Membership Interest Purchase and Wind-Down Agreement between Tedom USA Inc., TEDOM a.s., TTcogen LLC and Tecogen Inc. dated as of March 27, 2018
Membership Interest Purchase and Wind-Down Agreement
between
Tedom USA Inc.,
TEDOM a.s.,
TTcogen LLC
and
Tecogen Inc.
dated as of
March 27, 2018
MEMBERSHIP INTEREST PURCHASE AND WIND-DOWN AGREEMENT
This Membership Interest Purchase and Wind-Down Agreement (this “Agreement”),
dated as of March __, 2018, is entered into between Tedom USA Inc., a Delaware corporation
(“Seller”), Tecogen Inc., a Delaware corporation (“Buyer”), TTcogen LLC, a Delaware limited
liability company (the “Company”), and TEDOM a.s., a corporation organized under the laws of
the Czech Republic (“Tedom”).
RECITALS
WHEREAS, Seller owns 50% of the outstanding Membership Interests (as defined in the
LLC Agreement (as defined below) of the Company (the “Purchased Membership Interests”);
and
WHEREAS, Buyer owns 50% of the outstanding Membership Interests (as defined in the
LLC Agreement) of the Company; and
WHEREAS, Seller, Buyer, Company and Tedom were parties to that certain Joint Venture
Agreement dated as of May 19, 2017 (the “JVA”), pursuant to which the Company’s Limited
Liability Company Agreement (attached as Exhibit A) (the “LLC Agreement”) was contemplated
and which such JVA has since been terminated in accordance with its terms and such termination
is hereby ratified; and
WHEREAS, Seller wishes to sell to Buyer, and Buyer wishes to purchase from Seller, the
Purchased Membership Interests, subject to the terms and conditions set forth herein; and
WHEREAS, in connection with the winding down of the relationship formed by the JVA,
Seller, Buyer, Company and Tedom wish to define their respective rights and obligations with
respect thereto, and the parties hereby acknowledge that all of the provisions of the JVA are
terminated in their entirety with no further force and effect, including any which state they survive
termination or otherwise state that they continue to apply to any party.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter
set forth and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE
Section 1.01 Purchase and Sale. Subject to the terms and conditions set forth herein, at
the Closing (as defined herein), Seller shall sell to Buyer, and Buyer shall purchase from Seller,
all of Seller’s right, title and interest in and to the Purchased Membership Interests, free and clear
of any mortgage, pledge, lien, charge, security interest, claim or other encumbrance
(“Encumbrance”), except under the LLC Agreement or as otherwise set forth herein, for the
consideration specified in Section 1.02. For purposes hereof, all of Seller’s right title and interest
in and to the Purchased Membership Interests shall include, but is not limited to, (i) the Seller’s
Capital Account in the Company as of the Closing Date, (ii) from and after the Closing Date, the
Seller’s right to the Company’s distributive share of Net Income, Net Losses and other items of
2
income, gain, loss and deduction of the Company; (iii) from and after the Closing Date, the Seller’s
distributive share of the assets of the Company; (iv) from and after the Closing Date, the Seller’s
right to vote on, consent to or otherwise participate in any decision of the Members as provided in
the LLC Agreement; and (v) from and after the Closing Date, the Seller’s right in and to any and
all other benefits to which Seller may be entitled in respect of the Membership Interests as provided
in the LLC Agreement or the Delaware Act. Certain defined terms used in this Section 1.01 shall
have the meanings assigned to them in the LLC Agreement.
Section 1.02 Purchase Price. The aggregate purchase price for the Purchased
Membership Interests shall be one United States dollar ($1.00) (the “Purchase Price”). The Buyer
shall pay the Purchase Price to Seller at the Closing (as defined herein) in cash.
Section 1.03 Closing. The closing of the transactions contemplated by this Agreement
to occur at the closing (the “Closing”) shall take place simultaneously with the execution of this
Agreement on the date of this Agreement (the “Closing Date”) at a location agreed to between the
parties. The Closing shall be deemed to occur at 12:01 a.m. on the Closing Date.
Section 1.04 Transfer Taxes. Each of Buyer and Seller shall pay fifty percent (50%) of
any sales, use or transfer taxes, documentary charges, recording fees or similar taxes, charges, fees
or expenses, if any, that become due and payable as a result of the purchase and sale of the
Purchased Membership Interests.
Section 1.05 Withholding Taxes. Buyer and the Company shall be entitled to deduct
and withhold from the payments set forth on Exhibit C attached hereto all taxes that Buyer and the
Company may be required to deduct and withhold in connection with the purchase and sale of the
Purchased Membership Interests under any provision of applicable tax law. All such withheld
amounts shall be treated as delivered to Seller hereunder.
Section 1.06 LLC Agreement and Side Letter Agreement. Immediately upon Closing,
Seller shall no longer be a Member of Company in any respect, and neither Tedom nor Seller shall
be bound by any provision contained in the LLC Agreement or that certain side letter agreement,
dated May 19, 2016, among Buyer, Seller and Tedom for the period following the execution of
this Agreement including without limitation any provision stating that any such provision extends
for a longer period of time or otherwise survives and continue to apply except to the extent that
such provisions relate to the period prior to the execution of this Agreement.
Section 1.07 Tedom Products. Tedom Products are defined as all products obtained by
the Company or Buyer from Seller or Tedom, during the course of the JVA and all products that
Buyer or Company purchases from Tedom under Article VIII of this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer that the statements contained in this ARTICLE II
are true and correct as of the date hereof. For purposes of this ARTICLE II, “Seller’s Knowledge,”
“Knowledge of Seller” and any similar phrases shall mean the actual or constructive knowledge
of any director or officer of Seller, after due inquiry.
3
Section 2.01 Organization and Authority of Seller; Enforceability. Seller is a
corporation duly organized, validly existing and in good standing under the laws of the state of
Delaware. Seller has full corporate power and authority to enter into this Agreement and the
documents to be delivered hereunder, to carry out its obligations hereunder and to consummate
the transactions contemplated hereby. This Agreement and the documents to be delivered
hereunder have been duly executed and delivered by Seller, and (assuming due authorization,
execution and delivery by other Parties to this Agreement) this Agreement and the documents to
be delivered hereunder constitute legal, valid and binding obligations of Seller, enforceable against
Seller in accordance with their respective terms.
Section 2.02 No Conflicts; Consents. The execution, delivery and performance by
Seller of this Agreement and the documents to be delivered hereunder, and the consummation of
the transactions contemplated hereby, do not and will not: (a) violate or conflict with the certificate
of incorporation, by-laws or other organizational documents of Seller; (b) violate or conflict with
any judgment, order, decree, statute, law, ordinance, rule or regulation applicable to Seller; or (c)
result in any violation, conflict with or constitute a default under the Company’s organizational
documents or the LLC Agreement. No consent, approval, waiver or authorization not already
obtained is required to be obtained by Seller from any person or entity (including any governmental
authority) in connection with the execution, delivery and performance by Seller of this Agreement
and the consummation of the transactions contemplated hereby.
Section 2.03 Legal Proceedings. There is no claim, action, suit, proceeding or
governmental investigation (“Action”) pending or, to Seller’s Knowledge, threatened against or
by Seller (a) relating to or affecting the Purchased Membership Interests or the transactions entered
into with third parties in connection with the JVA; or (b) that challenges or seeks to prevent, enjoin
or otherwise delay the transactions contemplated by this Agreement. To Seller’s Knowledge, no
event has occurred or circumstances exist that may give rise to, or serve as a basis for, any such
Action.
Section 2.04 Ownership of Purchased Membership Interests.
(a) Seller is the sole, legal, beneficial, record and equitable owner of the
Purchased Membership Interests, free and clear of all Encumbrances whatsoever except as
may be set forth in the LLC Agreement.
(b) Other than the organizational documents of the Company, there are no
voting trusts, proxies or other agreements or understandings in effect with respect to the
voting or transfer of any of the Purchased Membership Interests.
Section 2.05 Brokers. No broker, finder or investment banker is entitled to any
brokerage, finder’s or other fee or commission in connection with the transactions contemplated
by this Agreement based upon arrangements made by or on behalf of Seller.
Section 2.06 Non-foreign Status. Seller is not a foreign person as such term is used in
Treasury Regulation Section 1.1445-2.
5
facts that have occurred on or before the Closing Date, that relate to the JVA or LLC Agreement.
Each party acknowledges and agrees that this release does not extend to any representations,
warranties and covenants contained in, and rights and obligations arising under this Agreement, or
any document entered into pursuant to this Agreement
Section 2.13 Product Warranties. (a) Seller warrants to Buyer that the Tedom Products
obtained by the Company or Buyer during the validity of the JVA agreement shall: (i) in their
warranty period conform to the specifications therefor and function as stated by Seller; (ii) in their
warranty period be free from material defects; and (iii) been manufactured in accordance with
good manufacturing practice and applicable law, provided that Buyer has timely informed Tedom
in writing any changes to applicable law and US Standards. Each Tedom Product manufactured,
sold, leased, or delivered by the Seller and/or Tedom has been in material conformity with all
applicable contractual commitments and all express and implied warranties. The Tedom Products
shall also be free and clear of all Encumbrances.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller that the statements contained in this ARTICLE III
are true and correct as of the date hereof. For purposes of this ARTICLE III, “Buyer’s Knowledge,”
“Knowledge of Buyer” and any similar phrases shall mean the actual or constructive knowledge
of any director or officer of Buyer, after due inquiry.
Section 3.01 Organization and Authority of Buyer; Enforceability. Buyer is a
corporation duly organized, validly existing and in good standing under the laws of the state of
Delaware. Buyer has full corporate power and authority to enter into this Agreement and the
documents to be delivered hereunder, to carry out its obligations hereunder and to consummate
the transactions contemplated hereby. The execution, delivery and performance by Buyer of this
Agreement and the documents to be delivered hereunder and the consummation of the transactions
contemplated hereby have been duly authorized by all requisite corporate action on the part of
Buyer. This Agreement and the documents to be delivered hereunder have been duly executed
and delivered by Buyer, and (assuming due authorization, execution and delivery by the other
Parties to this Agreement) this Agreement and the documents to be delivered hereunder constitute
legal, valid and binding obligations of Buyer enforceable against Buyer in accordance with their
respective terms.
Section 3.02 No Conflicts; Consents. The execution, delivery and performance by
Buyer of this Agreement and the documents to be delivered hereunder, and the consummation of
the transactions contemplated hereby, do not and will not: (a) violate or conflict with the certificate
of incorporation, by-laws or other organizational documents of Buyer; or (b) violate or conflict
with any judgment, order, decree, statute, law, ordinance, rule or regulation applicable to Buyer;
or (c) result in any violation, conflict with or constitute a default under the Company’s
organizational documents or the LLC Agreement. No consent, approval, waiver or authorization
not already obtained is required to be obtained by Buyer from any person or entity (including any
12
ARTICLE VIII
WIND-DOWN PROVISIONS
Section 8.01 Additional Transactions to Be Effected at the Closing. At the Closing,
the Buyer shall pay, on behalf of the Company, (i) Indebtedness of the Company to be paid at
Closing in the amounts and to the persons set forth on Exhibit C attached hereto, and (ii) the
Closing Date Payment (as defined on Exhibit C), in each case by wire transfer of immediately
available funds to the accounts and in the amounts specified on and as specifically set forth on
Exhibit C attached hereto;
Section 8.02 Agreements and Covenants of Seller and Tedom.
(a) Tedom was permitted to hire Xxxxxx Xxxx since November 1, 2017 in order
to pursue any leads for sales of Tedom Products to third parties that are not prohibited
parties to Tedom, as identified in Exhibit F of this Agreement. Xx. Xxxx will be permitted
to pursue any leads for the sales of Tedom Products, except for such Tedom Products that
the Buyer or Company have exclusivity for as provided in Section 8.02(b). Xx. Xxxx will
not be permitted to contact or to pursue any leads for customers, representatives, and agents,
as identified as the Buyer’s or the Company’s in Exhibit F of this Agreement during the
eighteen (18) months after the signature of this agreement. The parties to this Agreement
agree that the Company was not responsible for paying Xx. Xxxx’x salary, benefits, or any
other expenses after November 1, 2017.
(b) Tedom hereby grants to Buyer and Company, for a period from the date
hereof through a minimum of December 31, 2018, but continuing until termination of such
right in writing by the parties (the “Exclusivity Period”), the sole and exclusive right to
market, sell, offer for sale, and distribute the Tedom Products known as Micro T 35 unit in
the “Territory” which means the State of New York, the State of New Jersey, and the
Greater New York City consisting of the New York-Newark NY-NJ-CT-PA, combined
statistical area as stated in the most recent U.S. census bureau report, Massachusetts, Maine,
Vermont, New Hampshire, Connecticut and Rhode Island, , whether through sales agents
and distributors or otherwise; provided that Buyer or Company has submitted purchase
orders to Tedom and Tedom has approved such purchase orders, which Tedom shall not
unreasonably withhold or delay, for at least fifteen (15) such units at the prices set forth
on Exhibit E during the calendar year 2018; provided, that if Buyer fails to meet such
minimum requirement, the Exclusivity Period shall automatically terminate on December
31, 2018, and Tedom shall, notwithstanding anything to the contrary herein, thereafter have
the right to change the terms of sales, including pricing for the Micro T35 units, that Buyer
or Company wish to purchase. During each calendar year of the Exclusivity Period (unless
earlier terminated), the minimum number of Micro T35 units to be sold in the Territory
shall increase by an additional five (5) units over the prior calendar year’s minimum
requirement, with the exception for calendar year 2019 when the minimum number of
Micro T35 units to be sold in the Territory shall increase by an additional seven (7) units
over the prior calendar year, up to a maximum of forty (40) required units; provided, that
if Buyer fails to reach such minimum number of sales in any calendar year at the prices set
forth on Exhibit E attached hereto, and , the Exclusivity Period shall automatically
terminate on December 31 of such calendar year, and Tedom shall, notwithstanding
13
anything to the contrary herein, thereafter have the right to change the terms of sales,
including pricing for any Tedom Products, including the Micro T35 units, that Buyer or
Company wish to purchase. Unless agreed in writing by the parties, Tedom nor Seller shall
market, sell, offer for sale, or distribute such Micro T35 units within the Territory during
such Exclusivity Period. Notwithstanding the prices on Exhibit E, the parties agree that if,
from time to time, the cumulative effect on costs to Tedom on Tedom Products or Spare
Parts or any other goods and services sold to Company or Buyer caused by the exchange
rate between USD and CZK or changes in the Producer Price Index published by the U.S.
Bureau of Labor Statistics at any point during the Exclusivity Period is such that the then
current costs have increased by five percent (5%) or more, then Tedom shall have the right
to increase the then current prices charged by Tedom to the Company or Buyer by the
percentage that such costs have increased, upon written notice to Buyer; provided, however,
if such increases would cause the prices to be prohibitively out of market, the parties shall
to the extent commercially reasonable work together in good faith on the competitiveness
of the pricing. Notwithstanding anything to the contrary contained herein, Buyer or
Company may (directly or indirectly) market, sell, offer for sale, or distribute the Micro
T35 units outside of the Territory only after prior written consent from Seller or Tedom.
(c) For good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, Tedom and Seller, intending to be legally bound, hereby agree
and covenant, in each case for the period commencing on the date hereof and ending
eighteen (18) months thereafter, not to:
(i) engage in Tedom Prohibited Activity within the Territory. For
purposes of this Section 8.02, “Tedom Prohibited Activity” is activity in which
Tedom or Seller, whether through their own actions or the actions of another person,
contributes knowledge, directly or indirectly, in whole or in part, as an employee,
employer, owner, operator, manager, advisor, consultant, agent, partner, director,
stockholder, officer, volunteer, intern, or any other similar capacity to engage in the
same business as the Buyer Business. Tedom Prohibited Activity also includes
activity that may require or inevitably require disclosure of trade secrets,
proprietary information, or any other Confidential Information of Buyer and/or the
Company. “Buyer Business” means selling, manufacturing, installing and
maintaining induction or invertor-based CHP cogeneration equipment using
reciprocating engines in modules larger than 60kW and smaller than 230kW
operating with natural gas as a fuel. Tedom Prohibited Activity also includes
working with or through any customers, sales representatives or agents introduced
to Tedom by Buyer that are set forth on Exhibit F; or
(ii) distribute any products from any third parties in the United States
that compete with the Buyer’s Products, and shall not enter into any agreement
similar to the JVA with any person or entity to do so, including, without limitation,
a joint venture agreement. “Buyer’s Products” means CHP cogeneration
equipment using reciprocating natural gas engines in modules larger than 60kW
and smaller than 230kW. The parties acknowledge that Aegis Energy Services Inc.,
Capstone Turbines Corporation and their distributors, 2G Cenergy, Cogen Power
Technologies, Cogenco, CPL Distributed Generation Group, Inc., Ener-G Rudox
14
Inc., Yanmar, and Intelligen Power Systems are regarded by Buyer to be primary,
but not exclusive, competitors of Buyer, as of the date of this Agreement.
Buyer and the Company agree and acknowledge that the restrictions on competition
contained in this Section 7.02(c) are the only restrictions on competition applicable to
Tedom or Seller in relation to Buyer and Company, and that any other restrictions on
competition in the JVA, the LLCA or any other document between the parties are
terminated and extinguished in their entirety.
(d) Tedom shall use its commercially reasonable efforts to attend to the
fulfillment of all orders for the Tedom Products and their delivery in accordance with the
terms of this Agreement and any other commercial agreement entered into between the
Parties in connection herewith. “Delivery” means EXW delivery of the Tedom Products
by Tedom to the Company and/or Buyer according to Incoterms 2010 conditions.
Concurrently with the Closing, Buyer shall purchase from Tedom all Spare Parts (as
defined in the JVA) currently stocked in the Company’s warehouse for the purchase price
(to be paid at Closing) applicable to such Spare Parts set forth on Exhibit C attached hereto.
Tedom shall provide to Buyer a schedule for maintenance. If Buyer and Tedom mutually
agree, Buyer may purchase pursuant to Tedom standard purchase orders additional Spare
Parts (to the extent Tedom has such Spare Parts available). The price of such Spare Parts
shall be on a “most favored nation” (based on prices for orders for similar quantities and
with similar terms, including delivery) basis as mutually agreed by the Parties in writing.
Subject to the last sentence in this Section 8.02(d), for the avoidance of doubt, Tedom shall
not be obligated to supply its Spare Parts to Buyer if similar spare parts of comparable
quality shall be readily available to Buyer at competitive prices in the United States;
provided, however, that notwithstanding anything to the contrary contained herein, Buyer
shall not obtain any such similar spare parts from any person other than Tedom without the
prior written consent of Tedom; provided further, however, that in the case that Tedom
shall not provide such consent, Tedom shall be obligated to sell its Spare Parts to Buyer;
(e) Tedom shall provide to the Company and/or Buyer, in English, a
commercially reasonable quantity of promotional materials including high quality digital
photos, graphical depictions, marketing materials, logos and other electronic materials, and
all reasonably necessary user manuals, service manuals and the like to enable the Company
and Buyer to effectively advertise and market the Micro T35 units hereunder, and, subject
to the terms hereof, Tedom shall confirm all orders from the Company and/or Buyer or
orders for Spare Parts from Buyer by signature with an order confirmation promptly after
such orders are placed, but in no event shall such confirmation be delivered later than five
business days after placement of such orders provided that technical parameters contained
in order are precisely specified, no technical constraint prevents Tedom from confirmation
of such order, delivery conditions are mutually acceptable where Tedom offers delivery
date according to its current production capacity;
(f) Tedom shall supply to the Company and Buyer all specifications, drawings,
and technical materials reasonably required for use of the Micro T35 units by customers.
The specification sheets, drawings and technical information (including but not limited to
prospectuses, price-lists, and technical specifications) and all other documents delivered in
15
connection with this Agreement shall be in English, and Tedom shall promptly inform the
Company and Buyer of all material changes in the performance of the Micro T35 units and
of the components contained therein of which it becomes aware in the normal course of its
business;
(g) Tedom, at Tedom’s expense, shall be responsible for obtaining any and all
necessary UL certifications, and Buyer, at Buyer’s expense, shall be responsible for
obtaining all approvals, registrations, licenses, permits, authorizations, and certifications
for the T-55 project installed at Oradell and any product contemplated herein, as well as
any standard, certification and/or any other regulatory body’s or legal requirements for the
sale, distribution, marketing or use of any products contemplated herein, including the CE
Xxxx, UL certifications, and other product certifications required in connection therewith;
(h) Tedom shall provide to the Company/and or Buyer a warranty with respect
to the Merchantability of the Tedom Products and Spare Parts delivered after the date
hereof as follows: (x) for units currently installed or slated to be installed by Company (A)
twelve (12) months from the commissioning or (B) fifteen (15) months from expedition,,
(y) with respect to Micro T35 units, an additional warranty for a period of another twelve
(12) months, and in each case on top of the warranty period set forth in clause (x) herein,
in exchange for a payment from Buyer to Tedom of USD $2,500 per unit (solely with
respect to the Micro T35 units), the terms of which shall be agreed upon between the parties
in writing, provided that the warranty service is contracted as provided for in Section
8.02(n);
(i) Tedom will provide to the Company and Buyer, at Tedom’s own expense,
reasonable customary engineering support services for the Micro T35 units, including but
not limited to timely analysis, failure diagnosis, manuals, training documentation and other
service information needed for the reliable service for all remotely monitored units on
request with the access to the 24/7 monitoring center of Tedom via application eService.
Additionally, Tedom will provide more advanced on-line monitoring packages of
eServices for all remotely monitored Micro T35 units in accordance with the terms set forth
on Exhibit H. Tedom will provide for Buyer’s employee’s access into such eService
application for monitoring, controlling and diagnosis of all Micro T35 units in accordance
with such Exhibit H;
(j) Tedom will support Buyer and Company by providing email responses
containing product related literature within one (1) Business Day of receiving requests,
assuming Tedom has such literature available; and
(k) This Section 8.02 does not, in any way, restrict or impede Tedom or Seller
from exercising protected rights to the extent that such rights cannot be waived by
agreement or from complying with any applicable law or regulation or a valid order of a
court of competent jurisdiction or an authorized government agency, provided that such
compliance does not exceed that required by the law, regulation or order. Tedom and/or
Seller (as applicable) shall promptly provide written notice of any such order to Buyer.
20
Facsimile: N.A.
E-mail: xxxxx@xxxxx.xxx
Attention: Xxxxxxxx Xxxxxx
If to Buyer: Tecogen Inc.
00 Xxxxx Xxxxxx, Xxxxxxx, XX 00000
Facsimile: 000-000-0000
E-mail: Xxxxxx.Xxxxx@xxxxxxx.xxx
Attention: Chief Accounting Officer
with a copy to: Buyer’s General Counsel
00 Xxxxx Xxx. Xxxxxxx, XX 00000
Section 9.04 Headings. The headings in this Agreement are for reference only and shall
not affect the interpretation of this Agreement.
Section 9.05 Severability. If any term or provision of this Agreement is invalid, illegal
or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other term or provision of this Agreement or invalidate or render unenforceable such term or
provision in any other jurisdiction. Upon such determination that any term or other provision is
invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify the
Agreement so as to effect the original intent of the parties as closely as possible in a mutually
acceptable manner in order that the transactions contemplated hereby be consummated as
originally contemplated to the greatest extent possible.
Section 9.06 Entire Agreement. This Agreement and the documents to be delivered
hereunder, constitute the sole and entire agreement of the parties to this Agreement with respect
to the subject matter contained herein, and supersede all prior and contemporaneous
understandings and agreements, both written and oral, with respect to such subject matter The
Seller, Buyer and Tedom each hereby acknowledge that the JVA is null and void and superseded
by the rights and obligations set forth in this Agreement and that the Seller and Tedom have no
and will have no obligations or liabilities in respect of the LLC Agreement after the signature of
the Wind-Down Agreement. In the event of any inconsistency between the statements in the body
of this Agreement and those in documents to be delivered hereunder and the Exhibits, the
statements in the body of this Agreement will control.
Section 9.07 Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and permitted assigns.
Neither party may assign its rights or obligations hereunder without the prior written consent of
the other party. No assignment shall relieve the assigning party of any of its obligations hereunder.
Section 9.08 No Third-Party Beneficiaries. This Agreement is for the sole benefit of
the parties hereto and their respective successors and permitted assigns and nothing herein, express
or implied, is intended to or shall confer upon any other person or entity any legal or equitable
right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Section 9.09 Amendment and Modification. This Agreement may only be amended,
modified or supplemented by an agreement in writing signed by each party hereto.
21
Section 9.10 Waiver. No waiver by any party of any of the provisions hereof shall be
effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by
any party shall operate or be construed as a waiver in respect of any failure, breach or default not
expressly identified by such written waiver, whether of a similar or different character, and whether
occurring before or after that waiver. No failure to exercise, or delay in exercising, any right,
remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other right, remedy, power or
privilege.
Section 9.11 Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware without giving effect to any choice or
conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction).
Section 9.12 Submission to Jurisdiction. Any legal suit, action or proceeding arising
out of or based upon this Agreement or the transactions contemplated hereby may be instituted in
the federal courts of the United States of America or the courts of the Commonwealth of
Massachusetts in each case located in the city of Boston and county of Suffolk County, and each
party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or
proceeding.
Section 9.13 Waiver of Jury Trial. Each party acknowledges and agrees that any
controversy which may arise under this Agreement is likely to involve complicated and difficult
issues and, therefore, each such party irrevocably and unconditionally waives any right it may have
to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the
transactions contemplated hereby.
Section 9.14 Specific Performance. The parties agree that irreparable damage would
occur if any provision of this Agreement were not performed in accordance with the terms hereof
and that the parties shall be entitled to specific performance of the terms hereof, in addition to any
other remedy to which they are entitled at law or in equity. Each party hereto (i) agrees that it shall
not oppose the granting of such specific performance or relief and (ii) hereby irrevocably waives
any requirements for the security or posting of any bond in connection with such relief.
Section 9.15 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall be deemed to be one and the
same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means
of electronic transmission shall be deemed to have the same legal effect as delivery of an original
signed copy of this Agreement.
Section 9.16 SEC Provisions. If legal counsel to any party advises such party that it is
or has become necessary for such party (or its affiliate) to publicly file this Agreement with the
U.S. Securities and Exchange Commission (the “SEC”) or other regulatory authority, such party
agrees to use its best efforts to seek confidential treatment of this Agreement pursuant to Rule 24b-
2 under the Securities Exchange Act of 1934 or any comparable rule or process of the SEC as in
effect from time to time and/or of any other such regulatory authority, in cooperation with any
party that desires such confidential treatment; provided, however, that the party that desires such
23
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date first written above by their respective officers thereunto duly authorized.
TEDOM USA INC. (“Seller”)
By_____________________
Name:
Title:
TEDOM a.s. (“Tedom”)
By_____________________
Name:
Title:
TECOGEN INC. (“Buyer”)
By_____________________
Name:
Title:
TTcogen LLC (“Company”)
By_____________________
Name:
Title: