EXHIBIT 5
TRANSFER, RELEASE AND INDEMNITY AGREEMENT
This Transfer, Release and Indemnity Agreement ("Agreement") is entered
into by and among Energy Conversion Devices, Inc. (the "Transferee" or "ECD"),
ChevronTexaco Technology Ventures LLC, f/k/a Texaco Energy Systems LLC, f/k/a
Texaco Energy Systems Inc. (the "Transferor" or "CTTV"), and Texaco Ovonic
Hydrogen Systems LLC (the "Company"), as of December 2, 2004.
W I T N E S S E T H:
WHEREAS, ECD and CTTV each own 50% of the equity of the Company, and
are parties to the Limited Liability Company Agreement of Texaco Ovonic Hydrogen
Systems LLC, dated as of October 31, 2000 (the "LLC Agreement"; terms used
herein but not defined have the meaning set forth in the LLC Agreement); and
WHEREAS, since the formation of the Company, CTTV and its predecessors
in interest have satisfied in full all accrued obligations to ECD or the Company
to provide funding to the Company, with CTTV and its predecessors having
contributed to date property and cash valued at $62,398,000 to the capital of
the Company, including $36 million paid to ECD for certain ECD technology which
was then contributed to the Company pursuant to an Assignment Agreement dated
October 31, 2000, and also including a payment of $4,675,000 made concurrently
with the execution of this Agreement to facilitate the transactions contemplated
hereby by providing a means to help defray expected costs associated with the
restructuring of the Company (the "Restructuring Payment"); and
WHEREAS, ECD and CTTV have determined that it is in their mutual
interest to restructure the ownership of the Company, so that it will continue
as a limited liability company but under the sole ownership of ECD, and to
terminate the existing Limited Liability Agreement of the Company dated October
31, 2000; and
WHEREAS, CTTV desires to transfer its interest in the Company to ECD,
and be relieved of and indemnified against any continuing obligations to ECD,
its affiliates, or the Company with respect to the Company's funding, business
or operations, and to be relieved of any restrictions on the scope of future
investments, business or operations of CTTV or its affiliates (except as
expressly provided herein or in the Transaction Agreements referenced in Section
2 below); and
WHEREAS, ECD and the Company desire that ECD shall accept the transfer
of CTTV's interest in the Company, pursuant to the terms hereof, and relieve
CTTV of any continuing obligations to ECD, its affiliates, or the Company with
respect to the Company's funding, business or operations, including any
restrictions of the scope of future investments, business or operations of CTTV
or its affiliates (except as expressly provided herein or in the Transaction
Agreements referenced in Section 2 below); and
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WHEREAS, as a result of the transfer and other transactions to be
accomplished hereby and by the termination of the LLC Agreement, ECD will
continue as the sole member of the Company and CTTV shall be released and
indemnified from any obligation or liability associated with the Company or its
business.
NOW THEREFORE, in consideration of the premises and of the respective
representations, warranties, covenants, agreements and conditions contained
herein, ECD, the Company and CTTV hereby agree as follows:
1. Transfer of Interest; Payment of Restructuring Payment.
(a) CTTV hereby grants, sells, conveys, assigns and delivers to ECD,
and ECD accepts, all of CTTV's Interest in the Company. As a result thereof, and
of the other transactions to be accomplished hereby and by the termination of
the LLC Agreement, ECD shall be the sole member of the Company and CTTV shall be
relieved of all obligations and liabilities with respect to such Interest, the
Company and its business.
(b) Upon execution of this Agreement, CTTV shall deliver to ECD the
Restructuring Payment, in the form of a cashier's check or wire transfer in
immediately available funds.
2. Transaction Agreements. In connection with this Agreement and the
transactions contemplated herein, the following agreements are being executed
concurrently (collectively, the "Transaction Agreements"):
(a) A Termination Agreement of the Confidentiality Agreement
dated October 31, 2000, between the ECD, CTTV and the Company;
(b) A Termination Agreement of the Limited Liability Company
Agreement dated October 31, 2000, between ECD and CTTV;
(c) An Amendment and Restatement of the Technology License
Agreement dated October 31, 2000, by and among ECD, CTTV and
the Company;
(d) A Termination Agreement of the TESI Service Agreement
dated October 31, 2000, between CTTV and the Company;
(e) A Termination Agreement of the Trade Name License
Agreement dated October 31, 2000, between Texaco Inc. and the
Company;
(f) Resignations of CTTV's representatives to the Management
Committee;
(g) A Vehicle Termination Agreement pursuant to which CTTV and
ECD agree to destroy a vehicle developed pursuant to Section
4.4 of an agreement dated January 20, 2002 between ECD and
CTTV; and
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(h) A Vehicle Indemnification and Release Agreement pursuant
to which TOHS assumes all liabilities and obligations
associated with or arising from a different vehicle owned and
modified by it and TOHS and ECD grant a general release and
indemnification in favor of CTTV with respect thereto.
3. Representations of CTTV. CTTV represents to ECD and the Company as
follows:
(a) Organization. CTTV is a limited liability company duly
organized and validly existing under the laws of the State of Delaware.
CTTV has the full power and authority to execute, deliver and perform
its obligations under this Agreement and the Transactions Agreements to
which it is a party.
(b) Authority. The execution and delivery of this Agreement by
CTTV and the Transaction Agreements to which it is a party, and the
consummation of the transactions contemplated hereby and thereby, have
been duly authorized by all requisite action on the part of CTTV.
(c) Enforceability. This Agreement and the Transaction
Agreements to which CTTV is a party, constitute the legal, valid and
binding obligation of CTTV, enforceable against CTTV in accordance with
their respective terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and to the principles of equity (whether enforcement
is sought in a proceeding in equity or at law).
(d) No Conflicts. Neither the execution nor delivery of this
Agreement or the Transaction Agreements, nor the consummation of the
transactions contemplated hereby or thereby by CTTV will violate,
require a consent (other than the consent of ECD or the Company, which
ECD and the Company hereby grant), or cause a default under any
agreement to which CTTV is a party. Assuming the veracity of the
representations and warranties of ECD contained in this Agreement and
the Transaction Agreements, no consent, approval or filing with any
Governmental Body is required to authorize the execution and delivery
of this Agreement by CTTV or the Transaction Agreements to which it is
a party, or CTTV's performance of the terms of this Agreement or such
Transaction Agreements.
(e) Litigation. There is no action, suit, proceeding, claim or
investigation by any person, entity, administrative agency or
Governmental Body pending or, to the knowledge of CTTV, threatened,
against CTTV that impedes or is likely to impede CTTV's ability to
consummate the transactions contemplated by this Agreement or the
Transaction Agreements to which it is a party.
(f) Title. CTTV represents and warrants that, except as set
forth in the LLC Agreement, its Interest in the Company is free and
clear of all Liens.
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4. Representations of ECD. ECD represents and warrants to CTTV and the
Company as follows:
(a) Organization. ECD is a corporation duly organized and
validly existing under the laws of the State of Delaware. ECD has the
full power and authority to execute, deliver and perform its
obligations under this Agreement and the Transaction Agreements to
which it is a party.
(b) Authority. The execution and delivery of this Agreement by
ECD and the Transaction Agreements to which it is a party, and the
consummation of the transactions contemplated hereby and thereby, have
been duly authorized by all requisite action on the part of ECD.
(c) Enforceability. This Agreement and the Transaction
Agreements to which ECD is a party, constitute the legal, valid and
binding obligation of ECD, enforceable against ECD in accordance with
their respective terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and to the principles of equity (whether enforcement
is sought in a proceeding in equity or at law).
(d) No Conflicts. Neither the execution nor delivery of this
Agreement or the Transaction Agreements, nor the consummation of the
transactions contemplated hereby or thereby by ECD will violate,
require a consent, or cause a default under any agreement to which ECD
is a party. Assuming the veracity of the representations and warranties
of CTTV contained in this Agreement and the Transaction Agreements, no
consent, approval or filing with any Governmental Body is required to
authorize the execution and delivery of this Agreement by ECD or
Transaction Agreements to which it is a party, or ECD's performance of
the terms of this Agreement or such Transaction Agreements.
(e) Litigation. There is no action, suit, proceeding, claim or
investigation by any person, entity, administrative agency or
Governmental Body pending or, to the knowledge of ECD, threatened,
against ECD that impedes or is likely to impede ECD's ability to
consummate the transactions contemplated by this Agreement or the
Transaction Agreements to which it is a party.
(f) Investment Intent. ECD is a member of the Company and
desires to increase its investment interest in the Company. ECD is
acquiring CTTV's Interest for investment purposes only, and not with a
view to the resale or distribution thereof.
(g) Accredited Investor. ECD is an "Accredited Investor"
within the meaning of the Securities Act of 1933, and is a
sophisticated investor with full access to information about the
Company, capable of fending for itself, and has received no information
about the Company from CTTV and is in no way looking to or relying on
CTTV for any such information.
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5. Representations of the Company. The Company represents to CTTV and
ECD that it is duly organized and in good standing as a Delaware limited
liability company, has all necessary authority to enter into this Agreement and
the Transaction Agreements to which it is a party, and such agreements
constitute legal, valid and binding obligations of the Company enforceable in
accordance with their terms subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting creditors' rights
generally and to the principles of equity (whether enforcement is sought in a
proceeding in equity or at law).
6. Mutual Releases.
(a) ECD and Company Release. ECD and Company hereby unconditionally and
irrevocably compromise, settle and fully release and forever discharge CTTV, its
Affiliates (including without limitation ChevronTexaco Corporation and any
entity in which ChevronTexaco Corporation owns directly or indirectly ten
percent (10%) or more of the shares entitled to vote at a general election of
directors), and their respective shareholders, members, partners, directors,
managers, officers, employees, consultants and agents (collectively the "CTTV
Parties"), from any and all damages, losses, deficiencies, liabilities, taxes,
obligations, penalties, judgments, settlements, claims (including, without
limitation, patent infringement claims), demands, payments, fines, interests,
costs and expenses (including, without limitation, the costs and expenses of any
and all Proceedings and demands, assessments, judgments, settlements and
compromises relating thereto and the costs and expenses of attorneys',
accountants', consultants' and other professionals' fees and expenses incurred
in the investigation or defense thereof or the enforcement of rights hereunder),
including consequential damages and punitive damages (collectively, "Losses"),
which any of them now has, in the past had or in the future may have against the
CTTV Parties or any of them, whether known or unknown, asserted or unasserted,
that directly or indirectly in any way relate to, are based upon, or arise out
of CTTV's interest, relationship, participation or involvement with the Company
or its business, including without limitation, any further rights, liabilities,
obligations or claims under the LLC Agreement or the Associated Agreements
(including those intended to survive termination thereof and any contribution
obligations under the LLC Agreement); provided the foregoing shall not release
CTTV from any agreements or obligations, or any liability to ECD for failure to
perform the same, of CTTV expressly set forth in this Agreement or the
Transaction Agreements.
(b) CTTV Release. CTTV hereby unconditionally and irrevocably
compromises, settles and fully releases and forever discharges ECD, its
Affiliates, and their respective shareholders, members, partners, directors,
managers, officers, employees, consultants and agents (collectively the "ECD
Parties"), from any and all Losses, which it now has, in the past had or in the
future may have against the ECD Parties or any of them, whether known or
unknown, asserted or unasserted, that directly or indirectly in any way relate
to, are based upon, or arise out of ECD's interest, relationship, participation
or involvement with the Company or its business, including without limitation
any further rights, liabilities, obligations or claims under the LLC Agreement
or the Associated Agreements (including those intended to survive termination
thereof and any contribution obligations under the LLC Agreement); provided the
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foregoing shall not release ECD or the Company from any agreements or
obligations, or any liability to CTTV for failure to perform the same, of ECD or
the Company expressly set forth in this Agreement or the Transaction Agreements
(including without limitation Section 7 of this Agreement).
(c) The foregoing releases are expressly intended to apply
notwithstanding any act or omission by CTTV Parties or the ECD Parties,
including any negligent acts or omissions by the same.
7. Transferee and Company Indemnification. As an essential
consideration for CTTV's agreement to consummate the transactions contemplated
hereby and in the Transaction Agreements, and notwithstanding anything contained
in Section 6(b) to the contrary, ECD and the Company hereby agree to jointly and
severally defend, protect, indemnify and hold harmless each CTTV Party, from and
against any and all Losses arising from any and all Proceedings in which a CTTV
Party may be involved, or threatened to be involved, as a party or otherwise,
arising out of, resulting from, or relating or incidental to (a) the Company or
its business, or such CTTV Party's interest, relationship, participation or
involvement therein, including without limitation any acts or omissions of such
CTTV Party as a member or manager of the Company and any obligations or
liabilities under the LLC Agreement and the Associated Agreements and (b) any
misrepresentation, omission, nonfulfillment or breach by ECD or the Company of
any covenant, representation or warranty set forth in this Agreement or any
Transaction Agreement. The indemnification granted above (i) shall not be deemed
exclusive of, and shall not limit, any other rights or remedies to which any
CTTV Party may be entitled or which may otherwise be available to any CTTV Party
at law or in equity, (ii) shall inure to the benefit of the heirs, successors,
assigns and administrators of the CTTV Parties and (iii) shall remain and be in
full force and effect even if any such Loss directly or indirectly results from,
arises out of, or relates to or is asserted to have resulted from, arisen out
of, or related to, in whole or in part, one or more negligent acts or omissions
(or other concepts of liability or fault) of the CTTV Parties. Any indemnified
party shall provide reasonable cooperation in connection with the defense by ECD
and the Company of any indemnified Loss.
8. Miscellaneous.
(a) Further Assurances. Each party hereto at the reasonable
request of the other, shall execute and deliver, or shall cause to be
executed and delivered from time to time, such further certificates,
agreements or instruments of conveyance and transfer, assumption,
release and acquittance and shall take such other action as the other
party hereto may reasonably request to consummate or implement the
transactions contemplated by this Agreement.
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(b) Notices. Any notice, communication, request, instruction
or other document required or permitted hereunder shall be given in
writing and shall be deemed given as follows: (i) by personal delivery
when delivered personally, (ii) by overnight courier upon written
verification of receipt, (iii) by telecopy or facsimile transmission
when confirmed by telecopier or facsimile transmission, or (iv) by
certified or registered mail, return receipt requested, five (5) days
after deposit in the mail. All notices shall be delivered to the
address of Transferee, Transferor or the Company as set forth below:
SELLER: ChevronTexaco Technology Ventures LLC
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
BUYER: Energy Conversion Devices Inc.
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Fax: (▇▇▇) ▇▇▇-▇▇▇▇
COMPANY: Texaco Ovonic Hydrogen Systems LLC
c/o Energy Conversion Devices Inc.
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Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Any party may, by written notice so delivered, change its address for
notice purposes hereunder.
(c) Choice of Law. This Agreement shall be construed in
accordance with, and governed by, the laws of the State of Texas,
without giving effect to principles of conflicts of law.
(d) Dispute Resolution.
(i) The parties shall attempt within thirty (30) days after the
date (the "Issue Date") an issue is presented to it in good
faith to resolve any dispute, controversy or claim related to
this Agreement, including any dispute over the breach,
interpretation, or validity, but not the termination, of this
Agreement.
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(ii) If the parties cannot so resolve any such dispute referred in
clause (i) above within such thirty (30) day period, the
parties agree to attempt in good faith to settle any such
dispute over the breach, interpretation or validity of this
Agreement, as well as a dispute over the termination of this
Agreement (all of which such possible disputes are hereinafter
collectively referred to as the "Dispute"), by submitting the
Dispute to mediation in Houston, Texas, under the Commercial
Mediation Rules of the American Arbitration Association
("AAA"), within sixty (60) days after the Issue Date and may
use any mediator in Houston, Texas upon which they mutually
agree. If the parties have been unable to mutually agree upon
a mediator within seventy five (75) days after the Issue Date,
the case shall be referred to arbitration in accordance with
the following paragraph. The cost of the mediator will be
split equally between ECD and the Company, on the one hand,
and CTTV, on the other hand, unless they agree otherwise.
(iii) IF THE PARTIES ARE UNSUCCESSFUL IN THEIR GOOD FAITH ATTEMPT TO
MEDIATE THE DISPUTE OR SELECT A MUTUALLY AGREED UPON MEDIATOR,
THE DISPUTE SHALL BE SUBMITTED TO, AND SETTLED BY, BINDING
ARBITRATION IN HOUSTON, TEXAS. THE PARTIES SHALL, WITHIN
TWENTY (20) DAYS AFTER THE FORMAL CONCLUSION OF THE MEDIATION
(OR 75 DAYS AFTER FAILURE TO SELECT A MUTUALLY AGREED UPON
MEDIATOR) BUT NOT LATER THAN ONE HUNDRED TWENTY (120) DAYS
AFTER THE ISSUE DATE, SELECT A MUTUALLY AGREED UPON SINGLE
ARBITRATOR AND MAY UTILIZE ANY FORMAT AND RULES FOR THE
BINDING ARBITRATION UPON WHICH THEY MAY MUTUALLY AGREE. IF THE
PARTIES ARE UNABLE TO SO AGREE, THE DISPUTE SHALL BE SUBMITTED
TO A SINGLE ARBITRATOR IN HOUSTON, TEXAS, UNDER THE COMMERCIAL
ARBITRATION RULES OF THE AAA, WHICH PROCEEDINGS SHALL BE
CONDUCTED IN ENGLISH. SHOULD THE PARTIES BE UNABLE TO AGREE ON
A CHOICE OF ARBITRATOR WITHIN THIRTY (30) DAYS FROM THE DATE
OF THE AFORESAID SUBMISSION TO ARBITRATION, THE AAA SHALL
FURNISH TO EACH PARTY A LIST OF THREE NAMES AND THE SELLER AND
THE BUYER SHALL EACH STRIKE ONE NAME, THEREBY NOMINATING THE
REMAINING PERSON AS THE ARBITRATOR. IF MORE THAN ONE NAME
REMAINS, THE AAA WILL CHOOSE AN ARBITRATOR FROM THE LIST OF
REMAINING NAMES. IN NO EVENT IS THE ARBITRATOR AUTHORIZED OR
EMPOWERED TO AWARD PUNITIVE OR CONSEQUENTIAL DAMAGES OR
DAMAGES IN EXCESS OF ACTUAL DIRECT DAMAGES. THE ARBITRATION
AWARD SHALL BE IN ENGLISH AND IN WRITING AND SHALL SPECIFY THE
FACTUAL AND LEGAL BASIS FOR THE AWARD. JUDGMENT UPON ANY AWARD
RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT WITH
JURISDICTION. THE PREVAILING PARTY SHALL BE ENTITLED TO
REASONABLE ATTORNEYS' FEES IN ANY COURT PROCEEDING
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RELATING TO THE ENFORCEMENT OR COLLECTION OF ANY AWARD OR
JUDGMENT RENDERED BY THE ARBITRATOR UNDER THIS AGREEMENT.
(iv) Notwithstanding any of the foregoing, any party may request
injunctive relief and/or equitable relief from the arbitrators
or the court in order to protect the rights or property of
such party pending the resolution of the dispute as provided
hereunder.
(e) Entire Agreement; Amendment. This Agreement constitutes
the entire understanding between the parties with respect to the
subject matter hereof, superseding all negotiations, prior discussions,
representations and prior agreements and understandings relating to
such subject matter. No amendment of this Agreement shall be binding
unless mutually agreed to in writing.
(f) Successors and Assigns; Assignments; No Third Party
Beneficiaries. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto, and, except as otherwise prohibited,
their respective successors and permitted assigns. Neither this
Agreement nor any of the rights, interests or obligations hereunder may
be assigned by any party without the prior written consent of the other
parties. Nothing in this Agreement shall or is intended to confer upon
any other person or entity any benefits, rights or remedies except for
the benefits, rights and remedies of the CTTV Parties and the ECD
Parties in Sections 6 and 7. Nothing in this Agreement shall constitute
recognition by any party of any claims of any third party.
(g) Severability. If any provision herein is contrary to any
lawful statute, rule, regulation, proclamation or other lawful mandate
whatsoever, whether or not listed, this Agreement shall be construed as
modified to the extent necessary to conform with such legal strictures.
The provisions of this Agreement are severable to the extent the
partial invalidity of one or more provisions will not affect the
validity of the Agreement as a whole so long as the economic or legal
substance of the transactions contemplated hereby is not affected in
any materially adverse manner as to any party hereto.
(h) Waiver. Any party may (i) extend the time for the
performance of any of the obligations or other acts of any other party
hereto or (ii) waive compliance with any of the agreements of any other
party or with any conditions to its own obligations. Any agreement on
the part of a party hereto to any such extension or waiver shall be
valid if set forth in an instrument in writing signed on behalf of such
party. Except as otherwise expressly provided herein, no failure to
exercise, delay in exercising, or single or partial exercise of any
right, power or remedy by any party, and no course of dealing between
the parties, shall constitute a waiver of any such right, power or
remedy. No waiver by a party of any default, misrepresentation or
breach of warranty or covenant hereunder, whether intentional or not,
shall be deemed to extend to any prior or subsequent default,
misrepresentation or breach of warranty or covenant hereunder or affect
in any way any rights arising by virtue of any prior or subsequent such
occurrence.
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(i) Expenses. All costs and expenses, including without
limitation, fees and disbursements of counsel, incurred in connection
with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such costs and expenses.
(j) Counterparts. This Agreement may be executed in several
counterparts, and by different parties in separate counterparts, which
when taken together shall be deemed to constitute one and the same
instrument.
(k) Facsimile Signatures. This Agreement shall become
effective upon execution and delivery hereof by the parties hereto;
delivery of this Agreement may be made by facsimile to the parties with
original copies promptly to follow by overnight courier.
(l) Headings. The headings of the Sections, Schedules and
Exhibits of this Agreement are for guidance and convenience of
reference only and have no significance in the interpretation of this
Agreement or any Schedule or Exhibit hereto.
(m) Books and Records. For a period of five years after the
Effective Date or such longer period as may be prescribed by law, ECD
and the Company will preserve and retain the books and records of the
Company and make such books and records available at the then current
administrative headquarters of the Company to CTTV and its officers,
employees, agents and representatives, upon reasonable notice and at
reasonable times, it being understood that CTTV shall be entitled to
make copies of any such books and records as shall be reasonably
necessary.
[SIGNATURE PAGE FOLLOWS]
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EXECUTED on behalf of Transferor, Transferee and the Company as of the
date first above written.
TRANSFEROR:
CHEVRONTEXACO TECHNOLOGY VENTURES LLC
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President
TRANSFEREE:
ENERGY CONVERSION DEVICES, INC.
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Chairman
COMPANY:
TEXACO OVONIC HYDROGEN SYSTEMS LLC
By: ENERGY CONVERSION DEVICES, INC.,
a member and the sole member after the
transactions contemplated hereby
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Chairman
By: CHEVRONTEXACO TECHNOLOGY VENTURES LLC,
a member
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President
[SIGNATURE PAGE TO TRANSFER, RELEASE AND INDEMNITY AGREEMENT]