Exhibit 10.3
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.
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(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
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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;
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(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
(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
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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.
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(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.
4. Representations of ECD. ECD represents and warrants to CTTV and the
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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.
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(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.
5. Representations of the Company. The Company represents to CTTV and ECD
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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.
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(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
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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 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
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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.
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(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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Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
COMPANY: Texaco Ovonic Hydrogen Systems LLC
c/o Energy Conversion Devices Inc.
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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
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REASONABLE ATTORNEYS' FEES IN ANY COURT PROCEEDING 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,
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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.
(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:
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CHEVRONTEXACO TECHNOLOGY VENTURES LLC
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
TRANSFEREE:
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ENERGY CONVERSION DEVICES, INC.
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Chairman
COMPANY:
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TEXACO OVONIC HYDROGEN SYSTEMS LLC
By: ENERGY CONVERSION DEVICES, INC.,
a member and the sole member after the
transactions contemplated hereby
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chairman
By: CHEVRONTEXACO TECHNOLOGY VENTURES LLC,
a member
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
[SIGNATURE PAGE TO TRANSFER, RELEASE AND INDEMNITY AGREEMENT]