ALLIANCE AGREEMENT dated as of February 7, 2007 between FUELCELL ENERGY, INC. and POSCO POWER
Exhibit 10.1
[Execution Copy]
dated as of February 7, 2007
between
FUELCELL ENERGY, INC.
and
POSCO POWER
Confidential treatment requested as to certain portions of this exhibit. Such portions have been redacted and filed separately with the SEC.
ARTICLE I |
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DEFINITIONS |
2 | |||
SECTION 1.1. Certain Definitions |
2 | |||
ARTICLE II |
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THE ALLIANCE |
5 | |||
SECTION 2.1. Alliance Scope |
5 | |||
SECTION 2.2. License and Distribution Rights |
6 | |||
SECTION 2.3. Additional Agreements |
6 | |||
SECTION 2.4. Mutual Covenants |
6 | |||
SECTION 2.5. FCE Obligations |
7 | |||
SECTION 2.6. POSCO Power Obligations |
8 | |||
SECTION 2.7. Fuel Cell Stack Module Order Requirements |
9 | |||
ARTICLE III |
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REPRESENTATIONS AND WARRANTIES |
10 | |||
SECTION 3.1. Representations and Warranties of FCE |
10 | |||
SECTION 3.2. Representations and Warranties of POSCO Power |
11 | |||
ARTICLE IV |
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CERTAIN COVENANTS |
12 | |||
SECTION 4.1. Post-Execution Covenants |
12 | |||
ARTICLE V |
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TERM AND TERMINATION |
13 | |||
SECTION 5.1. Term |
13 | |||
SECTION 5.2. Extension |
13 | |||
SECTION 5.3. Termination |
13 | |||
SECTION 5.4. Effect of Termination; Survival |
14 | |||
ARTICLE VI |
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DISPUTES AND ARBITRATION |
14 | |||
SECTION 6.1. Efforts to Resolve by Mutual Agreement |
14 | |||
SECTION 6.2. Arbitration |
15 | |||
SECTION 6.3. Limitation on Recoverable Damages |
15 | |||
SECTION 6.4. Specific Performance |
15 | |||
ARTICLE VII |
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CONFIDENTIALITY |
16 | |||
ARTICLE VIII |
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INDEMNIFICATION |
16 | |||
SECTION 8.1. Claims |
16 | |||
SECTION 8.2. Indemnification by POSCO |
16 | |||
SECTION 8.3. Indemnification by FCE |
17 | |||
SECTION 8.4. Indemnification Procedure |
17 | |||
ARTICLE IX MISCELLANEOUS |
17 | |||
SECTION 9.1. Certain Expenses |
17 | |||
SECTION 9.2. Independent Contractors |
17 | |||
SECTION 9.3. Entire Agreement |
18 | |||
SECTION 9.4. Amendments; Waiver |
18 | |||
SECTION 9.5. Binding Nature; Assignment |
18 | |||
SECTION 9.6. No Third Party Beneficiaries |
18 | |||
SECTION 9.7. Notices |
18 | |||
SECTION 9.8. Publicity |
19 | |||
SECTION 9.9. Use of Name |
20 | |||
SECTION 9.10. Severability |
20 | |||
SECTION 9.11. Governing Law |
20 | |||
SECTION 9.12. Counterparts |
20 | |||
Exhibits |
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Exhibit A:
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Securities Purchase Agreement | |
Exhibit B:
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Technology Transfer, License and Distribution Agreement | |
Exhibit C:
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Form of DOE Approval | |
Exhibit D:
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Form of MTU Consent | |
Exhibit E:
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Form of Marubeni Settlement | |
Schedules |
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Schedule A:
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POSCO Affiliates | |
Schedule B:
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Non-Exclusive Territory |
THIS ALLIANCE AGREEMENT (this “Agreement”), dated as of February 7, 2007, is made and
entered into by and between FUELCELL ENERGY, INC., a Delaware corporation having a place of
business at 0 Xxxxx Xxxxxxx Xx., Xxxxxxx, Xxxxxxxxxxx 00000, X.X.X. (“FCE”) and POSCO
POWER, a Korean corporation having a place of business at Dacom Building 10th Floor, 000-0
Xxxxxxx-xxxx, Xxxxxxx-xx, Xxxxx 000-000, Xxxxx (“POSCO Power”).
RECITALS:
A. FCE manufactures and sells, directly and indirectly through a third party distributor, the
FCE Products throughout the world.
B. POSCO Power and FCE have determined that it is in their best interest to have POSCO Power
to sell, import, distribute, maintain, service and/or repair the FCE Products in the Korean Market
and in the Non-Exclusive Territory, in accordance with the terms and conditions of the Technology
Transfer Agreement.
C. FCE desires to provide POSCO Power with, and POSCO Power desires to obtain, all relevant
technology and “know-how” and licenses and other assistance necessary for POSCO Power and POSCO
Affiliates to construct, assemble, manufacture, use, sell, import, distribute, maintain, service
and/or repair the POSCO Products and POSCO Parts, all in accordance with the terms and conditions
of the Technology Transfer Agreement.
D. FCE and POSCO Power also have determined that it is mutually beneficial for FCE to issue
and sell, and POSCO Power to purchase, such number of shares of the common stock of FCE in an
amount equal to US$29,000,000, in accordance with the terms of the Securities Purchase Agreement.
E. In order to effectuate the purpose of this Agreement, POSCO Power intends to use
commercially reasonable efforts to establish a company in Korea, which will be a Subsidiary of
POSCO Power (“NewCo”), to construct, assemble, manufacture, use, sell import, distribute,
maintain, service and/or repair the POSCO Products and POSCO Parts within two years from the
Effective Date.
F. In connection with the transactions contemplated in this Agreement, FCE and POSCO entered
into the Memorandum of Agreement on January 10, 2007.
G. Simultaneously herewith, the parties hereto have entered into the Securities Purchase
Agreement and the Technology Transfer Agreement.
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ARTICLE I
DEFINITIONS
DEFINITIONS
SECTION 1.1. Certain Definitions.
As used in this Agreement, the capitalized terms set forth below shall have the following
respective meanings:
“Additional Term” shall have the meaning set forth in Section 5.2.
“Agreement” shall mean this Alliance Agreement, as it may be amended, modified or
supplemented from time to time in accordance with its terms.
“Applicable Laws” shall mean all applicable laws, treaties, ordinances, judgments,
decrees, injunctions, writs, orders, rules, regulations, orders, interpretations and permits of any
Governmental Authority.
“BOP” shall have the meaning set forth in the Technology Transfer Agreement.
“Claim” shall have the meaning set forth in Section 8.1.
“Contract” shall mean any contract, lease, sales order, purchase order, agreement,
indenture, mortgage, note, bond, warrant or instrument.
“Customer” shall mean any Person (wherever located) who has contracted with POSCO
Power for the purchase of electric power pursuant to a power supply agreement
or the purchase or lease of a DFC Power Plant.
“Damages” shall have the meaning set forth in Section 8.2.
“Dispute” shall have the meaning set forth in Section 6.1.
“DFC Power Plant” shall have the meaning set forth in the Technology Transfer
Agreement.
“DOE Approval” shall have the meaning set forth in Section 4.1(a).
“Effective Date” shall mean the date that is no later than thirty (30) days from the
date hereof on which all the obligations of FCE set forth in Section 4.1(a), (b)
and (f) have been satisfied or waived.
“Facility” shall mean the site at which the DFC Power Plant will be installed and
operated by the end user.
“FCE” shall have the meaning set forth in the preamble.
“FCE Products” shall have the meaning set forth in the Technology Transfer
Agreement.
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“FCE Technology” shall have the meaning set forth in the Technology Transfer
Agreement.
“Force Majeure” shall mean unforeseen circumstances beyond the reasonable control and
without the fault or negligence of either party and which such party is unable to prevent or
provide against by the exercise of reasonable diligence including, but not limited to, acts of God,
any acts or omissions of any civil or military authority, earthquakes, strikes or other labor
disturbances, wars (declared or undeclared), terrorist and similar criminal acts, epidemics, civil
unrest and riots.
“Fuel Cell Stack Module” shall have the meaning set forth in the Technology Transfer
Agreement.
“Governmental Authority” shall mean any supranational, national, federal, state,
municipal or local government or quasi-governmental or regulatory authority (including a national
securities exchange or other self-regulatory body), agency, court, commission or other similar
entity, domestic or foreign.
“Governmental Order” shall mean any order, writ, judgment, injunction, decree,
stipulation, determination or award entered by or with any Governmental Authority.
“ICC” shall have the meaning set forth in Section 6.2.
“Indemnified Party” shall have the meaning set forth in Section 8.4.
“Indemnifying Party” shall have the meaning set forth in Section 8.4.
“Initial Term” shall have the meaning set forth in Section 5.1.
“Korean Company” shall have the meaning set forth in the Technology Transfer
Agreement.
“Korean Market” shall have the meaning set forth in the Technology Transfer Agreement.
“Legal Proceeding” shall mean any judicial, administrative or arbitral action, suit or
proceeding (whether public or private and whether civil, criminal or administrative) by or before
any court or other Governmental Authority.
“Long Term Service Agreement” or “LTSA” shall have the meaning set forth in the
Technology Transfer Agreement.
“Marubeni” shall mean Marubeni Corporation, a Japanese corporation having its
principal office at 0-0 Xxxxxxxxx-X-Xxxxx, Xxxxxxx-xx, Xxxxx, Xxxxx.
“Marubeni Distribution Right” shall have the meaning set forth in Section 4.1(f).
“Marubeni Settlement” shall have the meaning set forth in Section 4.1(f).
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“Memorandum of Agreement” shall mean that certain Memorandum of Agreement dated
January 10, 2007 between FCE and POSCO.
“MTU” shall mean MTU CFC SOLUTIONS, GmbH, a German limited liability entity.
“MTU Consent” shall have the meaning set forth in Section 4.1(b).
“MTU-FCE BOP License” shall mean the license agreement between MTU and FCE dated July
16, 1998, for the cross licensing of certain balance of plant technology.
“NewCo” shall have the meaning set forth in the Recitals.
“NewCo Stock” shall have the meaning set forth in Section 2.5(g).
“New DFC-Based Products” shall mean, as currently designated by FCE, the “DFC/T
Products” and the “DFC/H2 Products,” and any modifications and derivation in whole or in part of
thereof, regardless of designation.
“New DFC-Based Technology” shall mean all technical information, know-how, inventions
(whether patented or not) or trade secrets, which relate to the New DFC-Based Products.
“New POSCO Parts” shall mean any parts or components of the New POSCO Products other
than the Fuel Cell Stack Module.
“New POSCO Products” shall mean any products, regardless of designation, which is the
same as, or modification or derivation in whole or in part of the New DFC Based-Products.
“Non-Exclusive Territory” shall mean the jurisdictions listed in Schedule B attached
hereto, it being understood and agreed that additional jurisdictions may be added, as mutually
agreed by the parties from time to time.
“Person” shall mean any natural person, firm, partnership, association, corporation,
company, joint venture, trust, business trust, Governmental Authority or other entity.
“POSCO Affiliate” shall have the meaning set forth in the Technology Transfer
Agreement, a list of which is set forth in Schedule A attached hereto.
“POSCO Power Facility Completion Date” shall have the meaning set forth in Section
2.6(a).
“POSCO Power Facility” shall mean the factory constructed by POSCO Power at which
POSCO Parts are manufactured and POSCO Products are assembled.
“POSCO Technology” shall have the meaning set forth in the Technology Transfer
Agreement.
4
“Purchase Order” shall have the meaning set forth in the Technology Transfer
Agreement.
“Rules” shall have the meaning set forth in Section 6.2.
“SEC Documents” shall mean any and all reports required to be filed by FCE under the
U.S. Securities Act of 1933 and Exchange Act of 1934, as amended, including all exhibits and
financial statements and other documents incorporated by reference therein.
“Securities Purchase Agreement” shall mean that certain Securities Purchase Agreement
dated as of the date hereof between FCE and POSCO, in the form attached hereto as Exhibit A.
“Subsidiary” shall mean, with respect to any Person (for the purposes of this definition, the
“parent”), any other Person (other than a natural person), whether incorporated or unincorporated,
of which at least a majority of the securities or ownership interests having by their terms
ordinary voting power to elect or appoint a majority of the board of directors, senior management
or other persons performing such similar functions is directly or indirectly owned by the parent or
by one or more of its respective Subsidiaries or by the parent and any one or more of its
respective Subsidiaries.
“Technology Transfer Agreement” shall mean that certain Technology Transfer, License
and Distribution Agreement dated as of the date hereof between FCE and POSCO, in the form attached
hereto as Exhibit B.
“Technology Transfer Program” or “TTP” shall have the meaning set forth in the
Technology Transfer Agreement.
“Term” shall have the meaning set forth in Section 5.2.
“Transaction Agreements” shall mean this Agreement, the Securities Purchase Agreement
and the Technology Transfer Agreement, and any other documents or agreements to effectuate the
transactions contemplated herein.
ARTICLE II
THE ALLIANCE
THE ALLIANCE
SECTION 2.1. Alliance Scope. The scope of this Alliance Agreement shall be limited to
the FCE Products and FCE Technology, except to the extent the New DFC-Based Products and the New
DFC-Based Technology are addressed in Section 2.2(b). Each party shall have the right to
pursue any opportunities that are not in conflict with or expressly subject to the provisions of
this Agreement in the same manner in which it has previously pursued such opportunities or in any
other manner in such party’s own discretion, including, without limitation, entering into a
partnership, alliance, distribution or other sales and marketing arrangements with any third party.
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SECTION 2.2. License and Distribution Rights.
(a) FCE Technology; FCE Products, POSCO Parts and POSCO Products. FCE, in
consideration of payments and other amounts payable as specified in this Agreement and the
other Transaction Agreements, agrees to grant to POSCO Power, and POSCO Power agrees to accept,
certain licenses and distribution rights with respect to the FCE Technology, FCE Products, POSCO
Parts and POSCO Products, it being understood and agreed that FCE shall not, during the
Term, grant any right or license in or relating to the FCE Technology or FCE Products to any other
Korean Companies, or grant any new distribution rights in respect of the Korean Market or renew any
existing distribution rights in respect of the Korean Market, all in accordance with, and subject
to, the terms and conditions of the Technology Transfer Agreement
(b) New DFC-Based Technology and New DFC-Based Products. FCE agrees that it (i) will
provide to POSCO Power the New DFC-Based Technology during the Term and (ii) will grant to POSCO
Power certain exclusive and non-exclusive distribution rights with respect to, and licenses to use
the New DFC-Based Technology for POSCO Power and/or POSCO Affiliates to construct, assemble,
manufacture, sell, use, import, distribute, maintain, service and/or repair, the New DFC-Based
Products in the Korean Market and to sell, use, import, distribute, maintain, service and/or repair
the New DFC-Based Products in the Non-Exclusive Territory, when such technology is developed and
such products and parts are commercialized by FCE, on terms and conditions, including compensation,
to be mutually agreed in a separate agreement, using their commercially reasonable good faith
efforts, it being understood and agreed that FCE will not grant any right or license in or
relating to the New DFC-Based Technology and New DFC-Based Products to any other Korean Company
during the Term, as long as POSCO Power is using commercially reasonable efforts to actively and
diligently commercialize the New DFC-Based Technology in the Korean Market.
(c) POSCO Power agrees that it will grant to FCE certain licenses and rights with respect to
the POSCO Technology developed by POSCO Power or any POSCO Affiliate, in accordance with and
subject to the terms and conditions of the Technology Transfer Agreement, and on terms and
conditions, including compensation, to be mutually agreed in a separate agreement using their
commercially reasonable good faith efforts.
SECTION 2.3. Additional Agreements. Simultaneously with the execution of this
Agreement, and subject to the terms hereof, the parties shall enter into the Technology Transfer
Agreement and the Securities Purchase Agreement, and, within sixty (60) days of thereof, the
parties shall use commercially reasonable efforts to finalize the terms and conditions of the
Technology Transfer Program, LTSA and the Purchase Order. In addition, from time to time, the
parties shall use commercially reasonable efforts to enter into any other agreements, as needed, to
effectuate the purposes of this Agreement.
SECTION 2.4. Mutual Covenants.
(a) Cooperation; Alliance Management. The parties shall use commercially reasonable
good faith efforts to cooperate with each other to effectuate the transactions contemplated by this
Agreement and any other Transaction Agreements. In order to ensure such cooperation, each of the
parties shall designate at least two representatives
for the purpose of coordinating the implementation and performance of this Agreement and the
other Transaction Agreements. The representatives shall meet on a quarterly basis and on an as
needed basis at the request of either party.
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(b) Good Faith and Fair Dealing. Each of the parties acknowledges and agrees that all
aspects of the performance by the parties under the terms of this Agreement and the other
Transaction Agreements, and all other dealings between the parties in connection therewith, shall
be governed by the principle of good faith and fair dealing. Further, each party agrees that it
will perform its functions under this Agreement and the other Transaction Agreements in cooperation
with the other party and in accordance with prevailing industry standards.
(c) Reputation. Each of the parties agrees to conduct its respective businesses
prudently and in a manner that does not attract unfavorable publicity, a negative reputation in the
energy industry or enforcement activity by a Governmental Authority having jurisdiction over POSCO
Power or FCE, which in each case would be reasonably expected to have a material adverse effect on
the transactions contemplated herein.
(d) Compliance. Each of the parties shall comply with all Applicable Laws relating to
its activities contemplated by this Agreement and the other Transaction Agreements. In performing
their respective obligations under this Agreement and the other Transaction Agreements, neither
party shall be required to undertake any activity that would violate any Applicable Laws. In
addition, each of the parties shall, at its own cost and expense, obtain and maintain any and all
licenses and registrations, and cause each of its employees to obtain any and all licenses and
registrations, that are necessary or, in such party’s reasonable discretion, desirable in the
performance of the services to be provided by such party pursuant to this Agreement and the other
Transaction Agreements.
SECTION 2.5. FCE Obligations.
(a) Technical Assistance, Advertising and Marketing. FCE shall provide commercially
reasonable good faith technical assistance and support in connection with POSCO Power’s performance
of the transactions contemplated hereby in accordance with the terms and conditions of the
Technology Transfer Agreement, including the Technology Transfer Program. FCE shall, at its own
cost, provide commercially reasonable good faith support to POSCO Power’s marketing and sales
activities, including, but not limited to, supplying information to POSCO Power for POSCO Power to
prepare general marketing materials.
(b) FCE Product Literature and Marketing Materials. FCE shall provide POSCO Power
with (i) appropriate instructions regarding the use of the FCE Products, including, but not limited
to, warning labels, disclaimers of warranty and any other related documentation, (ii) available
literature, data, price lists, promotional materials, or any other similar materials regarding the
FCE Products, (iii) documents to manufacture, install, service and repair the FCE Products, POSCO
Products and POSCO Parts in accordance with the terms and conditions of the Technology Transfer
Agreement, including the Technology Transfer Program and (iv) (A) preventative maintenance
procedures for the FCE Products, (B) suggested and necessary repair parts and (C) estimated prices
and replacements schedules for standard wear and tear items, in
accordance with the terms and conditions of the Technology Transfer Agreement, including the
Technology Transfer Program. Any materials provided in accordance with this Section 2.5(b) shall be
in the English language. POSCO Power shall have the right to reproduce the materials and, where
appropriate, translate such materials into other languages.
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(c) Referrals. FCE agrees to refer to POSCO Power all demonstration projects or
orders from any Korean company for FCE Products to be sited in the Korean Market.
(d) Inspection and Testing. FCE shall provide from time to time to POSCO Power the
acceptance criteria that must be met or exceeded at either the FCE factory and at each Facility
before POSCO Power and/or its Customers will be deemed to have accepted delivery of the relevant
FCE Product.
(e) Construction and Installation Duties. FCE shall advise POSCO Power with respect
to the determination and design of site requirements, permitting, grid interface and controlled
designs, BOP, installation, start-up services, training and data collection for DFC Power Plants.
(f) Performance Standards. Each Purchase Order will set forth the design
specifications for the FCE Products ordered thereby.
(g) Transfer of NewCo Stock. In the event FCE desires to transfer to any third party
all or any portion of the capital stock of NewCo (the “NewCo Stock”) received as royalties pursuant
to the Technology Transfer Agreement, FCE shall deliver to POSCO Power within thirty (30) days
prior to the proposed date of transfer a written notice setting forth the price and any other
relevant terms of its proposed transfer of such NewCo Stock. POSCO Power shall then be entitled to
purchase all or any portion of such NewCo Stock proposed to be transferred on the same terms and
conditions set forth in the notice provided by FCE, by delivering notice to FCE within fifteen (15)
days of notice from FCE of such proposed transfer. To the extent that any portion of the NewCo
Stock is not purchased pursuant to the terms in this clause, the proposed transfer may proceed so
long as such transfer is effected in accordance with Applicable Law, and, in which case, POSCO
Power shall provide commercially reasonable assistance to FCE to effect the sale of NewCo Stock.
SECTION 2.6. POSCO Power Obligations.
(a) Completion of POSCO Power Facility. POSCO Power shall use its commercially
reasonable efforts to complete the construction of the POSCO Power Facility within two (2) years of
the Effective Date (the “POSCO Power Facility Completion Date”); provided,
however, that the failure by POSCO Power to complete such construction by the POSCO Power
Facility Completion Date shall not be considered a material breach or failure of this Agreement
(including Article IV) or any other Transaction Agreement.
(b) Manufacturing, Marketing and Sale of FCE Products. POSCO Power shall, at its sole
expense, use its commercially reasonable good faith efforts to manufacture, promote, market,
distribute, sell or otherwise commercialize the BOP technology in the Korean Market and distribute,
sell, or otherwise commercialize the BOP technology in the Non-Exclusive Territory, in accordance
with the terms of this Agreement and the other Transaction Agreements. POSCO Power shall comply
with all FCE Product quality measures provided by FCE to POSCO Power from time to time.
8
(c) Marketing Plan. POSCO Power, at its sole expense, agrees to develop a marketing
plan to advertise, promote and publicize the FCE Products in the Korean Market.
(d) Service Capability. POSCO Power has, or within 36 months of the Effective Date
will develop, the necessary skills and capability to provide service for the FCE Products, POSCO
Products and POSCO Parts to the Customers. Without limiting the foregoing and solely by way of
example, such skills shall include the ability to perform, consistent with its commercial
reasonable efforts, the following services: applications engineering, balance of plant service,
power plant operations and control, installation services, troubleshooting, and maintenance
services. The skills described in this section shall not include the performance of service within
the Fuel Cell Stack Module, which shall be performed by FCE.
(e) FCE Fuel Cell Stack Module Integrity. POSCO Power shall not, and shall not permit
its employees, subcontractors, Facility operators, site owners or agents, or those of its
affiliates or Subsidiaries to, open any Fuel Cell Stack Modules or otherwise attempt to view the
interiors of the Fuel Cell Stack Module without the prior written permission of FCE. Any violation
of this section shall be deemed a material breach of the confidentiality provisions set forth
herein and void all warranties contained in the related Purchase Order. POSCO Power may open a Fuel
Cell Stack Module or allow a Fuel Cell Stack Module to be opened if there occurs an emergency
condition, at POSCO Power’s reasonable judgment, involving the Fuel Cell Stack Module that imperils
human life or threatens substantial property damage or bodily harm. If POSCO Power opens a Fuel
Cell Stack Module or allows a Fuel Cell Stack Module to be opened pursuant to this Section, POSCO
Power shall limit such intrusion into the Fuel Cell Stack Module as narrowly as possible, and treat
any information learned thereby as confidential information in accordance with this Agreement.
POSCO Power shall require, as a condition precedent to any agreement with respect to the sale,
lease or such similar transaction of any FCE Product or POSCO Product, the purchaser, lessor,
customer or any such party of such transaction to agree to accept the terms of this clause (e) and
to agree to require any subsequent purchaser, lessor, customer or such similar party thereof to
accept the terms hereof.
SECTION 2.7. Fuel Cell Stack Module Order Requirements.
(a) Order Requirements. During the Term of this Agreement, POSCO Power agrees to purchase from
FCE, and FCE agrees to sell to POSCO, Fuel Cell Stack Modules that are capable of producing certain
specified megawatts (on a cumulative basis) as follows (for the purpose of this section, the term
“Year” means the 12-month period ending in each year on the anniversary of the Effective Date):
| Year | Total Megawatts (cumulative) | |||
9
(b) Price. The parties acknowledge and agree that the price and terms of each order
shall be negotiated separately in a commercially reasonable good faith manner, subject to the
pricing guidelines agreed to by the parties pursuant to Section 4.1 (c) below.
(c) Joint Review. Notwithstanding any provision to the contrary herein, any failure
by POSCO Power to purchase the Fuel Cell Stack Modules, as set forth in Section 2.7 shall not
constitute a material breach of this Agreement. The parties shall undertake a joint performance
review at the end of years 3 and 5 from the Effective Date to determine the desirability of
continuation of this Agreement, in the event the cumulative order requirements set forth in Section
2.7 were not met.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties of FCE. FCE represents and warrants to
POSCO that as of the date hereof, and as of the Effective Date:
(a) It has all requisite right, power and authority, to execute and deliver this Agreement and
the other Transaction Agreements, to perform its obligations hereunder and thereunder and to
consummate the transactions contemplated hereby and thereby;
(b) The execution, delivery and performance by FCE of this Agreement and the other Transaction
Agreements, and the consummation by FCE of the transactions contemplated hereby and thereby, have
been duly and validly authorized by all necessary corporate action on the part of FCE and no other
corporate actions or proceedings on the part of FCE are necessary to authorize this Agreement, the
other Transaction Agreements and the transactions contemplated hereby and thereby. Assuming due
authorization, execution and delivery of this Agreement and the other Transaction Agreements by
POSCO Power hereto and thereto, each of this Agreement and the other Transaction Agreements
constitute a legal, valid and binding obligation of FCE enforceable against it in accordance with
its terms;
(c) The execution, delivery and performance by FCE of this Agreement and the other Transaction
Agreements, and the consummation by FCE of the transactions contemplated hereby and thereby, do
not: (i) violate any Applicable Law; (ii) violate or conflict with any Contract to which FCE is a
party, including, but not limited to, any Contract with Marubeni and MTU, upon receipt of the
Marubeni Settlement and MTU Consent; (iii) violate any Governmental Order; (iv) require the
approval, consent or permission of any Governmental Authority having authority over FCE, other than
the DOE Approval (as hereinafter defined); or (v) violate FCE’s organizational documents;
(d) Neither FCE or any of its Subsidiaries nor any director, officer, agent, employee or other
Person acting on behalf of FCE or its Subsidiaries has, in the course of its actions for, or on
behalf of, FCE or any of its Subsidiaries (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expenses relating to
political activity; (ii) made any direct or indirect unlawful payment to any foreign or
domestic government official or employee from corporate funds; (iii) violated or is in violation of
in any material respect any provision of the U.S. Foreign Corrupt Practices Act of 1977, as
amended; or (iv) made or
received any unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment
to or from any foreign or domestic government official or employee;
10
(e) To FCE’s knowledge, there is no pending or threatened any suit, action or proceeding (i)
by any Governmental Authority challenging the transactions contemplated herein or in the other
Transaction Agreements by FCE, seeking to restrain or prohibit the consummation of the transactions
contemplated hereby or thereby, or (ii) by any Person which has not been disclosed in the SEC
Documents; and
(f) As of their respective dates, the financial statements set forth in the SEC Documents
fairly present in all material respects the consolidated financial position of FCE as of the dates
thereof and, since October 31, 2006, and except as noted in the SEC Documents, FCE’s business has
been operated in the ordinary course of business and there has not been any event or condition that
would reasonably be expected to result, individually or in the aggregate, in a material adverse
event.
SECTION 3.2. Representations and Warranties of POSCO Power. POSCO Power represents
and warrants to FCE that, as of the date hereof and as of the Effective Date:
(a) It has all requisite right, power and authority to execute and deliver this Agreement and
the other Transaction Agreements, to perform its obligations hereunder and thereunder and to
consummate the transactions contemplated hereby and thereby;
(b) The execution, delivery and performance by POSCO Power of this Agreement and the other
Transaction Agreements, and the consummation by POSCO Power of the transactions contemplated hereby
and thereby, have been duly and validly authorized by all necessary corporate action on the part of
POSCO Power and no other corporate actions or proceedings on the part of POSCO Power are necessary
to authorize this Agreement, the other Transaction Agreements and the transactions contemplated
hereby and thereby. Assuming due authorization, execution and delivery of this Agreement and the
other Transaction Agreements by FCE hereto and thereto, each of this Agreement and the other
Transaction Agreements constitute a legal, valid and binding obligation of POSCO Power enforceable
against it in accordance with its terms;
(c) The execution, delivery and performance by POSCO Power of this Agreement and the other
Transaction Agreements, and the consummation by POSCO Power of the transactions contemplated hereby
and thereby, do not: (i) violate any Applicable Law; (ii) violate or conflict with any Contract to
which POSCO Power is a party; (iii) violate any Governmental Order; (iv) require the approval,
consent or permission of any Governmental Authority having authority over POSCO Power; or (v)
violate POSCO Power’s organizational documents;
11
(d) Neither POSCO Power nor any director, officer, agent, employee or other Person acting on
behalf of POSCO Power has, in the course of its actions for, or on behalf of, POSCO Power (i) used
any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expenses relating to political activity, (ii) made any direct
or indirect unlawful payment to any foreign or domestic government official or employee from
corporate funds, (iii) violated or is in violation of in any material respect any provision of the
U.S. Foreign Corrupt Practices
Act of 1977, as amended, or (iv) made or received any unlawful bribe, rebate, payoff, influence
payment, kickback or other unlawful payment to or from any foreign or domestic government official
or employee; and
(e) To POSCO Power’s knowledge, there is no pending or threatened any suit, action or
proceeding by any Governmental Authority challenging the transactions contemplated herein or in the
other Transaction Agreements by POSCO Power, seeking to restrain or prohibit the consummation of
the transactions contemplated hereby or thereby.
ARTICLE IV
CERTAIN COVENANTS
CERTAIN COVENANTS
SECTION 4.1. Post-Execution Covenants.
(a) DOE Approval. FCE shall use its reasonable best efforts to obtain all necessary
consent or approval from the U.S. Department of Energy, in form substantially similar to the form
of DOE Approval set forth in Exhibit C attached hereto (the “DOE Approval”) .
(b) MTU Consent. FCE shall use its reasonable best efforts to obtain the consent,
approval and/or agreement, in form substantially similar to the form of consent set forth in
Exhibit D attached hereto (the “MTU Consent”).
(c) Form of Purchase Order and LTSA; Accounting. Within sixty (60) days of the
Effective Date, the parties shall use commercially reasonable good faith efforts to finalize (i)
the terms and conditions of the LTSA and the Purchase Order, (ii) the pricing guidelines of the
Fuel Cell Stack Modules and/or FCE Products and (iii) certain accounting issues relating to, and
the components or items that comprise, the Net Sales.
(d) Technology Transfer Program. The parties shall use commercially reasonable good
faith efforts to negotiate, prepare and finalize the terms and conditions of the Technology
Transfer Program within sixty (60) days of the date hereof.
(e) Closing of Securities Purchase Agreement. The parties shall use commercially
reasonable good faith efforts to effect the closing of the Securities Purchase Agreement as soon as
practicable, but no earlier than the Effective Date.
(f) Marubeni Settlement. The parties shall use their reasonable best efforts to secure
a waiver from Marubeni, pursuant to which Marubeni waives its distribution rights in the Korean
Market, in form substantially similar to the form of waiver set forth in Exhibit E attached
hereto (“Marubeni Settlement”). POSCO Power hereby agrees to comply with the provisions in
the Marubeni Settlement to the extent applicable to POSCO Power.
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ARTICLE V
TERM ANDTERMINATION
TERM ANDTERMINATION
SECTION 5.1. Term. The initial term of this Agreement (the “Initial Term”)
shall commence on the Effective Date and shall continue, unless earlier terminated in accordance
with the provisions set forth herein, for a period of ten (10) years from the date hereof.
SECTION 5.2. Extension. The Initial Term may be extended for additional terms, each
for a period of three (3) years, as mutually agreed (each such additional term referred to herein
as the “Additional Term”; together with the Initial Term, the “Term”); provided,
that the first Additional Term shall be on terms and conditions no less favorable to POSCO Power
than those set forth in this Agreement and the other Transaction Agreements; provided,
further, that any Additional Term after the first Additional Term shall be on terms and
conditions as mutually agreed upon by the parties. This Agreement shall be extended only if the
other Transaction Agreements other than the Securities Purchase Agreement are extended for the same
period.
SECTION 5.3. Termination. This Agreement may be terminated:
(a) by mutual written agreement of FCE and POSCO Power;
(b) by either party (i) if the parties fail to agree to the continuation of this Agreement as
set forth in Section 2.7(c); (ii) if the terms and conditions set forth in Section
4.1(a), (b) and (f) have not been satisfied (or waived in writing by POSCO
Power) by April 7, 2007; or (iii) if a change in any Applicable Law would materially and adversely
affect any rights or obligations of any party and the parties in their exercise of commercially
reasonable good faith efforts, failed to agree to an appropriate modification or an amendment of
the terms and conditions of this Agreement, after complying with the procedures set forth in
Section 6.1 below.
(c) (i) by FCE, by written notice to POSCO Power, if (A) POSCO Power shall have materially
breached or failed to perform any of its representations, warranties, covenants or agreements of,
or an event of default has occurred under, this Agreement or any of the other Transaction
Agreements and (B) such breach, failure or default is not fully cured within sixty (60) days after
receiving notice thereof; provided, however, that the parties acknowledge and agree that the
failure by POSCO Power to meet the order requirements set forth in Section 2.7(a) shall not
be deemed to be a material breach or failure of this Agreement or any other Transaction Agreements;
or
(ii) by POSCO Power, by written notice to FCE, if (A) FCE shall have materially breached or
failed to perform any of its representations, warranties, covenants or agreements of, or an event
of default has occurred under, this Agreement or any of the other Transaction Agreements, and (B)
such breach, failure or default is not fully cured within sixty (60) days after receiving notice
thereof.
The parties acknowledge and agree that any decision on the part of either party to terminate this
Agreement shall be subject to the procedures set forth in Article VI.
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SECTION 5.4. Effect of Termination; Survival.
(a) Upon any termination of this Agreement pursuant to Section 5.3(a) or (b)
hereof, all further obligations of the parties hereunder shall terminate without any further
liability of either party, except as provided in this Section 5.4(a). Each party, if so
requested by the other party, will re-deliver promptly every document furnished to it by the other
party in connection with the transactions contemplated hereby, whether obtained before or after the
execution of this Agreement, and any copies thereof which may have been made.
(b) Upon any termination of this Agreement due to a material breach or failure to perform any
of the representations, warranties, covenants or agreements of this Agreement or the Technology
Transfer Agreement pursuant to Section 5.3(c)(i) hereof, the parties hereby agree that the
remedies set forth in Article IX of the Technology Transfer Agreement shall govern.
(c) Upon any termination of this Agreement due to a material breach or failure to perform any
of the representations, warranties, covenants or agreements of this Agreement or the Technology
Transfer Agreement pursuant to Section 5.3(c)(ii), the parties hereby agree that the
remedies set forth in Article IX of the Technology Transfer Agreement shall govern.
(d) No termination under this Agreement shall limit or otherwise affect the other rights and
remedies of either party arising prior to the termination.
(e) Upon the expiration or termination of this Agreement for any reason, the provisions of
this Section 5.4, Section 6.2, and Articles VII, VIII and
IX shall survive indefinitely.
(f) For the avoidance of doubt, the parties hereto acknowledge and agree that, except as
provided in this Section 5.4(b) and (c), the remedies set forth in any other
Transaction Agreements shall govern, as applicable.
ARTICLE VI
DISPUTES AND ARBITRATION
DISPUTES AND ARBITRATION
SECTION 6.1. Efforts to Resolve by Mutual Agreement.
Any dispute, action, claim or controversy of any kind arising from or in connection with this
Agreement or the relationship of the parties under this Agreement (the “Dispute”) whether based on
contract, tort, common law, equity, statute, regulation, order or otherwise, shall be resolved as
follows:
(a) Upon written request of either FCE or POSCO Power, the parties shall meet and attempt to
resolve any such Dispute. Such meetings may take place via teleconference or videoconference.
(b) The parties shall meet as often as the parties reasonably deem necessary to discuss the
problem in an effort to resolve the Dispute without the necessity of any formal proceeding.
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(c) Formal proceedings for the resolution of a Dispute may not be commenced until the earlier
of (i) the Parties concluding in good faith that amicable resolution through continued negotiation
of the matter does not appear likely; or (ii) the expiration of a sixty (60) day period immediately
following the initial request by either party to resolve the Dispute; provided,
however, that this Section 6.1 will not be construed to prevent a party from
instituting formal proceedings earlier to avoid the expiration of any applicable limitations
period, to preserve a superior position with respect to other creditors or to seek temporary or
preliminary injunctive relief.
SECTION 6.2. Arbitration. If the Parties are unable to resolve any Dispute, pursuant
to Section 6.1 above and except as otherwise specified in Section 6.4, the Dispute shall be
finally settled under the Rules of Arbitration (the “Rules”) of the International Chamber
of Commerce (“ICC”) by three (3) arbitrators designated by the parties. Each party shall
designate one arbitrator. The third arbitrator shall be designated by the two arbitrators
designated by the parties. If either party fails to designate an arbitrator within thirty (30) days
after the filing of the Dispute with the ICC, such arbitrator shall be appointed in the manner
prescribed by the Rules. An arbitration proceeding hereunder shall be conducted in London, U.K.,
and shall be conducted in the English language. The decision or award of the arbitrators shall be
in writing and is final and binding on both parties. The arbitration panel shall award the
prevailing party its attorneys’ fees and costs, arbitration administrative fees, panel member fees
and costs, and any other costs associated with the arbitration; provided, however,
that if the claims or defenses are granted in part and rejected in part, the arbitration panel
shall proportionately allocate between the parties those arbitration expenses in accordance with
the outcomes. The arbitration panel may only award damages as provided for under the terms of this
Agreement and in no event may punitive, consequential and special damages (or as otherwise
specified in this Agreement, including, without limitation, Section 6.3) be awarded. In the
event of any conflict between the Rules and any provision of this Agreement, this Agreement shall
govern.
SECTION 6.3. Limitation on Recoverable Damages. In no event shall the measure of
damages payable by either party under or in connection with this Agreement or the transactions or
arrangements contemplated hereby include, nor will either party be liable for, any amounts for loss
of income, profit or savings or indirect, incidental, consequential, exemplary, punitive or special
damages of any party, including third parties, whether or not foreseeable, even if such party has
been advised of the possibility of such damages in advance, and all such damages are expressly
disclaimed. Notwithstanding anything contained herein to the contrary, the parties hereto shall be
entitled to seek specific performance or injunctive relief in connection with any material breach
by another party of its obligations under this Agreement.
SECTION 6.4. Specific Performance. The parties acknowledge and agree that the FCE
Technology is unique and further acknowledge and agree that POSCO Power will suffer irreparable
harm, which is not compensable by monetary damage, in the event the FCE Technology has not been
fully transferred to POSCO Power at the time of the termination of this agreement due to a material
breach by FCE of this Agreement.
Accordingly, the parties agree that POSCO Power shall be entitled to an injunction or
injunctions to enforce specifically the transfer of the FCE Technology to POSCO Power in accordance
with Article IX of the
Technology Transfer Agreement, in addition to any other remedy to which it may be entitled under
this Agreement.
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ARTICLE VII
CONFIDENTIALITY
CONFIDENTIALITY
This confidentiality provision supplements, but does not replace, the confidentiality
provisions of the other Transaction Agreements. As used in this Agreement, the term “confidential
information” means any and all trade secrets and other confidential information and know-how
related directly or indirectly to a party’s business or its products and services, which is not
covered by the confidentiality provisions of other Transaction Agreements. Each party shall hold
each other’s confidential information in confidence and shall not use or disclose any confidential
information, or permit any person to examine or copy any confidential information, regardless of
the manner in which such party gained access to it, except as necessary for the performance of its
obligations under this Agreement, including, without limitation, to such party’s legal advisors,
financial advisors and accountants. Each party’s obligation of confidentiality with respect to
confidential information supplied by the other hereunder shall not include or extend to information
which: (i) at the date such information is disclosed to the recipient is generally known by or
available to the public; (ii) after such information is disclosed to the recipient becomes
generally known or available to the public, through no fault of the recipient; (iii) becomes
available or is known to the recipient prior to the time of it being disclosed to the recipient as
evidenced by the written records of the recipient and was not received directly or indirectly from
the provider; (iv) became or becomes available to the recipient from an independent third party who
is not bound by a confidentiality agreement with the provider; or (v) is required to be disclosed
by the recipient to a third party in response to a subpoena or order of a court or an
administrative agency, provided that the recipient shall inform the provider promptly so that the
provider shall have an opportunity to seek a protective order and the recipient shall not interfere
with the provider’s lawful efforts to obtain said protective order. POSCO Power shall use best
efforts to require, as a condition precedent to any agreement with respect to the sale, lease or
such similar transaction of any FCE Product or POSCO Product, the purchaser, lessor, customer or
any such party of such transaction (x) to agree and (y) to use such party’s good faith efforts to
cause any subsequent purchaser, lessor, customer or such similar party thereof, in each case, to be
bound to confidentiality obligations substantially similar to the terms hereof.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1. Claims. This indemnification provision supplements, but does not
replace, the indemnification provisions of the other Transaction Agreements. For purposes of this
Agreement, “Claim” shall mean any liability, claim, suit, demand, loss, damage, judgment, and
expense (including reasonable attorneys’ fees and costs and the cost of settlement), that is not
covered by the indemnification provisions of other Transaction Agreements.
SECTION 8.2. Indemnification by POSCO. POSCO Power shall indemnify, defend, and hold
harmless FCE and its representatives, successors and permitted assigns from and against any and all
Claims made or threatened by any third party and all related losses, expenses,
damages, costs and liabilities, including reasonable attorneys’ fees and expenses incurred in
investigation or defense of such claims (“Damages”), to the extent such Damages relate to or arise
out of (i) any breach of or any inaccuracy in any representation or warranty made by POSCO Power in
this Agreement or (ii) any breach of or failure by POSCO Power to perform or comply with any of its
covenants or agreements contained in this Agreement.
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SECTION 8.3. Indemnification by FCE. FCE shall indemnify, defend, and hold harmless
POSCO Power and its representatives, successors and permitted assigns from and against any and all
Claims made or threatened by any third party and all related Damages, to the extent such Damages
relate to or arise out of (i) any breach of or any inaccuracy in any representation or warranty
made by FCE in this Agreement or (ii) any breach of or failure by FCE to perform or comply with any
of its covenants or agreements contained in this Agreement.
SECTION 8.4. Indemnification Procedure. In the event a Claim by a third party for
which indemnification may be available under this Agreement is made or filed against a party, the
party against which the claim, suit or proceeding is made (the “Indemnified Party”), shall
promptly notify the other party (the “Indemnifying Party”) in writing of the claim, suit or
proceeding. The Indemnifying Party, within thirty (30) days, or such shorter period as is required
to avoid any prejudice in the claim, suit or proceeding, after the notice, may elect to defend,
compromise, or settle the third party claim, suit or proceeding at its expense. In any third party
claim, suit or proceeding which the Indemnifying Party has elected to defend, compromise or settle,
the Indemnifying Party shall not after the election be responsible for the expenses, including
counsel fees, of the Indemnified Party but the Indemnified Party may participate therein and retain
counsel at its own expense. In any third party claim, suit or proceeding the defense of which the
Indemnifying Party shall have assumed, the Indemnified Party will not consent to the entry of any
judgment or enter into any settlement with respect to the matter without the consent of the
Indemnifying Party and the Indemnifying Party will not consent to the entry of any judgment or
enter into any settlement affecting the Indemnified Party to the extent that the judgment or
settlement involves more than the payment of money without the written consent of the Indemnified
Party. The Indemnified Party shall provide to the Indemnifying Party all information, assistance
and authority reasonably requested in order to evaluate any third party claim, suit or proceeding
and effect any defense, compromise or settlement.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Certain Expenses. Except as expressly provided in this Agreement, each
party shall bear and pay its own costs and expenses incurred in connection with the performance by
such party of its obligations hereunder.
SECTION 9.2. Independent Contractors. The parties are independent contractors, and
nothing contained in this Agreement shall be construed as (a) giving either party the
power to direct and control the day-to-day activities of the other, (b) constituting either
party as a partner, a joint venture, a co-owner or a fiduciary of the other or (c) creating any
other form of legal association that would impose liability on one party for the act or failure to
act of the other or as providing either party with the right, power or authority (express or
implied) to create any duty
or obligation of the other.
17
SECTION 9.3. Entire Agreement. This Agreement, the Technology Transfer Agreement and
the Securities Purchase Agreement, including any Exhibits and Schedules attached hereto and
thereto, and any other Transaction Documents which are incorporated into this Agreement by this
reference, constitute the full and complete statement of the agreement of the parties with respect
to the subject matter hereof and supersedes all prior and contemporaneous agreements and
understandings, whether written or oral, between the parties with respect to the subject matter
hereof. There are no representations, understandings or agreements relating to this Agreement that
are not fully expressed in this Agreement other than those representations, understandings or
agreements contained in the other Transaction Agreements.
SECTION 9.4. Amendments; Waiver. Any changes or modifications to this Agreement may
not be made orally, but only by a written amendment executed and delivered by both parties. Any
terms and conditions varying from this Agreement on any notification from either party are not
binding on the other unless specifically accepted in writing by the other. A delay or omission by
either party to exercise any right or power under this Agreement will not be construed to be a
waiver thereof. No waiver of any breach of any provision of this Agreement will constitute a waiver
of any prior, concurrent or subsequent breach of the same or any other provision hereof.
SECTION 9.5. Binding Nature; Assignment. This Agreement will be binding upon and inure
to the benefit of the parties and their respective successors and permitted assigns. Neither party
may, nor will it have the power to, assign this Agreement, or any part hereof, without the prior
written consent of the other party, except that the parties acknowledge and agree that POSCO Power
may, without assuming any obligations set forth in this Agreement and the other Transaction
Agreements, assign its rights and obligations to NewCo without consent of FCE. In the event of any
other assignment of this Agreement by either party, the assignee shall assume, in writing (in form
and substance reasonably satisfactory to the other party), the rights and obligations of the
assigning party under this Agreement.
SECTION 9.6. No Third Party Beneficiaries. Except as expressly contemplated herein,
this Agreement shall be binding upon and inure solely to the benefit of each party hereto and
nothing in this Agreement is intended to confer upon any other person or entity any rights or
remedies of any nature whatsoever under or by reason of this Agreement.
SECTION 9.7. Notices. All notices pursuant to this Agreement shall be in writing and
will be deemed to have been duly given if delivered personally or by internationally recognized
courier service, or by facsimile to the parties at the addresses set forth below.
18
if to FCE, to:
FuelCell Energy, Inc.
0 Xxxxx Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxx Xxxx
0 Xxxxx Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxx Xxxx
with copy to:
FuelCell Energy, Inc.
0 Xxxxx Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxx
0 Xxxxx Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxx
if to POSCO Power, to:
POSCO Power
Dacom Building 10th Floor
000-0 Xxxxxxx-xxxx, Xxxxxxx-xx
Xxxxx 000-000, Xxxxx
Facsimile: 011-82-2-3457-1960
Attention: Taehyoung (TH) Xxx
Dacom Building 10th Floor
000-0 Xxxxxxx-xxxx, Xxxxxxx-xx
Xxxxx 000-000, Xxxxx
Facsimile: 011-82-2-3457-1960
Attention: Taehyoung (TH) Xxx
with copy to:
POSCO
POSCO Center
892 Daechi 4-Dong, Xxxxxxx-Xx
Xxxxx, 000-000, Xxxxx
Facsimile: 011-82-2-3457-1972
Attention: Bong-han “Xxxxxxx” Xxx, Esq.
POSCO Center
892 Daechi 4-Dong, Xxxxxxx-Xx
Xxxxx, 000-000, Xxxxx
Facsimile: 011-82-2-3457-1972
Attention: Bong-han “Xxxxxxx” Xxx, Esq.
All notices under this Agreement that are addressed as provided in this Section 9.7,
(i) if delivered personally or by internationally recognized courier service, will be deemed given
upon delivery or (ii) if delivered by facsimile, will be deemed given when confirmed. Either party
from time to time may change its address or designee for notification purposes by giving the other
party notice of the new address or designee and the date upon which such change will become
effective.
SECTION 9.8. Publicity. The parties shall cooperate with each other in releasing
information concerning this Agreement, the other Transaction Agreements and the transactions
contemplated hereby and thereby. No press releases or other public announcements concerning the
transactions contemplated by this Agreement shall be made by any party without prior consultation
with, and agreement of, the other party,
except for any legally required communication by any party and then only with prior
consultation with the other party.
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SECTION 9.9. Use of Name. Except as expressly provided in this Agreement or the other
Transaction Agreements, neither party may use the trade names, trademarks, service marks or other
similar proprietary rights of the other party without the written consent of such other party.
Notwithstanding any authorized use by the other party, the trade names, trademarks, services marks
and other similar proprietary rights of a party shall remain the property of such party.
SECTION 9.10. Severability. If any provision of this Agreement or the application of
any such provision to any Person or circumstance, shall be declared judicially to be invalid,
unenforceable or void (including, without limitation, such decision shall not have the effect of
invalidating or voiding the remainder of this Agreement, and it is the intent and agreement of the
parties that this Agreement shall be deemed amended by modifying such provision to the extent
necessary to render it valid, legal and enforceable while preserving its intent or, if such
modification is not possible, by substituting therefore another provision that is legal and
enforceable and that achieves the same objective.
SECTION 9.11. Governing Law. This Agreement shall be governed by and construed in
accordance with the substantive laws of the State of New York, without giving effect to any choice
of law rules that may require the application of the laws of another jurisdiction.
SECTION 9.12. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which together shall
constitute one agreement binding on the parties, notwithstanding that both parties are not
signatories to the original or the same counterpart.
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IN WITNESS WHEREOF, the parties have duly executed and delivered this Agreement as of the date
first above written.
|
FUELCELL ENERGY, INC. |
||||
| By: | /s/ Xxxxxx Xxxxxx Xxxxx | |||
| Name: | Xxxxxx Xxxxxx Xxxxx | |||
| Title: | President CEO and Chairman | |||
POSCO POWER |
||||
| By: | /s/ Xxxxx-Xxx Xxx | |||
| Name: | Xxxxx-Xxx Xxx | |||
| Title: | Persident & CEO | |||
EXHIBIT A
Securities Purchase Agreement
EXHIBIT B
Technology Transfer, License and Distribution Agreement
EXHIBIT C
Form of DOE Approval
EXHIBIT D
Form of MTU Consent
EXHIBIT E
Form of Marubeni Settlement
SCHEDULE A
POSCO Affiliates
POSCO Affiliates shall include the following companies:
POSCON, a Korean corporation having a place of business at 000 Xx-xxxx Xxx-xx, Xxxxxx, Xxxxxxxx
000-000, Xxxxx
POSMEC, a Korean corporation having a place of business at 000-0 Xxxxxxxx-xxxx Xxx-xx, Xxxxxx,
Xxxxxxxx 790-714, Korea
POSCO E&C, a Korean corporation having a place of business at 000-0 Xxxxxxx-xxxx Xxx-xx, Xxxxxx,
Xxxxxxxx 790-704, Korea
POSTEEL, a Korean corporation having a place of business at 735-3 Posteel Xxxxx Xxxxxxx-xxxx
Xxxxxxx-xx Xxxxx 000-000, Xxxxx
SCHEDULE B
Non-Exclusive Territory
The Non-Exclusive Territory shall include all countries and jurisdictions, except as noted
below:
Western Europe
Andorra
Austria
Belgium
Cyprus
Denmark
Federal Republic of Germany
Finland
France
Great Britain and including, but not limited to
Northern Ireland CIS (Commonwealth of Independent States)
Greece
Greenland
Ireland
Iceland
Italy
Liechtenstein
Luxembourg
Malta
Monaco
Netherlands
Norway
Portugal
San Marino
Spain
Sweden
Switzerland
Andorra
Austria
Belgium
Cyprus
Denmark
Federal Republic of Germany
Finland
France
Great Britain and including, but not limited to
Northern Ireland CIS (Commonwealth of Independent States)
Greece
Greenland
Ireland
Iceland
Italy
Liechtenstein
Luxembourg
Malta
Monaco
Netherlands
Norway
Portugal
San Marino
Spain
Sweden
Switzerland
The Vatican State
Eastern Europe
Albania
Bulgaria
Czech Republic
Slovakia
Hungary
Poland
Romania
All states of the former USSR
Yugoslavia
Slovenia
Croatia
Albania
Bulgaria
Czech Republic
Slovakia
Hungary
Poland
Romania
All states of the former USSR
Yugoslavia
Slovenia
Croatia
Asia
Japan
Japan
Middle
East
Bahrain
Iran
Iraq
Xxxxxx
Xxxxxx
Kuwait
Lebanon
Oman
Qatar
Saudi-Arabia
Syria
Turkey
Yemen, Arab Rep.
Yemen, Peoples Rep.
United Arab Emirates (UAE)
Iran
Iraq
Xxxxxx
Xxxxxx
Kuwait
Lebanon
Oman
Qatar
Saudi-Arabia
Syria
Turkey
Yemen, Arab Rep.
Yemen, Peoples Rep.
United Arab Emirates (UAE)
North America
United States
Canada
Mexico
United States
Canada
Mexico
