MUTUAL RELEASE
Exhibit
10.2
This
Mutual Release is made as of November 19, 2009, by and between
__________________ ([“Investor”]) on the one hand, and ThermoEnergy
Corporation, a Delaware corporation (“TMEN”), on the other hand.
In
consideration of the promises, releases, and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. Except
for continuing obligations under the express terms of the Securities
Purchase Agreement by and between Investor and TMEN dated as of November 19,
2009 (the “Purchase Agreement”), TMEN, for itself and
its present and former officers, directors, shareholders, partners,
employees, agents, predecessors-in-interest, successors, assigns, attorneys and
representatives, forever and irrevocably release and discharge
Investor, his heirs, executors, predecessors-in-interest, successors,
assigns, attorneys and representatives, from any and all demands, claims, debts,
dues, suits, charges, accounts, contracts, bonds, liabilities, damages, bills,
actions or causes of action or causes of any nature or from whatever source
which they ever had, which they now have or which they hereafter can, shall or
may have against them or any of them for, upon or by reason of any matter,
cause, action or thing whatsoever from the beginning of the world to the date of
this Agreement, including, without limitation, claims for breach of contract or
based on tort, and any other statutory, regulatory or common law causes of
action; provided, however, that this release is not intended to, nor shall it,
release any and all rights or remedies that any party hereto may have which
arise under or are related to the Purchase Agreement.
2. Except
for continuing obligations under the express terms of (i) the
Purchase Agreement and (ii) those certain Common Stock Purchase Warrants issued
by TMEN to Investor and identified more specifically on Exhibit A attached
hereto (the “Warrants”), Investor, for himself and his heirs,
executors, predecessors-in-interest, successors, assigns, attorneys and
representatives, forever and irrevocably release and discharge TMEN
and its present and former officers, directors,
shareholders, partners, subsidiaries, employees, agents, trustees,
beneficiaries, predecessors-in-interest, successors, assigns, attorneys and
representatives from any and all demands, claims, debts, dues, suits, charges,
accounts, contracts, bonds, liabilities, damages, bills, actions or causes of
action or causes of any nature or from whatever source which they ever had,
which they now have or which they hereafter can, shall or may have against them
or any of them for, upon or by reason of any matter, cause, action or thing
whatsoever from the beginning of the world to the date of this Agreement,
including, without limitation, claims for breach of contract or based on tort,
and any other statutory, regulatory or common law causes of
action; provided, however, that this release is not intended to, nor
shall it, release any and all rights or remedies that any party hereto may have
which arise under or are related to the Purchase Agreement or the
Warrants.
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3. Each
of the releasing parties understands the meaning of the releases contained
in this Agreement, and freely and voluntarily enters into such
releases. Each of the releasing parties further agrees that no fact,
evidence, event or transaction occurring before the execution of this Agreement,
which is currently unknown, but which may hereafter become known, shall affect
in any manner the final and unconditional nature of the Agreement and releases
set forth above. Each party hereto represents and warrants that execution and
delivery of this release and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary corporate actions, or other
necessary actions in the case of non-corporate entities, and the execution and
delivery of this release constitutes a legal, valid and binding obligation of
such party.
4. The
invalidity, illegality or unenforceability of any provision hereof or any
particular application thereof shall not be deemed to affect or impair in any
manner the validity, legality or enforceability of any other provision of this
Agreement, and this Agreement shall continue in full force and effect and shall
be interpreted so as to implement as nearly as possible the intention of both
parties in the absence of such provision or application.
5. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without giving
effect to the principles of conflicts of law thereof. The parties
agree to bring any dispute arising out of this Agreement in the state or federal
courts sitting in, or having jurisdiction over, Wilmington, Delaware,
and irrevocably consent to the jurisdiction of those courts, and
further agree that such courts shall be the exclusive venue for the adjudication
of any such dispute.
6. In
the event of breach of any provision of this Agreement, which breach is not
addressed independently in any previous paragraph, the parties reserve all
rights available in law and equity to remedy such breach.
7. No provision of this Agreement shall be
deemed to have been waived unless such waiver is in writing signed by the
waiving party. Failure by either party to insist upon the strict
performance of any provision of this Agreement, or to exercise any right or
remedy consequent upon a breach thereof, shall not constitute a waiver of any
such breach of such provision or of any other provision. A waiver of
one provision of this Agreement shall not be deemed a waiver of any other
provision of this Agreement or a waiver of such provision with respect to any
subsequent breach, unless expressly provided in writing.
8. Each of the parties hereto agrees that,
without receiving further consideration, it will sign and deliver such documents
and do anything else that is reasonably necessary in the future to make the
provisions of this Agreement effective.
9. Each of the parties also agrees that the
preparation of this Agreement has been a joint effort of the parties and this
Agreement shall not, solely as a matter of judicial construction, be construed
more severely against one of the parties than the other. This
Agreement may be executed in counterpart originals with the
same force and effect as if fully and simultaneously executed as a
single, original document
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IN WITNESS WHEREOF, this
Agreement has been executed on behalf of the parties by their duly authorized
representatives.
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Witness:
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ThermoEnergy Corporation | |||
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By:
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Name:
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▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
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Chairman
and CEO
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Witness:
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Name:
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[Investor]
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