exhibit10_6.htm



EXHIBIT 10.6







***  Indicates material has been omitted pursuant to a Confidential Treatment Request filed with the Securities and Exchange Commission.  A complete copy of this agreement has been filed separately with the Securities and Exchange Commission.







 







 


AMENDMENT NO. #05


 


ЕFFECTIVE JULY 27, 2010


 


TO


 


PROFESSIONAL SERVICES AGREEMENT


 


FOR


 


TXU ENERGY’s


 


2009 iTHЕRМОSТАТ PROGRAM


 


AN INTERNET BASED LOAD MANAGEMENT SYSTEM


 


WITH ZIGBEE HOME AREA NETWORK


 


BY AND BETWEEN


 


COMVERGE INC.


 


AND


 


TXU ENERGY RETAIL COMPANY, LLC


 


DATED APRIL 15, 2009


 


CONTRACT NO. C 0600559 C


 







 







 







 


Redacted Version


 


 




  





  











  






 







 








	
The Effective Date of the Amendment is July 27, 2010

	
EFFECTIVE DATE


	
This Amendment modifies, alters, changes, or adds specific terms and conditions of the Professional Services Agreement identified as Contract No. С 0600559 С (the “Agreement”) that exists between the parties hereto.  Except as modified in this Amendment or previous amendments, the Agreement will remain in full force and effect.

	
PURPOSE


	
The Agreement is modified and supplemented as follows:

	
MODIFICATIONS/ ADDITIONS


	
The provisions of the Article titled “TERM OF THE AGREEMENT” is modified by replacing the date “December 31, 2009” with “December 31, 2012” with the remainder of the provision remaining in effect.


After the provision of the Article titled “INTELLECTUAL PROPERTY” and before the Article titled “COMPLIANCE WITH LA WS” the following Article is added:

	
TERM OF THE AGREEMENT


	
SOFTWARE LICENSING AND ESCROW


Within thirty (30) calendar days of executing this Amendment 5, the Parties shall execute a software escrow agreement (“Escrow Agreement”) substantially in the form attached, where Contractor agrees to escrow the Apollo software with a third party during the entire Term of the Agreement.  Contractor shall release the escrowed copy of the Apollo software to Company ***, ***, *** where such failure is not cured within 48 hours written notice from Company.  If the escrowed Apollo software is released to Company, Соmpany may contract directly with *** for any required *** software.


Contractor has executed an escrow agreement with ***, which provides for the release to Contractor of the required *** software upon the adjudication of insolvency of ***.  If the escrowed *** software has been released to Contractor, Contractor shall release the *** software to Company in the event of a release of the escrowed Apollo software to Company.


Upon termination of the Agreement, *** (i.e., Company’s iThermostat program for ***) and future variants thereof.  ***, *** by Company.


•            Item З of the “PRICING/BUDGET” paragraph of Section 3 entitled “PROFESSIONAL SERVICES” is hereby deleted in its entirety and replaced with the following:


“***.”


•            Item 4 of the “PRICING/BUDGET” paragraph of Section 3 entitled “PROFESSIONAL SERVICES” is hereby deleted in its entirety and replaced with the following:


“***.”

	
SOFTWARE LICENSING AND ESCROW AGREEMENT












The parties have signed this Amendment acknowledging their agreement to its provisions as of the Effective Date.


 


CONTRACTOR                                                                           COMPANY


 


Comverge, Inc.                                                                             TXU Energy Retail Company LLC


 


 


By:           /s/ Ed Myszka                                                              By:           /s/ Michael Grasso                                           


 


Name:   Ed Myszka                                                                   Name:     Michael Grasso                                                                


 


Title:         COO                                                                              Title:       CMO                                                      


 


Date:         7/27/10                                                                          Date:       7/27/10 


 


 


 




  





  











  






 







 


Attachment 10


 


ESCROW AGREEMENT


 


The form attached hereto is similar to the escrow agreement that will be executed within thirty days of execution of this Amendment. The terms of the escrow agreement shall be consistent with the terms of the Agreement and this Amendment.