge Master Products and
Services Agreement with the Local Country JV Entity providing the terms
and conditions under which such Comverge products and services will be
provided to the Project. Certain products and services to be
provided by Comverge, and the terms and conditions applicable to those
products and services (including pricing and payment terms as of the date
of this Agreement), are set forth in Exhibit
D (Comverge Products and Services). The pricing set
forth in Exhibit
D represents *** Comverge Products and Services as of the Effective
Date and is***. ***.
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5.
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Services to be
Provided by PI. In consideration of its ***, PI or a PI
Affiliate will provide the following services with respect to each Project
either directly or through each respective Local Country JV
Entity:
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(a)
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***
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(b)
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***
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(c)
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***
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(d)
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***
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(e)
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***
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(f)
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***
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(g)
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***
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(h)
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***
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If PI or
PI Affiliates require assistance from Comverge to perform any of the functions
specified in this Section 5, then Comverge will have the right to be compensated
for such assistance in accordance with the terms of Section 4 and Exhibit
D (Comverge Products and Services), and if such function is not
contemplated in Section 4 or Exhibit
D (Comverge Products and Services), then the Parties will mutually agree
on the compensation to be paid to Comverge.
The costs
and expenses incurred in connection with the conduct of the Local Country JV
Entity’s business will be borne by the Local Country JV Entity to the extent
that such costs and expenses are included in an approved Budget for the Local
Country JV Entity.
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6.
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Confidentiality. Any
confidential or proprietary information shared among the parties in
connection with this Master Agreement or any Project will be subject to
the restrictions and obligations set forth in Exhibit
E (Confidentiality).
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7.
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Intellectual Property
Rights. As between Comverge and PI, each Party will
retain ownership of any intellectual property owned by it prior to the
date of this Master Agreement or subsequently developed or acquired by it
outside the scope of this Master Agreement. In addition, each
Party will own any derivative works based upon that Party’s intellectual
property rights, regardless of whether such derivatives are developed by
that Party or another Party. No licenses with respect to the
intellectual property rights of any Party are being granted under this
Master Agreement (nor may any such licenses be inferred), except as
provided in the Trademark License. The Parties do not
anticipate any joint development of intellectual property in connection
with this Master Agreement. However, if the Parties do jointly
develop any intellectual property in connection with this Master
Agreement, then (1) if such jointly developed intellectual property
constitutes a derivative work of any existing Comverge intellectual
property, then Comverge will own all such jointly developed intellectual
property and, if necessary, will license such jointly developed
intellectual property to PI under reasonable license terms, and (2) if
such jointly developed intellectual property is an original work (that is,
it is not a derivative work of any existing Comverge intellectual
property), then such new jointly developed intellectual property will be
jointly owned and can be used by each party in accordance with the terms
of a mutually agreed license agreement. Each Party will, if
requested by the other Party, execute all such assignments and other
documents as necessary to confirm ownership of jointly developed
intellectual property in accordance with the terms of this
Section.
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8.
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Trademark
License. Comverge and PI will enter into a trademark
license in the form attached as Exhibit
F (the “Trademark
License”). PI agrees that it will comply with, and will
cause each of the PI Affiliates to comply with, each of the terms of the
Trademark License. In addition, each Local Country JV Entity
will enter into a joinder to the Trademark License and will be bound by
the terms thereof.
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9.
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Term and
Termination. The Term of this Master Agreement will
commence upon the Effective Date and continue with respect to each Country
Group as follows:
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(a)
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***. The
initial term with respect to the *** will continue in effect until the
close of business on the Business Day immediately prior to the third
(3rd)
anniversary of the Effective Date, unless earlier terminated in accordance
with this Section. However, if, during the initial three (3)
year term, the Parties enter into a Qualifying Customer Contract in one of
the ***, then the term of this Master Agreement will automatically extend
for the *** until it is superseded by another agreement or terminated
pursuant to Section 12 or Section 13 of this Master
Agreement. If, however, after one (1) year following extension
of the initial term with respect to the ***, a country within *** ceases
to generate gross revenue for the Local Country JV Entity of at least ***
for that country, or if the Local Country JV Entity is no longer actively
pursuing Projects in that country (in either case, a “Non-Performing
Country”), then Comverge will have the right to send written notice
to PI that the performance standards for the Non-Performing Country have
not been met and that the Non-Performing Country will be removed from the
Territory (a “Non-Performance
Notice”). PI will have thirty (30) Business Days
following receipt of the Non-Performance Notice to notify Comverge that PI
wishes to cure the performance issue in the Non-Performing Country (a
“Cure
Notice”). If PI fails to send a Cure Notice (or if PI
agrees that the Non-Performing Country will be removed from the
Territory), then the Non-Performing Country will be removed from the
Territory (and Exhibit
C (Territory) will be updated accordingly). If PI sends
a Cure Notice, but the Non-Performing Country fails to *** for the Local
Country JV Entity in the twelve (12) month period following receipt of the
Cure Notice, then the Non-Performing Country will be removed from the
Territory, and Exhibit
C (Territory) will be updated
accordingly.
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(b)
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***
. The initial term with respect to the *** will continue in
effect until the close of business on the Business Day immediately prior
to the first (1st)
anniversary of the Effective Date, unless earlier terminated in accordance
with this Section. However, if, during the initial one (1) year
term, the Parties establish a Local Country JV Entity or enter into a
binding letter of intent for a Project contract with a minimum of 100
megawatts of delivered load reduction in one of the ***, then the term of
the Master Agreement will automatically extend for the countries in ***
until it is superseded by another agreement or terminated pursuant to
Section 12 or Section 13 of this Master Agreement. If, however,
after one (1) year following the extension of the term with respect to***,
a country included in *** ceases *** for that country, or if the Local
Country JV Entity is no longer actively pursuing Projects in that country,
then Comverge will have the right to send written notice to PI that the
performance standards for the Non-Performing Country have not been met and
that the Non-Performing Country will be removed from the
Territory. PI will have thirty (30) Business Days following
receipt of the Non-Performance Notice to notify Comverge that PI wishes to
cure the performance issue in the Non-Performing Country. If PI
fails to send a Cure Notice (or if PI agrees that the Non-Performing
Country will be removed from the Territory), then the Non-Performing
Country will be removed from the Territory (and Exhibit
C (Territory) will be updated accordingly). If PI sends
a Cure Notice, but the Non-Performing Country *** for the Local Country JV
Entity in the twelve (12) month period following receipt of the Cure
Notice, then the Non-Performing Country will be removed from the
Territory, and Exhibit
C (Territory) will be updated
accordingly.
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(c)
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***. The
initial term with respect to the*** will continue in effect until the
close of business on the Business Day immediately prior to the first
(1st)
anniversary of the Effective Date, unless earlier terminated in accordance
with this Section. However, if, during the initial one (1) year
term, the Parties establish a Local Country JV Entity or enter into a
binding letter of intent for a Project contract with a minimum of 100
megawatts of delivered load reduction in one of the ***, then the term of
this Master Agreement will automatically extend for the *** until it is
superseded by another agreement or terminated pursuant to Section 12 or
Section 13 of this Master Agreement. If, however, after one (1)
year following extension of the term with respect to the ***, a country
within the *** ceases to generate gross revenue for the Local Country JV
Entity of *** for that country, or if the Local Country JV Entity is no
longer actively pursuing Projects in that country, then Comverge will have
the right to send written notice to PI that the performance standards for
the Non-Performing Country have not been met and that the Non-Performing
Country will be removed from the Territory. PI will have thirty
(30) Business Days following receipt of the Non-Performance Notice to
notify Comverge that PI wishes to cure the performance issue in the
Non-Performing Country. If PI fails to send a Cure Notice (or
if PI agrees that the Non-Performing Country will be removed from the
Territory), then the Non-Performing Country will be removed from the
Territory (and Exhibit
C (Territory) will be updated accordingly). If PI sends
a Cure Notice, but the Non-Performing Country fails to *** for the Local
Country JV Entity in the twelve (12) month period following receipt of the
Cure Notice, then the Non-Performing Country will be removed from the
Territory, and Exhibit
C (Territory) will be updated
accordingly.
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(d)
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***. The
initial term with respect to the *** will continue in effect until the
close of business on the Business Day immediately prior to the first
(1st)
anniversary of the Effective Date, unless earlier terminated in accordance
with this Section. However, if, during the initial one (1) year
term, the Parties establish a Local Country JV Entity or enter into a
binding letter of intent for a Project contract with *** in one of the
***, then the term of this Master Agreement will automatically extend for
the *** until it is superseded by another agreement or terminated pursuant
to Section 12 or Section 13 of this Master Agreement. If,
however, after one (1) year following extension of the term with respect
to the ***, a country within the *** Country Group ceases to generate
gross revenue for the Local Country JV Entity of at least ***, or if the
Local Country JV Entity is no longer actively pursuing Projects in that
country, then Comverge will have the right to send written notice to PI
that the performance standards for the Non-Performing Country have not
been met and that the Non-Performing Country will be removed from the
Territory. PI will have thirty (30) Business Days following
receipt of the Non-Performance Notice to notify Comverge that PI wishes to
cure the performance issue in the Non-Performing Country. If PI
fails to send a Cure Notice (or if PI agrees that the Non-Performing
Country will be removed from the Territory), then the Non-Performing
Country will be removed from the Territory (and Exhibit
C (Territory) will be updated accordingly). If PI sends
a Cure Notice, but the Non-Performing Country fails to *** for the Local
Country JV Entity in the twelve (12) month period following receipt of the
Cure Notice, then the Non-Performing Country will be removed from the
Territory, and Exhibit
C (Territory) will be updated
accordingly.
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(e)
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Material
Default. A material default by a Party is grounds for
termination of this Master Agreement. A Party alleging a
material default must provide written notice (a “Default
Notice”) to the other Party upon any indication of material default
by the other Party of any of its material obligations under this Master
Agreement or any of the Transaction Documents, and the receiving Party
will have thirty (30) days to cure the alleged default. If the
Party receiving a Default Notice disputes the existence of a material
default (or disputes its failure to cure a material default), then the
dispute will first be subject to internal escalation in accordance with
Section 11. If the Parties are unable to resolve the dispute
pursuant to Section 11, then the dispute will be resolved in accordance
with Section 24. Termination of this Master Agreement as
a result of a material default will not terminate any Customer Contracts
that, as of the Termination Date, have been entered into by the Parties or
their Affiliates or any Local Country JV Entity, which will remain in
effect until terminated pursuant to the terms set forth in the applicable
Customer Agreement.
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(f)
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Exercise of Option
Rights under Section 12. If Comverge exercises its
rights under Section 12 with respect to the Local Country JV Entities,
then this Master Agreement will terminate upon consummation of the
purchase of PI’s equity interests in the Local Country JV
Entities. However, any agreements between Comverge and the
Local Country JV Entities and any Customer Contracts in existence at the
time of such termination of this Master Agreement will continue in
accordance with their respective
terms.
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(g)
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Exercise of Option
Rights under Section 13. If either Party exercises
its rights under Section 13 with respect to any Local Country JV Entity,
then this Master Agreement will terminate as to that Local Country JV
Entity and each country within the Territory in which that Local Country
JV Entity operates, upon consummation of the purchase of the other Party’s
equity interest in that Local Country JV Entity. This Master
Agreement will continue in effect with respect to the Local Country JV
Entities that are not acquired (if any). Moreover,
any agreements between Comverge and the Local Country JV Entities and any
Customer Contracts in existence at such time will continue in accordance
with their respective terms. If PI acquires the interest of
Comverge in a Local Country JV Entity pursuant to Section 13, then the
obligations of Comverge under Section 3(a) and Section 4 will survive such
termination with respect to the affected portion of the Territory in
accordance with the terms of this
Agreement.
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(h)
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Actions upon
Termination under Section 9(a), (b), (c) or (d). If this
Master Agreement terminates with respect to any Country Group or country
within a Country Group pursuant to Sections 9(a), (b), (c), or (d), and
there is a Local Country JV Entity in the affected country or countries,
then the existing Local Country JV Entity will continue to exist and will
be responsible for executing any Customer Contracts to which it is a party
as of the time of such termination in accordance with the terms of such
Customer Contracts. However, Comverge will have no further
exclusivity obligations under Section 3 in the affected country or
countries and will be free to pursue all future Projects directly or in
conjunction with third parties. In addition, Comverge will have
the option to deliver a Triggering Notice in accordance with Section
13(a), and the Parties will thereafter follow the buy/sell process
provided for in Section 13(b) through
13(e).
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(i)
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Survival of
Provisions. The provisions of Sections 3(b), 6, 7, 8, 9,
10, 11, and Sections 15 through 25, will survive any
termination of this Master Agreement, unless otherwise
agreed.
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10.
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Covenant Not to Hire
Employees. Prior to the Termination Date and for***,
neither PI nor any PI Affiliate (in such capacity, the “Hiring Party”)
will, directly or indirectly, without the written consent of Comverge (in
its sole discretion), and whether or not for compensation, either on the
Hiring Party’s own behalf or in any other capacity
knowingly:
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(a)
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solicit,
persuade, encourage, or induce any employee of Comverge or any Comverge
Affiliate (or any consultant, sales agent, contract programmer, or other
independent agent who is retained on a full-time or substantially
full-time basis by Comverge or any Comverge Affiliate and who
is involved with the activities contemplated under this Master Agreement)
to cease his employment with or retention by Comverge or one of the
Comverge Affiliates; or
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(b)
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employ,
or retain as a consultant or contractor, or cause to be so employed or
retained, or enter into a business relationship with any person who
(i) is an employee of Comverge or one of the Comverge Affiliates,
(ii) has been employed by Comverge or one of the Comverge Affiliates
at any time within *** of such act, (iii) is a consultant, sales
agent, contract programmer, or other independent agent retained on a
full-time or substantially full-time basis by Comverge or one of the
Comverge Affiliates, or (iv) has been retained on a full-time or
substantially full-time basis by Comverge or one of the Comverge
Affiliates as a consultant, sales agent, contract programmer, or other
independent agent at *** of such
act.
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General
solicitations of employees by PI or PI Affiliates (e.g., in trade journals or
on-line job postings) will not constitute a breach of this Section 10 so long as
PI or the PI Affiliate does not hire a Comverge employee or consultant (or
former Comverge employee or consultant) who responds to such general
solicitation.
PI
acknowledges that the provisions of this Section are a material inducement to
Comverge in entering into this Master Agreement and that Comverge is relying on
the enforceability of such provisions.
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11.
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Internal Escalation of
Disputes.
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(a)
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The
Parties will first seek to resolve any dispute through a good faith
internal escalation process. If either Party believes that a
dispute exists, that Party will deliver written notice of the dispute (a
“Dispute
Notice”) to the General Counsel of Comverge or to the President of
PI (or his designee), as appropriate. The General Counsel of
Comverge and the President of PI (or his designee) will meet in person or
by telephone as soon as practicable in a good faith effort to resolve the
dispute.
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(b)
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If
the dispute cannot be resolved by the General Counsel of Comverge and the
President of PI (or his designee) within ten (10) Business Days after
either Party delivers a Dispute Notice, then either Party will have the
right to submit the Dispute to the CEO of Comverge and the Chairman of PI
for resolution. The CEO of Comverge and the Chairman of
PI will meet in person or by telephone as soon as practicable in a good
faith effort to resolve the dispute within ten (10) Business Days
following escalation of the dispute to them for
resolution.
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(c)
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If
the Parties are unable to resolve a dispute pursuant to the foregoing
escalation process, they will be free to pursue any available legal or
equitable remedies.
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12.
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Comverge Buyout of
Equity Interest in Local Country JV Entities. If
Comverge undergoes a Change of Control Transaction, then Comverge, or its
successor entity, shall have the right and option to purchase the equity
interests of PI or a PI Affiliate in all Local Country JV Entities created
as a result of this Master Agreement. Such option must be
exercised by Comverge or its successor, if at all, *** the consummation of
the Change of Control Transaction. The purchase price payable
for such equity interests in each Local Country JV Entity
***. If a local country partner owns an equity interest in the
Local Country JV Entity, then the repurchase right under this Section 12
will not apply to the interest in the Local Country JV Entity held by the
local country partner.
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(a)
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The
“Local Country
JV Entity ***” will be *** for the Local Country JV Entity,
determined in good faith based upon the original financial model for the
Local Country JV Entity and the approved Budget for the Local Country JV
Entity for ***.
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(b)
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“***”
means the ***, for the fiscal year beginning after December 31st
of the year any binding definitive agreement is executed with respect to a
Change of Control Transaction.
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(c)
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The
“***” will be ***.
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(d)
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***.
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(e)
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The
option provided for in this Section 12 may be exercised with respect to
all (but not less than all) of the Local Country JV
Entities.
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13.
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Mutual
Buy/Sell.
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(a)
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Triggering
Notice. At any time following *** of the Effective Date
either Party (the “Triggering
Party”) may deliver a written notice (a “Triggering
Notice”) to the other Party (the “Responding
Party”) stating: (i) its intent to commence a purchase or sale of
the equity interests in one or more (or all) Local Country JV Entities
under this Section, and (ii) the per-share price (the “Per-Share Buy/Sell
Price”) which will be applicable to such
transaction.
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(b)
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Response
Notice. Within *** of the delivery of a Triggering
Notice, the Responding Party shall deliver a written notice (the “Response
Notice”) to the Triggering Party stating whether the Responding
Party has elected: (i) to purchase the entirety of the Triggering Party’s
equity interests in the Local Country JV Entities at the Per-Share
Buy/Sell Price, or (ii) to sell the entirety of its equity interests in
the Local Country JV Entities to the Triggering Party at the Per-Share
Buy/Sell Price.
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(c)
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Cure
Period. If no Response Notice is delivered *** of a
Triggering Notice, the Triggering Party shall deliver a written notice
(the “Cure
Period Notice”) to the Responding Party stating that the Responding
Party has failed to deliver a Response Notice and stating that the
Responding Party has *** of the Cure Period Notice (the “Cure Period”)
to deliver a Response Notice to the Triggering Party. If the
Responding Party does not deliver a Response Notice within the Cure
Period, the Triggering Party shall, at its sole option, *** of the
conclusion of the Cure Period elect to either (i) to purchase the entirety
of the Responding Party’s equity at the Per-Share Buy/Sell Price, or (ii)
to sell the entirety of its equity to the Responding Party at the Per
Share Buy/Sell Price. The Parties shall thereupon effect a
Closing of a sale or purchase in accordance with the provisions of Section
pursuant to the terms of the preceding
sentence.
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(d)
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Exercise. The
option provided for in this Section may be exercised with respect to all
of the Local Country JV Entities, or it may be exercised with respect to
any one or more of the Local Country JV
Entities.
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(e)
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Closing. The
closing of a sale or purchase under this Section shall take place, and
certificates representing all of the equity of the Selling Party, properly
endorsed for transfer to the Purchasing Party, as well as all payments
from the Purchasing Party shall have been delivered to the Selling Party
*** after delivery of the Response Notice, the Cure Period Notice or the
expiration of the Cure Period, as the case may
be.
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14.
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Insurance. PI
will cause each Local Country JV Entity to obtain appropriate insurance
policies (including liability insurance) in amounts and with coverages
approved by Comverge. Such policies of insurance will name PI
and the PI Affiliates and Comverge and the Comverge Affiliates as
additional named insureds.
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15.
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Publicity. The
Parties will consult with each other as to the form, substance, and timing
of an initial press release or other initial public statement concerning
this Master Agreement, the strategic alliance being created pursuant to
this Master Agreement, or any Project. Any press release or
other public comment (including the initial press releases described
above) by the Parties or by the Local Country JV Entities will be subject
to the prior written approval of each of the Parties. Each
Party may make such disclosures as are necessary to comply with any
applicable regulation or applicable law after making good faith efforts
under the circumstances to consult in advance with the other
Party.
|
|
16.
|
Consequential
Damages. In no event will any of the Parties or their
respective Affiliates be liable for indirect, incidental, or consequential
damages (including damages for loss of profits or loss of business
opportunity) arising from this Master Agreement or its breach, even if
such Party or Affiliate, or the officers, directors, employees, or agents
of such Party or Affiliate, knew or have been advised of the possibility
of such damages.
|
|
17.
|
Notice. All
notices, certificates, acknowledgements, reports, and other communications
to a Party hereunder must be in writing and will be deemed duly delivered
upon receipt at the address for such Party as follows, or to such other
address as such Party may, by written notice provided in accordance with
this Section 17 designate to the
other.
|
|
(a)
|
0000
Xxxxxxxx Xxxxxxx
Xxxxx
000
Xxxxxxxx,
Xxxxxxx 00000
Attention: Chief
Financial Officer
with a
copy to :
0000
Xxxxxxxx Xxxxxxx
Xxxxx
000
Xxxxxxxx,
Xxxxxxx 00000
Attention: General
Counsel
and
King
& Spalding LLP
0000
Xxxxxxxxx Xxxxxx
Xxxxxxx,
Xxxxxxx 00000
Attention:
Xxxxxxx X. Xxxxx
|
(b)
|
Projects
International, Inc.
|
000
00xx
Xxxxxx XX
Xxxxx
0000
Xxxxxxxxxx,
X.X. 00000
Attention:
Chief Financial Officer
|
18.
|
No
Partnership. This Master Agreement is not intended by
the Parties to constitute or create a joint venture, pooling arrangement,
partnership, or formal business organization of any kind, and the rights
and obligations of the Parties will be only those expressly set forth in
this Master Agreement. No Party to this Master Agreement has
the authority to bind the other.
|
|
19.
|
Assignment. This
Master Agreement may not be assigned or otherwise transferred by any Party
in whole or in part, without express prior written consent of the other
Parties. The foregoing limitation on assignment will not apply
to a Party’s change in its corporate name, merger with another
corporation, or sale of substantially all of its assets to a third
party.
|
|
20.
|
Amendment and
Waiver. This Master Agreement may not be amended or
modified, nor will any waiver of any right under this Master Agreement be
effective, unless set forth in a document executed by duly authorized
representative(s) of all Parties. The waiver of any breach of
any term, covenant, or condition in this Master Agreement will not be
deemed to be a waiver of such term, covenant, or condition for any
subsequent breach of the same.
|
|
21.
|
Entire
Agreement. This Master Agreement and its Exhibits
contain all of the agreements, representations, and understandings of the
Parties and supersedes and replaces any and all previous understandings,
commitments, or agreements, oral or written, related to the subject matter
hereof.
|
|
22.
|
Unenforceability. If
any part, term, or provision of this Master Agreement is held void,
illegal, unenforceable, or in conflict with any law of a federal, state or
local government, by a court of competent jurisdiction, the validity of
the remaining portions of provisions will not be affected thereby, and
such portions will remain in full force and effect and be interpreted to
give maximum effect to the Parties’ intentions under this Master
Agreement.
|
|
23.
|
Governing
Law. This Master Agreement and its enforcement will be
governed by, and interpreted in accordance with, the laws of the State of
Delaware, without regard to conflict-of-law
principles.
|
24. Consent to Jurisdiction,
Etc
|
|
. Each
Party hereby irrevocably agrees that any legal dispute with respect to
this Master Agreement, any Local Country JV Entity or any Project shall be
brought only to the exclusive jurisdiction of the courts of the State of
Delaware or
the federal courts located in the State of Delaware, and each Party hereby
consents to the jurisdiction of such courts (and of the appropriate
appellate courts therefrom) in any such suit, action or proceeding and
irrevocable waives, to the fullest extent permitted by law, any objection
that it may now or hereafter have to the laying of the venue of any such
suit, action or proceeding in any such court or that they any such suit,
action or proceeding that is brought in any such court has been brought in
an inconvenient forum. During the period a legal dispute that
is filed in accordance with this Section 24 is pending before a
court, all actions, suits or proceedings with respect to such legal
dispute or any other legal dispute, including any counterclaim,
cross-claim or interpleader, shall be subject to the exclusive
jurisdiction of such court. Each Party hereby waives, and shall
not assert as a defense in any legal dispute, that (a) such Party is
not subject thereto, (b) such action, suit or proceeding may not be
brought or is not maintainable in such court, (c) such Party’s
property is exempt or immune from execution, (d) such action, suit or
proceeding is brought in an inconvenient forum, or (e) the venue of
such action, suit or proceeding is improper. A final judgment
in any action, suit or proceeding described in this Section 24 following
the expiration of any period permitted for appeal and subject to any stay
during appeal shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
applicable laws.
|
|
25.
|
Costs and
Expenses. Each Party will bear all costs and expenses
incurred in connection with the preparation, negotiation and execution of
this Master Agreement.
|
IN WITNESS WHEREOF, the
Parties have executed this Master Agreement the day and the year of the latest
date specified below:
By: /s/ Xxxxxxx
Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: EVP-CFO
Date: June 11,
2010
PROJECTS
INTERNATIONAL, INC.
By: /s/ Xxxxx
Xxxxx
Name: Xxxxx
Xxxxx
Title: President
Date: 6/11/10
LIST
OF EXHIBITS
EXHIBIT
A DEFINED
TERMS
EXHIBIT
B LOCAL
COUNTRY JV ENTITIES
EXHIBIT
C TERRITORY
EXHIBIT
D COMVERGE
PRODUCTS AND SERVICES
EXHIBIT
E CONFIDENTIALITY
EXHIBIT
F TRADEMARK
LICENSE
EXHIBIT
A
TO MASTER
JOINT VENTURE AGREEMENT
DEFINED
TERMS
The
following terms have the meanings specified below:
“Affiliate” means,
with respect to any Person, any Person that controls, is controlled by, or is
under common control with respect to the first Person. For this
purpose, control means the ownership or control, directly or indirectly, of
equity interests with more than 50% of the voting power with respect to a
Person.
“Board” means the
Board of Directors, Board of Managers or similar governing body of each Local
Country JV Entity.
“Budget” means the
initial budget approved and adopted by the Parties for a Project and each annual
capital and operating budget for that Project, as thereafter approved in form
and substance by each of Comverge and PI.
“Business” means the
business of identifying, pursuing, contracting for, and executing demand
response, smartgrid and energy efficiency projects in the
Territory.
“Business Day” means
any day on which banks in New York City, New York are required or permitted to
be open for business.
“Change of Control
Transaction” means (i) the merger, share exchange, reorganization or
consolidation involving Comverge or any Comverge Affiliate which constitutes the
sale of all or substantially all of the assets of the business of the Company
and the Comverge Affiliates taken as a whole in which the stockholders of
Comverge holding the right to vote with respect to matters generally immediately
preceding such merger, share exchange, reorganization or consolidation (solely
by virtue of their shares or other securities of Comverge or Comverge
Affiliates) own less than fifty percent (50%) of the voting interests of the
surviving corporation, (ii) the sale, transfer or lease (but not including a
transfer or lease by pledge or mortgage to a bona fide lender), of all or
substantially all of the assets of Comverge or the Comverge Affiliates taken as
a whole, whether pursuant to a single transaction or a series of related
transactions or plan, or (iii) the sale or transfer, whether in a single
transaction or pursuant to a series of related transactions, of capital stock of
Comverge such that the stockholders of Comverge holding a majority of the voting
power of the outstanding securities of Comverge immediately prior to such sale
or transfer or series of transfers cease to hold a majority of the Company’s
voting power after such sale or transfer or series of transfers.
“Competitive Business”
means any business engaged in the development, distribution, marketing, sales or
promotion of products or services that compete with the products and services
offered by Comverge from time to time after the Effective Date in the
***.
“Comverge” means
Comverge, Inc., a Delaware corporation.
“Comverge Affiliates”
means any Affiliate of Comverge.
“Comverge Products and
Services” means those hardware, software and services offerings which
Comverge provides to its customers in the United States for various customer
classes, including residential, retail, commercial and industrial.
“Country Group” means
one of the four groups of countries identified in Section 3(a)(i), (ii), (iii)
and (iv) respectively; that is, (a) ***, (b) the ***, (c) the ***, and (d) the
***.
“Cure Period” has the
meaning specified in Section 13.
“Cure Period Notice”
has the meaning specified in Section 13.
“Customer” means a
party that enters into a Customer Contract with a Local Country JV Entity for
the provision of Comverge Products and Services to such customer.
“Customer Contract”
means any contract, agreement or arrangement entered into with a customer for
the provision of products and/or services in connection with a
Project.
“Effective Date” means
the latest of the dates appearing on the signature page of this Master Agreement
below the signatures of the Parties.
“Government Authority”
means any governmental, semi-governmental, administrative, fiscal, judicial or
quasi-judicial body, department, commission, authority, tribunal, agency or
entity.
“Hiring Party” has the
meaning specified in Section 10.
“Local Country JV
Entity” has the meaning specified in Section 1.
“Megawatts” means the
assumed reduction in electricity, as measured in wattage, reasonably determined
by Comverge for the specific Projects, taking into account multiple variables,
including the technology deployed, load targeted, customer class, geographic and
weather conditions in the specific country, load reduction method, time and
seasonal commitment of the load reduction.
“***”
means the countries identified on Exhibit
C (Territory) as the ***, as updated from time to time in accordance with
this Master Agreement.
“***”
means the countries identified on Exhibit
C (Territory) as the ***, as updated from time to time in accordance with
this Master Agreement.
“***”
means the countries identified on Exhibit
C (Territory) as the ***, as updated from time to time in accordance with
this Master Agreement.
“***”
means the countries identified on Exhibit
C (Territory) as the ***, as updated from time to time in accordance with
this Master Agreement.
“Party” means each of
Comverge and PI, individually, and “Parties” means
Comverge and PI, collectively.
“Per-Share Buy/Sell
Price” has the meaning specified in Section 13.
“Person” means any
individual, corporation, limited liability company, partnership, joint venture,
trust, unincorporated entity, Governmental Authority or other
entity.
“Project” means the
smart grid, demand response, energy efficiency, or renewable program, including
an internal Megawatt calculation, resulting from the contractual relationship
between a Local Country JV Entity and a Customer in the applicable
Territory.
“PI” means Projects
International, Inc., a District of Columbia corporation.
“PI Affiliates” means
each Affiliate of PI and all of them, collectively.
“Qualifying Customer
Contract” means a binding customer agreement in a country within that
Country Group that (i) provides for a minimum of 100 Megawatts of delivered load
reduction, (ii) has been approved by Comverge (which approval will not be
unreasonably withheld or delayed), (iii) has received all required Governmental
Authority and regulatory approvals, and (iv) is not subject to any conditions to
its effectiveness. Solely with respect to ***, a Qualifying Customer
Contract means a binding customer agreement in a country within *** that (i)
provides for ***, (ii) has been approved by Comverge (which approval will not be
unreasonably withheld or delayed), (iii) has received all required Governmental
Authority and regulatory approvals, and (iv) is not subject to any conditions to
its effectiveness.
“Related Party
Agreement” means any agreement, arrangement or understanding between the
Local Country JV Entity and PI or a PI Related Person or any modification to any
agreement, arrangement or understanding between a Local Country JV Entity and PI
or a PI Related Person, or any enforcement or waiver of rights in relation to,
or not comply with, any such agreement, arrangement or
understanding. For this purpose, a “PI Related Person”
means any PI Affiliate or any shareholder, member, partner, officer, director,
employee, consultant of PI or any PI Affiliate, or any relative of any of the
foregoing, or any Person in which any of the foregoing own an equity interest,
including any related person within the meaning of Statement of Financial
Accounting Standard No. 6, as promulgated by the Financial Accounting Standard
Committee of the Accounting Research and Development Foundation.
“Response Notice” has
the meaning specified in Section 13.
“Responding Party” has
the meaning specified in Section 13.
“Security” means a
share or other interests in a Local Country JV Entity, any security or
instrument convertible into such shares or interests, and any option or warrant
to subscribe for any such shares or interests or convertible securities or
instruments.
“Subsidiary” means a
person (other than an individual) of which another person owns or controls
directly or indirectly more than 50% of the shares, capital or other equity
interests or more than 50% of the voting power providing the holders thereof,
ordinarily and generally in the absence of contingencies, the right to vote for
the election of directors, managers or persons having similar rights and
duties.
“Termination Date”
means the date on which this Master Agreement has terminated with respect to
each of the Country Groups.
“Territory” means the
countries included in the Country Groups identified in Exhibit
C (Territory), as it may be amended from time to time in accordance with
the provisions of this Master Agreement.
“Trademark License”
means the Trademark License with Comverge, in the form attached as Exhibit
F (Trademark
License).
“Transaction
Documents” means this Master Agreement, the Warrants, the Trademark
License, and any of the constituent documents of a Local Country JV Entity
(including articles, bylaws, partnership agreements, operating agreements,
shareholder agreements and the like).
“Transfer” means to
sell, transfer, assign or otherwise dispose of or deal with any legal or
equitable interest in a Security.
“Triggering Notice”
has the meaning specified in Section 13.
“Triggering Party” has
the meaning specified in Section 13.
EXHIBIT
B
TO MASTER
JOINT VENTURE AGREEMENT
LOCAL
COUNTRY JV ENTITIES
|
A.
|
Approval
Rights.
|
Each
Local Country JV Entity will provide for the following approval rights for
Comverge (that is, the approval of Comverge (or its designated representative)
will be required for each of the following actions (or the failure to take any
of the following actions) by the Local Country JV Entity:
|
(a)
|
Budget -
adoption of the initial Budget for a Project or any amendment, repeal,
modification or departure thereto or therefrom, and the adoption of an
annual Budget for the Local Country JV Entity for its Project(s), or any
amendment, repeal, modification or departure thereto or
therefrom;
|
|
(b)
|
Changes to Constituent
Documents - changes to the articles, regulations or other
constituent or governing documents of the Local Country JV
Entity;
|
|
(c)
|
Subsidiaries
- establishing or dissolving a Subsidiary and/or approving or
amending the constituent or governing documents of a
Subsidiary;
|
|
(d)
|
Equity
Structure - authorizing or issuing any Securities in any Local
Country JV Entity or any of its Subsidiaries, or any right to acquire any
of such Securities (including options, warrants or convertible
securities), other than the issuance of equity ownership interests in a
Local Country JV Entity of *** to PI or a PI Affiliate and *** to Comverge
or a Comverge Affiliate, as contemplated under the Master Agreement, or
any alteration to any of the rights attaching to any Securities of a Local
Country JV Entity or any of its
Subsidiaries;
|
|
(e)
|
Redemption of
Securities - redemption of any Securities or rights to acquire any
Securities;
|
|
(f)
|
Winding-Up -
any proposal to cease to carry on the Business of the Local Country JV
Entity or any material part of the Business of the Local Country JV
Entity, or to wind-up or dissolve the Local Country JV Entity, or to
voluntarily apply to a court for bankruptcy or reorganization or to
appoint a liquidator or administrator to the Local Country JV Entity or to
take advantage of any law providing for the relief of debtors in adverse
financial circumstances in relation to the Local Country JV
Entity;
|
|
(g)
|
Merger or
Amalgamation - merging or amalgamating the Local Country JV Entity
with any other Person;
|
|
(h)
|
Debt -
incurring any indebtedness for borrowed money or issuing any debt
securities or any change to the terms of such indebtedness for borrowed
money or debt securities;
|
|
(i)
|
Asset Disposals
- any sale, lease, exchange or other disposition or series of related
sales, leases, exchanges or dispositions by the Local Country JV Entity
of:
|
|
(i)
|
assets
(including shares), except for:
|
|
(A)
|
***;
or
|
|
(B)
|
as
specified in the most recently approved
Budget;
|
|
(ii)
|
all
or a substantial part of the
Business;
|
|
(j)
|
Customer Contracts
- all Customer Contracts (including the terms and conditions of
each such Customer Contract) to be entered into by the Local Country JV
Entity, which approval will not be unreasonably withheld or
delayed;
|
|
(k)
|
Dividends or
Distributions - the declaration or payment of a dividend or other
distribution by the Local Country JV
Entity;
|
|
(l)
|
Related Party
Agreements - any Related Party Agreement or amendment to a Related
Party Agreement;
|
|
(m)
|
Accounting
Principles - approve any material change in the accounting
principles, policies or procedures applied by the Local Country JV Entity
in relation to its accounts;
|
|
(n)
|
Accountants -
the engagement or termination of accountants for the Local Country JV
Entity;
|
|
(o)
|
Annual Financial
Statements - approval of the annual financial statements for the
Local Country JV Entity;
|
|
(p)
|
Change in the Business
of the Local Country JV Entity - any change in the
Business of the Local Country JV Entity;
and
|
|
(q)
|
Appointment and
Removal of CEO - the appointment, removal and replacement of the
Chief Executive Officer of the Local Country JV
Entity.
|
B. Transfer of Interests in the Local Country JV
Entity.
The governing documents of each Local
Country JV Entity will provide that no Transfers of equity interests in the
Local Country JV Entity will be permitted without the consent of the other
Party, except as specifically contemplated in the Master Agreement.
C. Termination of Supply
Agreements.
The agreements between Comverge and the
Local Country JV Entities pursuant to which Comverge provides Comverge Products
and Services in support of Projects will provide that, if PI or a PI Affiliates
acquires the interests of Comverge in the Local Country JV Entity, then Comverge
will have the right to terminate such agreements at any time after the
acquisition of such equity interests if PI or a PI Affiliate engages in a
Competitive Business.
D. Local Country JV
Partners.
Comverge will have the right to approve
any local country partners who are granted an interest in any Local Country JV
Entity (or any of its Subsidiaries), and the terms and conditions applicable to
such ownership.
E. Deemed Approval.
If PI or the Chief Executive Officer of
the Local Country JV Entity requests an approval required under this Exhibit in
writing, and no response to such request is received by PI or the Chief
Executive Officer of the Local Country JV Entity within ten (10) Business Days
following receipt by Comverge of such request, then the requested approval will
be deemed given by Comverge; except in the case of approval of an Annual Budget
(in which case Comverge will have thirty (30) Business Days to respond to a
requested approval).
EXHIBIT
C
TO MASTER
JOINT VENTURE AGREEMENT
TERRITORY
A. ***
***
***
***
***
***
***
***
***
***
***
***
***
***
***
***
***
***
***
***
***
***
***
***
***
B. ***
***
***
***
EXHIBIT
C
TO MASTER
JOINT VENTURE AGREEMENT
TERRITORY
C. ***
***
***
D. ***
***
EXHIBIT
D
TO MASTER JOINT VENTURE
AGREEMENT
COMVERGE PRODUCTS AND
SERVICES
Price
List
Certain
products and services to be provided by Comverge, are set forth
below. ***.
***
***
EXHIBIT
E
TO MASTER JOINT VENTURE
AGREEMENT
CONFIDENTIALITY
1. The
Parties anticipate that it may be necessary to provide access to confidential
and/or proprietary information to each other pursuant to this Master Agreement
in connection with the delivery of Opportunity Notices, preparation of proposals
with respect to Projects, preparation of Budgets and the execution of Projects
(“Proprietary
Information”). The Party disclosing Proprietary Information is
referred to as the “Disclosing Party”,
and the party receiving Proprietary Information is referred to as a “Recipient”. Proprietary
Information must be clearly identified or labeled as such by the Disclosing
Party at the time of disclosure. Where concurrent identification of
Proprietary Information is not feasible, the Disclosing Party will provide such
identification as promptly thereafter as possible.
2. Each
of the Parties agrees that it must protect the confidentiality of the Disclosing
Party’s Proprietary Information in the same manner as it protects its own
proprietary information of like kind. Disclosures of Proprietary
Information must be restricted to those individuals who are directly
participating in the preparation of the proposals for Projects or in the
execution of Projects and other work related to the Business of the Local
Country JV Entities. The Parties will return all Proprietary
Information of the Disclosing Party upon the earlier of a request by the
Disclosing Party or upon termination of this Master Agreement, unless otherwise
agreed in writing by the Disclosing Party (in its sole discretion).
3. No
Recipient may reproduce, disclose or use Proprietary Information of the
Disclosing Party except (i) as necessary to perform its obligations under this
Master Agreement or with respect to Customer Contracts, or (ii) as otherwise
authorized in writing by the Disclosing Party (in its sole
discretion).
4. If
a Recipient receives a subpoena or other validly issued administrative or
judicial process requesting Proprietary Information of the Disclosing Party or
Proprietary Information of a Customer which the Recipient has received from the
Disclosing Party, the Recipient will provide prompt written notice to the other
Party of such subpoena or other process. The Party in receipt of
process will thereafter be entitled to comply with such process to the extent
permitted by law, so long as such Party uses good faith efforts to assist the
Disclosing Party in obtaining a protective order or other applicable protection
for such Proprietary Information.
5. The
limitations on reproduction, disclosure, or use of Proprietary Information will
not apply to, and no party will be liable for, reproduction, disclosure, or use
of Proprietary Information of the other if:
5.1 Prior
to the receipt of the Proprietary Information under this Master Agreement, the
information was developed independently by the Recipient, or was lawfully
received from other sources without an obligation of confidence, including the
Customer; or
5.2 Subsequent
to receipt of the Proprietary Information under this Master Agreement, the
information (i) is published or otherwise disclosed to others by the Disclosing
Party without restriction, (ii) has been lawfully obtained from other sources by
the Recipient, (iii) otherwise comes within the public knowledge or becomes
generally known to the public without breach of this Agreement, or (iv) is
independently developed by the Recipient.
EXHIBIT
F
TO MASTER JOINT VENTURE
AGREEMENT
FORM OF TRADEMARK
LICENSE
[Attached]
TRADEMARK
LICENSE AGREEMENT
This Trademark License Agreement (the
“Agreement”), effective as of _____________, 2010, is by and between COMVERGE,
INC., a Delaware corporation (“Comverge”) and PROJECTS INTERNATIONAL, INC., a
District of Columbia corporation (“Licensee”).
BACKGROUND
COMVERGE and Licensee have entered into
a Joint Venture Master Agreement, dated as of the date of this Agreement (the
“Master
Agreement”). Under the Master Agreement, COMVERGE and Licensee
have agreed to identify and jointly pursue Projects to provide demand response,
smartgrid and energy efficiency projects to customers in the Territory (as
defined in the Master Agreement).
COMVERGE is the owner by reason of
applications and registrations thereof and the extensive use of various service
marks, trademarks, company names, trade names, trade dress, and trading styles,
as shown in Schedule
A (the “COMVERGE
Marks”).
Licensee
desires to use the COMVERGE Marks in the conduct of the Business contemplated
under the Master Agreement (the “Licensed
Activities”). Under the terms of the Master Agreement,
COMVERGE agreed to provide to Licensee the license rights with respect to the
COMVERGE Marks necessary to permit the conduct of the Business.
Capitalized
terms used in this Agreement without definition have the meaning specified in
the Master Agreement.
For and
in consideration of the mutual promises, covenants and obligations set forth in
this Agreement and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties agree as
follows:
|
1.
|
COMVERGE
hereby grants to the Licensee a non-exclusive, non-assignable,
sublicensable, royalty-free license to use the COMVERGE Marks in the
Territory solely in connection with the Licensed
Activities. “Territory” has the meaning specified in the Master
Agreement. This Agreement will continue in effect with respect
to each of the Country Groups within the Territory for the period
specified in Section 11 of the Master Agreement. If a
country is removed from the Territory in accordance with the provisions of
the Master Agreement, then that country will automatically be deemed
removed from the Territory under this
Agreement.
|
|
2.
|
Licensee
shall have the right to sublicense the COMVERGE Marks, which sublicense
shall be subject to the terms and provisions of this Agreement, in
accordance with the terms contained in this Agreement. For any
sublicense of the COMVERGE Marks, Licensee shall be responsible for
ensuring that the sublicensee has confirmed in writing its acceptance of
and agreement to comply with the terms of this Agreement prior to any use
of the COMVERGE Marks by a sublicensee. Any such sublicense
will be subject to the prior written approval of COMVERGE, in its sole
discretion.
|
|
3.
|
Licensee
hereby acknowledges that COMVERGE is authorized to license the COMVERGE
Marks, and that Licensee has not acquired any ownership interest in the
COMVERGE Marks and will not acquire any ownership interests in the
COMVERGE Marks by reason of this Agreement. All use of the
COMVERGE Marks by Licensee or its sublicensees shall be solely for the
benefit of COMVERGE, and the goodwill accrued to Licensee or its
sublicensees arising from use of the COMVERGE Marks shall accrue solely to
COMVERGE.
|
|
4.
|
Licensee
shall not perform any act, and shall use its best efforts not to permit
any act to be done, that would or may impair the rights of COMVERGE in and
to the COMVERGE Marks or jeopardize or invalidate any registration or any
application for registration of the COMVERGE Marks by COMVERGE, nor
perform any act that may assist or give rise to an application to remove
any of the COMVERGE Marks from the Register or that may prejudice the
right or title of COMVERGE to any of the COMVERGE
Marks.
|
|
5.
|
Licensee
agrees that it shall use the COMVERGE Marks without alteration or
modification. Licensee shall use the COMVERGE Marks in
connection with the Licensed Activities in accordance with the
instructions of COMVERGE and shall use the COMVERGE Marks with uniform
quality which is satisfactory to COMVERGE or as specified by
COMVERGE. Licensee shall permit authorized representatives of
COMVERGE to inspect and examine, during business hours upon reasonable
notice, the offices and facilities of Licensee to review any items and
advertisements bearing the COMVERGE Marks, at any time, so as to determine
whether Licensee is conducting the Licensed Activities under the COMVERGE
Marks consistent with the quality standards and specifications promulgated
by COMVERGE. COMVERGE may request samples of the items and
advertisements at least on an annual basis (or more frequently, as
determined by COMVERGE), and Licensee agrees to provide such samples to
COMVERGE. COMVERGE shall advise Licensee of any discrepancies
in quality or adherence to specifications, and Licensee, upon receipt of
such notification, hereby agrees to promptly correct any discrepancies to
the satisfaction of COMVERGE. Licensee shall bear the
reasonable costs of such inspection or as mutually agreed upon by the
parties hereto.
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|
6.
|
Trademark
Usage
|
|
A.
|
Licensee
shall furnish to COMVERGE annually (or more frequently if requested by
COMVERGE), a list of all sublicensees. Such list shall include
the name and address of each
sublicense.
|
|
B.
|
Licensee
shall use the COMVERGE Marks in strict accordance with the latest version
of the COMVERGE Branding Guidelines provided by COMVERGE, a copy of which
Licensee acknowledges receipt.
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C.
|
Upon
termination of this Agreement, or upon transfer of any branded property to
a third party for any reason (sale, destruction, grant), all
COMVERGE-branded property must be fully neutralized of the COMVERGE brand,
whereby Licensee must destroy all COMVERGE decals and other
lettering.
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|
7.
|
Licensee
agrees and acknowledges that it will not adopt, use, or register any
domain name, trademark, service xxxx, certification xxxx or other
designation similar to, or containing in whole or in part, the COMVERGE
Marks. COMVERGE shall have the sole right to and in its sole
discretion may commence, prosecute or defend and control any action
concerning the COMVERGE Marks.
|
|
8.
|
Licensee
agrees that it shall use its best efforts to monitor the use of the
COMVERGE Marks by its sublicensees. Licensee shall provide
written notice to COMVERGE of any violation of this Agreement by a
sublicensee within ten (10) Business Days of discovery of such
violation. Licensee shall take all reasonable steps to require
its sublicensees to cease and desist any use of COMVERGE Marks that
violates this Agreement. If Licensee is not able to remedy the
violation of this Agreement within one (1) month of the discovery of such
violation, COMVERGE shall have the right to take any legal enforcement
action it deems necessary to remedy the violation of this Agreement, and
Licensee agrees to terminate the sublicense agreement with the offending
sublicensee immediately.
|
|
9.
|
Licensee
shall provide written notice to COMVERGE of any infringement of the
COMVERGE Marks by any party of which Licensee becomes
aware.
|
|
10.
|
COMVERGE
may terminate this Agreement at any time, upon thirty (30) days’ notice to
the Licensee. In addition, if COMVERGE in its sole discretion
believes that the COMVERGE Marks are being improperly used by Licensee,
COMVERGE may immediately terminate this
Agreement.
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|
11.
|
Upon
the expiration or termination of this Agreement for any reason whatsoever
Licensee shall notify its sublicensees and both Licensee and sublicensees
shall immediately cease any use of the COMVERGE Marks, or any depiction
thereof, in any form and for any purpose whatsoever and shall immediately
return to COMVERGE any advertising, promotional or printed materials
bearing any the COMVERGE Marks.
|
|
12.
|
COMVERGE
shall not be liable to Licensee or its sublicensees for damages, losses or
expenses of any kind caused by or related to the non-renewal or
termination of this Agreement, including (i) loss of prospective profits
and (ii) expenses, investments and commitments incurred in connection with
this Agreement.
|
|
13.
|
In
the event of termination or non-renewal for any reason of this Agreement,
Licensee shall cooperate fully with COMVERGE and shall not prevent or
attempt to prevent or otherwise impede (whether through action or
inaction) COMVERGE from operating in the Territory itself or through any
other entity, or entering into a relationship, and working with, an entity
other than Licensee or its sublicensees. Licensee and its
sublicensees shall not prevent or attempt to prevent any new service
provider, distributor, or partner of COMVERGE from using any of the
COMVERGE Marks or registering itself as a licensee of the COMVERGE
Marks.
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|
14.
|
The
Parties agree that all questions as to validity, construction and
performance of this Agreement shall be governed by the laws of the United
States of America and the laws of the State of Delaware, applicable to
contracts wholly to be performed in said state. Subject to the
terms of this section, the Parties further agree that all disputes which
may arise under, out of or in connection with or in relation to this
Agreement, which cannot be resolved by negotiation between the parties,
shall be resolved in accordance with the provisions of Section 27 of the
Master Agreement.
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|
15.
|
COMVERGE
and Licensee shall execute and do, and shall procure all other necessary
persons to execute and do, all documents, acts and things as may be
necessary or desirable for giving effect to this
Agreement.
|
|
16.
|
Nothing
herein contained shall be construed to place COMVERGE and Licensee in a
relationship as partners, joint venturers, employer and employee, or
principal and agent respectively, and Licensee shall have no power to
obligate or bind COMVERGE in any manner
whatsoever.
|
|
17.
|
Licensee
shall have no right to make an assignment of this Agreement unless such
assignment shall first be approved in writing by COMVERGE, in its sole
discretion. If any transfer of Licensee’s interest in this
Agreement shall be made by sale of any part of Licensee’s business or
assets or by execution or similar legal process, or if a petition is filed
by or against Licensee to adjudicate Licensee a bankrupt or insolvent
under the law, or if a receiver or trustee is appointed for the Licensee’s
business or assets, or if a petition is filed by or against Licensee under
any provision of law for a corporate reorganization or any arrangement
with Licensee's creditors, or if in any manner the interest of Licensee
under this Agreement shall pass to another by the operation of law, then,
in any of said events Licensee shall be deemed to have committed a
material breach of this Agreement and this Agreement shall terminate
automatically.
|
|
18.
|
Any
notices or other communications required to be given by either Party
pursuant to this Agreement must be in writing and shall be considered to
have been given (i) when received if personally delivered, (ii) on the
date of transmission if sent by facsimile and confirmed by telephone and
by electronic facsimile confirmation, or (iii) the next Business Day if
sent via nationally recognized commercial delivery
service.
|
|
A.
|
For
the purpose of notices, the addresses of the Parties are as
follows:
|
Comverge:
0000
Xxxxxxxx Xxxxxxx
Xxxxx
000
Xxxxxxxx,
Xxxxxxx 00000
Attention: Chief
Financial Officer
with a
copy to :
0000
Xxxxxxxx Xxxxxxx
Xxxxx
000
Xxxxxxxx,
Xxxxxxx 00000
Attention: General
Counsel
and
King
& Spalding LLP
0000
Xxxxxxxxx Xxxxxx
Xxxxxxx,
Xxxxxxx 00000
Attention:
Xxxxxxx X. Xxxxx
Licensee :
Projects International,
Inc.
000
00xx
Xxxxxx XX
Xxxxx
0000
Xxxxxxxxxx,
X.X. 00000
Attention:
Chief Financial Officer
or to
another person or address as either COMVERGE or Licensee may designate for
itself by notice given to the other Party in the manner described
above.
|
19.
|
Amendments
to this Agreement or its Schedule may be made only by a written agreement
and signed by each of the Parties.
|
|
20.
|
The
invalidity of any provision of this Agreement shall not affect the
validity of any other provision of this
Agreement.
|
|
21.
|
This
Agreement and the Schedule attached hereto constitute the entire contract
between the Parties with respect to the subject matter of this Agreement
and supersede all previous oral and written agreements, contracts,
understandings, and communications of the Parties in respect of the
subject matter of this Agreement. The headings to Articles are for ease of
reference only and shall have no legal effect. As used in this
Agreement, “including” means, in each instance, “including without
limitation”.
|
|
22.
|
Failure
or delay on the part of either Party to exercise any right, power, or
privilege under this Agreement shall not operate as a waiver thereof, nor
shall any single or partial exercise of any right, power, or privilege
preclude exercise of any other right, power, or
privilege.
|
|
23.
|
If
any provisions of this Agreement are determined to be illegal or
unenforceable in any respect, the Parties will use good faith efforts to
agree upon the modifications to be made to this Agreement; provided,
however, that if the Parties shall fail to agree, then this Agreement
shall be considered divisible as to such provision, which shall be
inoperative, and the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
|
IN
WITNESS WHEREOF, the Parties have caused their duly authorized officers to
execute this Agreement on the dates indicated below.
By:
Name:
Title:
Dated:
[NOTARY]
PROJECTS
INTERNATIONAL, INC.
By:
Name:
Title:
Dated:
[NOTARY]
SCHEDULE
A
COMVERGE
MARKS
[List the
marks to be licensed]
