EXHIBIT 10.14
Gaz de France Distribution
Agreement
DISTRIBUTION AGREEMENT
This Distribution Agreement (this "Agreement") is made to be effective
as of the 13th day of July, 2000, by and between PHOENIX GAS SYSTEMS, LLC
("PGS"), GAZ de FRANCE, a French public utility company ("GDF") and, for
sections 3.3, 3.4, 3.5 3.6 and 12.2, HYDROGEN BURNER TECHNOLOGY CORPORATION
("HBT").
As consideration for the mutual covenants, promises and agreements
contained herein, the parties agree as follows:
1. CERTAIN DEFINITIONS. For the purposes of this
Agreement, the following terms have the following meanings:
1.1 "PGS" means PHOENIX GAS SYSTEMS, LLC, a limited
liability company organized and existing under the laws of California, U.S.A.
and its Affiliates.
1.2 "GDF" means GAZ de FRANCE, a French public utility
company organized and existing under the laws of France and its Affiliates.
1.3 "HBT" means Hydrogen Burner Technology, a California
corporation, and its Affiliates.
1.4 "AFFILIATES" means all persons who control, are
controlled by or are under common control with a person.
1.5 "SYSTEMS" means the industrial hydrogen generating
systems manufactured by PGS for industrial utilization and refueling
stations, as described in Exhibit 1.5 to this Agreement. PGS may, from time
to time, modify the systems described in Exhibit 1.5 or substitute new
versions or designs thereof and Exhibit 1.5 shall thereupon be amended
accordingly.
1.6 "PARTS" means replacement parts, components, modules,
sub-assemblies and materials for Systems.
1.7 "PRODUCTS" means Systems and Parts.
1.8 "UOB-TM- TECHNOLOGY" means the patented and unpatented
technology utilized in the manufacture and operation of Products.
1.9 "CONTRACT YEAR" means the 12-month period commencing on
the first day of June 1 each year and ending on the last day of May of the
next succeeding year. The initial Contract Year shall commence on the first
day of July 2000, and end on the last day of June 2001.
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1.10 "TERRITORY" means the nations of the European Union,
Norway and Switzerland.
1.11 "MINIMUM PURCHASE" means the number of Systems required
to be purchased by GDF during each period, as set forth in Exhibit 1.11 to
this Agreement. The initial prices at which the Systems shall be sold to GDF
are set forth on Exhibit 1.11 hereto. If, at the conclusion of any such
period, GDF has failed to complete the purchase of at least half the minimum
number (which will be rounded down to the next lower whole number only for
year 2001) of Systems to be purchased by it during such period, GDF shall
immediately submit a firm order for the purchase of the number of additional
Systems needed to bring its purchases up to at least half the minimum number
of units to be purchased by it during such period. Although the completion
of the purchase of said additional Systems shall occur during a later period,
such additional Systems shall not be counted toward completion of the minimum
number of Systems to be purchased by GDF during such later period.
1.12 "INDUSTRIAL EQUIPMENT" means any system or equipment
that generates hydrogen gas by reforming on-site hydrocarbon fuels
(e.g.,natural gas, propane, etc.), including (without limitation) any of the
Systems (but not including any fuel cell system with an integrated hydrogen
generator).
1.13 "HYDROGEN GENERATION TECHNOLOGY" means any system or
equipment or technology that generates or is combined or used in conjunction
with other systems, equipment or technology to generate gases through the
application of UOB-TM- Technology, and all such related products, equipment,
systems, uses and applications that are described in or contemplated by the
business plans of PGS, HBT or any of their Affiliates (as such business plans
may be modified from time to time by them).
2. RECITALS.
2.1 PGS has obtained from HBT the exclusive rights to sell
and to grant others the right to sell Products everywhere in the world.
2.2 PGS and GDF desire that GDF be the exclusive
distributor of Products in the Territory.
3. DISTRIBUTION OF PRODUCTS.
3.1 APPOINTMENT. PGS hereby appoints GDF as the exclusive
distributor of Products in the Territory and agrees to sell Products to GDF
for its own use or for resale in the Territory in accordance with the terms
and conditions contained in this Agreement. PGS agrees that, except as
otherwise expressly provided herein, so long as this Agreement is in effect,
it will not appoint any other person as a distributor of Products in the
Territory.
3.2 ACCEPTANCE. GDF accepts said appointment and agrees to
purchase, sell and service Products and otherwise conduct itself strictly in
accordance with the terms and conditions of this Agreement. GDF further
agrees that, while this Agreement is in effect, it will
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not engage, directly or indirectly, in the promotion, distribution or sale of,
and it will not own or lease, any Industrial Equipment other than Industrial
Equipment manufactured by PGS.
3.3 INTELLECTUAL PROPERTY. GDF shall acquire no interest
in the UOB-TM- Technology, as it exists on the date of this agreement. Subject
to the terms and conditions hereof, PGS and GDF shall jointly own any
Intellectual Property rights in and to any improvement, enhancement or
derivatives of UOB-TM- Technology that is developed solely or in part by GDF
under this Agreement ("Shared Intellectual Property"). As a condition to the
joint ownership of any such Shared Intellectual Property, GDF shall grant to HBT
a worldwide exclusive, royalty free license to make, use, market and sell and
otherwise exploit, in perpetuity (but if such term is not permitted, then for
the longest period permitted by law), the Shared Intellectual Property in any
manner and for any purpose other than the Excluded Field of Use (defined below).
HBT shall grant to GDF a worldwide exclusive, royalty free license (the "GDF
LICENSE") to make, use, market and sell and otherwise exploit, in perpetuity
(but if such term is not permitted, then for the longest period permitted by
law), the Shared Intellectual Property, provided, however, that the GDF License
shall be limited to the Excluded Field of Use described in Section 3.4 of this
Agreement. PGS and GDF shall execute all documents to facilitate the grant of
said exclusive licenses.
3.4 LIMITATION ON GDF LICENSE; EXCLUDED FIELD OF USE. The
"GDF License" under Section 3.3 of this Agreement shall be limited and confined
to the "EXCLUDED FIELD OF USE" identified as all markets that do not involve any
use or application of hydrogen (either as a fuel or otherwise) or Hydrogen
Generation Technology, or any other market, use or application that is otherwise
contemplated by PGS, HBT or any of their Affiliates under their respective
business plans (as may be modified or supplemented from time to time). The GDF
License to be granted under Section 3.3 of this Agreement does not include uses
in any field of use that involve markets, applications or uses (of any kind)
contemplated by PGS, HBT or any or their Affiliates, uses or applications
involving Hydrogen Generation Technology and other uses not within the Excluded
Field of Use.
3.5 MANUFACTURING LICENSE. At such time as PGS, HBT and
all of their Affiliates are unwilling or unable to manufacture or sell
Industrial Equipment, HBT shall negotiate with GDF in good faith to grant an
exclusive (except for HBT and its Affiliates) license to use the UOB-TM-
Technology for the manufacture and sale of Industrial Equipment in Europe for a
reasonable royalty.
3.6 COVENANTS RELATING TO FUEL CELL SYSTEMS. GDF will
assist HBT in the development, demonstration and commercialization of fuel cell
systems and equipment in Europe. If HBT determines that a role for GDF exists as
distributor of such systems and equipment in Europe, HBT will use commercially
reasonable efforts to facilitate an arrangement between GDF and a manufacturer
of fuel cell systems under which GDF will act as distributor of such systems and
equipment in Europe.
4. SALE AND PURCHASE OF PRODUCTS
4.1 ESTIMATES AND ORDERS.
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4.1.1 Not less than 180 days prior to the
commencement of each Contract Year subsequent to the initial Contract Year, GDF
shall provide PGS with an estimate of the quantities of Products which it
expects to purchase during that Contract Year. GDF shall promptly notify PGS of
changes in said estimates.
4.1.2 From time to time, GDF shall submit to PGS
firm, written orders for Products.
4.1.3 No contract for sale of Products by PGS
or HBT shall result except by PGS' written acceptance of an order submitted
by GDF or by PGS' shipping Products pursuant to said order. PGS will provide
the written acceptance within 15 days of receipt of the order. Notwithstanding
any provisions of GDF's order, each contract of sale shall be subject to the
terms and conditions contained in this Agreement and, insofar as they do not
conflict with the terms and conditions in this Agreement, to the terms and
conditions in PGS' acceptance. No order for Systems shall be accepted until
PGS has received payment in the amout of 20% of the purchase price of the
Systems covered thereby.
4.2 PRICES
The prices at which PGS shall sell Products to GDF shall be PGS' prices
in effect on the date the order therefor is accepted by PGS. PGS may change its
prices for Products from time to time on ninety (90) days' written notice to
GDF. No price change shall affect the prices of Products sold pursuant to orders
accepted by PGS prior to the effective date of such change.
4.3 TERMS
- All sales of Products shall be F.O.B. PGS' warehouse in Rancho
▇▇▇▇▇▇▇▇▇, California, U.S.A. Products shall be shipped to the place or
places designated in the order therefor. Products shall be packaged for
export by PGS at no additional charge. Notwithstanding anything to the
contrary in this Agreement, risk of loss of Products shall pass from PGS to
GDF at the time and place of delivery thereof by PGS to the carrier
transporting the same from the F.O.B. point. PGS shall bear the sole
responsibility for the payment of any taxes, duties, etc. payable in
connection with the sale of Products by PGS to GDF and the export thereof
from the U.S.A. GDF shall bear the sole responsibility for the payment of any
taxes, etc. payable in connection with the resale of Products by GDF and for
the payment of any import duties or the like in conncection with the
importation thereof into the Territory. Unless otherwise agreed by the
parties, all amounts under this Agreement shall be payable in U.S. Dollars.
As an accommodation to GDF, PGS shall arrange for shipment of the Products
and their delivery to GDF. As consideration for the services rendered by PGS
in arranging for the shipment and delivery of the Products to GDF, GDF shall
pay to PGS a reasonable administrative fee and reimburse PGS for all amounts
advanced by PGS on behalf of GDF.
- the transfer of the ownership of the products shall occur at the
delivery point FOB PGS' warehouse in Rancho ▇▇▇▇▇▇▇▇▇.
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4.4 ACCEPTANCE TESTING. PGS shall give GDF not less than
fifteen (15) days' written notice of the date each System to be sold to GDF
shall be ready for pre-shipment acceptance testing in accordance with the
procedures described in Exhibit 4.4 to this Agreement. GDF representatives
may attend such acceptance testing at GDF's expense. If no GDF
representative attends such acceptance testing, an officer of PGS will sign
the acceptance sheet and, before shipment of the System, forward it to GDF
for inspection. PGS shall have no obligation to ship any System unless PGS
receives written confirmation of GDF's approval of the results of the
acceptance testing.
4.5 WARRANTIES 4.5.1 PGS warrants to GDF that each item of
Products will be free from defects in workmanship and materials and will
perform in accordance with the written specifications therefor for the period
ending on the earlier of (i) twelve (12) months after it first becomes
operational at the location of its end user, or (ii) eighteen (18) months
after the risk of loss thereto passes to GDF. If any item of Products fails
to conform to this warranty, GDF shall, if requested by PGS, return such
non-conforming item to PGS (at PGS's expense). PGS shall promptly, at its
option, repair or replace such item using new or rebuilt parts. This
warranty shall not apply to malfunctions caused by normal wear and tear or by
any alteration, modification or improper repair of the items or to defects or
malfunctions due to abuse or misuse or failure to follow operating
instructions. The aforesaid warranty is the only warranty made by PGS or HBT
with respect to Products and is in lieu of all obligations or liabilities on
the part of PGS or HBT for damages, including, but not limited to
consequential damages arising out of or in connection with the sale, use or
performance of Products. In no event shall PGS or HBT be liable for loss of
profits or other consequential damages.
PGS and GDF may modify this warranty at the time of
equipment purchase by GDF upon written mutual consent.
GDF shall not make any warranties or representations with
respect to Products on behalf of PGS or HBT. GDF shall indemnify and hold
PGS and HBT harmless from all claims and damages, including attorneys' fees,
resulting from GDF's violation of this Section.
4.6 TRADEMARKS AND MARKINGS. GDF is authorized to use, in
connection with the sale, promotion and advertising of Products the marks
"UOB", "HBT" and such other trademarks as may be used by PGS in the
advertising, promotion and sale thereof. PGS makes no warranty with respect
to any such trademarks. GDF shall have no right or interest in or claim to
any such marks, shall not use the same in any manner which might tend to
defeat or diminish them and shall immediately discontinue the use thereof
upon demand of PGS, and, in any event, upon termination of this Agreement.
GDF shall not remove, cover or obliterate any markings or information placed
on Products or the packaging thereof as supplied by PGS unless GDF is
required to do so to comply with laws and regulations in the jurisdiction in
which such Products are to be used or resold. GDF shall place such
translations of such markings and information and such additional labels on
Products and the packaging thereof as may be required by applicable laws,
regulations and orders.
4.7 ALTERATION OF DESIGN OF PRODUCTS
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PGS reserves the right, from time to time, to alter the design of
Products. PGS shall not incur any liability thereby or any obligation to
alter or repurchase Products previously sold by PGS to GDF. Notwithstanding
the foregoing, PGS shall not materially alter the design of Products with
respect to which GDF shall have submitted a purchase order at any time after
PGS accepts such purchase order without GDF's written approval.
4.8 DISTRIBUTOR'S RESPONSIBILITIES
GDF and its Affiliates and/or subcontractors (collectively referred
to as "GDF" in this Section 4.8) shall, at their sole expense, while this
Agreement is in effect:
4.8.1 promote, market and sell Products in the Territory.
4.8.2 maintain a fully staffed force of well-trained
sales personnel and have such personnel call on all existing and potential
purchasers of Products in the Territory on a regular basis as frequently as
is required by good business practice.
4.8.3 maintain tools and a staff of technicians
sufficient in size and training to provide for the efficient installation,
servicing and repair of Products.
4.8.4 maintain such inventories of Parts as may be
reasonably necessary to fulfill GDF's sales and service obligations.
4.8.5 make periodic reports to PGS of its promotional,
marketing and sales activities. Such reports shall be made as frequently and
shall contain such information and be in such form as PGS may from time to
time specify.
4.8.6 keep PGS advised of market and economic
conditions, market trends and such other information as may assist PGS in
planning its activities.
4.8.7 notify PGS promptly upon learning of any
infringements of Products or of any of the trademarks referred to in Section
4.6 of this Agreement. PGS shall not be obligated to take any action with
respect to such infringements. GDF shall cooperate fully in investigating
any such instance and, on PGS' or HBT's request, shall provide reasonable
assistance in any action that PGS or HBT chooses to take with respect thereto.
All expenses (including expenses incurred by GDF at the request of PGS or
HBT) of any such action shall be paid by PGS or HBT; all recoveries obtained
from the prosecution of any such action shall be retained by PGS or HBT.
4.8.8 comply with all laws, rules and regulations
applicable to its performance pursuant to this Agreement, procure and maintain
all licenses and permits necessary to the performance of its business and
conduct its business in a manner so as to not bring discredit upon the
reputation of Products, PGS or HBT.
5. CONFIDENTIALITY. During the term of this Agreement and any
renewal thereof and for a period of three (3) years after the termination
thereof, each of the parties shall safeguard and treat as confidential the
terms of this Agreement and all price lists and quotations, technical
information and particulars and other information supplied by or on behalf of
the other party.
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conduct its business in its own name and shall be solely responsible for its
acts, conduct and expenses and the acts, conduct and expenses of its employees
and agents.
7. INFORMATION, TRAINING, ETC.
7.1 PGS shall provide GDF with such manuals, information and
particulars respecting Products as GDF reasonably may require and with copies of
such brochures and other sales materials as are being used by PGS. All such
information and materials shall be in the English language. GDF, at its sole
expense, shall prepare such translations thereof as it may require.
7.2 PGS shall provide and GDF shall cause its technical
personnel to attend instruction and training sessions in the installation,
operation, servicing and repair of Products. Such instruction and training
sessions shall be conducted at PGS' facilities in the United States. The
times and duration of such training sessions and the number of trainees to be
included in each such session shall be arranged in advance by the parties.
PGS shall make no charge for such instruction and training; however, all
expenses of such trainees, including, without limitation, their salaries,
benefits, transportation and living expenses, shall be borne by GDF.
8. INDEMNIFICATION
8.1 INDEMNIFICATION BY PGS. PGS shall defend, indemnify and
hold GDF free and harmless from and against any and all claims, actions,
liabilities, judgments, settlements and costs (including reasonable attorneys'
fees) resulting from or arising out of defects or alleged defects in workmanship
and materials in Products as supplied by PGS, provided said defects were latent
and were not actually discovered by GDF prior to its use or resale of said
Products. PGS shall further defend, indemnify and hold GDF free and harmless
from and against any and all claims, actions, liabilities, judgments,
settlements and costs (including reasonable attorneys' fees) resulting from or
arising out of infringements of the intellectual property rights of others that
relate to the UOB-TM- Technology and the sale of the Products.
8.2 INDEMNIFICATION BY GDF. GDF shall defend, indemnify and
hold PGS free and harmless from and against any and all claims, actions,
liabilities, judgments, settlements and costs (including attorneys' fees)
resulting from or arising out of (i) GDF's or its employees' or agents'
activities, (ii) a defect or alleged defect in Products resulting from any
modification thereof by or for GDF by a third party, (iii) a defect or alleged
defect in Products that was discovered by GDF before its use or resale by GDF or
(iv) a defect or alleged defect in Products resulting from or occurring during
the shipment of the Products that has been or should have been discovered by GDF
before its use or resale by GDF.
8.3 INDEMNIFICATION PROCEDURES. The party seeking
indemnification shall give the indemnifying party prompt written notice of the
institution of the action or the making of the claim for which indemnification
is sought. The indemnifying party shall pay all costs incurred in the defense of
such action or claims and any damages and costs that may become payable pursuant
to a judgment or decree in or settlement of such action or claim which is not
covered by insurance and shall have the right to control all aspects of the
defense and disposition of such
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pursuant to a judgment or decree in or settlement of such action or claim which
is not covered by insurance and shall have the right to control all aspects of
the defense and disposition of such claim or action. The party being indemnified
shall assist the indemnifying party by providing information and witnesses as
needed. The indemnified party shall not be entitled to recover from the
indemnifying party profits it lost, or may claim to have lost, or other
consequential damage it may have suffered, or may claim to have suffered as a
result of such action or claim. The party being indemnified may be represented
by its own attorneys, at its own expense; provided, however, such attorneys will
act only in an advisory capacity.
9. TERM AND TERMINATION
9.1 TERM. This Agreement shall have an initial term commencing
upon the date first above set forth and, unless earlier terminated as
hereinafter provided, continuing in effect until June 30, 2005. Not less than
one hundred eighty (180) days prior to the expiration of the initial and each
renewal term, the parties shall commence discussions with respect to renewing
this Agreement.
9.2 TERMINATION BY EITHER PARTY. This Agreement may be
terminated at any time by either party if the other party defaults in the
performance of any material provision of this Agreement and such default
continues for a period of ninety (90) days after notice in writing thereof or is
adjudged a bankrupt, makes an assignment for the benefit of creditors, has a
receiver appointed, files a petition in bankruptcy, initiates reorganization
proceedings or has a petition in bankruptcy filed against it and fails to have
such petition dismissed within sixty (60) days after such filing.
9.3 TERMINATION BY PGS. In addition to the termination rights
set forth in Section 9.2, above, PGS may terminate this Agreement, in whole or
in part, at any time upon written notice to GDF if GDF fails to complete the
required purchase of the minimum number of Systems during any 12 month period in
accordance with Section 1.11 and Exhibit 1.11 to this Agreement. GDF will have
an additional 12 months to fulfill the minimum purchase requirement following
receipt of the written notice by PGS.
9.4 TERMINATION RIGHTS ABSOLUTE. The aforesaid rights of
termination are absolute; neither party shall be liable to the other for any
loss, damage or indemnity by reason of the exercise of said rights and all
claims therefor are hereby expressly waived.
9.5 RIGHTS AND DUTIES AFTER TERMINATION. Except as hereinafter
provided, upon termination of this Agreement, GDF shall cease the distribution
and sale of Products and shall cease all use of the trademarks referred to in
Section 4.6 of this Agreement. PGS shall fill orders for Products from GDF which
were accepted by PGS prior to the effective date of termination and GDF shall
accept delivery of and pay for all such orders. PGS shall continue to sell Parts
to GDF for ten (10) years after termination of this Agreement and provide
assistance for customer service for the products already delivered at reasonable
cost to GDF.
10. FORCE MAJEURE. If either party is unable to carry out its
obligation under this Agreement (other than payment of money), either wholly or
in part, for a period of ten
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consecutive days as a result of acts of God, strikes, lockouts, or other
industrial disturbances, wars, blockades, embargoes, insurrections, riots,
acts or orders of government, explosions, fires, floods, perils of the sea,
or any other cause not within the control of the party claiming relief from
any of the requirements of this Agreement, and which by exercise of due
diligence said party is unable to prevent or overcome, the party so failing
shall give written notice and full particulars of such cause or causes to the
other party as soon as possible after the occurrence of any such cause, and
thereupon such obligations shall be suspended during the continuance of such
hindrance, which, however, shall be remedied with all possible dispatch, and
the obligations, terms and conditions of this Agreement shall be extended for
such period as may be necessary for the purpose of making good any suspension
so caused. If such hindrance shall last for six (6) consecutive months or
more, either party, by notice in writing to the other, may terminate this
Agreement.
11. RIGHT OF FIRST REFUSAL OF MANUFACTURING IN THE TERRITORY. If,
at any time that this Agreement is in effect, PGS determines to directly or
indirectly commence the manufacture of Systems in the Territory for
marketing, sale and distribution solely in the Territory, it shall first
extend to GDF an offer to enter into a joint venture for such manufacturing,
with GDF to have not less than a 51% interest in such joint venture. Each
party shall be responsible for and shall pay its proportionate share of the
costs and expenses associated with the development of such joint venture and
the development and construction of all production and other facilities in
the Territory that are related to such joint venture. If the parties have not
entered into such a joint venture within six (6) months after PGS extended
such an offer to GDF, PGS shall have the right to commence the manufacture of
Systems in the Territory, alone or with another joint venturer; provided,
however, the terms upon which such other joint venturer enter into such joint
venture shall be no more favorable to it than those that had been offered to
GDF.
12. GENERAL PROVISIONS
12.1 The failure of either party to enforce at any time, or for
any period, any provision of this Agreement shall not be construed as a waiver
of such provision or of the right of such party thereafter to enforce such
provision. No claim or right arising out of the breach of this Agreement may be
discharged in whole or in part by a waiver or renunciation of the claim or right
unless the waiver or renunciation is in writing and signed by the aggrieved
party.
12.2 ASSIGNMENTS. No party of this agreement may assign its
rights or obligations to any third party without the written consent of the
other parties. Except as otherwise provided herein, the terms and conditions of
this Agreement shall inure to the benefit of and be binding on the respective
successors and assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any right, remedy, obligation or
liability under or by reason of this Agreement, except as expressly provided in
this Agreement.
12.3 CONSTRUCTION OF AGREEMENT. No course of prior dealing
between the parties and no usage of the trade shall be relevant to supplement,
explain or vary any of the terms used in this Agreement. The titles of each
paragraph and subparagraph hereof are solely for convenience of use and shall
not be construed to be a part of or to affect the interpretation of any
provision of this Agreement.
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12.4 REMEDIES, ATTORNEYS' FEES AND COSTS.
12.4.1 Except as otherwise provided, any and all
disputes between the parties concerning this Agreement including but not
limited to the rights and obligations created hereunder that cannot be
amicably resolved shall be determined solely and exclusively by arbitration
in accordance with the rules of the American Arbitration Association. The
arbitration proceedings shall be held in Los Angeles County, California,
U.S.A. The parties may take depositions and obtain discovery prior to the
hearing in accordance with the provisions of section 1283.05 of the
California Code of Civil Procedure, which section is incorporated herein by
this reference.
12.4.2 The prevailing party in any arbitration or in any
action brought to enforce or interpret the terms of this Agreement or to
enforce any arbitration award shall be entitled to reasonable attorneys'
fees, costs and necessary disbursements in addition to any other relief to
which it may be entitled.
12.5 APPLICABLE LAW. This Agreement shall be deemed to have been
entered into in California, U.S.A. and shall be governed and construed in
accordance with the laws of the State of California, excluding the choice of
laws rules thereof. In the event any provision hereof is held by a court of
competent jurisdiction to be invalid or unenforceable or to violate any
applicable law, it shall be deemed null and void to the extent thereof,
without affecting the balance of this Agreement. The United Nations
Convention on Contracts for the International Sales of Goods shall not be
applicable to this Agreement.
12.6 NOTICES. Except as may be otherwise provided herein, all notices,
requests, waivers and other communications made pursuant to this Agreement shall
be in writing and shall be conclusively deemed to have been duly given (a) when
hand delivered to the other party; (b) when sent by facsimile at the address and
number set forth below, provided that the sender can produce proof of receipt;
or (c) three (3) business days after deposit with an international express
delivery service, prepaid and addressed to the other party as set forth below.
To Gaz de France:
▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
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a l'attention du Directeur du marketing strategique
Fax Number: ▇▇ ▇ ▇▇ ▇▇ ▇▇ ▇▇
To PGS:
Phoenix Gas Systems, LLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Attn: ▇▇▇▇▇ ▇▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
Each person making a communication hereunder by facsimile
shall promptly confirm by telephone to the person to whom such communication
was addressed each communication made by it by fascimile hereto but the
absence of such confirmation shall not affect the validity of any such
facsimile communication, provided that the sender produces proof of receipt
(if requested). A party may change or supplement the addresses given above,
or designate additional addresses, for purposes of this Section 12.6 by
giving the other party written notice of the new addresses in the manner set
forth above.
12.7 COMPLETENESS OF INSTRUMENT. There are no understandings not
contained in this Agreement. This Agreement shall supersede all previous
contracts, arrangements or understandings that may have existed or may exist
between the parties; PROVIDED, HOWEVER, that nothing in this Agreement shall
be deemed to terminate or supersede: (i) certain surviving obligations under
that certain Development and Demonstration Program for the Phoenix Gas
Systems' On-Site Hydrogen Generation System, dated October 28, 1999, as
described in that certain Conversion and Omnibus Termination Agreement and
General Release dated on or about the date hereof, by and between G.D.F
International, on the one hand, and HBT and PGS, on the other hand, or (ii)
the provisions of that certain Joint Development Preliminary Agreement
executed by the parties hereto on or about the date hereof, which agreement
shall continue in full force and effect until terminated in accordance with
its terms. This Agreement may be amended only by written instrument signed
by duly authorized officers of the parties.
12.8 FURTHER ASSURANCES. The parties shall execute and deliver
such further documents and instruments and perform such acts as may be
necessary or desirable to effectuate the purposes of this Agreement.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, this Agreement is effective as of the day and
year herein above first written.
"PGS":
Phoenix Gas Systems LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Title: President
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Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
"HBT":
Hydrogen Burner Technology Corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Title: President and CEO
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Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
[SIGNATURE PAGE TO DISTRIBUTION AGREEMENT]
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IN WITNESS WHEREOF, this Agreement is effective as of the day and
year herein above first written.
"GDF":
Gaz de France
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Directeur General Delegue
-------------------------
Address: ▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
Fax Number: ▇▇ ▇ ▇▇ ▇▇ ▇▇ ▇▇
[SIGNATURE PAGE TO DISTRIBUTION AGREEMENT]
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EXHIBIT 1.5
HYDROGEN GENERATING SYSTEMS MANUFACTURED BY PGS
UNDER-OXIDIZED BURNER (UOB-Trademark-) SKID
A UOB-Trademark- reactor with or without catalyst, CO Shift reactors,
heat exchanger, water injection device, water knockout vessel and ancillary
equipment, including skid, piping, valves, meters, pressure and electrical
controls. Fully automatic operation by proprietary PLC software. Modem
included for remote monitoring.
PRESSURE SWING ADSORPTION (PSA) UNIT
The PSA unit is provided by Questor Industries, Inc. under an
arrangement with PGS and purifies the UOB-Trademark- process gas stream. The
variable speed, multiport, rotary valves enable adjustment of the product
hydrogen purity, with higher purity produced at the expense of lower product
capacity.
AIR COMPRESSOR
A heavy duty, oil-flooded, rotary screw type, continuous service, V belt
driven, air cooled, skid mounted, air compressor, and discharge vessel (as
required). PGS designed and engineered for integration with the
UOB-Trademark- system.
NATURAL GAS COMPRESSOR
A heavy duty, industrial, continuous service, belt driven, air cooled,
skid mounted, natural gas compressor. Includes skid piping, valves, meters,
pressure and electrical controls and discharge vessel (as required). PGS
designed and engineered for integration with the UOB-Trademark- system.
Exhibit 1.5 to
Distribution Agreement
EXHIBIT 1.11
MINIMUM PURCHASE REQUIREMENTS
Subject to the conditions and terms of the Distribution Agreement, GDF's
continued appointment as the exclusive distributor of the Products in the
Territory is subject to meeting a minimum purchase requirement. The minimum
purchase requirement for year 2001 (rounded down to the next lower number) is
indicated below. At the end of the one-year period the parties to the
Distribution Agreement will mutually agree upon a new minimum purchase
requirement for the new term. However, the take or pay quota will remain at
50% of the minimum purchase requirement, and such minimum purchase
requirements shall be consistent with and based on the projected number of
sales reflected in the current PGS business plans. If, for any given 12 month
period, the actual sales in the U.S. are different from those projected in
the business plan, the minimum purchase requirement will be adjusted, up or
down, in a proportionate amount.
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MINIMUM PURCHASE REQUIREMENT
FOR YEAR 2001
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4200 SCFH SYSTEM 5
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600 SCFH SYSTEM 3
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Therefore, the take or pay quota for year 2001 is 2 for the 4200 SCFH units
and 1 for the 600 SCFH units, subject to adjustment reflecting the actual vs
projected sales in the US.
EQUIPMENT PRICING
Systems initially shall be sold to GDF at the following prices:
(U.S. dollars-Natural Gas Equipment, FOB Long Beach)
ITEM 600 SCFH 4,200 SCFH
UOB-Trademark- Skid & PSA $220,000 $410,000
Air Compressor Package $ 33,500 $ 47,500
Natural Gas Compressor Package $ 42,000 $ 35,000