Exhibit
10.2


 


AGI
GUARANTY


 


This
Guaranty (this “Guaranty”) is made as of May 31, 2018, by Advanced Green Innovations, LLC, a Nevada limited
liability company (the “Guarantor”) and American Power Group Corporation, a Delaware corporation (the “Company”).
Capitalized terms used herein and not defined shall have the meanings assigned such terms in the Purchase Agreement (as defined
below).


 


R
E C I T A L S


 


WHEREAS,
pursuant to the terms of that certain Common Stock Purchase Agreement, dated as of the date hereof (the “Purchase Agreement”),
by and between Company and Dual Fuel, LLC, an Arizona limited liability company (the “Purchaser”), Company
shall, subject to the terms and conditions set forth therein, sell shares of Common Stock to Purchaser;


 


WHEREAS,
Purchaser will be receiving a substantial benefit from the consummation of the transactions contemplated by the Purchase Agreement;


 


WHEREAS,
Guarantor will derive a substantial benefit, through access to and distribution of Company’s technology, from the consummation
of the transactions contemplated by the Purchase Agreement;


 


WHEREAS,
the Purchase Agreement contains certain obligations of Purchaser to purchase additional shares of Common Stock of Company pursuant
to Section 2.3 thereof; and


 


WHEREAS,
this Guaranty and the agreements set forth herein are a material inducement to Company to enter into the Purchase Agreement.


 


A
G R E E M E N T S


 


NOW,
Therefore, for good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as
follows:


 


		1.	To
                                         induce Company to enter into the Purchase Agreement, Guarantor hereby absolutely, unconditionally
                                         and irrevocably guarantees to Company the due and punctual payment of the Purchase Price
                                         Per Share for the additional shares to be purchased by Purchaser pursuant to Section
                                         2.3 of the Purchase Agreement (collectively, the “Obligations”).



 


		2.	This
                                         Guaranty is an absolute, irrevocable and unconditional guaranty and is enforceable against
                                         Guarantor at such time as the Purchaser fails to meet its Obligations, without the necessity
                                         for any suit or proceeding whatsoever against Purchaser, and without the necessity of
                                         any protest or notice of non-payment or of any notice of acceptance of this Guaranty
                                         or of any other notice or demand to which Guarantor might otherwise be entitled, all
                                         of which Guarantor hereby expressly waives to the extent permitted by applicable law.
                                         All payments that are due to Company hereunder from Guarantor shall be made by wire transfer
                                         of immediately available funds to the account(s) specified by Company. 



 






    	 



    	 



    

 


		3.	Guarantor
                                         agrees (a) that this Guaranty is a continuing guaranty of payment of the Purchase Price
                                         Per Share and (b) that the validity of this Guaranty and the obligations of Guarantor
                                         hereunder shall not be terminated, affected, diminished or impaired by reason of (i)
                                         the assertion or the failure of Company to assert against Purchaser any of the rights
                                         or remedies reserved to Company pursuant to the provisions of the Purchase Agreement
                                         or this Guaranty, (ii) any assignment, modification or amendment of the Purchase Agreement
                                         made in accordance with the terms thereof, including any extension of time thereunder,
                                         or (iii) any dealings or transactions whatsoever occurring between Company and Purchaser,
                                         whether or not notice thereof is given to Guarantor. The parties hereto acknowledge and
                                         agree that the rights and remedies provided herein are the exclusive rights and remedies
                                         that Company may otherwise have at law or in equity against Guarantor with respect to
                                         the Purchase Agreement, but shall not prejudice Company’s right to assert any other
                                         claim against Purchaser under the Purchase Agreement. 



 


		4.	Guarantor
                                         unconditionally and irrevocably agrees to not exercise any rights that it may now have
                                         or hereafter acquire with respect to the Obligations, including any right of subrogation,
                                         reimbursement, exoneration, contribution or indemnification and any right to participate
                                         in any claim or remedy of Company against Purchaser with respect to any of the Obligations,
                                         whether or not such claim, remedy or right arises in equity or under contract, statute,
                                         or common law, including the right to take or receive from Company, directly or indirectly,
                                         in cash or other property or by set-off or in any other manner, payment or security on
                                         account of such claim, remedy or right, unless and until all of the Obligations shall
                                         have been indefeasibly paid in full.



 


		5.	Guarantor
                                         hereby represents and warrants to Company that: (a) Guarantor has the power and authority
                                         to enter into this Guaranty and to perform the obligations contemplated hereby; (b) this
                                         Guaranty has been duly executed and delivered by Guarantor and constitutes a valid and
                                         binding obligation of Guarantor, enforceable against Guarantor in accordance with its
                                         terms, except as may be limited by applicable bankruptcy, insolvency, reorganization,
                                         moratorium or similar laws affecting creditors’ rights generally and subject to
                                         general principles of equity; (c) neither the execution, delivery and performance of
                                         this Guaranty by Guarantor nor the performance by Guarantor of the obligations contemplated
                                         hereby will (i) result in a violation or breach of or constitute a default under any
                                         of the terms, conditions or provisions of any contract or other agreement to which Guarantor
                                         is a party, or (ii) violate any order, writ, injunction or decree to which Guarantor
                                         is subject; and (d) Guarantor has the financial capacity to pay and perform its obligations
                                         under this Guaranty. The representations and warranties of Guarantor hereunder will indefinitely
                                         survive the entry into this Guaranty and the consummation of the Initial Closing.



 


		6.	This
                                         Guaranty may be amended, modified, or waived only with the written consent of the parties
                                         hereto.



 


		7.	All
                                         notices, requests, claims, demands and other communications hereunder shall be given
                                         in accordance with the terms of the Purchase Agreement.



 


		8.	This
                                         Guaranty and all of the provisions hereof shall be binding upon and inure to the benefit
                                         of the parties hereto, Company and its respective successors and permitted assigns. This
                                         Guaranty and the rights, interests and obligations hereunder may not be assigned by either
                                         party without the prior written consent of the other party.



 


		9.	This
                                         Guaranty may be executed in one or more counterparts, each of which shall be deemed to
                                         be an original but all of which shall constitute one and the same agreement. It is the
                                         express intent of the parties hereto to be bound by the exchange of signatures on this
                                         Guaranty via facsimile or electronic mail via portable document format (PDF). A facsimile
                                         or other copy of a signature shall be deemed an original.



 






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		10.	This
                                         Guaranty shall be governed by and construed in accordance with the laws of the State
                                         of Delaware without regard to the principles of conflicts of law thereof.



 


		11.	EACH
                                         OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE EXCLUSIVE
                                         JURISDICTION OF THE APPLICABLE STATE OR FEDERAL COURTS SITTING IN THE CITY OF BOSTON,
                                         MASSACHUSETTS FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS
                                         AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, AND EACH OF THE PARTIES HERETO AGREES
                                         NOT TO COMMENCE ANY LEGAL PROCEEDING RELATED THERETO EXCEPT IN SUCH COURTS. EACH OF THE
                                         PARTIES HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION
                                         WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH COURT OR THAT
                                         SUCH ACTION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.



 


		12.	THE
                                         PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE, TO THE FULLEST
                                         EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING
                                         BROUGHT ON OR WITH RESPECT TO THIS GUARANTY, INCLUDING TO ENFORCE OR DEFEND ANY RIGHTS
                                         HEREUNDER, AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT
                                         AND NOT BEFORE A JURY.



 


		13.	Any
                                         and all remedies expressly conferred upon a party to this Guaranty shall be cumulative
                                         with, and not exclusive of, any other remedy contained in this Guaranty, at law or in
                                         equity. The exercise (or partial exercise) by a party to this Guaranty of any one remedy
                                         shall not preclude the exercise by it of any other remedy contained in this Guaranty.
                                         



 


		14.	This
                                         Guaranty, the Purchase Agreement and the other agreements contemplated herein and therein
                                         set forth the entire understanding of the parties hereto relating to the subject matter
                                         hereof and supersede all prior agreements and understandings between any of such parties
                                         relating to the subject matter hereof.



		15.	With
                                         regard to each and every term and condition of this Guaranty, the parties hereto understand
                                         and agree that the same has been mutually negotiated, prepared and drafted, and if at
                                         any time they desire or are required to interpret or construe any such term or condition
                                         or any agreement or instrument subject hereto, no consideration shall be given to the
                                         issue of which of them actually prepared, drafted, authored or requested any term or
                                         condition of this Guaranty.



 


		16.	If
                                         any provision of this Guaranty or any part of any such provision is held under any circumstances
                                         to be invalid or unenforceable in any jurisdiction, then (a) such provision or part
                                         thereof shall, with respect to such circumstances and in such jurisdiction, be deemed
                                         amended to conform to applicable laws so as to be valid and enforceable to the fullest
                                         possible extent, (b) the invalidity or unenforceability of such provision or part
                                         thereof under such circumstances and in such jurisdiction shall not affect the validity
                                         or enforceability of such provision or part thereof under any other circumstances or
                                         in any other jurisdiction, and (c) the invalidity or unenforceability of such provision
                                         or part thereof shall not affect the validity or enforceability of the remainder of such
                                         provision or the validity or enforceability of any other provision of this Guaranty,
                                         and is separable from every other part of such provision.



 





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IN
WITNESS WHEREOF, the parties hereto have executed this AGI Guaranty on the date first above written.


 


	 	GUARANTOR:






























	 	 	 
	 	ADVANCED
    GREEN INNOVATIONS, LLC
	 	 	 
	 	By:	Cochise Investments, LLC
	 	Its:	Manager
	 	 	 
	 	By:
    	/s/
    Kenneth Losch
	 	Name:	Kenneth Losch
	 	Its:	Manager
	 	 	 
	 	Accepted
    and Agreed:
	 	 	 
	 	COMPANY:
	 	 	 
	 	AMERICAN
    POWER GROUP CORPORATION
	 	 
	 	By:
    	/s/ Charles E. Coppa
	 	Name:	Charles E. Coppa
	 	Title:	CEO and CFO